Karnataka High Court
State Of Karnataka vs Manjunath @ Manjya Ramanna Waddar on 12 April, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF APRIL 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRL.A NO 100124 OF 2018
BETWEEN
STATE OF KARNATAKA
BY HIREKERUR POLICE STATION,
HAVERI DISTRICT,
THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
.....APPELLANT
(BY SRI V.M. BANAKAR, ADDL. SPP)
AND
MANJUNATH @ MANJYA RAMANNA WADDAR,
AGE: 22 YEARS, OCC: COOLIE,
R/O: NAVANAGAR, HIREKERUR,
TQ: HIREKERUR, DIST: HAVERI.
.....RESPONDENT
(BY SRI HANUMANTHREDDY SAHUKAR, ADV.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) &
(3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AND TO SET
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ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
21.11.2017 PASSED BY THE PRL. DISTRICT & SESSIONS JUDGE
AND SPECIAL JUDGE AT HAVERI IN S.C.NO. 09/2015 AND TO
CONVICT THE RESPONDENT / ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 363, 366, 376 OF IPC AND UNDER
SECTIONS 4 AND 6 OF POCSO ACT, 2012.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 23.03.2022, THIS DAY,
RAJENDRA BADAMIKAR, J. PRONOUNCED THE FOLLOWING:
JUDGMENT
The State has filed this appeal under Section 378(1) and (3) of Code of Criminal Procedure , 1973 (hereinafter referred to as 'Cr.P.C.', for short) challenging the judgment of acquittal passed by the Principal District and Sessions Judge, Haveri in Spl.S.C.No.9/2015 dated 21.11.2017 whereby the learned Sessions Judge has acquitted the accused/respondent herein for the offences punishable under Sections 363, 366, 376 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC', for short) and under Sections 4 and 6 of the Protection of Children from Sexual Offices Act, 2012 (hereinafter referred to as 'POCSO Act', for short) and convicted the accused for the offence punishable under Section 9 of Prohibition of Child Marriage Act, 2006 (hereinafter referred to as 'the Act', for short).
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2. For the sake of convenience, the parties herein are referred to with their original ranks occupied by them before the Trial Court.
3. Brief factual matrix leading to the case is as under:
According to the prosecution, the complainant and accused are residents of Hirekerur town, residing in the same street. That accused used to talk to the complainant's daughter who is the victim and developed friendship with her and gave false assurance of love by expressing false intention of marrying her. It is further alleged that the accused having knowledge that victim is a minor, on 12.09.2014, at 12.00 noon, kidnapped her from the lawful guardianship from Hirekerur in a car under the false pretext of marriage and took her to Mudubasiddapura village of Shikaripura Taluk and in a temple of Hirekavalatti Basavannadevar, he tied tali to her and got married. It is also alleged that thereafter he took her to Kelaginajoganahalli village of Doddaballapura in Bengaluru Rural District and kept her in a house and there, he committed rape and sexual assault on her. The complainant lodged a complaint against the accused and on the basis of 4 the complaint, crime was registered and the victim was secured and both victim and accused were subjected to medical examination. Later on the Investigating Officer after completing the investigation, submitted the charge sheet against the accused for the offences punishable under Sections 363, 366 and 376 of IPC and under Sections 4 and 6 of POCSO Act as well as under Section 9 of the Act. Accused was initially arrested and subsequently he was enlarged on bail. The learned Special Judge after hearing both the parties, framed charges under Sections 363, 366 and 376 of IPC read with Section 4 and 6 of POCSO Act and Section 9 of the Act and the same is read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.
4. To prove the guilt of the accused, the prosecution has examined 22 witnesses as PW-1 to PW-22 and Exs.P-1 to P-19 were got marked. Further, prosecution has also placed reliance on M.Os. 1 to 7.
5. After the conclusion of the evidence of the prosecution, the statement of accused under Section 313 of Cr.P.C is recorded to enable the accused to explain the incriminating materials appearing against him in the 5 prosecution case. The case of the accused is of total denial and he did not choose to lead any oral and documentary evidence in support of his defence.
6. After hearing the arguments and after appreciation of the evidence on record, the Trial Court has acquitted the accused for the offences punishable under 363, 366 and 376 of IPC read with Section 4 and 6 of POCSO Act but convicted him for the offence punishable under Section 9 of the Act by sentencing him to undergo simple imprisonment for a period of one year and set off was given to him.
7. Being aggrieved by the judgment of acquittal pertaining to offences under Sections 363, 366 and 376 of IPC and Sections 4 and 6 of POCSO Act, the State has filed this appeal.
8. We have heard the learned Addl. State Public Prosecutor and learned counsel for respondent/accused. We have also perused the records of the Trial Court in detail.
9. Learned Addl. State Public Prosecutor contended that the judgment of the Trial Court is erroneous and perverse as the Trial Court has failed to consider that the victim defined 6 under Section 2(d) of POCSO Act is, any person below the age of 18 years and in the instant case, the victim was aged about 16 years as on the date of incident and the evidence is sufficient to establish that the accused has subjected her to sexual assault. He would also contend that the evidence of victim itself is sufficient to convict the accused but the Trial Court has ignored the said fact. He would also contend that the victim was taken from the custody of the lawful guardianship when she was minor and the provisions of Section 363 of IPC are attracted and the intention to marriage is manifest and there is evidence of enticing of the victim and as such, the offence under Section 366 of IPC is also attracted. He would also contend that the evidence of the victim and medical evidence clearly establish that the victim was subjected to rape and sexual assault and as such, the Trial Court has failed to appreciate the oral and documentary evidence in proper perspective and has acquitted the accused which has resulted in miscarriage of justice. Hence, he would seek for setting aside the impugned judgment of acquittal and prayed for convicting the accused for the offence punishable 7 under Sections 363, 366, 376 of IPC and Sections 4 and 6 of POCSO Act by allowing this appeal.
10. Per contra, learned counsel for respondent/accused would contend that there is no material evidence that the victim was subjected to any sexual assault and there is dispute regarding the age of the victim. Further, the medical evidence does not conclusively establish regarding sexual assault and the evidence of victim is inconsistent and contrary. Hence, he argues that it can be presumed that she has given evidence due to pressure under undue influence and as such, he would contend that the Trial Court has appreciated all these aspects in proper prospective and arrived at a just decision. Hence, he would contend that the judgment passed by the Trial Court does not call for any interference and prayed for dismissal of appeal.
11. We have heard both the parties at length and given our anxious considerations on the submissions made by respective parties. We have also perused the records of the Trial Court.
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12. Now the following points would arise for our consideration:
1) "Whether the prosecution proves beyond all reasonable doubt that on 12.09.2014 at 12.00 noon accused kidnapped the victim girl from lawful guardianship of the complainant with an intention to marry her and later on in Kelaginajoganahalli village of Doddaballapura in Bengaluru Rural District has committed rape and aggravated sexual assault on victim and thereby committed the offence punishable under Sections 363, 366, 376 of IPC and under Section 4 and 6 of POCSO Act?
2) Whether the judgment of acquittal of the Trial
Court in respect of the said offences is
perverse, erroneous and suffers from any
infirmity so as to call any interference by this Court?"
13. The allegations of the prosecution disclose that the accused and the victim girl are the neighbours and they were in love with each other. It is the further case of the prosecution that the accused under the pretection of marrying the victim girl, induced her and thereafter kidnapped her from lawful guardianship and later on committed aggravated sexual 9 assault on her after marrying her having knowledge that victim is a minor girl. At the outset, it is to be noted here that as per the case of the prosecution, the victim was aged about 16 years but the medical evidence discloses that she is well grown up and has attained puberty. No evidence is placed by the prosecution to show that the victim was in fact a minor except the school certificate at Ex.P-16 which discloses that the date of birth of the victim is 01.06.1998. No doubt, under Section 34 of the Indian Evidence Act, this document has got presumptive value but no evidentiary value can be attached to the said document unless if a person who makes entries or the person who has given information for entry of the date of birth is examined by the prosecution. But in the instant case, that was not done and the complainant who claims to be the mother of the victim has nowhere deposed in her evidence regarding she entering the date of birth of the victim. Further, the father of the victim is not examined and he is the first natural guardian of the victim and he would have been the best witness to depose as to who has entered the date of birth in the school register. The birth certificate is also not produced and there is no material evidence placed by the 10 Investigating Officer to show that he has got examined the victim by the radiologist and the dentist so as to ascertain her age. The entire evidence is silent in this regard. But however, a stray observation is made in Ex.P-14 that the estimated age by the dental examination is between 15 to 17 years pertaining to the victim. What is the basis and when the victim was subjected to dental examination is not at all forthcoming. It is important to note here that as per the radiological or dental report regarding determination of age, relaxation of 2 years plus and minus is permissible.
14. Apart from that, evidence of the complainant and other family members establish that they were searching bridegroom for the victim in order to perform her marriage. That itself discloses that the victim was major and has attained puberty. Apart from that, there is no evidence led by the prosecution to show that accused was having knowledge of the fact that victim was minor. In the light of these aspects, the evidence of the prosecution is required to be considered. At the same time, it is also to be noted here that the Trial Court has convicted the accused for the offence punishable under Section 9 of the Act. On perusal of the 11 material evidence, no acceptable material is forthcoming to prove the marriage between the victim and accused. The evidence of the victim is also inconsistent in this regard. The evidence of Investigating Officer discloses that he has not collected any material regarding the marriage of the victim with accused. Hence, the Trial Court on assumptions has proceeded to convict the accused in this regard. However, the accused has not challenged the said conviction under Section 9 of the Act, since it was set off with the judicial custody undergone by the accused during trial. Hence, the said issue cannot be considered now.
15. The prosecution has led the evidence of 22 witnesses and relied documents at Exs.P-1 to P-22. Amongst these witnesses, PW-9 is the victim girl while PW-1 is the complainant. PW-2, PW-5, PW-6 and PW-8 are the brothers of the victim. PW-3 Ataulla is spot mahazar witness and PW-4 Kavita is tailoring teacher. PW-7 Geeta Waddar is said to be the eyewitness but she has turned hostile. PW-10 is the sister of the accused and she has also turned hostile. PW-11 V. Jeevankumar, who is the Project Manager of Rashtrothan Goshala wherein the accused was alleged to be working and 12 PW-12 Ravi who was working as coolie in Rashtrothan Goshala have also turned hostile who are alleged to have seen the accused and victim together in the village.
16. PW-1 is the complainant and PW-2, PW-5, PW-6 and PW-8 are the brothers of the victim. Admittedly, they are not eyewitnesses to the alleged incident. PW-1 deposes regarding victim being missing, lodging the complaint and tracing the victim etc. She has also admitted that while the statement of the victim was recorded by the learned Magistrate under Section 164 of Cr.P.C., she was present and it is evident that the victim has refused to go with the mother and she has given her statement in favour of the accused. She has asserted that the victim was threatened by the accused but that was not the case made out by the prosecution and victim herself did not put forward such a case. Her cross-examination discloses that they were in search of a bridegroom for the victim. Even PW-2 who is the brother of the victim has also stated that they were searching for bridegroom when they got the knowledge of the fact that the victim is in love with the accused. Even PW-5 who is the other brother of the victim has also admitted that when they 13 got knowledge of victim loving the accused, they started to search a bridegroom in this regard.
17. PW-8 Sadiq is the another brother of the victim who has turned hostile to the case of the prosecution. During the cross-examination by the learned Public Prosecutor, he has specifically admitted certain suggestions regarding accused and victim loving each other and they making attempt for her marriage etc. Very interestingly, in the cross- examination by the defence counsel, this witness has specifically admitted that the accused was all along available in the village and he never left the village. This admission is completely contrary to the case of the prosecution, as according to the prosecution, for two months accused and victim stayed somewhere else which is disputed by this witness.
18. PW-9 is the victim girl and her evidence discloses that she used to go for learning tailoring and accused is the friend of her brother PW-8 and he used to call her on phone asserting that they would run away. She further deposed that accused never used to meet her while she had been to tailoring class which is against the case of the prosecution. 14 She deposed that at 12.00 p.m. accused brought a vehicle to tailoring class and then took her to Mudubasiddapura village of Shikaripura Taluk wherein in Hirekavalatti Basavannadevar temple, he tied tali to her neck and then they went to Shimogga and then to Doddaballapura wherein they stayed in a farmhouse as husband and wife wherein accused has committed sexual assault. She claimed that when the incident has taken place, she was aged about 17 years. In her cross-examination, she admitted that the evidence which she has given in examination-in-chief and the facts given by her in examination-in-chief were not stated by her before the Investigating Officer or the statement recorded under Section 164 of Cr.P.C. before the learned Magistrate. She has also admitted that after understating statement recorded under Section 164 of Cr.P.C. by the learned Magistrate, she signed on it. Though she initially denied that she was in love with accused, her cross-examination reveals that she was in love with accused and when this fact was made known to the family members she was prevented from attending tailoring class and they started for searching for an alliance for her. In the further cross-examination, she claimed that in the car 15 along with driver one more person was there but interestingly the investigating agency did not bother to ascertain who is that person. She is unable to say where exactly the temple is situated and she claimed that in Mudubasiddapur temple, they were there for half an hour but she asserts that she did not know who was the priest and her evidence discloses that nobody has performed her marriage. Her further cross- examination reveals that subsequently they traveled to Shimogga and from there to Bengaluru and in Shimogga, they had been to the house of the relatives of the accused which is not the case made out by the prosecution. Her entire cross- examination clearly establishes that she never raised any objection or alarm and she has voluntarily accompanied the accused all along. She has admitted that whatever she has now deposed before the Court is not stated by her in her 161 statement before the Investigating Officer or in 164 statement before the learned Magistrate. 164 statement recorded before learned Magistrate is marked at Ex.P-7 wherein she has simply asserts that she had been along with accused to Mulasiddapur village to a temple wherein she married with him and they went to Doddaballapura etc. and she also 16 asserts that she will continue to stay with accused and she will never go with her parents. This statement is completely contrary to her evidence and statement under Section 161 recorded by the Investigating Officer. Further, the evidence of PW-1 does disclose that while recording the statement under Section 164, complainant was present but even then the victim was insisting to go with the accused. Further, the cross-examination of the Investigating Officer clearly discloses that since it was an inter-caste relationship, there were chances of disruption of communal harmony in the village. The evidence led by the prosecution does not inspire the confidence of the Court regarding the accused kidnapping the victim with an intention to marry. In this context, learned counsel for respondent placed reliance on a decision of the Hon'ble Apex Court in the case of S. Varadarajan Vs. State of Madras reported in 1965 (1) SCR 243.
19. In the instant case, there is no evidence to show that accused has taken away the victim from the lawful guardianship. Even the age of the victim is also uncertain as observed above, as the prosecution has not made any efforts to ascertain the exact age of the victim. Ex.P-14 is a proforma 17 of the examination of the victim and there is specific mention in column No.12(a) that the rape was said to have committed on 12.09.2014 but as per the case of the prosecution, the rape was not committed on 12.09.2014 but subsequently it was committed in a farmhouse in Doddaballapura. Apart from that in column 12(b) the place of rape was shown as Mangaluru at a rented house. It is nobody's case that the victim and accused have traveled to Mangaluru and any rape was committed in Mangaluru but in Ex.P-14, the place of rape is shown to be Mangaluru. In this regard, PW-15 is the doctor and her evidence discloses that she has made entries as per the say of the victim girl and victim had attained puberty. In her cross-examination she further admits that the hymen was ruptured and asserts that for other reasons also the hymen can rupture. She specifically asserts that the victim claimed that she is still virgin. If this statement is taken into consideration, it is evident that the victim never admitted the rape before the doctor. Further in the cross-examination, it is evident that the entry in column No.12(a) of Ex.P-12 regarding date of rape is mentioned as per the say of the 18 victim. But there is no evidence that victim had at any time traveled to Mangaluru along with accused.
20. Further, the evidence of PW-16 Renuka who has recorded the statement of the victim discloses that the victim has disclosed before this witness that accused has provided a mobile to victim. The Investigating Officer has not seized the said mobile and did not even ascertain the mobile number to ascertain the location or call details.
21. On the contrary, PW-21 Mahantesh who was the Investigating Officer deposed that on the basis of tower location, he learnt that accused and victim were moving around Shimogga and Shikaripura but on what basis this tower location was secured is not at all forthcoming. In that event, it is evident that the Investigating Officer knew the mobile numbers of accused and victim and both were not placed before the Court and call details were also not produced.
22. On the contrary, PW-22 Yogesh is also another Investigating Officer. He deposed that on the basis of the mobile said to have been used by the accused, he learnt that 19 accused was in Mangaluru. He secured CW-11 and her family members. But very interestingly, what is the mobile number of the accused is not at all forthcoming. The entire case of the prosecution does not disclose as to in which period the victim and accused have stayed in Mangaluru. The victim is said to have been given information regarding the date of rape as 12.09.2014 in Mangaluru but it is not the case of the prosecution. Further, he admits that on 24.11.2014 when medical examination of the victim was concluded, she has refused to go with her mother and since both victim and accused belonging to different communities, PW-22 apprehended communal disruptions. In the cross- examination, he admitted that he did not make any attempts to obtain details of mobile used by the accused. He has also admitted that he did not recorded the statement of staff who had been to Mangaluru. Even he has not made any attempt to secure any evidence regarding marriage said to have been performed in Marulsiddeshwar temple of Shikaripur Taluk. Hence, on assessment of the entire evidence, it is evident that the prosecution has withheld the very genesis of the case and tried to conceal certain material aspects regarding victim 20 visiting Mangaluru. Even the Investigating Officer did not bother to obtain call details and rape alleged to have committed on 12.09.2014 but the prosecution case put forward is different. Even place of rape is completely contrary compared to medical evidence.
23. Regarding the age of the victim, there is no material evidence placed to show that she was a minor. No doubt, the school certification Ex.P-16 discloses that she was born on 01.06.1998 but witness PW-20 simply says that he has issued Ex.P-16 on the basis of the school records. No evidence is placed as to who has given information regarding entry of date of birth.
24. On perusal of Ex.P-14, in the final opinion, the age of the victim is shown to be between 15 and 17 years on the basis of dentist report but no report of dentist is obtained.
25. As per the decision of the Hon'ble Apex Court in Alamelu and another Vs. State represented by Inspector of Police reported in (2011) 2 SCC 385, no evidentiary value can be attached to Ex.P-16 under Section 35 of the Evidence Act in the absence of corroborative evidence. 21 As such, even if it is accepted that victim and accused eloped with each other, in the absence of material evidence regarding the age of the victim and subsequent conduct of the victim, the offence under Sections 363 and 366 as well as 376 of IPC and Sections 4 and 6 of POCSO Act would not apply to the case in hand. It appears that it was a love story of two individual persons from different castes and since there was possibility of communal disruption without proper investigation, the Investigating Officer has submitted the charge sheet. The allegations of rape, the date of rape and place of rape does not tally and except evidence of interested witnesses and the police officials, there is no other material evidence to show that accused and victim stayed in a farmhouse in Doddaballapura as other material witnesses in this regard have turned hostile. The evidence of the victim discloses that she is changing her stances as per her convenience and hence, her evidence alone is not sufficient to bring home the guilt of the accused.
26. Considering all these aspects, it is evident that prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt for the offence punishable under 22 Sections 363, 366 and 376 of IPC and under Sections 4 and 6 of the POCSO Act. The Trial Court has appreciated the oral and documentary evidence in this regard in detail and arrived at a just conclusion. The judgment of acquittal passed by the Trial Court in this regard cannot be said to be perverse or illegal and as such considering all these facts and circumstances, we are constrained to answer both the points under consideration in the negative and accordingly, the appeal being devoid of merits needs to be dismissed. As such, we proceed to pass the following :
ORDER Appeal is dismissed by confirming judgment of acquittal dated 21.11.2017 passed by the Principal District and Sessions Judge, Haveri, in Spl.S.C.No.9/2015 for the offences punishable under Sections 363, 366, 376 of IPC and under Sections 4 and 6 of the POCSO Act.
Sd/-
JUDGE Sd/-
JUDGE Naa