Karnataka High Court
Anthoni vs The State Of Karnataka on 14 January, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JANUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL No.27 OF 2017
BETWEEN:
ANTHONI
S/O HRUDAYARAJ,
AGED ABOUT 26 YEARS,
R/A NO.2, NARAYANASWAMY'S RENTED HOUSE,
OPPOSITE TO CHURCH, MESTRI PALYA,
YELAHANKA HOBLI,
BENGALURU-560064.
...APPELLANT
(BY SRI: C.H. JADHAV, SENIOR ADVOCATE A/W
SRI: T M VENKATA REDDY, ADVOCATE)
AND
THE STATE OF KARNATAKA
REPRESENTED BY
SAMPIGEHALI POLICE STATION,
BENGALURU-560064
...RESPONDENT
(BY SRI: THEJESH P., HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C. PRAYING TO SET ASIDE THE ORDER OF
CONVICTION RECORDED AGAINST THE APPELLANT BY ORDER
DATED 22.11.2016 AND SENTENCE DATED 23.11.2016
PASSED BY THE LIII ADDL. CITY CIVIL AND SESSIONS
2
JUDGE, BENGALURU IN SPL.C.C.NO.188/2014 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTION 354-A OF IPC R/W SECTION 9(m) R/W
SECTION 10 OF POCSO ACT, 2012. THE APPELLANT/ACCUSED
IS SENTENCED TO UNDER SIMPLE IMPRISONMENT FOR 5
YEARS AND PAY FINE OF RS.2,000/-, IN DEFAULT TO PAY
FINE, HE SHALL UNDERGO SIMPLE IMPRISONMENT OF
ANOTHER 8 MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 9(m) R/W SECTION 10 OF POCSO ACT, 2012 OF
WHICH SHALL RUN CONSECUTIVELY.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
[[ [
JUDGMENT
Heard learned counsel for appellant/accused and learned HCGP for respondent-State.
2. This appeal is directed against the judgment of conviction and order of sentence dated 22.11.2016 passed by LIII Addl. City Civil & Sessions Jude, Bengaluru in Spl.C.C.No.188/2014, whereby the appellant (hereinafter referred to as 'accused') is convicted for the offences punishable under sections 354-A of IPC r/w section 9(m) r/w section 10 of Protection of Children from Sexual Offences Act, 2012(for short 'POCSO Act') and sentenced to undergo simple imprisonment for five years and a fine of Rs.2,000/-, in 3 default, to undergo simple imprisonment of eight months for the offence punishable under section 9(m) r/w section 10 of POCSO Act.
3. The accused was sent up for trial on the accusations that on 03.04.2014 at about 6.00 p.m., while the victim then aged eight years was playing in the compound, the accused called the victim inside the house and removed her top dress and kissed her breast and thereafter pulled down her pant and kissed on her private parts and thereby committed the offences punishable under sections 354A of IPC r/w section 9(m) punishable under section 10 of POCSO Act.
4. A complaint was lodged by PW-2, the father of the victim(PW-4). The victim was subjected to medical examination on 04.04.2014. On the same day, the accused was arrested, subjected to medical examination and was produced before the Court.
5. Before the Sessions Court, a charge was framed against the accused under section 354-A IPC r/w section 9(m) r/w section 10 of POCSO Act. The accused having denied the 4 charge, the prosecution examined six witnesses as PWs-1 to 6 and produced in evidence seven documents marked as Exs-P1 to P7. In his examination under section 313 Cr.P.C., the accused denied all the incriminating evidence brought on record by the prosecution and took up a plea that his landlady had asked him to vacate the premises and since he refused to vacate the house, there were frequent quarrels between the accused and mother of the victim; the landlady had also filed a cheque bounce case against the brother of the accused and hence, he has been falsely implicated in the case.
6. On analyzing the above evidence, by the impugned judgment, the sessions court found the accused guilty of the offence punishable under section 354-A of IPC r/w section 9(m) r/w section 10 of POCSO Act and accordingly sentenced him as stated above.
7. Feeling aggrieved by the impugned judgment of conviction and order of sentence, the appellant/accused has preferred this appeal questioning the correctness and legality of the finding of conviction recorded by the Sessions Court. 5
8. Learned Senior counsel appearing for the appellant/accused has taken me though the evidence adduced by the prosecution and submitted that the case of the prosecution is beset with inconsistencies and contradictions. The learned Sessions Judge failed to appreciate the evidence of the prosecution witnesses in proper perspective. It failed to note that the material witnesses viz. one Geetha, whom the victim is stated to have approached at the earliest instance was not examined by the prosecution even though she was cited as a witness. Further, the victim and her mother have deposed before the Court that soon after the incident, the victim was taken to the house of their landlady Smt. Annamma. But, she was neither cited as a witness nor was she examined before the Court. Non-examination of these material witnesses is fatal to the case of the prosecution. Further, the learned Sr. counsel pointed out that the testimony of the victim suffers from inherent contradictions and therefore, without proper corroboration, the Sessions Judge ought not to have based conviction of the accused on the solitary testimony of the child witness. 6
9. It is the further submission of learned senior counsel that all the witnesses examined by the prosecution are either related or interested witnesses. The prosecution has not cited any independent witness in proof of the charge leveled against the accused. Even though none of the witnesses have stated about the victim sustaining any injury on her body, yet, the medical officer-PW-6 examined by the prosecution has come forward to state that during the examination of the victim, he found minor injuries on the body of the victim, which goes to show that in order to secure conviction of the accused, prosecution has fabricated false evidence against the accused. Further, referring to the relevant evidence of the prosecution witnesses, learned senior counsel emphasized that the circumstances brought out in the evidence of the prosecution witnesses suggest that the accused has been implicated in the alleged offence with a view to facilitate his eviction from the tenanted house and apparently for this reason, the landlady has not been examined by the prosecution. Thus, he argued that the above circumstances cumulatively create serious doubt about the genesis of the 7 incident as well as the genuineness of the case set up by the prosecution and thus pleads to set-aside the impugned judgment of conviction and to acquit the accused.
10. In support of his submission, learned senior counsel has placed reliance on the decision of the Hon'ble Supreme Court of India in the case of Bhagwan Sigh and Others vs. State of M.P.., reported in (2003) 3 SCC 21 wherein it is held as hereunder:-
" The law recognises the child as a competent witness but a child particularly at such a tender age of six years, who is unable to form a proper opinion about the nature of the incident because of immaturity of understanding, is not considered by the court to be a witness whose sole testimony can be relied without other corroborative evidence. The evidence of a child is required to be evaluated carefully because he is an easy prey to tutoring. Therefore, always the court looks for adequate corroboration from other evidence to his testimony."
11. It is the submission of learned senior counsel that in the instant case, the victim has unequivocally stated that she 8 has deposed before the Court as tutored by her parents and under the said circumstances, no reliance could have been placed on the testimony of the victim without independent corroboration.
12. Learned counsel has also referred to the decision of the Hon'ble Supreme Court in Dattu Ramrao Sakhare and Others vs. State of Maharashtra, reported in (1997) 5 SCC 341, with reference to para 5 thereof.
13. Per-contra, learned HCGP appearing for the respondent- State argued in support of the impugned judgment contending that the sessions court has appreciated the oral and documentary evidence produced by the prosecution in proper perspective. The defence has not been able to show any material contradictions or improvements in the case of the prosecution, as such, the testimony of the victim alone is sufficient to base the conviction against the accused. It is the submission of learned HCGP that in the instant case, apart from the testimony of the victim, the prosecution has also relied upon the testimony of her mother 9 and father who have fully corroborated the testimony of the victim and their statements are further corroborated by the medical opinion of the Doctor-PW-6, thereby making out the ingredients of the offence charged against the accused and thus prayed for dismissal of the appeal.
14. With regard to evidentiary value on the testimony of a child witness is concerned, learned HCGP has referred to the recent decision of the Hon'ble Supreme Court of India in the case of P. Ramesh vs. State Represented by Inspector of Police in Crl.A.No.1013/2019 dated 09.07.2019 laid emphasis on para 13 thereof which is extracted here below :-
13. Section 118 of the Evidence Act 1872 deals with the competence of a person to testify before the court. Section 4 of the Oaths Act 1969 requires all witnesses to take oath or affirmation, with an exception for child witnesses under the age of twelve years. Therefore, if the court is satisfied that the child witness below the age of twelve years is a competent witness, such a witness can be examined without oath or affirmation. The rule was stated in Dattu Ramrao Sakhare v State of Maharashtra, 10 (1997) 5 SCC 341, where this Court, in relation to child witnesses, held thus:
5. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanor must be like any other competent witness and there is no likelihood of being tutored."
On the same question, learned HCGP referred to another decision of Hon'ble High Court of Chhattisgarh, Bilaspur in the case of Pappu @ Vivek @ Lohasingh @ Azad @ Amarnath and Arvind Kumar Tigga @ Bada Arvind @ Guddu @ Ashok S/o. Johan Tigga vs. State of 11 Chhattisgarh Through Police Station Batouli, District Surguja(C.G.) in Crl.A.No.968/2012 dated 28.08.2019 wherein conviction has been recorded on the basis of the solitary testimony of a child witness aged 10 years.
I have bestowed my anxious thought to the submissions made at the bar and have carefully scrutinized the material on record in the light of the principles laid down in the decisions relied on by the respective counsels.
15. To begin with, in the complaint lodged at the earliest instance as per Ex-P2, it was stated that on the date of the incident, the accused called the victim to his house and attempted to commit sexual assault on her. According to the complainant/PW.2, after coming home, he came to know from the victim herself that around 6.00 p.m., the accused called her to his house and removed her top and touched her breast and thereafter removed her pant and when he was about to kiss her private part, she came out raising alarm and informed the matter to Geetha Aunty(CW-6) and by then, the 12 wife of the complainant viz., the mother of the victim reached the spot.
16. In her evidence before the Court, the victim (PW-4) deposed that on the date of the incident between 6.00 p.m. and 6.30 p.m., there was no current in the house, she had gone out of the house to play and at that time, accused called her and took her to kitchen and hugged her and thereafter took her to bedroom and kissed on her breast and thereafter lifted her frock, removed her pant and kissed her private part. According to PW-4, she narrated this incident to CW-6 Geetha Aunty and thereafter her mother came there and examined her body and took her to the house of the landlady who also examined the victim and thereafter, they called the police and the police came to the spot and made necessary enquires. In her chief examination, the victim-PW.4 further stated that the police took her to the police station, but did not take her to any other place.
17. On analyzing the evidence of PW.4, PW.2 and PW.3, I find that the evidence of PW.4 is substantially at variance 13 with the contents of the complaint as well as the testimony of the complainant(PW.2) and mother of the victim(PW.4). According to the complainant, who is examined as PW-2, he was informed about the incident by his wife-PW-3 after reaching home and thereafter, he rang up to the police and the police went in search of the accused. But if the evidence of PW.4 is to be believed, it goes to show that the landlady had called the police and the police had reached the spot before lodging the complaint by PW.2. In view of this discrepancy, non-examination of the landlady and the non- examination of CW.6-Geetha, in my view, creates a serious dent in the case of the prosecution leading to doubt the very genesis of the incident.
18. Secondly, it is seen from the records that the FIR was registered by PW-5 at about 11.10 p.m. on 03.04.2014 and the same reached the magistrate at 11.45 a.m. on 04.04.2014. The distance from the place of occurrence to the Sampigehalli police station is shown as '3' kms. According to the complainant, immediately on ascertaining the incident from his daughter, he and the victim rushed to the police 14 station and lodged the complaint. But the evidence of PW-6- medical officer indicates that the victim was subjected to medical examination only on 04.04.2014 between 2.00 p.m.- 3.00 p.m. The victim has nowhere stated in her evidence that she was examined by the medical officer in respect of the alleged incident. On the other hand, in her chief examination as well in her cross-examination, she has asserted that except going to the police station, she was not taken to any other place. As such, the very examination of the victim by the medical officer PW-6 and the issuance of the medical certificate (Ex.P5) is rendered doubtful.
19. In this context, it is also relevant to note that, neither the victim nor her parents have stated in their evidence that during the occurrence, the victim had sustained any physical injury on her body. But contrary to this, the medical officer who has issued the medical report Ex.P5 has reiterated that on examination of the victim, he found a wound measuring 2x 2 cm on the left side of her cheek and an injury appear to be like a nail scratch mark near her neck. This evidence leads to the inference than an attempt has been 15 made by the prosecution to fabricate evidence against the accused so as to foist a false case against him.
20. In the above background, if the entire evidence adduced by the prosecution is analysed, I find that even though the victim of the offence has stood by the case of the prosecution, yet the facts and circumstances brought out in the evidence go to show that it is not safe to rely on testimony of the prosecutrix/victim without corroboration. No- doubt, there is no bar under law to accept the testimony of a child witness, and to base conviction solely on the testimony of a child witness, provided the evidence of the child witness is found reliable and acceptable. But in the instant case, as already discussed above, the very genesis of the occurrence is rendered doubtful on account of non-examination of the material witnesses viz., Geetha and Annamma. If infact, there was a sexual assault on the victim as stated by her, the evidence of the above witnesses, in my view, would have lent independent corroboration to the testimony of the victim especially in view of the fact that all other witnesses examined by the prosecution were either related or interested 16 witnesses. Since the prosecution has withheld these material witnesses, an adverse inference has to be drawn against the prosecution.
21. Another important aspect that requires to be noted is that as per the facts depicted in the spot mahazar (Ex.P.1) the house of the victim and the accused were located under a common roof and there were four tenements under a single landlady by name Annamma. The facts depicted in the spot mahazar Ex-P1 disclose that the house of the accused and the house of the victim were situate opposite to each other. According to the prosecution, the victim was frequently going to the house of the accused to play with the child of the accused. This evidence therefore goes to show that the accused was a married person and was residing in the opposite tenement alongwith his wife and daughter. The house of accused consisted of a hall (10 X 10), bed room (5 X 10') and a kitchen ( 4 X 10'). The testimony of PW-4 and PWs.2 and 3 is miserably silent regarding the wife and child of the accused in the house during the occurrence. According to PW-4, she was taken to kitchen and then to bedroom and 17 thereafter she ran out of the house. The location of the house is such that if such an incident had taken place in the house of the accused, the same could not have escaped notice of neighbours or the other inmates of the house. The prosecution has suppressed and withheld this material evidence which again creates doubt in the case of the prosecution.
22. Another aspect which throws doubt on the case of the prosecution is that according to the prosecution, during the occurrence, the accused removed the 'top' of the victim and thereafter removed her pant. The investigating agency has not made any attempts to seize those clothes which would have corroborated the say of the victim that she was wearing clothes as stated by her before the Court. In the absence of any such evidence, it is not safe to rely on the testimony of PW-4, that too, on account of the inconsistencies and contradictions discussed above.
23. All the above circumstances when cumulatively considered gives rise to strong element of doubt in the case of 18 the prosecution. These circumstances when analysized in the backdrop of the suggestion made to the prosecution witnesses and the stand taken up by the accused during his examination under section 313 Cr.P.C. would go to show that an attempt appears to have been made right from the beginning to implicate the accused in the alleged offence, apparently to evict him from the house. Even otherwise, the testimony of the victim PW-4 in the circumstances discussed above do not inspire confidence to hold that the incident had taken place as narrated by PW-4.
24. No doubt the sessions court has discussed the evidence of the victim-PW-4 and her parents-PW-2 and 3, but failed to take note of the fact that all the witnesses examined by the prosecution were either related or interested witnesses. Under the said circumstances, without proper corroboration, the sessions court ought not to have placed reliance on the testimony of the victim to record a finding of guilt against the accused. The sessions court has also failed to note the fact that the medical evidence was fabricated and it contradicted the case of the prosecution.
19
25. Another aspect that needs to be noted is that there is no clear evidence as to the time and place of arrest of the accused. It is not the case of the prosecution that the accused remained absconding after the incident. On the other hand, the circumstances brought out in the evidence of the investigating officer indicate that the accused was produced before the investigating officer on 04.04.2014 in the morning and there is no evidence as to the time and place from where he was arrested and the prosecution has not even prepared the arrest panchanama to show the circumstances of arrest of the accused which would have further thrown light on the case of the prosecution. Having regard to the suggestions made by the accused to the investigating officer, it can be safely inferred the accused was very much available in the house. The mother of the victim viz., PW-3 had gone to the extent of stating that when she was questioning the victim, the accused had come to her house and she talked with him. All these circumstances go to show that the accused did not run away from the spot and was very much available, which 20 again lends support to the contentions urged by the accused that he is a victim of false implication in the alleged offence.
26. Thus on reconsideration of the entire material on record, I am of the view that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt.
For all the above reasons, the appeal is allowed. The impugned judgment of conviction and order of sentence passed by LIII Addl. City Civil & Sessions Judge, Bangalore in Spl.C.C.No.188/2014 is set-aside. The respondent/accused is acquitted of the charge under sections 354A of IPC and Section 9(m) r/w section 10 of Protection of Children from Sexual Offences Act, 2012. The appellant/accused is directed to be set at large forthwith, if not required in any other case.
Bail bond and surety bond shall stand cancelled.
Sd/-
JUDGE *mn/-