Karnataka High Court
State By Kamakshipalya Police vs B Naveena @ Naveen Kumara on 29 August, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No. 275 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 275 OF 2017 (A)
BETWEEN:
STATE BY KAMAKSHIPALYA POLICE,
BENGALURU CITY
REPTD BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560001
...APPELLANT
(BY SRI. B. LAKSHMAN, HCGP)
AND:
1. B NAVEENA @ NAVEEN KUMARA
SON OF S BORAIAH
AGED 26 YEARS
Digitally PRESENTLY RESIDING AT:
signed by
VEENA NEAR SOLLAPURADAMMA TEMPLE
KUMARI B
Location: MULTI JIM
High Court
of SOLLAPURAMANA BADAVANE,
Karnataka
SUNKADAKATTE,
BENGALURU - 91
PERMANENT RESIDENT OF:
KALLADEVANAHALLI,
KEMPABOARAIAHNA DODDI
MADBAL HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT
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CRL.A No. 275 of 2017
2 JAYAMMA,
W/O. H.M. MAREGOUDA,
AGE 60 YEARS,
5TH CROSS, PIPELINE,
MUTTURAYASWAMY LAYOUT,
SUNKADAKATTE,
BENGALURU -560 091.
...RESPONDENTS
(BY SRI. S. JAVEED, ADVOCATE FOR R1; SRI. T.L. NAGARAJU,
ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S.378(1) AND (3)
CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED
19.10.2016 PASSED BY THE LIV ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN SPL.C.C.NO.74/2014,
ACQUITTING THE RESPONDENT FOR THE OFFENCE P/U/S 366
AND 376 OF IPC AND SEC. 5(L) AND 6 OF PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT.
THIS APPEAL IS COMING ON FOR FINAL HEARING
THROUGH PHYSICAL HEARING/VIDEO CONFERENCE THIS DAY,
DR. H.B.PRABHAKARA SASTRY, J., DELIVERED THE
FOLLOWING:
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CRL.A No. 275 of 2017
JUDGMENT
The State has filed this appeal under Section 378(1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.'), challenging the judgment of acquittal dated 19.10.2016, passed by the learned LIV Additional City Civil and Sessions Judge, Bengaluru, (hereinafter for brevity referred to as the `Sessions Judge's Court') in Special C.C.No.74/2014, acquitting accused for the offence punishable under Sections 366, 376 of Indian Penal Code, 1860 (hereinafter for brevity referred to as the `IPC') and under Sections 5(l) and 6 of Protection of Children from Sexual Offences Act, 2012, (hereinafter for brevity referred to as the ` POCSO Act').
2. The summary of the case of the prosecution is that on the date 31.01.2012, the complainant Smt.Jayamma (PW-3/CW-1) filed a complaint with the complainant police, alleging that her brother's daughter (niece) aged about 13 years, who was staying in her -4- NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 house and studying in 7th standard schooling, was found missing from the date 30.01.2012, after she leaving her house to go to school at 8.45 a.m., she did not return from the school. The said complaint at Ex.P.1 after registering by the respondent police in their station Crime No.69/2012 was pending investigation. However, on the date 28.11.2013, the alleged missing girl herself telephoned to the complainant (PW-3) stating that the accused Naveena son of Boraiah had brought her to his house at Kalludevanahalli village and has kept her in his house. After getting the said information from PW-3, the police went to the said place and brought the victim girl and also the accused to their police station. It is however the case of prosecution that, by enquiry with the girl it was revealed that the accused after kidnapping her had retained her in his house and committed rape upon her repeatedly and repeatedly committed penetrative sexual assault knowing that the girl was minor in her age. After completing the investigation, the police have filed the charge sheet against the accused for the offences -5- NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 punishable under Sections 366 and 376 of IPC and Sections 5(l) and 6 of POCSO Act.
3. After perusing the materials placed before it and hearing from both side, the Sessions Judge's Court framed charges against the accused under Sections 366 and 376 of IPC and Sections 5(l) and 6 of POCSO Act. 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 16 witnesses as PW-1 to PW-16 and got marked documents from Exs.P.1 to P.15(a). From the accused side, neither any witness was examined nor any documents were got marked as exhibits.
4. After hearing both side, the learned Sessions Judge's Court, by its judgment dated 19.10.2016, acquitted the accused of the offences punishable under Sections 366, 376 of IPC and Sections 5(l) and 6 of POCSO Act. Challenging the same, the appellant - State has preferred the present appeal.
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5. The appellant -State is being represented by the learned High Court Government Pleader. Respondent No.1 was being represented by his learned counsel, however, since the said learned counsel did not appear and address his arguments even after granting him a reasonable opportunity, the Court proceeded to appoint learned counsel Sri. S. Javeed, as Amicus Curie for respondent No.1. Respondent No.2 is represented by her learned counsel.
6. The Sessions Judge's Court records were called for and the same are placed before this Court.
7. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge's Court records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
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9. The learned High Court Government Pleader in his arguments submitted that, the age of the victim girl is 13 years as corroborated by her own evidence, as well as the evidence of the school Head Mistress who was examined as PW-6. The girl was traced in the house of the accused, as such, the offence punishable under Section 366 of IPC stands established. He further submitted that the evidence of the girl, her parents and her aunt establishes that the accused while keeping the victim girl in his house had subjected her to the repetitive penetrative sexual assault. The medical evidence also corroborates the evidence of the victim girl and her parents, hence, the alleged guilt against the accused stands established. However, the Sessions Judge's Court did not appreciate the evidence in their proper perspective.
10. Per Contra, learned Amicus Curiae for the respondent in his argument contended that there is enormous delay in lodging the complaint. Nowhere it has -8- NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 come in the evidence of prosecution that, at the time of alleged kidnapping or during the period of alleged stay of the victim in the house of the accused, the alleged victim raised any hue and cry and alarmed the neighbors. He further submitted that nowhere PW-1 has stated that she was subjected to any sexual assault or rape by the accused. Further, the medical evidence also does not support the contention of the prosecution. With this, he submitted that since the Sessions Judge's Court has analysed the evidence in their proper perspective and pronounced the judgment of acquittal, the same does not warrant any interference at the hands of this Court.
11. After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:
1. Whether, the prosecution has proved beyond the reasonable doubt that on the date 30.01.2012 the accused has kidnapped the victim girl from near her school at Sunkadakatte within the limits of complainant's Police Station with the -9- NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 intention to marry her against her will and thereby has committed the offence under Section 366 of IPC?
2. Whether, the prosecution has proved beyond reasonable doubt that after the accused kidnapping the victim girl who was minor in her age, took her to his village called Kalludevanahalli and keeping her in his house has subjected her to rape, repeated penetrative sexual assault and aggravated sexual assault and thereby has committed the offence punishable under Section 376 of IPC and under Section 5(l) and Section 6 of POCSO Act?
3. Whether, the impugned judgment of acquittal warrants any interference at the hands of this Court?
12. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of acquittal of accused for the offence punishable under Section 366, 376 of IPC and Section 5(l) and 6 of POCSO Act. Therefore, the accused has primarily the double benefit. Firstly, the
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 presumption under law is 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, the evidence placed by the prosecution in the matter is required to be analysed.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(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
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the 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.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 " 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 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 was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 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.
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13. According to prosecution, the victim girl was minor in her age as on the date of the alleged kidnapping which according to it was on 30.01.2012. Among the sixteen (16) witnesses examined by the prosecution, it is PW-1, PW-3, PWs-6 to 11 who speaks about the age of the victim girl.
PW-1(CW-2) herself is the victim girl in the alleged incident. Nowhere in the body of her evidence she has spoken either about her age or date of birth. However, in giving the details of her identity on 15.09.2014, on which day, her evidence was recorded in the Sessions Judge's Court, she has shown her age as 15 years. According to prosecution, the alleged incident of kidnapping of the victim girl with an intention to marry her has taken place on 30.01.2012. As such, the say of the victim girl that she was 15 years as on the date of her evidence in the Court is taken into consideration, then her age as on the date of the alleged incident would be still less than the same and shows that she was minor in her age as on the date of incident.
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 PW-3 (CW-1) Smt. Jayamma - the maternal Aunt of the girl, in whose house the victim girl was said to be staying and pursuing her education in the school, has stated the age of the victim girl as 12 years as on the date of the incident. However, she stated that she is not able to give the date of birth of the victim girl.
PW-2 (CW-11) Muguregowda, the father of the victim girl. Nowhere in his evidence has stated about the age of his daughter i.e., victim girl, except stating that at the time of incident she was pursuing her studies in 7th standard schooling by staying in the house of PW-3.
PW-11 (CW-10) Smt. Kavitha, mother of the victim girl has stated that in the year 2013, the age of her daughter i.e., victim girl was 13 years.
The medical doctor -PW-7 (CW-7) Dr.Preya Kumar who stated that on the date 02.12.2013, he has examined PW-1 - the victim girl, to ascertain her age and has stated that the radiological test reveals that girl was more than 14 years and less than 20 years as on the date of test i.e., 02.12.2013. He has identified a report given by him in that
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 regard at Ex.P.5. Thus, according to medical examination which is said to have been conducted on 02.12.2013, the age of the victim girl was between 14 to 20 years.
14. The material witness who speaks about the age of the girl is PW-6 (CW-16) Smt. Sridevi, the Head Mistress of Shantidhama English School, Bengaluru. She has stated in her evidence that according to the School Admission Register, the date of birth of the victim girl is 15.07.2000. Stating that, certifying the same she has issued a certificate to the police, she has identified the same at Ex.P.4.
In her cross-examination except eliciting that without verifying the records, she cannot say as to which document as a proof of date of birth was given by the parents of the victim girl. Nothing could be elicited in her cross-examination to disbelieve that the date of birth of the victim was 15.07.2000. Thus, the evidence of PWs-1, 3 and 6 consistently go to show that the victim girl was minor in her age. According to the school certificate which
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 is based upon the Admission Register, the date of birth of the victim girl is 15.07.2000, there is no reason to disbelieve the same. Hence, as on the date of the alleged missing of the victim girl from her house on 30.01.2012, the victim girl was aged 11 years 6 months. Thus, it is established that PW-1 was aged 11 years 6 months as on the date of she found missing which according to prosecution on 30.01.2012.
15. PW-3 - Jayamma, the maternal Aunt of victim girl in her evidence has stated that victim girl, who is the daughter of her younger brother, was staying with her from her childhood and was going to school from her house only. She was studying 7th Standard in a school at Sunkadakatte. About the incident, the witness has stated that, on the date of incident, the victim girl who had left the home to go to the school did not return. The search made by her in the school did not find the victim girl. Thus, in the evening, she lodged a complaint with the police complaining that the victim girl was found missing,
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 the witness has identified her complaint at Ex.P.1. She has further stated that, though they continued the search for the girl, they did not notice her whereabouts, however, one and a half years later the victim girl herself telephoned to her and gave the address where she was staying. PW-3 gave that address to the police and accompanied the police to bring back the victim girl to her house. The witness also stated that the police apart from bringing the victim, had also brought the accused to the police station, whom this witness identified in the Court.
She further stated that when she enquired the victim girl, she told that, on that day while she was going to the school the accused by pestering her to accompany him and creating fear in her, had taken her with him to his village and had confined her in his house. She also stated that she was being assaulted and scolded by the inmates in the said house. The denial suggestions made in her cross - examination was not admitted as true by this witness.
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16. The other witness who speaks about the incident is, the star witness of the prosecution, PW-1 (CW-2) the victim girl. PW-1 in her evidence apart from stating that PW-3 (CW-1) is her maternal aunt, has stated that accused was known person to her. While she was going to school he was meeting her and was asking her to love him. She used to refuse and reject his proposal, however, he was pestering her constantly.
About the incident the witness has stated that, on 30.01.2012 in the morning about 8:45 while she was going to school, accused met her and stating to her that he would marry her and he would take care of her properly, asked her to accompany him. Though she refused, he took her to his village called Kalludevanahalli. When enquired by his mother he told that he has brought her, however to the residents of the village that the girl is an orphan. The witness, however, stated that for several days he did not allow her to go out of home. On the date 28.11.2013 when nobody was there, she telephoned her maternal aunt (PW-3) through a public telephone booth. It
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 is thereafter, her maternal aunt accompanied by the police, went there and brought her back to her home.
The witness has further stated that while being in the house of the accused, she was confined to a room there, where the accused was also staying. There he was physically assaulting her and doing physical research in spite of her protest. When the Court questioned her what she mean by the word 'research', the witness stated that the accused was touching her body, lying upon her and doing all things.
In her cross-examination the witness stated that the accused was earlier working as a driver in Poultry Farm. She denied the suggestions that accused was not pestering to marry him. She denied the suggestion that the accused did not go near to her school. She stated that while the accused was taking her to his place, she did not raise hue and cry. About the subsequent incident of her alleged confinement in the house of the accused and the sexual act, the denial suggestions made to the witness were not admitted as true by her. She denied a suggestion
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 that due to enmity between her maternal aunt and the accused, a case has been filed by her against the accused.
17. PW-2 (CW-11) Muguregowda - father of the victim is admittedly a hearsay witness. He has stated that about his daughter (victim girl) found missing, he came to know through his elder sister Jayamma (PW-3) and it is said Jayamma who lodged a complaint about missing of her niece. He further stated that after securing his daughter, when enquired, she revealed that a boy on the pretext that he would marry her had forcefully taken her to his house and for one and a half years he did not let her go. Witness also stated that he does not know the name of the boy and has not seen the said boy. He further stated that his daughter also told him that in his house the accused had illicit relationship with her despite her protest. The denial suggestions made to him in his cross- examination were not admitted as true by this witness.
18. PW-11 (CW-10) Kavitha, the mother of the victim girl has stated that on the date 30.01.2012, PW-3 -
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 her sister-in-law had telephoned to her husband (PW-2) stating that victim girl was found missing, since she has not returned from the school on the said day. After searching for her in her friends' house and at the request of this witness, a missing complaint was given by PW-3 before the police. This witness further stated that on the date 28.11.2013 her daughter (victim girl) telephoned to PW-3 stating that one Sri. Naveena (accused) making her to believe that he would marry her had taken her to his place at Kalludevanahalli and had kept her there. It is thereafter, PW-3 informed the complainant police, accompanied the police, went there and found the victim girl in the house of Boraiah, the father of the accused and brought her back.
PW-11 further stated that next day after his daughter was brought back by police, she, along with her husband came to Bengaluru and enquired her daughter about the incident and through her daughter she came to know that the accused in the beginning was constantly pestering her daughter to marry him, since her daughter refused the
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 said proposal, he took her to his place and showing her to be an orphan girl has wrongfully confined her daughter in his house. Her daughter was subjected to rape by the accused in his house. The witness further stated that, whenever her daughter used to ask him to marry her, however, the accused went on postponing. Stating so, the witness has identified the accused in the Court, as the one who had kidnapped her daughter and committed rape upon her daughter.
In her detailed cross-examination, several details were elicited as to what made this witness to leave her daughter for studies in the house of PW-3 and also about information she is said to have gathered from the enquiry with her daughter. However, the witness has answered to all those questions giving those details what she was aware of.
19. After the above set of material witnesses, the next set of witnesses prosecution relied upon regarding the alleged sexual assault or the rape upon the victim girl are, PW-8, PW-10, PW-13 and PW-14.
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 PW-8 (CW-8)- Dr. Leelavathi has stated that at the request of complainant-police who had brought the victim girl with them, she medically examined the victim girl on 13.06.2013. Though the girl was brought with the history of sexual assault, however, by medical examination she did not notice any external injury upon the girl. She stated that she noticed the rupture of the hymen. She further stated that from the victim she collected finger nails, pubic hair, vaginal swab, panty and white legging and sent them to Forensic Science Laboratory (for short 'FSL'). She also stated that the police on a subsequent date shown her the FSL report and took it with them. According to FSL report, no seminal stains were found in the articles collected by her and sent to FSL. Though she advised the girl to undergo for screening to ascertain about the pregnancy, however, the victim girl did not produce the report before her. Stating so, she has identified the medical report, said to have been given by her, at Ex.P.6. This witness was not cross examined from the accused side.
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 PW-10 (CW-6) Shivamurthy has stated that he knows Boraiah and his son Naveena (accused) who are the residents of his village. After identifying the accused in the Court, the witness has stated that one day a girl had come to the house of the accused and was staying there for about 6 to 7 months. She was not a relative of the accused. She must have been aged about 13 to 14 years. He further stated that one day the police came to the house of the accused, summoning him and others, who were residents of the village, stated that the accused had wrongfully confined the girl in his house, as such, they should give their evidence. To the said request, he stated that the accused had not confined the girl wrongfully, since she was moving outside the house. The witness stated that the police has not conducted any mahazar in his presence. Though he admitted his signature on scene of offence panchanama, however, he has stated that his signature to the said document was taken in the police station. After treating him as hostile, the prosecution attempted to show that scene of offence panchanama was
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 drawn in his presence in the house of the accused, however, the witness has not admitted the said suggestion as true. This witness was not cross-examined from the accused side.
PW-13 (CW-14) Shivaraju and PW-14 (CW-15) Pandurangaiah are the residents of same village of the accused. Though both these witnesses were projected by prosecution as the persons knowing the details of the incident, including the accused wrongfully keeping the victim girl in his house for a long time and subjecting her to sexual assault, however, both these witnesses while stating that they know the accused, expressed total ignorance about the rest of the matter. Even after treating them as hostile, the prosecution could not get any support from them. As such, from PW-13 and PW-14, the prosecution could not get any support.
The rest of the witnesses are not of much avail to the prosecution.
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20. PW-9 (CW-5) Mahadevaiah a resident of the same village as of the accused, though was examined by the prosecution as a pancha to the scene of offence panchanama, however, has not supported the case of the prosecution. He stated that Ex.P.7 was not drawn in his presence. However, in his cross-examination he admitted a suggestion as true that the said panchanama was drawn in his presence.
PW-12 (CW-20) Nethravathi, the women police constable has spoken about she taking victim girl to the hospital for her medical examination.
PW-15 (CW-21) R. Rajanna has spoken about he taking the accused to the hospital for his medical examination by the doctor and submitting his report as per Ex.P.12.
PW-16 (CW-23) is the Investigating Officer in the matter, who in his evidence has stated that after taking the case for further investigation from CW-22, Assistant Sub Inspector of police, he recorded further statement of CW-1 and statement of CW-2 and based on that he
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 requested the Court to incorporate the offences punishable under Sections 366, 363, 417, 376 of IPC and Sections 5 and 6 of POCSO Act in the crime. After coming to know the whereabouts of the missing girl, as per his direction, his staff accompanied with the mother of the victim girl, went to the place and brought the victim girl and produced before him. He sent the victim girl for medical examination to K.C. General Hospital along with woman police constable, Netravathi. He visited the place of offence as shown by the victim girl and drew a scene of offence panchanama as per Ex.P.13. On the same day, his staff produced the accused before him. He arrested the accused and recorded the voluntary statement given by him. He sent the accused with the police escort for his medical examination to Victoria Hospital, Bengaluru. After the medical examination, he recorded the statement of CWs- 10, 14 and 15. The denial suggestion made to him in his cross-examination were not admitted as true by this witness.
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21. The analysis of the above evidence would reveal that the accused and the victim girl were known to each other prior to the alleged incident of kidnapping of the girl and further alleged incident of sexual assault upon the victim girl. The evidence of PW-1 that accused was working as a driver in a poultry farm and that he was meeting her quite often has not been specifically and categorically denied in the cross-examination. About the alleged incident of kidnapping, the primary evidence is that of PW-1 alone. She being the victim girl, has stated that on the said day, accused apart from meeting her while she was going to school, pestered her to accompany him to his place, though she refused, he took her with him. However, the same witness in her cross-examination from the accused side has stated that, the place from where the accused took her with him was a public place, where the general public would be found, to none of them she stated about accused taking her without her consent. She further stated that she did not raise hue or cry while the accused was taking her with him. It is on this aspect,
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 the learned Amicus Curiae for the respondent stated that the accused had not taken the victim girl forcibly, on the other hand, the very evidence of PW-1 which shows that the girl had accompanied the accused without any protest or resistance.
22. The statement of PW-1 that while the accused said to have been taken her to his place on 30.01.2012, she did not raise alarm and did not inform the people about accused being taken her, though prima facie shows the absence of any resistance from the complainant and also the fact that she said to had been in the house of the accused for one and a half years, still the fact remains that as on the said date i.e., 30.01.2012, till her securing back by the police after her alleged revealing of her whereabouts on 28.11.2013, she continued to be minor in her age. As such, whether there was any consent of a girl to accompany the accused to his place becomes immaterial. So long she continues to be a minor, the law expects that a person, who are known to be the legal
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 guardian or the parents of the girl or the one who is in the lawful custody of the said minor girl, is required to obtain consent from the lawful guardian, parents or custodian of the minor girl before taking her.
Section 361 of the IPC, explains what is kidnapping from lawful guardianship, which reads as below:
"361. Kidnapping from lawful guardianship. - Whoever takes or entices any minor under sixteen (16) years of age if a male, or under eighteen (18) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
23. In the instant case, though PW-2 and PW-11, the parents of the victim girl, were staying at a different place, however, even according to them, as well as per evidence of PW-3 and victim girl, she was minor in her age. Since from her childhood she was staying with PW-3 - Jayamma who was her maternal aunt. According to all these witnesses, the victim girl was going to school at Sunkadakatte being in the house of PW-3, as such, PW-3
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 becomes a lawful guardian of the minor girl at the relevant point of time. Even according to her, no consent from her was taken by anybody for taking away the girl on the alleged date of offence i.e., 30.01.2012.
24. Interestingly, it is not the defence of the accused that on the date 30.01.2012, the victim girl was found missing. But the contention of the accused is only that he has not kidnapped the victim girl. However, the evidence led by the prosecution witnesses, very particularly, PWs-1, 2, 3 and 11 as discussed above, would clearly go to show that on 30.01.2012, the girl was found missing, in which connection, PW-3 lodged a missing complaint to the complainant police on the very next day i.e., on 31.01.2012.
25. In addition to the above, the evidence of PW-10
-Shivamurthy who is the localite of same village as of accused and who has not been cross-examined by the accused would clearly go to establish that he has seen the victim girl in the house of the accused for a long period of not less than six to seven months. Even according to him
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 the girl was appearing to be aged 13 to 14 years. Thus, he has seen the victim girl in the house of the accused for a period of not less than six to seven months though the witness has stated that the said girl was not wrongfully confined in said house, since she was moving around the house by coming outside. But his evidence that the victim girl was in the house of the accused for such a long time has remained undenied and undisputed, since this witness was not cross-examined from the accused side.
26. The evidences of PWs-1, 3, 11, 13 and 14 that accused is the son of Boraiah who is a resident of Kalludevanahalli, Kempaboraiahna Doddi has remained undisputed. This aspect that victim girl was found in the house of the accused not just for a moment, but, for a long period of six to seven months, which according to the prosecution is nearly one and half years. In such a case, when a minor girl who admittedly does not belong to the family of the accused and who according to PW-10 is also not a relative of accused and his family, was found staying in the house of the accused for such a long time, then it
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 was for the accused to explain as to in what capacity and for what reason the said minor girl was staying in his house for such a long time. Admittedly, no explanation of any sort has come from the accused side, either in the cross examination of any of the prosecution witnesses or even in his statement under Section 313 of Cr.P.C. Therefore, what was to the exclusive knowledge of the accused, which he was bound to disclose or to reveal, has not disclosed the same.
On the other hand, the undenied evidence of PW-10 makes it very clear that the victim girl was found in the house of the accused for a long period of six to seven months. This makes one to believe the evidence of PW-1 that on the date 30.01.2012 while she was going to the school at 8:45 a.m., accused met her and despite her hesitation, he took her to his place at Kalludevanahalli village, which is his native village having his house and other family members. Thus, a girl who is minor in her age, in the instant case, who is aged about 11 years, 6 months as on the date of incident was taken by the
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 accused and retained in his house for a longer period of not less than six to seven months which according to prosecution is nearly one and a half years i.e., till 28.11.2013. Therefore, without the consent of either PW-3 or PW-2 or PW-11 the accused since has taken the victim girl (PW-1) to his house the offence under Section 361 of IPC, which is punishable under Section 363 of IPC stands established.
27. The evidence of PW-1 alone go to show that accused was pestering her to marry him, however, PW-1 was refusing to do so. The evidence of PW-11, the mother of the victim girl who admittedly is a hearsay witness, say that the request of her daughter to marry was not considered by the accused would not be taken as a proof of accused having any intention to compel the marriage of victim girl while kidnapping her. As such, in the absence of prosecution proving any intention of the accused inducing the victim girl or compelling her for marriage, it cannot be held that offence under Section 366 of IPC is established,
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 but, without any hesitation and for the reasons discussed above, it is established that the accused has kidnapped the victim girl without the consent of her parents and guardian from their lawful custody. However, the Sessions Judge's Court did not consider these aspects, on the other hand, considering the statement of PW-1 in her cross- examination that, while she was being taken by the accused with him, she did not raise hue or cry and did not alarm the people around her, it straight away jumped in to a conclusion that the prosecution could not made out the offence punishable under Section 366 of IPC. But in the said process it ignored the attraction of Section 363 of IPC.
28. Sofar as the alleged act of the victim girl being subjected to rape by the accused, and the repetitive penetrative sexual assault upon the victim girl is concerned, it is once again primarily the evidence of none else than the victim girl plays an important role to consider the same. As analysed above, PW-1 the victim
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 girl in her evidence has only stated that, accused was assaulting her physically and was conducting physical 'research'. The Court being unable to understand what the witness mean by 'research' asked a specific question as to what she mean 'research', for which, PW-1 has stated that falling upon her, touching her body and was doing all things. Even if the said act of touching her body and falling upon her is taken as a fact, still under no stretch of imagination the said act can be considered either as a rape or as a penetrative sexual assault. In the absence of any detail as to what the witness mean by stating 'was doing all things' cannot be presumed that the accused was sexually assaulting her or has committed any rape upon her.
29. Apart from the evidence of PW-1, though PWs- 2, 3, 11 have spoken about the alleged act by the accused, however, their evidence is admittedly hearsay. According to them, they have heard about the incident from none else than the victim girl (PW-1). Since PW-1
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 herself has not revealed as to what she mean by 'research' or what was touching her body and falling upon her, it is not safe to jump into a conclusion that accused has committed a penetrative sexual assault or the rape upon the victim girl.
30. The above view further gains support from the absence of any medical evidence corroborating the prosecution case. PW-8 - Dr. Leelavathi a lady Doctor claims to have examined the victim girl and stated to have collected some articles during the examination and sent it to FSL for examination and further claims to have seen the medical report. She has also stated that she has given her report as per Ex.P.6. A perusal of the document at Ex.P.6 shows that the Doctor has opined as below:
"As the sexual act was more than 1 month back when the victim was brought to the KCGH for medical examination. Hence specimens were not collected.
O/E peritem normal. No tear.
Vagina normal. No tear.
No bite or scratch marks seen.
External genitalia normal.
Hymen was found to be ruptured."
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 The said report at Ex.P.6 nowhere mentions about the doctor collecting any article from the victim girl at the time of medical examination and sending the same to the FSL. Still the admitted report at Ex.P.6 by PW-8 the doctor, shows that the said report is absent about the girl undergoing any recent sexual intercourse prior to her examination. Therefore, Ex.P.6 would not help the prosecution to show that the girl was subjected to sexual assault, particularly, from the accused. Incidentally, PW-8 nowhere had stated that whether the victim girl was accustomed to any act of sexual assault or any act related to or similar to that of sexual intercourse. Therefore, the medical evidence regarding proving of the alleged act of sexual assault or rape upon the girl by the accused is totally insufficient.
31.Apart from the above, the medical evidence of PW- 8, compared with PW-6 suffers from some more lacuna in the form that though PW-8 in her evidence in the Court has stated that at the time of medical examination of the
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 victim girl she collected (1) finger nails (2) Pubic hair (3) vaginal swab (4) Panty (5) White leg-in and sent them to FSL report and also was shown the FSL report by the police which revealed the absence of any seminal stains in them, however, Ex.P.6 specifically mentions that specimens were not collected. Therefore the evidence of PW-8 - the doctor is contrary to her own report at Ex.P.6.
32. In addition to the above, the evidence of PW-8 that she collected five (5) articles from the victim girl at the time of her examination and sent it to chemical examination to FSL and the police have shown her the FSL report stands without any corroboration by any other witnesses, much less, Investigating Officer who has examined in this case as PW-16. It is for the reasons best known to the prosecution it did not examine the witness who is said to have sent the alleged articles to the FSL for its chemical examination and collected the FSL report. The prosecution did not produce FSL report and got it marked through any of the witnesses including PW - 16.
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017
33. Admittedly, PW-16 is not the sole investigating officer who had initiated and concluded the investigation. He has only conducted part of the investigation which has excluded the part of securing the report from FSL and showing it to the doctor. Admittedly, PW - 16 is also not the Investigating Officer who has filed charge sheet in this matter. Though PW-16 has stated that after securing the girl back, he sent her to medical examination through a woman police constable by name Nethravathi (PW - 12) however, neither the said PW-12 nor PW-16 anywhere have stated about the collecting the articles belonging to the girl by the doctor and transmitting them further to FSL for their chemical examination. The prosecution also has not made any effort in eliciting necessary and important details from the relevant witnesses. The examination of the Investigating Officer and non-examination of the other investigating officer who might have conducted an important phase of investigation in the matter rather shows the lack of interest by the prosecution in presenting its case properly before the
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 Sessions Judge's Court. Therefore, without any hesitation it can be said that the prosecution has utterly failed to produce any cogent material and evidence to prove that the victim girl (PW-1) was subjected to rape or repetitive penetrative sexual assault by the accused.
34. Thus, the finding of the Sessions Judge's Court holding that the prosecution has failed to prove the alleged guilt against accused for the offence punishable under Section 376 of IPC and under Sections 5(l) and 6 of POCSO Act, does not warrant any interference at the hands of this Court. However, as observed above, though the Sessions Judge's Court has acquitted the accused even for the offence punishable under Section 366 of the IPC, however, the prosecution has placed sufficient material to prove the case against the accused (respondent herein) for the offence punishable under Section 363 of IPC and has proved that the accused has kidnapped PW-1 from the lawful custody of her guardian and taken with him to his
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 native place, where the girl was said to be found staying for a long period. However, as analysed above, the Sessions Judge's Court has not appreciated the evidence led by the prosecution in that regard in its proper perspective which resulted in the Sessions Judge's Court pronouncing the judgment of acquittal, even for the offence punishable under Section 366 of the IPC. Thus, it is only to that extent of finding the accused guilty of the alleged offence punishable under Section 363 of IPC, only the interference by this Court in the impugned judgment is warranted.
Accordingly, we proceed to pass the following order:
ORDER
(i) The appeal stands allowed in part.
(ii) The judgment of acquittal of the accused from the offence punishable under Section 376 of IPC and Sections 5(l) and 6 of POCSO Act pronounced by LIV Additional City Civil and Sessions Judge, Bengaluru City Court in its judgment dated 19.10.2016 in Spl. C.C. No.74/2014 though stands confirmed, however, its
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 finding of acquittal of the accused for the offence punishable under Section 366 of IPC stands set aside.
(iii) The accused (respondent) B. Naveena @ Naveen Kumara S/o. Boraiah, residing at near Sollapuradamma temple, Multi Jim, Sollapuramana Badavane, Sunkadakatte, Bengaluru, permanently residing at Kalludevanahalli, Kempaboraiana Doddi, Madbal Hobli, Magadi Taluk, Ramanagara District though was acquitted of the offence punishable under Section 366 of IPC, however, he is found guilty of offence punishable under Section 363 of the IPC. Accordingly, the impugned judgment to that extent stands modified. To hear on sentence the matter stands passed over.
Sd/-
JUDGE Sd/-
JUDGE GSR, BVK; List No.: 1 Sl No.: 9
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 HEARING ON SENTENCE Called again.
35. Heard the learned Amicus Curiae for the respondent and learned HCGP for the appellant on the sentence. The learned HCGP in his submission submits that since the offence is against a minor girl and no proper defence is taken by the accused in his support the maximum punishment awardable be ordered against the accused.
36. Per contra, learned Amicus Curiae for the respondent submits that accused is a family holder having the full-fledged family, as such, a lenient view be taken.
37. It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name-sake.
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 Hence, keeping the above principle of the sentencing policy and considering the facts and circumstances of the case and also the alleged mitigating factors canvassed before the Court, we proceed to pass the following:
ORDER ON SENTENCE
(i) The accused - B. Naveena @ Naveen Kumara, son of Boraiah, residing at Sollapuradamma Temple, Multi Jim, Sollapuramana Badavane, Sunkadakatte, Bengaluru -560 091 and permanent resident of Kalludevanahalli, Kempaboraiahna Doddi, Madbal Hobli, Magadi Taluk, Ramanagara District, is sentenced to undergo simple imprisonment for a period of four years and to pay a fine of `20,000/- (Rupees Twenty Thousand Only) and in case of default of payment of fine, to undergo simple imprisonment for a further period of six months, for the
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 offence punishable under Section 363 of the Indian Penal Code, 1860.
(ii) The accused is entitled for the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973.
(iii) The accused shall surrender before the learned Sessions Judge's Court within fortyfive (45) days from today and serve the sentence as ordered above by this Court.
(iv) Out of the fine amount paid, if any, by the accused, a sum of `18,000/- (Rupees Eighteen Thousand Only) be paid to the victim girl under Section 357 of Code of Criminal Procedure, 1973.
(v) The remaining sum of `2,000/- (Rupees Two Thousand Only) shall go to the State.
(vi) A free copy of this judgment be furnished to the accused immediately by the Registry.
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NC: 2023:KHC:30820-DB CRL.A No. 275 of 2017 Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court immediately, for doing needful in the matter.
Sd/-
JUDGE Sd/-
JUDGE GSR, BVK List No.: 1 Sl No.: 9