Karnataka High Court
State Of Karnataka vs Khasim S/O Hajisab Raichur on 10 March, 2023
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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CRL.A No. 100029 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 100029 OF 2019 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INSPECTOR,
KASABAPET POLICE STATION,
HUBBALLI, DIST: DHARWAD,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
.....APPELLANT
(BY SRI V.M.BANAKAR, ADDL. S.P.P.)
AND:
KHASIM S/O. HAJISAB RAICHUR,
AGE: 25 YEARS, OCC: AUTO DRIVER,
R/O: VEERAPUR ONI,
NEAR GOVERNMENT KANNADA
PRIMARY SCHOOL, HUBBALLI.
ANNAPURNA ...RESPONDENT
CHINNAPPA
DANDAGAL (BY SRI VIJAY M. MALALI, ADVOCATE)
Digitally signed by
ANNAPURNA
THIS CRIMINAL APPEAL IS FILED U/S.378(1) & (3) OF
CHINNAPPA
DANDAGAL CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
Location: HIGHCOURT
OF KARNATAKA-
DHARWAD BENCH JUDGMENT AND ORDER OF ACQUITTAL DATED 04.07.2018
Date: 2023.03.31
13:40:17 +0530
PASSED BY THE II-ADDL. DIST. & SESSIONS JUDGE, DHARWAD,
IN SPL.S.C.NO.46/2016 AND TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 04.07.2018 PASSED BY THE II-
ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD, IN SPL.S.C.
NO.46/2016 AND CONVICT THE RESPONDENT/ACCUSED FOR THE
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CRL.A No. 100029 of 2019
OFFENCES PUNISHABLE UNDER SECTIONS 366 AND 376 OF I.P.C.
AND U/S. 6 & 12 OF THE POCSO ACT AND SECTION 9
PROHIBITION OF CHILD MARRIAGE ACT.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, SRI T.G.SHIVASHANKARE GOWDA, J, DELIVERED THE
FOLLOWING:
JUDGMENT
The State has challenged the Judgment of acquittal dated 04.07.2018 in Special Sessions Case No.46/2016 passed by the II Additional District and Sessions Judge, Dharwad (for short, 'the Trial Court'), who is the special Judge for trial of the cases registered under the Protection of Children from Sexual Offences Act, 2012 (for short, 'the POCSO Act, 2012').
2. For the sake of convenience, the parties shall be referred to as per their status before the Trial Court.
3. The facts of the case are that, complainant/P.W.1 is a resident of Veerapur Oni of Hubballi. Victim is his minor daughter. The victim studied up to 7th standard, school drop out, staying in the house and learning embroidery work. The accused is a resident of Veerapur Oni of Hubballi. He used to -3- CRL.A No. 100029 of 2019 follow the victim, tease her and harassed her, while doing so, he developed intimacy with her. He induced her to elope along with him with an intention to marry her. In continuation of his intention removed the victim from lawful custody of her parents, by calling her over telephone on 15.08.2016, induced her to come out of the house so that both get marry. On 20.08.2016, in the early morning at 1.00 a.m., he came near the house of complainant, kidnapped her in an auto rickshaw, took her to Hubbali new bus stand, from there he took her to Dabolium in Vasco of Goa in a bus. At Goa he got married her in a Darga near Birla factory knowing fully well that she was a minor and marrying a minor is prohibited. Thereafter, he kept the victim in the house of his relative i.e., P.W.30-Smt.Mamtaz Shaikh at Dabolium of Goa. During such stay in the house of P.W.30, the accused repeatedly committed sexual intercourse against the victim.
4. On the next day morning of 20.08.2016, the complainant came to know about missing of victim and set the law into motion by filing a complaint to Kasabapete Police -4- CRL.A No. 100029 of 2019 Station, Hubballi in Crime No.94/2016. P.W.31-Sri Maruti Gullari, Police Inspector, who has investigated the matter, traced out whereabouts of the victim and the accused. He has arrested the accused, subjected him to judicial custody and after investigation, accused was brought before the Court for trial for the offences punishable under Sections 366 and 376 of the I.P.C., Sections 6 and 12 of the POCSO Act, 2012 and Section 9 of the Child Marriage Prohibition Act, 2006. The accused, pleaded not guilty of the charges. The prosecution examined P.W.1 to 33, marked Ex.P.1 to 30 and identified M.O.Nos.1 to 6. The accused was questioned under Section 313 of Cr.P.C. and after hearing both sides the Trial Court by the impugned Judgment acquitted the accused from the charges.
5. Aggrieved by the judgment of acquittal, the State has filed this appeal on the ground that the prosecution has placed evidence to show that on the date of alleged incident the victim was a minor, aged less than 18 years. Though prosecution witnesses have turned hostile, the victim has -5- CRL.A No. 100029 of 2019 given statement before the Judicial Magistrate under Section 164 of Cr.P.C. The victim, her mother and father who have given evidence before the Court as P.W.1 to 3. P.W.21- Dr.Shivanand Talewad, who has examined the accused and issued Ex.P.15. P.W.22-Smt.Saraswati Karekal, who has examined the victim and issued Ex.P.16 certificate and P.W.23 Smt. Banubee Karadi, the retired Urdu School Headmistress, has issued Ex.P.19-certificate that the victim was a minor girl. There is sufficient evidence to show that the victim was born on 19.05.2000, the accused was the person committed rape against her, it has been explained before the Medical Officer so also before the learned Magistrate, which suffice to explain the ingredients of the offences. The presumption under Section 30 the POCSO Act, 2012 has not been rebutable by the defence side. The Trial Court disbelieved the evidence erroneously.
6. Heard the arguments of learned Additional S.P.P. Sri V.M.Banakar and learned counsel Sri Vijay M. Malali, appearing for respondent/ accused.
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7. Notice of the appeal was served on the victim as well as on her father, they did not appear before the Court.
8. It is the contention of learned Addl. S.P.P. that the evidence of P.Ws.1 to 3, P.W.21 to 23 and the Investigating Officer, explain that on the date of alleged incident the victim aged less than 18 years. The medical evidence explains that she was subjected to sexual intercourse. The history of the incident has been explained before the Medical Officer at the first instance by the victim. She has also narrated the incident before the Judicial Magistrate under Section 164 of the Cr.P.C. The medical evidence and statement of victim is suffice to hold that the victim was subjected to sexual assault, she was induced to come out of the house, she was removed from lawful custody of her parents, she was kidnapped to Goa, the accused knowing fully that the victim was a minor, married her in a Darga and thereafter in the house of his relative-P.W.30 the minor was subjected to sexual assault by the accused. The evidence is positive, qualitative, convincing and it has to be accepted. It is also -7- CRL.A No. 100029 of 2019 submitted that the Trial Court has not properly appreciated the evidence but given the benefit of doubt by disbelieving the prosecution evidence and he sought for conviction of the accused.
9. Per Contra, learned counsel appearing for accused has contended that the evidence of P.W.23 the Headmistress of the Urdu school and the certificate at Ex.P.19 was not legally acceptable to hold that the victim was a minor. It is contended that on the date of alleged incident the victim was aged more than 18 years, she was voluntarily fell in love with the accused, both together voluntarily went to Goa and returned back. He was not committed sexual assault on the victim, she is a consenting party, the material witnesses did not support the prosecution. P.W.1 to 3 are interested witnesses and the evidence of P.W.21 to 23 will not establish the incident of rape, marriage and also removing of the victim from lawful custody of her parents. The Trial Court has rightly appreciated the evidence of the victim, her parents and came to the conclusion that the victim is aged more than -8- CRL.A No. 100029 of 2019 18 years, she is a consenting party, provisions of POCSO Act, 2012 or even the provisions of Child Marriage Act, 2006 are not applicable. In order to prevent the victim, who fell in love with accused, this case has been hoisted against the accused and was sent to judicial custody. There is no evidence which satisfy the ingredients of the charges and the Trial Court has rightly acquitted the accused and supported the impugned Judgment.
10. We have carefully perused the impugned Judgment. The Trial Court while recording the acquittal assigned the reasons that the victim was never harassed anybody including the accused. She voluntarily left her house, she cannot be accepted as a minor. She was not subjected to any sexual assault and there is no evidence of rape against her. The evidence of the victim and her parents did not point out the ingredients of the charges; the witnesses examined by the prosecution have falsified the case of the prosecution. There are material contradictions in the testimony of P.W.1 to
3. Birth register entry was not on the basis of correct date of -9- CRL.A No. 100029 of 2019 birth and Ex.P.16 the Medical Certificate issued by P.W.22 is not a conclusive proof to show the sexual intercourse by the accused against the victim. School certificate at Ex.P.19 was entered on the guess work and no evidence to show that the victim was aged below 18 years on the date of incident, contra the victim was aged more than 18 years. The love affair between the accused and the victim has been converted into a crime in order to break the love and extended the benefit of doubt in favour of the accused.
11. We have given our anxious consideration to the arguments addressed by both sides and perused the material on records.
12. The prosecution mainly relied upon the evidence P.W.1 to 3 and P.W.21 to 23 apart from the evidence of the Investigating Officer i.e., P.W.31. We have carefully perused their evidence. The evidence of the remaining witnesses are not in support of the prosecution. Let us see the weight of the prosecution evidence.
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CRL.A No. 100029 of 2019
13. The testimony of P.W.1 shows that the victim was aged 17 years on the date of incident, the accused following her when she was going to the school. He gave a mobile phone and talking with her. After coming to know this he and elders have advised the accused to stop such activities, but he did not stop it. Hence, he himself shifted his residence to Sadarsofa at old Hubballi. 7 and 8 months later in the early hours of morning victim was found missing and on the morning he files the missing complaint at Ex.P.1, police drawn Ex.P.2 spot mahazar. Two days thereafter, victim was secured along with the accused. He met the victim and came to know that the accused taking her to Goa, marrying in a Darga, keeping her in a house and committed sexual assault against her.
14. The testimony of P.W.2 shows that she was born on 19.05.2000, studied up to 7th standard, while residing at Veerapur at Hubballi the accused was residing in the opposite house, he used to follow her to school, teasing and tortured her. He also gave a mobile phone to her, they were talking
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CRL.A No. 100029 of 2019each other. P.W.1 and elders were advised accused not to tease her, but he did not stop it. Her father shifted their residence to Sadarsofa at old Hubballi. There also he fallowed her, gave another mobile phone and was in regular contact with her. On 09.08.2014 at 1.30 a.m. the accused came to her house, took her in an auto rickshaw to Hubballi bus stand, in a bus via Belagavi they went to Goa and stayed in the relatives house of accused for three days. Where the accused tortured her, used the criminal force against her and committed rape against her. Thereafter, the police came and brought them back to Hubballi. She was examined at KIMS Hospital, Hubballi and she gave statement before the Magistrate as per Ex.P.4.
15. P.W.3 is the mother of the victim, her testimony is as narrated by her husband-P.W.1. Since accused was harassing victim, they shifted their residence from Veerapura lane to Sadarasofa at old Hubballi. In the early morning the victim was found missing, she has been carried away by the
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CRL.A No. 100029 of 2019accused to Goa, two days thereafter they were bought back from Goa.
16. P.W.17-Kumari Simran Dadesur is the sister of the victim, her testimony shows that their residence at Veerapur Oni, Hubballi, the accused teasing and torturing the victim, inspite of advice by the elders he did not stop it. Hence, they shifted their residence out of the Veerapur Oni. There also accused was in contact with the victim by giving her a mobile phone when this was came to the knowledge of her parents, who advised and warned him. Her evidence point out missing of the victim on 19.08.2016 and on 24.08.2016 from Goa plice brought the victim back to Hubballi.
17. P.W.26- Sri Basheerahmed Haveri and P.W.27- Mohammed Savanur are the neighbors of the victim. Their testimony show that two years ago they were informed by P.W.1 and 3 that victim eloped with accused on the previous night, on search she was not traced at Hubballi, 3-4 days later she was traced at Goa along with accused, they were brought back to the Hubballi. Both were treated hostile,
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CRL.A No. 100029 of 2019during prosecution cross examination they accepted the prosecution version.
18. P.W.28-Dadafeer Koppal is also neighbor, his evidence is not supported the prosecution, he denies his previous statement as per Ex.P.22 and 23.
19. P.W.8 Roshani Udagatti is the tenant of P.W.1, his testimony shows the had seen the victim in the previous night and on the next day morning she was found missing. His evidence did not point out anything against the accused removing victim from the lawful custody of her parents.
20. P.W.7-Davalsab Navalgund and P.W.16 Ayyas Jamadar are also pancha witnesses to the Ex.P.7 and 9, whose testimonies show that they were called to Kasabapete Police Station of Hubballi, from there they were taken to Goa, near Birla factory an house was shown to them where Ex.P.7 was drawn. Both have attested it and where Ex.P.8 photograph was taken. At Goa they took them to one Darga on the pretext that marriage was performed therein drawn
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CRL.A No. 100029 of 2019Ex.P.9 Mahazar and taken the Ex.P.10 photograph. According to them, they were accompanied by police, victim and her parents.
21. P.W.9-Babusab Langoti and P.W.10-Yallappa Mallapur are the Police Constables and P.W.11-Smt. R.C.Doni, Women Head Constable who were deputed to trace out the victim and the accused have visited the Dabolium at Vasco, Goa on 23.08.2016. On 23.08.2016, they searched for the accused as well as victim and at about 8.00 p.m. traced them while going on a walk. Hence, they were brought to the Hubballi and produced before the Investigating Officer at 2.00 a.m. on 24.08.2016.
22. P.W.13-Savitri Kittur, Women PSI, her testimony shows that on 24.08.2016 as requested by the PSI, Kasabapete Police Station, she interacted with the victim. According to her the victim and the accused known to each other, they fell in love, it was opposed by her parents and even after shifting of their residence, they continued their contact over phone. On 15.08.2016 both decided to marry
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CRL.A No. 100029 of 2019and on 19.08.2016 both went to Vasco of Goa via Hubballi, Belagavi in a Bus. They reside in the house of one Mehaboobi. On 23.08.2016, Hubballi Police took them to their custody and brought to Police Station. Her evidence also point out the victim having physical intimacy with the accused during their four days stay in Vasco and in this regard, Ex.P.3 is the statement of the victim.
23. P.W.21-Dr.Shivanand Talewad, the Medical Officer of KIMS Hospital, Hubballi. His testimony shows examination of accused on 24.08.2016, he did not found any sign of sexual activity conducted by the accused and to this extent Ex.P.15 is his report. He has taken the history from the accused, he was informed that on 20.08.2016 the accused and his lover have eloped to Goa, stayed for three days and they were brought to Hubballi.
24. P.W.22-Dr. Saraswati Karekal, is the Medical Officer, KIMS Hospital, Hubballi. Her testimony shows examination of victim on 24.08.2016, noticed except rupture of hymen did not observe any sign of sexual activity on her private parts.
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CRL.A No. 100029 of 2019In this regard Ex.P.16 and 17 are her reports. She taken the history from the victim and she was informed that the victim was fell in love with a boy, on 19.08.2016 they eloped to Goa, on 22.08.2016 they married, they were in physical contact and they were brought back on 24.08.2016 to Hubballi. She has collected her clothes, pubic heirs and nail clippings as per M.O.1 to 6 and handed over to the Investigating Officer for forensic examination.
25. P.W.23 Smt.Banubee Karadi, who is the retired Headmistress of U.B.S. Narayanasofa Urdu School, Hubballi. She gave Ex.P.19 Birth Register Extract of the victim, who was former student. As per school records the date of birth of the victim was recorded as 19.05.2000. Her cross examination did not point out source of entering the said date of birth and the age of the victim has been seriously disputed by the defence that she was aged more than 18 yeas.
26. P.W.30-Mumtaz Shaikh, is the relative of the accused. Her testimony did not point out the accused and victim visiting her house, staying for three days and the
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CRL.A No. 100029 of 2019police bringing them to Hubballi. She has turned hostile and resile from the previous statement as per Ex.P.25.
27. P.W.32-Ramanna Bhajantri, the PSI, whose testimony shows registration of Ex.P.20 FIR on the basis of Ex.P.1-complaint filed by P.W.1 on 20.08.2016. On the next day, he has inspected the house of the complainant, drawn the Ex.P.2-Mahazar. On 23.08.2016 as per the call details, he traced the victim and the accused were at Goa. He deputed his staff to trace out and bring them back. On 24.08.2016, his staff brought the accused as well as the victim from Dabolium, Goa. On enquiry victim and the accused informed him what was transpired from the day of missing of the victim till they were traced out at Goa. He adopted the provisions of the POCSO Act, 2012 by submitting a request to the Court as per Ex.P.29.
28. P.W.33 Dr.Mahadeshwar Swamy Y. H., Assistant Director, RFSL Belagavi, who has examined MO.1 to 6 to ascertain traces of sexual assault. He did not trace out any
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CRL.A No. 100029 of 2019such signs on the said articles and Ex.P.18 is his report to this extent.
29. P.W.31-Sri Maruti Gullari is the Investigating Officer. His testimony shows that on 24.08.2016 he took up the investigation, recorded the statement of witnesses and collected the school records of the victim, subjected the victim and the accused to medical examination, forwarded the samples collected for FSL examination, visited the spot and drawn Ex.P.5-Mahazar and after collecting the evidence has filed the charge sheet. This is the weight of the evidence the prosecution is relying.
30. Having heard the arguments of both sides and also referred the weight of the evidence relied by the prosecution before the Trial Court, we notice that the entire case of the prosecution rest upon the testimony of P.W.1 to 3 and 21 to
23. In view of this, the points that would arise for our consideration are, "(i). Whether the evidence of prosecution is able to explain the ingredients of the offences?"
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(ii). Whether the impugned judgment is perverse and call for interference?
Regarding Point No.(i)
31. As we have seen from the evidence of P.W.1, he was not aware with whom the victim had gone and for this reason missing complaint was registered. Only after the victim and the accused were traced at Goa, he came to know that the accused has carried away the victim. As we have noticed from the evidence of P.W.2 nobody were teasing her, following her and particularly the accused. She is very well aware that what is right and what is wrong. She never gone out of the house alone in the night. She went along with accused in an auto rickshaw from her house. The accused took her to Goa in a Bus, there were several co-passengers in the Bus, during transit she never made a 'galata' nor informed the co-passengers that accused is taking her away from her parents forcefully. She makes very categorically admission that she voluntarily went to Goa, the accused has not committed any physical assault against her and for this
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CRL.A No. 100029 of 2019reason she did not tell her parents. She also asserted that she did not inform the police that the accused forcibly took her to Goa or he has committed any sexual assault or physical assault against her.
32. As we analyze the evidence of P.W.3, it is pertinent to note that she was not aware the victim was in the company of the accused till they were traced at Goa. She is very clear that victim was eloped along with the accused. From the evidence of P.W.1 and 2 it is clear that P.W.2 was fell in love with the accused, they were in contact, to broke their contact they shifted their residence, but the accused and the victim were continued in contact through the mobile given to the victim by the accused. The history furnished to P.W.21, points out that victim and the accused were in love, they voluntarily eloped to Goa, he has noticed any sign of sexual activity conducted by the accused. The evidence of P.W.22-Dr. Saraswati Karekal stand in support of the defence that she has not noticed any symptoms of sexually assault or
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CRL.A No. 100029 of 2019sexual intercourse on the victim. The resitals of FSL report corroborates these aspects.
33. As deposed by P.W.23-Smt. Banubee Karadi, the Headmistress there is no basis available in the school to confirm the victim was born on 19.05.2000. Now in view of the school records, having no basis for determining the age of the victim, the Court has to examine the other circumstances whether the victim was born on 19.05.2000. As regards the victim age is concerned, the Trial Court is referred to Judgment of the Hon'ble Apex Court in the case of Brij Mohan Singh Vs. Priya Bhat Narain SInha and Others, reported in AIR 1965 Supreme Court 282, wherein it has been held as under :
"Under section 35 of the Evidence Act it often happens that persons give false age of the children at the time of admission to school so that alter in life he would have an advantage when seeking public service for which a minimum age for eligibility is often prescribed and the court of fact cannot ignore this fact while assessing the value of the entry and it would be improper for the court to base any conclusion on the
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basis of the entry, when it is alleged that the entry was made upon false information supplied with the above motive".
34. In view of the settled principles unless there is material placed to establish the correct age of the victim, Ex.P.19 alone cannot be basis for determination of the age of victim. There is no medical examination such as ossification test or radiological examination conducted on the victim. In the absence of proof of the birth certificate which is the basis for entering date of birth of a child when admitting to the school, the certificate issued by the school authorities cannot be accepted blindly, as there is all chances of mentioning of approximate age to suit the minimum age for school admission cannot be ruled out. As we have seen from the evidence of P.W.23, she was not the Teacher who admitted the victim in the school, only on the basis of entries made in the school register Ex.P.19 was issued.
35. As we seen from the evidence of P.W.21 and 22, there was no symptoms of physical assault or sexual assault on either of the victim and the accused. P.W.2 herself admits
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CRL.A No. 100029 of 2019in her cross-examination that she voluntarily went, there was no sexual assault against her. The Court must be very guard in appreciating the evidence of her parents. As we have seen from the evidence of P.W.30-Smt Mamtaz Shaikh, she did not support the prosecution regarding stay of the victim and the accused in her residence at Goa. Even there is no evidence on record to show that the accused married the victim at Darga of Goa. So the allegation of child marriage has not supported from the evidence. The evidence of P.W.2 did not point out that the accused has kidnapped her or committed sexual assault against her, hence the ingredients of the offences under Sections 366 and 376 of IPC so also the ingredients of the offences under Sections 6 and 12 of the POCSO Act, 2012 is not forthcoming from the prosecution evidence.
36. We are not persuaded by the argument of the learned Addl. S.P.P., that the victim has given statement under Section 164 of Cr.P.C. under Ex.P.4 which explained the prosecution case. The statement under Section 164 of
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CRL.A No. 100029 of 2019Cr.P.C. is not an evidence or proof of a crime. It can only be used to aid prosecution in case the victim turned hostile. Here in this case the victim did not turn hostile she explained what was transpired from the date of she leaving her house till she was traced at Goa. The evidence of victim if read as a whole, it is very clear she herself left the house, voluntarily eloped with the accused, accused never teased her, ill- treated her nor misbehaved with her, she was not subjected to any sexual assault and she never said to her parents or the police anything against the accused. As her parents did admit in the cross examination that there was no proof of age of the victim, probable age of the victim was 16 years 03 months on the date of alleged incident. In view of the judgment of the Hon'ble Apex Court, Ex.P.19 cannot be basis for determination of the age. Under such circumstances, the error of margin of 02 years on either side has to be accounted. If so, the age of victim on the date of alleged incident determined as more than 18 years and therefore the provisions of the POCSO Act, 2012 is not applicable. Under these circumstances, we do not find any evidence inspire the
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CRL.A No. 100029 of 2019confidence of the Court. Hence, the Trial Court has rightly recorded its finding that the ingredients of the offence is not explained.
Regarding Point No.(ii)
37. We have carefully perused the impugned Judgment, the Trial Court has analysed the evidence of P.W.1 to 3, 21 to 23 and P.W.30 and held that their evidence not establishing anything in support of the prosecution significantly the medical and FSL evidence is of no avail. As gathered from the entire prosecution evidence, ingredients of the offences are not forthcoming, the age of victim was not established, there is no proof of marriage at Goa nor sexual assault against victim by the accused and for this reason the Trial Court has extended benefit of doubt in favour of the accused.
38. The Hon'ble Apex Court in the case of Nizam and Another vs. State of Rajasthan, reported in (2016) 1 SCC 550 has held that Court has to examine the evidence in its entirety and ensure that only inference that can be drawn from the evidence, is guilty of the offence. If more than
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CRL.A No. 100029 of 2019one inference can be drawn, the accused must be given the benefit of doubt. In the facts and circumstances of the case, secondary inference is coming out, under such circumstances, the benefit of doubt at all stages goes in favour of the accused. Here in this case, none of the circumstances relied upon by the prosecution and accepted by the Trial Court can be said to be pointing only to the guilt of the accused and to no other inference. If more than one inference can be drawn, then the accused must be given benefit of doubt. In the facts and circumstances of the case, we are satisfied that the conviction of the accused is not possible.
39. As we discussed above, the evidence of P.W.2 explains that she voluntarily left out her house and went to Goa, roamed around and was brought back to the Hubballi. She was not forcibly removed from the lawful custody of her parents and she was not subjected to sexual assault. Under such circumstances, the finding recorded by the Trial Court is proper and based on the legal evidence. Hence we do not find any reason to hold that the order of the Trial Court is perverse and call for interference by this Court and the order
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CRL.A No. 100029 of 2019of the acquittal of the accused is proper. Hence we hold that appeal is devoid of merits and in the result, we dismissed the appeal.
SD JUDGE SD JUDGE CKK