Karnataka High Court
The State vs Ramesh Chalavadi on 10 January, 2023
Crl.A.No.1232/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY 2023
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR.JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO.1232/2016(A)
BETWEEN:
THE STATE OF KARNATAKA
BY CIRCLE INSPECTOR OF POLICE
UDUPI CIRCLE, UDUPI
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-576 101 ...APPELLANT
(BY SMT.RASHMI JADHAV, HCGP)
AND:
1. SRI.RAMESH CHALAVADI
S/O NINGAPPA
AGED ABOUT 22 YEARS
R/O BENAKATTE
BAGALAKOTE TALUK
AND DISTRICT - 587 103
PRESENTLY RESIDING AT
RENTED HOUSE OF RAFIQ SAHEB,
MELPETE UDYAVARA - 574 118
2. SMT.HANUMAVVA
W/O YELLAPPA
AGED ABOUT 42 YEARS
R/AT HANUMANAL VILLAGE
KUSTHAGI TALUK, KOPPAL DISTRICT ...RESPONDENTS
(BY SRI.SYED MOHAMMED IRBAZ, ADVOCATE FOR
SRI.VARUN J PATIL, ADVOCATE FOR R1;
Crl.A.No.1232/2016
2
R2 SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3)
OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO GRANT LEAVE
TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL
DATED 16.01.2015 PASSED BY THE LEARNED PRINCIPAL
SESSIONS/SPL. JUDGE, UDUPI DISTRICT, UDUPI IN SPL.
C.NO.13/2014 IN ACQUITTING THE RESPONDENT -ACCUSED OF THE
OFFENCES PUNISHABLE UNDER SECTIONS 366, 376 OF IPC AND
SECTION 5(1) READ WITH SECTION 6 OF POSCO ACT, 2012.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY,
K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
Heard.
2. "Whether the impugned judgment and order of acquittal passed by the trial Court in favour of the respondent- accused suffers any illegality?" is the question involved in this case.
3. The Principal Sessions/Special Judge, Udupi tried respondent No.1 in Special Case.No.13/2014 for the offences punishable under Sections 366, 376 IPC and Section 5(1) read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short 'the Act,2012') on the basis of the charge sheet filed by Udupi town police in Crime No.474/2013 of their police station. For the purpose of convenience the parties will be Crl.A.No.1232/2016 3 referred to henceforth according to their ranks before the Trial Court.
4. Admitted facts of the case are as follows:
PW.1 and PW.12 are the mother and father of PW.2. PW.11 is niece of PW.1. Accused and aforesaid witnesses were living in Moodanidambooru village in Udupi Taluk. They had all migrated from Bagalkote District to eke out their livelihood.
5. The case of the prosecution is as follows:
That the brother of accused was helping PW.1. The accused and aforesaid witnesses were acquainted with each other. PW.2 was born on 01.08.1996. The accused inducing minor PW.2 of love and marriage, on 18.11.2013 kidnapped her from lawful custody of her parents when she was on her way to the College. He took her to Goa. On 20.11.2013 he took her back to Bala Village near Surathkal Taluk of Mangalore. There he stayed with her in hut belonging to PW.10 Ravi alias Kenchappa. During such stay in that hut the accused committed repetitive penetrative sexual assault on her. Consequently she conceived a child. That was aborted. Regarding the incident Crl.A.No.1232/2016 4 PW.1 filed complaint as per Ex.P1 on 15.12.2013 before PW.18 the Head Constable of Udupi town police. On the basis of such complaint, he registered FIR as per Ex.P22 and handed over the investigation to PW.19 the Women Police Sub Inspector. PW.19 during the course of investigation on 26.12.2013 traced accused and PW.2 from the hut of PW.10, subjected PW.2 to the medical examination, arrested the accused and handed over the further investigation to PW.20 the Circle Police Inspector of Udupi Police Circle. He conducted further investigation and filed the charge sheet for the aforesaid offences.
6. The trial Court on hearing parties, framed the charges against the accused for the offences punishable under Sections 366, 376 IPC and under Section 5(1) read with Section 6 of the Act, 2012. Since accused denied the charges and claimed to be tried, the trial was conducted.
7. To substantiate its case, prosecution examined PWs.1 to 20 and got marked Exs.P.1 to 26 and MOs.1 to 10. After his examination under Section 313 Cr.PC accused got Crl.A.No.1232/2016 5 himself examined as DW.1. On his behalf Ex.D1 was marked (Portion of statement of PW.3) by way of contradiction.
8. The trial Court on hearing the parties by the impugned judgment and order acquitted the accused mainly on the ground that the prosecution has failed to prove that PW.2 was aged below 18 years as on the date of the offences.
9. Out of the witnesses examined by the prosecution, PW.1 and 12 are the mother and father of victim PW.2. PW.11 is the niece of PW.1. PWs.3 and 4 are the witnesses to the spot mahazar Ex.P4 drawn at the house of PW.1. PW.5 is the Doctor who examined PW.2 and issued the medical certificate as per Exs.P6 to 8. PW.6 is the Doctor who examined the accused and issued certificate as per Ex.P10. PW.7 is the Principal of college where PW.2 studied and he issued date of birth of PW.2. PW.8 is the Assistant Engineer who drew Ex.P2 the sketch of scene of offence. PW.9 is the panch witness to Ex.P2 the mahazar allegedly drawn at the scene of the offences i.e., hut of PW.10. PW.10 is the witness who allegedly accommodated the accused and PW.2 in his hut at Bala village. PW.13 is neighbor Crl.A.No.1232/2016 6 of PW.1, PW.14 is the Headmistress of Higher Primary School, Hanumanal village, Kustagi Taluk where PW.2 studied who issued certificate Exs.P19 and 20. PWs.15 and 16 are the Women Police Constables who escorted PW.2 to the hospital and for production before the Magistrate. PW.17 is the Police Constable who sent the articles to FSL. PW.18 is the Head Constable who registered the complaint. PWs.19 and 20 are the Investigating officers.
10. So far as the sexual cohabitation between the accused and PW.2, the evidence of PW.2 and PW.5 was material. Though PW.2 turned partly hostile, she admitted her sexual cohabitation with the accused. But she claimed that she was a major, herself and accused were in love and that was opposed by her mother. Therefore, she eloped with him and they married in Ganesh Temple of Bala village, Suratkal Taluk and sexually cohabited with each other. The evidence of PW.5 and her reports Exs.P6 to 8 show that PW.2 was subjected to sexual cohabitation and she was found to have conceived and aborted. Crl.A.No.1232/2016 7
11. However, prime question was whether the victim was aged below 18 years. To prove the age of the victim, the prosecution relied on the evidence of PW.1, PW7, PW.14 and PW.12. PW.12 the father of the victim himself did not support the prosecution version. He totally turned hostile including age of the victim. He even denies that he admitted PW.2 to the school and on the basis of the information given by him the entries in Ex.P18 the admission register extract were made. PW.2 says that her grandparents admitted her to the school. The evidence of PW.7 with regard to the date of birth of the victim is of no avail unless the date of birth of PW.2 is proved by her birth certificate or the admission register entries.
12. To prove the school admission register entries, prosecution relied on the evidence of PW.14 the Headmistress of the school where PW.2 studied and Exs.P19 and 20 the certificate issued by her to the Investigating Officer on 19.03.2014 and school admission register extract. Unless the entries in school admission register are proved, Exs.P20 and Ex.P19 are of no avail. More over they are secondary evidence. As per entries in Ex.P20 the admission register extract, PW.2 Crl.A.No.1232/2016 8 was admitted in the school during 2002-03. As per the said record at the time of admission of PW.2, her date of birth was furnished as 01.08.1996. But PW.14 is not the person who made entries in Ex.P20. Therefore, her evidence with regard to the entries of Ex.P20 is not primary evidence. PW.14 does not know who had furnished the information regarding date of birth of PW.2 while admitting her in the school. The Investigating officer has no explanation why he did not examine the person who made the entries in the admission register. Therefore the evidence of PW.14 and Exs.P12 and 20 were rightly rejected by the Trial court. In the absence of those records, absolutely there was no evidence to show that as on the date of the incident, the victim was aged below 18 years.
13. As per the evidence of PW.2 she was admitted to the school at the age of eight years. The alleged incident took place when she was studying eleventh standard. Even on that basis, the probability is that she was above 18 years at the time of incident.
Crl.A.No.1232/20169
14. The Hon'ble Supreme Court in C.Doddanarayana Reddy (Dead) by legal representatives and others Vs 1 C.Jayarama Reddy (dead) by legal representatives and others as held that unless the official in-charge of the school who recorded the date of birth in the school register is examined, such record cannot be accepted in the evidence as the proof of date of birth. Even in the judgment of the Hon'ble Supreme Court in State of Madhya Pradesh Vs Anoop Singh2 relied by the learned HCGP it is held that, to determine the age of the victim or the juvenile in conflict with law, the documents to be produced or relied are one contemplated under Rule 12(3) of the Juvenile Justice (Care and protection of Children), Rules 2007. It was held that, first the matriculation certificate shall be relied. In the absence of that, the date of birth certificate of the school where the victim first attended, in the absence of that birth certificate issued by Corporation or Municipal authorities or Panchayath shall be relied. Admittedly, PW.2 had passed matriculation exam. Investigating Office has no explanation why 1 (2020)4 SCC659 2 (2015) 7 SCC 773 Crl.A.No.1232/2016 10 he did not collect the matriculation certificate in proof of date of birth of PW.2.
15. In the light of aforesaid judgments and facts and circumstances discussed above, the trial Court was justified in relying on the evidence of PW.2 and other material and holding the victim being minor was not proved. Therefore even if there was any sexual cohabitation between her and accused such consensual sexual relationship does not attract Sections 376, 366 IPC or provisions of the Act, 2012. There are no grounds to interfere with the judgment of the trial Court. Hence the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE PKN