Karnataka High Court
Saddam Hussen Mahibbob Mulla vs State Of Karnataka on 24 April, 2019
Equivalent citations: AIRONLINE 2019 KAR 427
Author: A.S Bellunke
Bench: A.S Bellunke
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF APRIL 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
CRL.A NO 100039 OF 2019
BETWEEN
1. SADDAM HUSSEN MAHIBBOB MULLA,
AGE: 23 YEARS, OCC: MASON WORK,
R/O: RAIBAG, PUNGITOTA, TQ: RAIBAG,
DIST: BELAGAVI.
2. YUSUF NOORUDDIN MULLA,
AGE: 25 YEARS, OCC: MASON WORK,
R/O: RAIBAG, PUNGITOTA, TQ: RAIBAG,
DIST: BELAGAVI.
3. ADAM GULABSAB HIPPARAGI @ MULLA,
AGE: 23 YEARS, OCC: MASON WORK,
R/O: RAIBAG, PUNGITOTA, TQ: RAIBAG,
DIST: BELAGAVI.
..... APPELLANTS
(BY SRI A G MULAWADMATH, ADV.)
AND
STATE OF KARNATAKA
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
DHARWAD.
REPRESENTED RAIBAG POLICE STATION.
..... RESPONDENT
(BY SRI R. RAVINDRA NAIK, HCGP)
2
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING THAT THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE PASSED BY THE III-ADDL.
DIST. & SESSIONS JUDGE & SPECIAL COURT UNDER
POCSO ACT, 2012 AT BELAGAVI PASSED IN
S.C.NO.202/2016 DATED 10.01.2019 AND SENTENCE
DATED 11.01.2019 AND THEREBY CONVICTING THE
APPELLANTS FOR THE OFFENCES U/S 341, 376, 506 OF
IPC AND U/S 109 R/W 34 OF IPC AND SEC. 17, 4, 5(n), 6
& 18 OF THE POCSO ACT, BE SET ASIDE.
RESERVED FOR JUDGMENT ON : 03.04.2019
JUDGMENT PRONOUNCED ON : 24.04.2019
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING :
JUDGMENT
This is an appeal preferred by the accused Nos.1 to 3 against the judgment and order of conviction and sentence dated 10.01.2019 passed by the learned III Addl. District and Sessions Judge & Special Court under POCSO Act, 2012 at Belagavi, in S.C.No.202/2016.
By the impugned judgment, the accused have been convicted for the offence punishable under Section 341 of IPC and sentenced to undergo 3 simple imprisonment for one month and to pay fine of Rs.5,000/- each;
Accused are convicted for the offence punishable under Section 506 of IPC and sentenced to undergo simple imprisonment for one year and to pay fine of Rs.5,000/- each;
Accused are further convicted for the offence punishable under Section109 of IPC and Section 17 of POCSO Act, 2012 and sentenced to undergo simple imprisonment for ten years and to pay fine of Rs.10,000/- each;
Accused are further convicted for the offence punishable under Section 4 of the POCSO Act and sentenced to undergo simple imprisonment fro seven years and to pay fine of Rs.5,000/- each;
Accused are further convicted for the offence punishable under Section 5(n) & 6 of POCSO Act, 2012 and sentenced to undergo simple imprisonment for ten years and to pay fine of Rs.10,000/- each; and 4 Accused are further convicted for the offence punishable under Section 18 of the POCSO Act, 2012 and sentenced to undergo simple imprisonment for seven years and to pay fine of Rs.5,000/-.
2. Briefly stated the facts of the case are as under:
The complainant's daughter aged about 11 years was staying in the house of the elder sister of the complainant and she was pursuing her studies at Kudachi in 5th standard. The complainant's sister's daughter had delivered a baby. Therefore, in order to help her aunt, the victim girl was staying in her house. According to the complainant, on 14.03.2016, the victim girl/CW-8 was reported to be suffering from stomach pain. Therefore, the accused No.1 took her in a Martui car bearing registration No.MH- 12AF/8875 to the hospital at Raibag. After taking 5 treatment, the victim and accused No.1 were returning home in the said car. When they reached near taluk sports ground situated on Raibag- Kanchakar wadi road, on the eastern side, within the limits of Raibag Police station, the accused No.1 stopped the car on a false pretext, that the car is locked. Then, the accused No.1 called accused Nos.2 and 3 over a phone. It is alleged that the accused No.1 with the help of accused Nos.2 and 3 raped the victim girl CW-8. They committed the act under a common intention knowing fully well that the victim girl is a minor, They wrongfully restrained her by holding her hands and legs by accused Nos.2 and 3, then accused No.1 committed the offence. Accused No.1 also threatened to the life of the victim if she discloses this fact to anybody. Ten days after the incident the girl narrated the incident to wife of accused No.1. She in turn told the same to her mother. She called the victim's father and told 6 him the fact. Thereafter, a complaint came to be filed by PW-1 as per Ex.P-5.
After registering the complaint, jurisdictional police took up the investigation. The statement of the victim was also recorded under Section 164 of Cr.P.C. before the learned Magistrate. Accused and victim were subjected for medical examination. The school certificate of the victim was obtained from her school to prove that she was minor. The car used for carrying the victim was also seized under a mahazar. The seized articles were also sent for FSL examination. The statements of material witnesses were recorded. After the completion of investigation, the Investigating Officer filed charge sheet against the accused persons.
Learned Spl. Judge took the cognizance of the offence punishable under Sections 341, 376, 506, 109 read with Section 34 of IPC and Sections 4, 6, 5(n), 17 and 18 of POCSO Act. At this stage, 7 it is important to state that in fact, this case should have been registered as special case as the offences alleged are under the POCSO Act, 2012, which is a special enactment. The learned Judge secured the presence of the accused who were in judicial custody. After hearing both the sides, charges came to be framed. After holding trial and on hearing both the sides, learned Judge held that the accused are guilty of the offences punishable under Sections 341, 376, 506, 109 read with Section 34 of IPC and Sections 4, 6, 5(n), 17 and 18 of POCSO Act. Consequently, learned Judge convicted the accused Nos.1 to 3 as stated above.
3. Being aggrieved by the said judgment, the accused have preferred this appeal on following grounds:
8
It is contended that the trial Court has not properly appreciated the oral and documentary evidence available on record.
The medical report at Ex.P-12 specifically discloses that there were no external injuries on the body of the victim and also on her genitals. The doctor PW-11 had issued medical certificate at Exs.P-12 and 13. The doctor has categorically opined that no sexual assault has taken place on the victim girl. Therefore, the conviction of the accused persons for the offence punishable under Section 376 of IPC and under Sections 4, 6 and 18 of POCSO Act is not just and proper.
The victim has also admitted that she was studying in 5 t h standard in the month of March, 2016 and she had attended the school at Kudachi and she had written the examination for 5th standard. Therefore, the question of victim coming to the house of PW-7 and accused No.1 during the 9 examination time that too a month prior to the alleged incident cannot be believed.
PW-7 is the wife of accused has admitted that there is no cordial relationship between them. Therefore, in order to get rid of from accused No.1 and to stay with the complainant, she had hatched a plan and implicated the accused No.1 and to make the offence more aggravated, she has falsely implicated the accused No.2 and 3.
The Investigating Officer has not conducted fair investigation and has not collected the evidence of as to whether the victim girl was staying in the house of PW-7 and accused No1. He has not collected any documents with regard to having taken the girl for treatment to doctor. Having regard to the age of the girl, accused No.1 alone could have committed rape on her. Therefore, there was no reason for him to ask for help to accused Nos.2 and 3. Therefore, the fact that the accused No.1 has summoned the accused 10 No.2 and 3 to commit rape on the victim girl is totally false and concocted theory.
PW-12 is stated to be the owner of the car which is alleged to have been used to commit offence. He has admitted that he is a cook and earning hardly Rs.2,000/- to Rs.4,000/- per month. He did not know that accused No.1. He admitted that police forced him to say that he has given car to accused No.1. The car belonging to the ownership of one Nayana Pol who has not been examined. The prosecution has planted the car to implicate the accused persons to show that the crime was committed using the car.
Even as per the medical evidence, hymen of the girl was found to be intact. There were no injuries. No seminal stains were found. Therefore, totally there was no penetration at all. The trial Court on presumption and assumption, on certain aspects and considering the fact that the incident had taken place ten days prior to the examination 11 of doctor, held that prosecution has proved the guilt of the accused beyond any reasonable doubt.
The trial Court based on surmises and conjurers and baseless presumptions has given reasoning that no person will go to the extent of risking their reputation and will come forward to make a false case of rape. Therefore, believing the evidence on the said assumption is erroneous in law.
Accused No.1 has not at all taken the victim in any car to any place. The use of force to commit offence is contrary to reasons stated by the trial Court in paragraph 55 of the judgment. The reasoning would go to show that the trial Court has observed that it might be a case of attempt to rape. Therefore, none of the alleged offences were proved beyond any reasonable doubt.
The trial Court suddenly came to the conclusion that the offences against the accused 12 have been proved. The trial Court committed an error in holding that the witnesses corroborated their versions with each other is not at all correct. The punishment awarded is also excessive in law. The entire case is concocted by the wife of the accused No.1 in collusion with the complainant. Hence prayed to allow the appeal and set aside the judgment of the trial Court and acquit the accused.
4. Learned counsel for the appellants, further argued that there was inordinate delay in filing the complaint by the father of the victim. They got filed a typed complaint in order to implicate the accused persons falsely. The complainant was having illicit relationship with the wife of accused No.1/PW-7. Accused No.1 and PW- 7 were not residing together much prior to the incident in question. Therefore, it is the wife of accused No.1, who hatched a plan and implicated 13 the accused persons falsely by using the minor victim. The girl was studying at Kudachi. She had no reason to come to Raibag. Accused No.1 taking away the minor girl on false pretext is not proved. If at all the girl was taken out for treatment, she could have been taken for the treatment in that place itself where she was residing. The manner of incident made out by the prosecution is highly unbelievable. There was no reason for the accused No.1 to call accused Nos.2 and 3 to commit rape on the victim girl. The accused Nos.2 and 3 have been falsely implicated with accused No.1 in this case. The medical evidence is totally against to the prosecution case. Penetration in any manner has not at all been proved. Therefore, none of the alleged offences are attracted to the case in hand. There is no relationship whatsoever between the accused and the car owner and then how the car owner could give his car to an unknown person. At the time of incident, the alleged car was in the 14 possession of the owner. The car owner was forced to say against the accused by the police. It is only after the police informing him, he came to know about accused No1. The alleged car owner is from Miraj. There is no evidence to show that he owns a car. The complainant had four children. He is resident of Kudachi where the victim was residing and attending her school. The victim was residing in her father's sister's house at Kudachi. There was no reason for the victim girl to come and stay with PW-7 who is the wife of accused No.1. It is alleged that PW-7 has given birth to a child, even though she had no physical contact with her husband for pretty long time. When accused No.1 was in custody the wife delivered a child after nine months. There was no cordial relationship between the accused No.1 and his wife PW-7. The fingerprints on the car seats or any stains are not at all collected by the Investigating Officer. No marks were found in the 15 place of incident. The complainant CW-1 had affair with the wife of accused No1. It is them who hatched a plan to implicate the accused No.1 and accused Nos.2 and 3 are relatives they are also implicated. The medical evidence is totally zero. The victim girl is a tutored witness. Totally it is false and concocted case. Therefore, learned counsel has prayed to allow the appeal and acquit the accused persons.
5. Learned HCGP argued that there are no evidence to disbelieve the version of the victim. On account of threat to the life, the girl has not disposed the fact to anybody. In fact, the wife of accused No.1 has given evidence against her husband. Therefore, the happening of the incident has to be believed. The minor girl was in the house of accused No.1 and PW-7. Referring to paragraph 25 of the judgment, learned HCGP submitted that the guilt of the accused persons 16 has been proved beyond any reasonable doubt and prayed to dismiss the appeal.
6. Learned counsel, in reply, submitted that victim was studying in Kudachi School. She had no reasons to come to Raibag. The owner of the car never met any of the accused. The complaint is concocted the wife of accused No.1 in order to take vengeance against her husband and to avoid him as he would not come in the way of having affair with father of the victim. Hence, he prayed to allow the appeal.
7. On the basis of the above said facts and arguments and pleading of the parties, the following points would arise for consideration:
1) Whethe r the prosecutio n had prove d before the trial Court that the accused persons No.1to 3 knowing fully we ll that the victim was a minor, accused No .1 took her to hospital fo r treatment in a car and while returning committed rape on her with the help of accused Nos.2 and 3 who held her hands and legs and the reby had 17 committed offences punishable under Sections 341, 376, 506, 109 read with Section 34 o f I PC and under Sections 4, 6, 5(n) , 17 and 18 o f POCS O Act?
2) Whethe r the appellants pro ve that the impugne d judgment of convictio n and sentence imposed on the accused is ille gal, perve rse, capricious and against to the evide nce on record, the refo re it is liable to be set aside ?
8. The matter was listed for hearing for suspension of sentence and releasing of accused on bail. Learned counsel for the accused elaborately submitted the arguments touching the merits of the case. Arguments were almost heard on all the points involved in the appeal. Therefore, after hearing the learned counsel for appellant and learned HCGP, it was thought fit to take up the case for final hearing and also that the accused are in custody. Therefore, the matter was taken up for final disposal.
9. Upon hearing learned counsel for the appellants as well as learned HCGP, considering the facts and circumstances of the case, I am of the considered opinion that the evidence on record 18 has to be once again meticulously requires appreciation with an open mind. Therefore, I first proceed to examine the circumstances that are appearing in the case, on which an inference can be drawn. This exercise has to be done because it will enable the Court to appreciate the evidence on record and to take a decision as to whether the evidence adduced by the prosecution is trustworthy or not.
10. It is well established principle of law that, it is the bounden duty of the prosecution to prove the guilt of the accused beyond any reasonable doubt. The contradictions, omissions and discrepancies which are material would go against the prosecution beyond any reasonable doubt arising out of these points. The benefit of it will enure to the accused.
11. The first and foremost fact to be taken into consideration in this case is the delay in filing 19 the complaint. The incident is said to have occurred on 14.03.2016 but complaint came to be filed nearly ten days after the incident.
The next circumstance that has to be considered is non-existence of any injuries on the victim and also on her genitals.
The medical evidence on record is also not supporting the case of the prosecution.
The next circumstance to be taken into consideration is why the wife of accused No.1 should give false evidence against her husband in such a serious case. Whether there was any motive for the wife of the accused No.1 to implicate her husband in this case.
The relationship between the accused No.1 and his wife is alleged to be strained. She is said to have given birth to a child even after having no contact with the accused No.1 for over a period of nine months.
20
The manner of incident of rape alleged to have taken place.
Lastly, the fact which has to be borne in mind is as to whether there was any possibility of victim being tutored to give evidence against the accused.
Therefore, I will first find out whether the trial Court has appreciated the evidence keeping in mind the above said facts which are not only made out in the arguments alone but also pointed out that they are based on the records.
12. PW-5 is the father of the victim whatever he has stated is a hearsay, heard from the victim as well as the wife of accused No.1 namely PW-7. He admits that his daughter victim girl was studying in a school at Kudachi and he had kept her in his sister's house. When it was suggested that his daughter/victim girl was going to school everyday, he admits that she left the 21 school. He states that he has not enquired his daughter whether she was going to school or not. Then he do not know how was the relationship between the accused No.1 and his wife. He did not know that the wife of accused No.1 had consumed poison after marriage of five months. He did not know that in the year 2015, the wife of accused No.1 had given birth to a child. Thereafter accused No.1 and his wife/CW-9 were living separately. Then in the further examination he admits that his daughter was studying in 5th standard in the March. He admits that he do not know whether his daughter PW-6 had appeared for 4th class examination in the month of March. He also does not know whether she had completed her 4th standard and had joined 5 t h standard. When he received information about the incident on 22.03.2016 over a phone, he did not immediately come to Raibag but had gone to Kudachi and he immediately did not file any complaint. According 22 to him, he came to Belagavi SP office and informed the matter but not filed any written complaint. He admits that he had no difficulty in filing the written complaint. He has also not mentioned in his complaint that when his sister had come to know about the incident. To the question that whether his daughter was threatened by accused No.1 not to disclose the incident and on the date of filing of complaint, whether anybody gave protection to him and his daughter, the witness answered he do not know. He further admitted that PW-7 is his sister's daughter. He admits that he is aged about 36 to 37 years and he do not know that PW-7 is aged about 26 years. He denied that he intended to marry PW-7. He denies that he instigated the PW-7 to leave her husband. He denied that in order to avoid accused No.1 and himself and family members together joined and filed a false complaint in order to spoil the life of accused No.1.
23
13. On perusal of the above evidence on record having regard to the nature of suggestions made by the defence counsel to PW-5 and the answers given by him with regard to his daughter's education and strained relationship between the accused No.1 and his wife etc. would certainly raise a reasonable doubt in the minds of the Court. Therefore, his evidence cannot be believed without due corroboration. Moreover, regarding the incident in question is concerned, it is the evidence of victim alone that plays an important role. At the most, the only inference that can be drawn from the evidence of PW-5 is that he was informed about the incident by his daughter and PW-7. It is important to note that in his evidence, he has not at all stated as to why his daughter had gone to Raibag to the house of accused No.1 and PW-7. It is not even stated in examination-in-chief that his daughter was sent to the house of accused No.1 to look after PW-7 who 24 is said to have delivered a child. What a 5 t h standard girl could have assist the lady who had given birth to a child is a matter to be taken into consideration. When that fact is not at all deposed by PW-5, father of the victim then his evidence has to be doubted.
14. PW-6 is the victim. According to her, she was residing in the house of her father's sister's house for pursuing her studies at Kudachi. Then she deposed that about a year back she had stomach pain. Therefore, she was taken to Patil Hospital at Raibag by accused No.1 in a car. At about 7.00 in the evening and after she was shown to the doctor in Patil Hospital, herself and accused No.1 where returning in the car. When the car reached near Raibag stadium, the car went out of order and stopped. Then accused No.1 asked the victim to get down from the car. Then he called accused Nos.2 and 3 over a phone. Thereafter 25 second accused caught hold of her hands and accused No.3 held her legs and accused No.1 removed her clothes. Thereafter she did not know what the accused No.1 did to her. She also deposed that she was threatened by the accused that she will be killed if she informs this incident to anybody in the house or to any other person. Before proceeding further evidence, if the evidence stated above is appreciated, it does not make out the ingredients of aggravated penetration. She has not stated that whether she was taken away from the place where the car was parked, whether the said place was a secluded place or covered place.
PW-6 has further stated that one week after the incident, she informed about it to CW-9 who called her father to Kudachi. Thereafter the father filed complaint before the police. Further she was taken to hospital and to the Court where her statement was recorded. The statement given 26 before the learned Magistrate would be a statement recorded under Section 164 of Cr.P.C. Therefore, it can be used only for the purpose of contradicting the maker. Then she identifies her clothes at M.Os.1 to 3. She also identifies the place of incident appearing in Ex.P-4 photograph. She has identifies the car in which she was taken by the accused which is appearing in Ex.P-2.
15. In the cross-examination, PW-6 admits that she did not know her date of birth but in examination-in-chief, she admits her date of birth is 02.07.2005. She was admitted to Kudachi Urdu School where she studied up to 5 t h standard. She used to pass in first class. She used to go to school everyday and never missed the school. She admits that during the month of March, there will be final examination. She further admitted that from June to March, she was going to school regularly. She specifically admitted that before 27 giving evidence in the Court, between herself, her father and mother talked about this case and since she is of tender aged, they had taught her what is to be deposed in the Court. She has also not stated in her examination-in-chief that she had gone to the house of accused No.1 as accused No.1's wife had given birth to a child and therefore there was an occasion for accused to take her in a car. Normally, if a girl gets stomach pain, she will tell immediately to the next lady available in the house but not to a male person. She admits that CW-9 used to come to her house with her husband i.e., accused No.1. She denies that during the month of March, 2016, she has absented her examination in order to look after the child of CW-9 at Raibag. Then suggestions are made with regard to the incident and reason for giving evidence etc. They are all denied. She admits that when she was taken to Raibag Court, a lady PC had come and she told her that what is to 28 be deposed and accordingly she gave statement before the learned Magistrate.
16. On perusal of the above said evidence on record, I find that the evidence of prosecutrix is not free from doubt but suffers from serious doubt. The possibility of tutoring the girl by her elders or persons who had vengeance against the accused No.1 to implicate in this case cannot be ruled out. Further even if the evidence of PW-6 is admitted as it is, it does not prove the act of penetration. Apart from that there must be some reason for the accused persons who committed such a heinous act. Because this witness has stated that her hands were held by accused No.2 and legs were held by accused No.3 and then accused No.1 removed her clothes and committed the act which she did not know what happened. Therefore, the evidence looks highly suspicious and cannot be relied on without due corroboration. 29 It is also important to note that it is not a universal rule that no lady would come forward to give such a statement regarding rape on her and therefore her evidence must be believed. If at all the accused No.1 wanted to rape her he could have raped her in the car itself which would have provided some cover. It is not the case of prosecution that the accused came to Kudachi to the house of CW-12 and took the girl to Raibag on the pretext of getting treatment to her. Therefore, the corroboration of such evidence is a must.
17. Now, I proceed to examine the medical evidence on record. PW-9 is the doctor who had examined the first accused on 31.03.2016 at 5.30 p.m. He found the accused No.1 to be fit to perform the act of intercourse. He is also married and that fact cannot be denied as such. Therefore, evidence of PW-9 is not of much importance.
30
18. PW-16 is the Assistant Director of FSL, Belagavi, who had examined the victim and had given his report at Ex.P-18. He found no seminal stains were detected on the material objects. The said objects are at MOs 1 to 6.
19. PW-18 is the officer who had recorded the statement of PW-6, victim girl. According to him, the victim girl deposed before him that the her brother-in-law i.e., accused No.1 took her to a hospital. While returning, in a forest, they behaved indecently and stated his name as Yusuf, who is accused No.2.
20. PW-11 doctor who had examined the victim girl and thereafter he referred the victim girl to dentist and radiologist to identify the age of the victim. According to radiologist, the age of the victim was 14 to 16 years and according to the dentist it was 10 to 13 years. He admits that as per the opinion of lady doctor, the hymen was not 31 ruptured and there were no injuries in her genitals. Accordingly he gave report at Ex.P-12. Thereafter, on the basis of FSL report, he gave final report at Ex.P-13. In the cross examination, he admitted that according to his opinion, even before he examining the victim, she has not undergone an act like sexual intercourse. I think this evidence of doctor though only an opinion and not absolutely binding on the Court as provided under Section 45 of the Evidence Act but it puts nail in the case of the prosecution and makes the entire case highly doubtful and suspicious. When there is a contradiction in the evidence of victim of this nature and the medical evidence, then it has to be considered as a very serious contradiction in the case of the prosecution.
21. The principle of law laid down by the Hon'ble Apex Court in the case of Baleshwar Mahto and another Vs. State of Bihar and 32 another reported in (2017) 3 SCC 152 with regard to how the medical evidence is to be matched/tallied with ocular evidence Though the authority pertaining to the case of injured witness. Then in such a case, it would be turned as serious contradiction between ocular evidence and the medical evidence. In this case, it is a case of alleged rape. The medical evidence which I have referred on record is quite against to the evidence stated by prosecutrix. Moreover, the prosecutirx herself has not specifically stated that the alleged penetration. Admittedly there are no injuries. FSL report is also against to the case of the prosecution. No doubt, victim has been examined ten days after the incident but the intact of hymen of the victim is in all probability raises a very serious doubt as to whether there was any penetration and whether the act of the accused amount to rape or aggravated sexual assault. 33
22. Learned counsel for the appellants has also relied on a judgment in the case of Ravinder Singh Gorkhi Vs. State of U.P. reported in (2006) 2 SCC (Cri) 632 with regard to relevance of the entry in the public record and contends to fulfill before document to be held under Section 35 of the Evidence Act. In this case, defence has suggested in the cross-examination to the victim that her date of birth is 02.07.2005. The incident is said to have happened on 14.03.2016. The age of the victim somewhere falls 11 years of age. The Investigating Officer has collected Ex.P-7 from CW-24 to prove the age of the victim and the date of birth is found to be 02.07.2005.
23. Now I come to the evidence of wife of accused No.1. According to her, at about one and half years prior to the statement, the victim girl was complaining that she is suffering from stomach pain. At that time, she was said to be in 34 her house. She also admits that victim was residing in the house of her mother at Kudachi and pursuing her studies but does not say why the victim had come to her house. Admittedly, she has not seen the accused No.2 taking the girl in a car for medical treatment. Her say is only hearsay what she had heard from the victim. Since the girl had threatened to kill by the accused, she had not stated anything before her. If that is so, if after ten days, what prompted the girl to tell the fact to others. Further she had not stated that the victim girl was staying in her house to assist herself as she had delivered a child. During examination period, she had come to her house. Therefore, the evidence of this witness that girl was taken from her house by accused No.1 in a car is not at all proved. She admitted in her cross examination, that immediately five days after her marriage, she went back to her mother's house. After her marriage, she was residing with her husband and 35 her in-laws in one house. Further, she admits that she had a phone but denies that she was getting 40 to 50 calls a day. She admits that her husband had taken her to a hospital on one day on the ground that she has consumed poison. The doctor told her that there is no problem and had sent them back. She denies that she had consumed poison as her husband taken back the mobile. She admits that she became pregnant of three months while she was in her mother's house. To a suggestion that she gave birth to a child immediately three months after going to her mother's house, first she admits and then denies and states that after 6-7 months she gave birth to a baby. She denies that she was quarreling with her husband. She further admits that her husband was suspecting her fidelity and his mental condition was not good. After she returned to her husband house and there is no intercourse between them for a period of two months then 36 during March 2016. There was no physical contact between them and their relationship was also not cordial. She further admits that on 14.03.2016 also there was no cordial relationship between herself and her husband and therefore, there was no physical contact between the husband and wife. Then she admits that she gave birth to a child on 20.12.2016 and denies that since the child is born beyond nine months i.e., beyond 14.03.2016, it does not belong to accused No.1. She further admitted that she had no difficulty to take the girl to hospital for treatment. She deposed that in the case of stomach pain, doctor while examining the abdomen, touches the stomach and lower abdomen. She admits that she belongs to Mohammadan and usually the women belonging to her religion would go to lady doctor. There are many number of lady doctors available in Raibag. Therefore, she had no difficulty to take the girl to a lady doctor. According to her only that day girl 37 developed pain. Two days after the incident, she had gone to her mother's house.
24. If the above evidence is analyzed carefully, I find that the evidence of this witness suffers from serious doubt and cannot be believed without corroboration. It also points out that there is every possibility of implicating her husband in this case.
25. Then the last evidence which I would like to refer regarding the accused taking the girl to a hospital is that of PW-8. According to him about one and half years back at 7.00 p.m. the first accused brought the girl stating that she is suffering fever and body ache. He admits that he had treated the victim. He did not know her name and nor recognized her. In the cross-examination, it is admitted that he is a reputed doctor and so many patients come and go and he does not maintain any record of the out patients. He does 38 not remember who had come along with the girl. There are no records for having given treatment to the girl on that day. He admits that it is the duty to maintain document for having given treatment to the patients. Therefore, this evidence alone cannot be taken as corroboration with the evidence of either victim or any of her relative, her father or evidence of wife of accused No.1.
26. Then PW-12 is the person who is said to have given car to the accused. According to him, the car was used by his uncle. He admits that he has given the said car to the accused No.1 for his use about two years. He admits that the said car was seized by the police and he identifies the car appearing in photograph at Ex.P-2. In the cross examination, he admits that he is the permanent resident of Miraj, he cooks food in the marriage functions and earns Rs.500/- to Rs.1000/- per function. Further there are 7 to 8 members in his 39 family and his family is depended upon his earnings only. He admits that he could not have alone bought a car. He has no necessity to purchase a car. He admits that the said car is in the name of one Nayana Pol of Poona. The ownership has not been transferred to his name. He admits that small masons like accused No.1 would not keep a car. Normally nobody will lend a car to anybody unless the person is known to him. Accused No.1 is in Kudachi and he resides in Miraj. Therefore, he did not know the accused No.1. He further admits that he has not given car to accused No.1. Since police forced him to say that he had given car to the accused, he stated so.
27. The evidence of prosecution that the accused had taken the victim in this car creates a serious doubt. Learned PP has not asked the Court to treat the witness as hostile. Therefore, the learned P.P. should have cross-examined the 40 witnesses as he has almost given evidence against the prosecution.
28. The next evidence that is to be considered is that of Investigating Officers. PW- 15 had registered the crime on the basis of the complaint given by PW-5 as per Ex.P-5. On 24.03.2016 he received information and arrested the accused on 31.03.2016. He recovers a car on the voluntary statement given by the accused No.1. On the voluntary statement of accused No.2, the Investigating Officer recovered the motorbike. Accordingly they were seized under mahazar at Ex.P-1. He had sent the victim to the hospital for examination. In the cross- examination, the Investigating Officer deposed that he do not know where the complaint was typed, who typed it and who gave information for it. He admits that the scribe of the complaint who had typed through computer has not signed. He 41 has also not enquired where the complainant got it typed. He has not taken the school attendance register extract to show that on the date of incident the girl had not gone to school. He has also not investigated whether during that time examinations were being conducted. He further admitted that after apprehending the accused, he has not produced any records before the Court. He has not seized the RC book of the car which has been seized. It shows that it is Poona registration vehicle. He do not know who is the original owner of the car. According to him, the photograph is taken through digital camera and sometimes the date and time occurs in the snap and some times they will not occur. He has also not seized the motorcycle RC book. The suggestions that were made are all denied.
29. PW-17 is the final Investigating Officer who has drawn the sketch of scene at Ex.P-3. He 42 recorded the statement of witnesses. The photographs were included in the records. Medical records at Exs.P-8 to P-10 were collected.
The expert evidence which he has collected from the doctor as well as FSL are negative so far as alleged act of intercourse is concerned. He had obtained the birth certificate of victim. He obtained the register extract of motorcycle, map of spot prepared by PWD Engineer Ex.P-24 were collected. In cross-examination, he admits that he did not know that where the complaint was typed, who had typed and who had given information to type the complaint. Though there is an endorsement of PSI, Raibag i.e., "£À£ßÀ ¸ÀªÄÀ PÀëªÄÀ " and has signed below it. He has not investigated as to whether there was any threat and what type of threat was there to the victim girl in not to informing about the incident. He has also not investigated whether there is any cordial relationship between the accused No.1 and PW-7. 43
30. In the complaint, it is the PW-7 who is said to have informed her mother CW-12 about the incident. Though PW-7 had told that her husband is the culprit, the Investigating Officer has not investigated as to whether there was any cordial relationship between the husband and wife. No statement of witnesses either relatives or naibours is produced or examined to show that the accused No.1 and PW-7 were in cordial relationship. If they were in cordial relationship, then she would not have informed the incident to anybody. She would not have quarreled with her husband. He admits that PW-7 had a mobile and there were quarrels regarding that mobile phone. He has not aware as to whether the victim had attended for examination in the March 2016. It is also admitted that date of incident i.e., 14.03.2016 was a Monday. He has not enquired in the school at Kudachi to find out whether in the month of March, victim had come to school or not. But 44 according to him, he did not feel it necessary to investigate in this regard and he felt that the statement of PW-12 itself was enough for him. He did not feel it wrong that only on the statement of CW-12, the victim was found to be residing in Raibag for over a period of one month.
31. On careful perusal of the above evidence, absolutely there is no evidence on record to prove that the victim was residing in the house of accused No.1 as on the date of incident. There is no evidence to show that accused No.1 took her in a car in order to get medical treatment to victim. The fact that there lady doctors available in Raibag and why they went to male doctor was not explained by any of the witnesses. Therefore, there was no reason for accused No.1 to take the girl in a car or to any hospital as such.
32. On account of strained relationship, it is highly unbelievable that PW-7 was residing with 45 her husband. Further, having regard to the entire evidence on record, considering the facts and circumstances of the case, an inference can also be drawn that there was every possibility of implication of accused Nos.1 to 3. If at all accused No.1 wanted to commit rape, he would have done so with the girl as she would be alone in the home whenever PW-7 goes out of the house. He himself was capable of committing rape without any help from other accused persons to hold hands and legs of the girl. From the evidence on record and facts and circumstances, I find that there is an element of concoction is there in this case. Therefore, I am of the considered opinion that evidence of prosecutrix and other witnesses is not at all believable. The real thing has been suppressed and the case has been projected in a manner to suit the complaint and to make the case heinous in nature so that the accused are awarded imprisonment. The suggestions made by the 46 defence to the prosecution witness accused have got force. Having regard to the facts and circumstances of the case, the suggestions cannot be simply brushed aside.
33. I am of the considered opinion that the trial Court has not appreciated the evidence in the manner stated above. It has not analyzed the evidence meticulously. It has ignored the strange and suspicious circumstances appearing in the case of the prosecution. It has also ignored the possibility of implication of the accused No.1 by his wife and PW-5 the complainant. The delay has not been satisfactorily explained and the medical evidence is totally against the case of the prosecution. The trial Court with regard to delay in filing the complaint, has relied on a ruling of the Hon'ble Supreme Court reported in (2004) 1 SCC 421 (AIR 2004 SC 1290) (State of Punjab .Vs Ramdev Singh).
47
Learned Judge has also not assigned sufficient reasons as to why he believed the evidence in the background of the facts and circumstances appearing in the case of prosecution. The trial Court in paragraph 53 of
the judgment referred to the medical evidence and said that on medical report of the victim and that of the accused that whether there was a possibility of forcible intercourse with the victim girl. The learned Judge's finding in paragraph 55 reads as under:
"55. From all these, it is quit clear that there is ejaculation of seminal stains of the accused and same were not found in the above said articles of the victim girl. At the same time, hymen of the victim girl was found to be intact and no injuries were being found on the private part of the victim girl and no external injuries were found on her, gives an indication that there is no penetration. This would clearly establish that it might 48 not be the case of the actual rape, but it is a case of attempt to commit rape on the minor victim girl."
34. Then how the trial Court can come to the conclusion that prosecution has proved the alleged offence and come to the conclusion that there is ejaculation of seminal stains which were not found on the articles of the victim girl and the evidence of the victim gives an indication that there is no penetration and it might not be an actual rape but it is a case of attempt to commit rape? How the trial Court can come to the conclusion that there is penetration sexual assault on the victim? Without there being any evidence of forcible penetration sexual assault on the victim the trial Court could not have taken the aid of presumption to come to a conclusion.
35. In paragraph 62 of the trial Court judgment says that attempt to commit rape is also 49 a serious crime. Though culprit does everything to accomplish the crime, due to certain unforeseen occurrence, he might have failed to complete the act or he might have committed the actual rape. The reasons assigned by the learned Judge regarding a very serious offence are absurd. The learned Judge suddenly jumped to the conclusion that there are enough material to hold that the accused has committed rape on the victim girl. Merely by relying on certain authorities, learned Sessions Judge cannot come to a conclusion without there being any due corroboration of evidence. Therefore, circumstance should be similar in order to place reliance on any authority. The precedent can be relied for appreciation of settled position of law. The case made out by the prosecution is not from reasonable doubt. It suffers from serious doubts and contradictions. The trial Court has committed a grave error in believing the highly doubtful evidence on record. 50 Therefore, I find that trial Court has committed an error in applying the provisions of POCSO Act and that the prosecution had miserably failed to prove any of the ingredients of the offences alleged against the accused. The prosecution has not discharged its initial burden of proof. Therefore, it cannot ask for applying presumption provided under the POCSO Act. Hence, for all the above said reasons, point No.1 is answered in the negative and point No.2 in the affirmative.
36. The appeal filed by the accused is hereby allowed.
37. The impugned judgment and order of conviction and sentence dated 10.01.2019 passed by the learned III Addl. District and Sessions Judge & Special Court under POCSO Act, 2012 at Belagavi, in S.C.No.202/2016 for the offence punishable under Section 341, 376, 506, 109 read 51 with Section 34 of IPC and Sections 4, 6, 5(n), 17 and 18 of POCSO Act is hereby set aside.
38. The accused Nos.1 to 3 are acquitted of all the charges leveled against them.
39. The accused Nos.1 to 3 shall be set at liberty forthwith on executing a personal bond for Rs.50,000/- each and one surety for the likesum to the satisfaction of the learned Sessions Judge and the bail bonds shall be in force for a period of six months or till the expiry of appeal period whichever is later.
40. Send back the records to the trial Court along with a copy of this judgment.
Sd/-
JUDGE Naa