Karnataka High Court
State By Hunsur Town Police Station vs Munivenkata on 19 September, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No. 1539 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 1539 OF 2016 (A)
BETWEEN:
STATE BY HUNSUR TOWN POLICE STATION,
REPTD. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING
BENGALURU -574 105
...APPELLANT
(BY SRI.P.THEJESH, HCGP)
AND:
1. MUNIVENKATA
S/O LATE RAMAIAH,
AGE: 51 YEARS
Digitally signed R/O SATHYAGALA BOVI COLONY,
by SUMITHRA R SATHYAGALA VILLAGE,
Location: HIGH PERIYAPATNA TALUK - 571 107
COURT OF
KARNATAKA 2. REVAMMA
W/O.RAMA
AGED ABOUT 28 YEARS
R/O.ARAVATHOKKALU VILLAGE
GONIKOPPA, VIRAJPETE TALUK,
KODAGU DISTRICT
...RESPONDENTS
(BY SRI.V.S.VINAYAKA, AMICUS CURIAE FOR R1;
R-2 SERVED)
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CRL.A No. 1539 of 2016
THIS CRL.A. IS FILED U/S.378(1) AND (3) CR.P.C,
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER DATED 15.04.2016 PASSED BY THE VI
ADDL. DIST. AND SPL. JUDGE, MYSURU IN S.C.NO.31/2015,
ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCES
P/U/S 376(2)(f)(i) OF IPC AND SEC.5(i)(m)(n) R/W 6 OF
POCSO ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY Dr. H.B.PRABHAKARA SASTRY, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appellant as the state/complainant had initiated a criminal proceedings against the present respondent No.1 arraigning him as accused for the offences punishable under section 376 of the Indian Penal Code (hereinafter for brevity referred to as 'IPC') and under section 4 of The Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as 'POCSO Act') in S.C.No.31/2015 in the court of the learned VI Additional District and Special Judge at Mysuru (hereinafter for brevity referred to as 'the Special Court'). After trial, the accused was acquitted of all the alleged offences. Seeking setting aside of the impugned judgment dated 15.04.2016, the State has preferred the -3- NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 present appeal under sections 378(1) & (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.').
2. The summary of the case of the prosecution is that on the date, 6.10.2018 at about 8.00 P.M., the accused committed rape and aggravated penetrative sexual assault upon his grand daughter i.e., the victim girl who was aged 5 years on the passage of Veterinary Hospital building situated near Heggadadevanakote Circle in Hunsur Town and thereby has committed offences punishable under Section 376 of IPC and Section 4 of the POCSO Act. However, after hearing both sides and perusing the material placed before it the Special Court, finding that there are sufficient material to frame the charge against the accused, has framed the charges about the offences punishable under Section 376(2)(f)(i) of IPC and under Section 5(i)(m) & (n) r/w Section 6 of the POCSO Act.
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3. Since the accused pleaded not guilty, the trial was held wherein in order to prove the alleged guilt against the accused, the prosecution got examined ten witnesses from PW1 to PW10 and got marked twelve documents from Ex.P.1 to P.12 and material objects M.Os.1 to 6. Statement of accused under section 313 of Cr.P.C., was recorded. Neither any witnesses were examined from the accused side nor any documents were marked as exhibits.
4. After hearing both side, the learned Special Judge by his impugned judgment dated 15.04.2016 acquitted the accused for the offences charged against him.
5. Respondent No.1/accused is being represented by Amicus curiae. Respondent No.2, de-facto complainant is served.
6. The Special Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the material placed before this Court including the -5- NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 memorandum of appeal, impugned judgment and the Special Court records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Special Court.
9. The learned HCGP in his argument submitted that, the victim girl was a child of 5 years old on the date of the alleged incident is not in dispute. The said witness on her own style has deposed that it was her grand father i.e. the accused who has committed the alleged act. Further, the medical evidence given by PW5 and PW6, the doctors, shows that the girl was subjected to assault. The medical evidence of PW7 who has examined the accused shows that the accused was capable of committing sexual intercourse. Thus, the evidence of none else than the victim corroborated by the medical evidence has clearly proved the alleged guilt against the accused. However, the Special Court without appreciating the evidence in its proper perspective has acquitted the accused of the -6- NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 alleged offences, as such, the same warrants interference at the hands of this Court.
10. Per contra, learned Amicus Curiae for the accused in his argument submitted that, in order to prove the age of the girl that she was a minor, the prosecution has failed to produce any evidence including the school certificate or birth certificate, if any, of the victim girl. More importantly, the mother of the victim herself has not stated about the age of the girl. He further submitted that, a entire reading of the brief evidence of alleged victim, no where mentions that any act of sexual act has been committed upon her by anybody much less by the accused. Merely because couple of abrasions were found to have been noticed on the upper portion of the body of the girl and the accused was found medically fit to perform sexual intercourse, by that itself it cannot be held that the accused has committed the alleged sexual assault on the alleged victim girl. As such, the impugned -7- NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 judgment does not warrant the interference at the hands of this Court.
11. In the light of the above The points that arise for our consideration are:
1. Whether the prosecution has proved beyond all reasonable doubt that on the date 6.10.2014 at about 8.00 P.M. on the passage of Veterinary hospital building situated near Heggadadevanakote Circle in Hunsur Town within the limits of complainant Police Station, the accused has committed rape and aggravated penetrative sexual assault upon the victim girl who was his grand daughter and thereby has committed the offence punishable under Section 376(2)(f)(i) of IPC and under Section 5(1)(m) &
(n) r/w Section 6 of the POCSO Act.
2) Whether the impugned judgment of acquittal warrants any interference at the hands of this Court?
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12. Before proceeding further in analysing the evidence laid in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of the accused from the alleged offences punishable under Section 376(2)(f)(i) of IPC and under Section 5(1)(m) &
(n) r/w Section 6 of the POCSO Act. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law that, unless his guilt is proved, the accused has to be treated as innocent in the alleged crime. Secondly, the accused is already enjoying the benefit of judgment of acquittal passed under the impugned judgment. As such, bearing the same in mind, -9- NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 the evidence placed by the prosecution in the matter is required to be analysed. The Hon'ble Apex Court, in its judgment in CHANDRAPPA AND OTHERS Vs. STATE OF KARNATAKA, reported in (2007) 4 SCC 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of an acquittal, was pleased to observe at paragraph
42.(4) and paragraph 42.(5) as below:
"(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record,
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 the appellate court should not disturb the finding of acquittal recorded by the trial court." In SUDERSHAN KUMAR Vs. STATE OF HIMACHAL PRADESH reported in (2014) 15 SCC 666, while referring to Chandrappa's case (supra) the Hon'ble Apex Court at para 31 of its Judgment was pleased to hold that a cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal, the Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
In Jafarudheen Vs. State of Kerala reported in (2022) 8 SCC 440 at para 25 of the judgment, the Hon'ble Apex Court was pleased to observe as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case were reaffirmed by the Hon'ble Apex Court in Ravi Sharma Vs. State (Government of NCT of Delhi) and another reported in (2022) 8 SCC 536.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
13. In order to prove the alleged guilt against the accused, among the 10 witnesses examined by the prosecution about the age of the victim girl, no direct evidence is forthcoming. However, the deposition sheet of the alleged victim girl who was examined by the Special
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 Court as PW1, the age of the alleged victim girl is shown as 6 years as on the date of recording of evidence which was on 16.9.2015. As such, as on the alleged date of incident, we may have to infer that the alleged victim girl was aged 5 years. Incidentally, the mother of the alleged victim girl by name Smt.Revamma though was examined as PW2 however, no where in her evidence has stated about the age of her daughter i.e., the victim girl. Even though according to the prosecution, PW5 Dr.Latha and PW6 Dr.Supriya have examined the victim girl however, PW5 has not stated anything about she assessing the age of the alleged victim girl. PW6 though has stated that, the victim girl aged about 5 years was brought to her on 7.10.2014 however, admittedly the say of the evidence of the victim girl was aged about 5 years was not her medical opinion based upon the tests, if any, conducted to ascertain the age of the victim girl. Barring the above, there are no other evidence either oral or documentary to show the age of the alleged victim girl. However, nowhere in the cross-examination of any of the witnesses the
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 accused has denied the age of the alleged victim girl who is said to be 5 years. As such, it can be safely taken that alleged victim girl was aged 5 years as on the date of alleged offence which was on 6.10.2014.
14. About the incident, the material witness examined by the prosecution is none else than the alleged victim. She was examined as PW1 (CW2). The Court after putting some Court question to the witness to ascertain whether she is capable of understanding the questions put to her and to give rational answers, opined that to some extent the witness could able to depose in the matter. It is thereafter recording of her evidence continued without administering oath to her.
15. The witness in her evidence has stated that Smt. Revamma (PW2) is her mother. Papamma (CW2) is her grand mother, however she is dead. After seeing the accused in the Court, she identified the accused as her grand father by name Munivenkata. She stated that her
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 grand father works as a mason and gets her biscuits and sweets. To the question as to what her grand father did upon her, the witness has stated that, he did nothing. However, to the question as to whether she was taken to the hospital by her grand father, the witness answering affirmatively stated that since she has sustained an injury near her thigh, she was taken to hospital. She was put a question as to how the said injury came to be caused, for which the witness answered stating that since her grand father put his hand, the injury occurred. Except these answers, the prosecution did not make any attempt to elicit any further details from the witness.
In her cross-examination, the witness has stated that near her house she plays with other children. She admitted a suggestion as true that while playing she fell on stone and sustained injury, as such her grand father had taken her to hospital. She admitted a suggestion as true that her grand father did not put his hand and nothing was done by him. She also stated that the police did not ask her as to what she suffered.
The above evidence of PW1 does not give any
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 impression of alleged sexual assault upon her by anyone much less by her grandfather who according to her is the accused. Though the witness has stated initially that because grand father put his hand, she suffered injury on her thigh, however, in her cross-examination she admitted several suggestions as true including that the injury suffered by her was due to fall upon a stone while playing with other children and it was for the said reason her grand father had taken her to the hospital. She clearly admitted a suggestion as true that her grand father had not done anything to her including putting his hand. More importantly, the witness stated that the police did not ask her as to what happened. When PW1, the alleged victim girl, herself has admitted several suggestions in her cross- examination about her alleged fall and the police not asking anything about the incident from her, the prosecution was expected to subject the witness for re- examination and eliciting certain details as to in what context she said that she sustained injury by fall. It was necessary because the injury as noticed by the Medical
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 Doctor i.e. PW5 in this case, which is further evidenced in the wound certificate at Ex.P4, in the form of two abrasions, one on the lower lip of the face of the girl and another one on the cheek portion. Even according to PW5, the doctor, those two injuries are possible to be caused if the girl falls on a hard substance like a stone slab. Under such circumstance, the prosecution should have re-examined the witness and ascertained that the witness was admitting the suggestion with respect to the first two injuries suffered by her but not the alleged injury near to the private organ of the body. However, for the best reasons best known to it, the prosecution did not choose to re-examine.
Similarly, when PW1 has stated that police did not ask her as to how she felt, either the prosecution should have objected to put a question in such a manner since such question was not carrying any specific meaning which could have understood by a small girl aged about 5 years or at least it should have put that witness for re- examination and ascertain that what she understood by the said question that whether the police did ask her as to
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 what she felt. However, in that regard also, no attempt was made by the prosecution to elicit those required details from the victim. As such, the material witness from which the prosecution should have gathered the maximum possible support for its case, threw open its hands before putting the minimum required effort.
16. The second witness who was projected to speak about the alleged incident was PW2, CW10-Smt Revamma, the mother of the alleged victim girl and also the daughter of the accused. Though the witness in her examination-in- chief has stated about the relationship of the victim girl and the accused, however she categorically stated that the accused had not taken the victim girl with him to any place and has not caused any inconvenience or trouble to her daughter i.e. PW1. She also stated that accused has not taken her daughter to Government hospital at Hunsur and got her medical treatment. To the height of the above, the witness stated that the police did not enquire anything about the victim girl with her and not recorded her
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 statement. Even after treating her as hostile and cross examining the witness, the prosecution did not get any support from the said witness. As in several other cases, even in this case also the prosecution, except reading the alleged statement of the witness before the Investigating Officer, did not put any single extra question to the witness to show that she has turned hostile and has given a statement as alleged at Ex.P1. As a consequence, this witness was not cross examined by the accused side. Thus, the evidence of PW2 also was of no assistance to the prosecution even to a smaller extent to prove the alleged guilt against the accused.
17. The remaining three witnesses upon whom the prosecution has relied upon to prove alleged guilt of accused are PW5, CW13-Dr.Latha, PW6, CW14-Dr.Supriya and PW7, CW15-Dr.Mahesh A P. Among these witnesses, according to the prosecution, PW5 and PW6 have examined the victim girl and PW7 has examined the accused. PW5- Dr.Latha in her evidence has stated that
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 the date on 6.10.2014 while she was on duty as a Casualty Medical Officer at Government Hospital Hunsuru, at about 8.35 p.m., the victim girl (PW1) was brought to the hospital by her grandfather-Munivenkata complaining that due to somebody's act, the girl is complaining of pain in her private organ and finding it difficult to walk. The witness stated she sent a MLC intimation to the complainant police station and thereafter proceeded to examine the victim girl (PW1). In the said examination, she noticed the following three injuries on the person of the alleged victim girl.
i) Abrasion over the lower lip measuring half a centimeter covered with blood clots;
ii) Abrasion over the left cheek measuring half a centimeter covered with blood clots.
iii) Bruising over external genitalia and inner aspect of the thigh;
The witness stated after examining the witness, she felt she was required to be examined in a higher manner. As such, she referred the patient to Gynecologist at
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 K.R.Hospital, Mysore. In that regard, she has issued a wound certificate which the witness has identified at Ex.P4. However, she opined that after seeing that the patient was walking with a wide gait and the injuries suffered by her, she felt that there may be a possibility of sexual assault on her. PW4 was cross-examined from the accused side wherein she admitted a suggestion as true that the two abrasions found on the victim girl are also possible to be caused if a person falls on a hard surfaced floor. However, she denied that bruising over external genital area are possible to be caused when a sharp stone comes in contact with that portion or the girl falling on such an object. She denied the suggestion that the patient told before her that she sustained injuries while playing. From the above evidence of PW5, it cannot be concluded that the victim girl was subjected to any sexual assault by anybody including the present accused as such as, PW5 herself has stated that opinion of a Gynecologist in that regard would be of some help to the prosecution.
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18. PW6, CW14-Dr.Supriya in her evidence has stated that on 7.10.2014 morning at 4'O clock she examined the victim girl in this matter who was brought to Cheluvamba Government Hospital, Mysore where she was working as Gynecologist in OBG department. The patient was brought with the history of sexual assault and was accompanied with her aunt. The witness stated that PW1 did not show inclination to speak. However, her aunt, accompanying her, stated that they are suspecting that the grand father of the girl must have sexually assaulted. With the said history, she examined the victim girl (CW1) and noticed a small swelling on the left cheek and redness over both the thighs in the medial aspect of upper one third of the thigh measuring 5 x 5 cms. almost circular in shape. There was no abrasion, no swelling and no tenderness. Hymen was found intact. There was no injury either external or internal on the genital organ and there was no discharge. Witness has stated that since the girl was brought with the history of sexual assault, she collected vaginal swab and vaginal smear, the dress worn
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 by the girl which was a skirt and a top and gave it to police for referring it for the chemical examination to the Forensic Science laboratory. The witness further stated that after noticing the injuries found on the victim girl and going through the FSL report, she was of the opinion that there were no signs suggestive of vaginal intercourse but there was evidence of physical assault. Stating so, the witness has stated that she had issued a medical report in that regard and she has identified it as Ex.P5.
19. The articles said to have been collected by her at the examination of PW1 has been identified by this witness from MO.1 to MO.4. While concluding the examination-in- chief, the witness has stated that the injuries noticed in the certificate at Ex.P5 are also possible to be caused if PW1 was subjected to sexual assault. In her cross- examination from the accused side, the witness admitted the suggestion as true that the injuries noticed on the cheek and lips of the injured are also possible to be caused if the girl falls on a hard surface while playing. She denied
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 the suggestion that the aunty of the victim girl has given the history of sexual assault upon the girl.
20. The evidence of PW5 though would not rule out the possibility of sexual assault upon the girl in view of the injuries sustained by her however, in the specific case the very same witness has opined in her opinion that, there was no sign of suggestive vaginal intercourse but there was evidence of physical assault. Thus, the experts opinion in the form of medical doctor has ruled out the possibility of sexual act or sexual intercourse upon the victim girl. Under such circumstance, the evidence of PW7, CW15-Mahesh A P that his medical examination of the accused had shown that there was no evidence to say that the accused was incapable to perform sexual activity would not take the case of the prosecution to its desired end. Merely because the accused is said to be not incapable of participating in sexual intercourse, by that itself it cannot be held that he has committed sexual assault or rape upon PW1. Therefore, the medial evidence
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 relied upon by the prosecution also would not prove that the accused has committed sexual assault upon the girl.
21. In the light of the above evidence of the prosecution, the evidence of PW3, CW3-Sanaulla and PW4, CW4- Ramu, who are said to be the panchas to the scene of offence panchanama at Ex.P2 would be of no avail to the prosecution. Incidentally, both of them have turned hostile to the prosecution. They have stated that the police have taken their signatures on Ex.P2. However, they do not know what Ex.P2 was and no scene of offence panchanama was drawn in their presence. Ironically, no panchanama is placed before us and marked as exhibit showing it as a scene of offence panchanama drawn by the Investigating Officer without the assistance of the accused. Ex.P2, the scene of offence panchanama, is shown to have been drawn at the place alleged to have been shown by the accused whereas, before the complainant police could arrest the accused and accused taking them to the scene of offence, the police already knew about the alleged
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 incident since according to them, CW2- Papamma, the grand mother of the victim girl, had already lodged the complaint as per Ex.P11. The same has come in the evidence of PW10, CW23-Lava M.R. the police officer. Thus, when the police had already information about the alleged commission of crime, they could have ascertained the place by enquiring with the girl and proceeded to the spot. However, for the reasons best known to them, they did not undertake such act of investigation. Neither PW10 nor the other police officer who is PW8, CW24- Mallesha A have spoken anything about their effort in that direction. On the other hand, PW8 has also stated that after arresting the accused, the accused gave voluntary statement to show the place of offence, as such, scene of offence panchanama as per Ex.P2 was drawn at the spot said to have been shown by the accused. Assuming for a moment that the police could come to know about the place of the incident only after arrest of the accused, still PW8, the Investigating Officer, has not stated as to what was the voluntary statement made by the accused and did
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 not got the said portion of the voluntary statement marked in his evidence. On the other hand, he has directly proceeded to identify the scene of offence panchanama which was marked in the evidence of PW3. As already observed, both PW3 and PW4 have clearly stated that no such scene of offence panchanama was drawn in their presence. As such, the alleged possibility of the accused showing the alleged place of incident to the police in the presence of PW3 and PW4 also stands not proved by the prosecution. Therefore, even with respect to the alleged place of offence also the prosecution could not place convincing evidence before the Court.
22. The last witness upon whom the prosecution has little hope was PW9, CW22-Padmavathi, the Woman Assistant Sub-Inspector, of the complainant police station at the relevant point of time. The said witness though in her evidence has stated that at the instruction of the Circle Inspector of Police, she recorded the statement of the victim girl and submitted to her superior and identified the
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 said statement at Ex.P10, however, nothing was elicited in the evidence of PW1 about the girl giving any such statement to any of the police officer including PW9. On the other hand, as already observed above, PW1 in her cross-examination had specifically stated that the police have not asked her as to how she felt (to be read as how she sustained injury).
Thus, it appears that the prosecution while examining PW1 did not anticipate that there is one more police witness who speaks about she recording the statement of the victim girl. The prosecution was required to anticipate from the said police officer who was also charge sheet witness as CW22 and she was a crucial witness for the prosecution. Had the prosecution anticipated the same, it would have definitely re- examined PW1 and attempted to elicit from her about CW22 recording her statement. However, as observed above, the prosecution has not shown its proficiency or expertise in examination of the witnesses in this case more particularly of PWs 1 and 2. The consequence is that, none of the witnesses have spoken about the accused
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 committing the alleged incident.
Even though PW9 has stated that the victim girl stated before her that her grand father taking her to a place, laid upon her and lifting her frock, put his hand, however, even PW9 also has not stated as to what inference that could have been drawn by any one hearing the said alleged words said to have been stated by the victim girl before her. Merely because PW1 stated that the victim girl told before her as "did so by putting hand" and PW1 stating in her evidence as "since grand father put his hand, injury occurred" by that itself, it cannot be concluded that the accused had put his hand at the private part of the victim girl and has committed any act attracting either Section 376 (2)(f)(i) of IPC or Section 5(i)(m) & (n) r/w. Section 6 of POCSO Act for which the charges are framed against him. Thus, unhesitatingly it has to be held that the prosecution has utterly failed to prove the alleged guilt against the accused. Since, it is noticing the same the Special Court had acquitted the accused of the alleged guilt, we find no reason to interfere with the impugned judgment.
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23. Accordingly, we proceed to pass the following :
ORDER [i] The present Criminal Appeal No.1539/2016 stands dismissed;
[ii] The accused - Munivenkata, Son of late Ramaiah, Aged about 51 years, R/o. Sathyagala Bovi Colony, Sathyagala Village, Periyapatna Taluk, who is presently in judicial custody is ordered to be released immediately, provided he is not required to be detained in custody in any other case.
The Registry to intimate the concerned Jail authorities, immediately.
The Court while acknowledging the services rendered by the learned Amicus Curiae - Sri V S Vinayaka, for the respondents No.1/accused, recommends an honorarium of a sum of not less than `5,000/- payable to him by the Registry.
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NC: 2023:KHC:33832-DB CRL.A No. 1539 of 2016 Registry to transmit a copy of this judgment along with Special Judge's Court's records to the concerned Special Judge's Court immediately, for doing needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE rs List No.: 1 Sl No.: 8