Karnataka High Court
State Of Karnataka vs Mudiyappa on 19 June, 2023
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CRL.A No. 100151 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 100151 OF 2016
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE POLICE SUB INSPECTOR,
GANGAVATHI RURAL POLICE STATION,
KOPPAL 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:
MUDIYAPPA S/O. KUPPANNA NAVALI,
AGE: 21 YEARS, R/O: JEERAL KALGUDI CAMP,
TALUK GANGAVATHI, DISTRICT KOPPAL.
Digitally
signed by
GIRIJA A
...RESPONDENT
BYAHATTI
Location:
GIRIJA A
HIGHCOURT
OF (BYSRI. M.B.GUNDAWADE, FOR SRI. K. ANANDKUMAR, ADV;
BYAHATTI KARNATAKA-
DHARWAD
BENCH
Date:
SMT.CHITRA GOUNDELKAR, ADV. FOR COMPLAINANT)
2023.07.14
12:24:22
+0530
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) &
(3) OF CR.P.C., SEEKING TO GRANT SPECIAL LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
12.01.2016 PASSED BY THE LEARNED DISTRICT AND
SESSIONS/SPECIAL JUDGE, KOPPAL IN SESSIONS CASE (AC) NO. 17
OF 2015 AND TO SET ASIDE THE JUDGEMENT AND ORDER OF
ACQUITTAL DATED 12.01.2016 PASSED BY THE LEARNED DISTRICT
AND SESSIONS/SPECIAL JUDGE, KOPPAL IN SESSIONS CASE (AC)
NO. 17 OF 2015 AND CONVICT THE RESPONDENT/ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTION 376 OF IPC AND
SECTION 3(1)(10) OF SC/ST(PA) ACT 1989.
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CRL.A No. 100151 of 2016
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
VENKATESH NAIK T. J., DELIVERED THE FOLLOWING:
JUDGMENT
The State has filed this appeal aggrieved by the judgment and order of acquittal dated 12.01.2016 passed by the District and Sessions/Special Judge, Koppal in S.C.(ASC) No.17/2015 for the offences punishable under Sections 376 of the IPC and Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 4 of the POCSO Act, 2012.
2. The brief facts of the prosecution case is as under:
The complainant(victim-PW2), aged about 17 years, lodged a complaint (Ex.P2) alleging that, on 22.07.2014, she had been to the lands for grazing goats in the field and the accused, who is of the same village, is also grazing his cattle. On the same day at 12.00 noon, while she was going back to her home, accused stopped her, closed her mouth, lifted her to the nearby land in a canal, -3- CRL.A No. 100151 of 2016 made her to fall on the ground, he tied her both hands with her chudidar vail, removed his pant, gagged her mouth, committed sexual assault by inserting his fingers to her private part and then forcibly committed sexual intercourse and left the spot. Hence, the victim informed about the incident to her mother and on the same night, victim lodged complaint to the police.
3. On the basis of the complaint, Gangavathi Rural Police registered a case in crime No.202/2014 for the offences punishable under Sections 341, 376 of IPC and Section 4 of POCSO Act, 2012 and Section 3(i)(x), (11) of SC/ST (P.O.A.) Act, 1989. During the course of investigation, Investigating Officer visited the spot and recorded the statement of the witnesses. After conclusion of the investigation, the I.O. filed charge sheet against the accused for the offences punishable under Sections 341, 376 of IPC and Section 4 of POCSO Act, 2012 and Section 3(1)(10), (11) of SC/ST. (P.O.A.) Act, 1989. -4- CRL.A No. 100151 of 2016
4. After committing the case to the learned Sessions Judge, the accused produced before the court and charge was framed and read over to accused, he pleaded not guilty and claimed to be tried.
5. The prosecution in order to bring home the guilt of the accused examined in all 12 witnesses as P.Ws.1 to 12, got marked Exs.P1 to P23 and material objects M.Os.1 to 13. After completion of the evidence, statement of the accused was recorded under Section 313 of Cr.P.C. and the case of accused is of total denial.
6. On the basis of above evidence, the trial court framed following points:
1) Accused in the land of CW-7 wrongfully restrained CW-1 and shut her mouth and physically lifted her and laid her by the side of small canal and tied her both hands with her vale and gagged her mouth by his pant and removed her chudidar and committed upon her and thereby committed an offence punishable under Section 376 of IPC?
2) On the above said date, time and place accused committed rape upon the minor victim, who was then -5- CRL.A No. 100151 of 2016 aged 17 years and thereby committed an offence punishable under Section 4 of POCSO Act?
3) Accused committed offence of rape under Section 376 IPC upon the minor victim, who belongs to Schedule Tribe and thereby committed an offence punishable under Section 3(2)(v) of SC/ST (P.O.A.) Act, 1989?
7. Learned Sessions Judge recorded a finding that, the prosecution has failed to prove that, on 22.07.2014 at 12.00 noon, while victim was grazing goats in the land, accused closed her mouth, tied her hands with chudidar vail, committed rape on minor victim, knowing that, victim was member of Scheduled Tribe community. Ultimately, the trial court acquitted the accused holding that prosecution has failed to prove the guilt of the accused. Aggrieved by the judgment of acquittal, the State has preferred this appeal.
8. Heard the learned Additional SPP for the State and learned counsel for the respondent and learned counsel for the complainant.
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9. Learned Additional SPP has taken the contention that judgment and order of acquittal passed by the trial court is illegal and contrary to law and facts of the case. The trial court without appreciating the evidence on record on its prospective has erroneously acquitted the accused. He submits that P.W.2 is the minor girl (victim) has categorically stated before the trial court regarding sexual assault committed by the accused and she has fully supported the case of the prosecution. He further submits that father of the victim girl supported the case of prosecution and the trial court discarded their evidence. He submits that P.W.9 doctor who examined the victim girl to ascertain the correct date of birth and he has opined that age of the victim was between 14-17 years. The evidence of P.W.4 Headmaster of the school who has issued school certificate to know the date of birth of the victim girl and the evidence of P.W.9 doctor fully corroborate with each other to establish that P.W.2 was minor as on the date of the incident. He further submitted that P.W.8 doctor who examined the victim and has clearly -7- CRL.A No. 100151 of 2016 stated that victim girl was subjected to sexual intercourse and P.Ws.10 and 11 are the Investigating Officers who have deposed regarding their role in the investigation. He further submitted that P.W.2 has categorically stated before P.W.12-CJM, Koppal, who has recorded the statement of the victim under Section 164 of Cr.P.C. and the evidence of this witness is fully supports the case of the prosecution. The trial court without proper assessment of the evidence has wrongly and erroneously acquitted the accused. He submits that though the victim was minor at the time of incident, but the trial court has failed to convict the accused for the offence punishable under Section 376 of IPC. He further contended that judgment and order of acquittal passed by the trial court is not sustainable as there is sufficient material on record to show that victim belongs to ST community and the accused belongs to Kumbar community. Therefore, the trial court ought to have convicted the accused for the aforesaid offences. Hence, on these grounds he prays to allow the appeal. -8- CRL.A No. 100151 of 2016
10. Learned counsel appearing for the complainant adopts the arguments advanced by the learned Additional SPP.
11. On the other hand, learned counsel for the respondent/accused vehemently argued and contended that in the instant case except the evidence of P.W.2 there are no other evidence to corroborate the oral testimony of the victim. He submits that medical evidence and FSL report were not corroborate the oral testimony of P.W.2. He further submits that alleged spot is open land and there was no standing crop in the surrounding land in Sy.No.7. He submits that though alleged incident occurred in the hard surface, but the accused has not sustained any injuries on his person. He further submits that victim belongs to ST community and the accused belongs to Kumbar community and in order to get compensation from the government, the family members of P.W.2 have lodged false complaint against the accused. On these grounds, he prays to dismiss the appeal. -9- CRL.A No. 100151 of 2016
12. On the basis of the above submission, the following points would arise for our consideration:
1) Whether the judgment of acquittal passed in S.C.No17/2015 for the offences U/sec.376 of IPC, Section 4 of POCSO Act, and Sec.3(2)(v) of SC/ST (P.O.A) Act, 1989, is based on proper appreciation of evidence and as such, is liable to be sustainable?
2) What Order?
Point No.1:
13. In order to re-appreciate the oral and documentary evidence on record, we feel it just and necessary to have cursory look on the evidence of the prosecution witnesses and the documents relied upon by the prosecution.
14. P.W.1-Dr. Ramakrishna is the Medical Officer who has examined the accused on 23.07.2014 and issued report as per Ex.P1. On examination he did not find any stains and any external injuries on the person of the accused. There was no abrasion on the back of the
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CRL.A No. 100151 of 2016accused and he did not find any injuries on his private part.
15. P.W.2 is the victim. In her evidence, she has stated that she belongs to ST community and the accused belong to Kumbar community. Both hails from the same village and accused used to graze the cattle. P.W.2 further stated that as on the date of the incident, she had been grazing goat and she was coming back to her house, after grazing goat, on the way she met with the accused. He went to take her, she started running and fell down. At that time, accused came and fell on her and stripped her chudidar and removed his pant. The accused tied her both hands with her chudidar vail and gagged her mouth by his pant. The accused sexually assaulted her by intercourse against her will. Thereafter, she came back to her house and informed about the incident to her mother and on the same night lodged the complaint against the accused as per Ex.P2. Thereafter The police took her to the place of incident where the police drawn mahazar and taken a
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CRL.A No. 100151 of 2016photo which is marked as Ex.P3. Thereafter, police sent her to the hospital where doctor has examined her. The police recorded her further statement and later police seized M.Os.1 to 4 i.e., underwear, chudi pant, petticoat and chudi top. In the cross-examination, she admitted that she did not make any hue and cry and after the incident she went to the house by walk. She further admits that about three days prior to the incident, her menses period was over and rest of the suggestions were denied by her.
16. P.W.3-Chinnappa is the spot mahazer witness, he has stated that, police had come to the village, where the police have conducted spot panchanama as per Ex.P4 as shown by the victim. The police also took photo as per Ex.P3.
17. P.W.4-Sulauddin is the Headmaster who issued school admission extract of the victim as per Ex.P5 and as per ExP5, date of birth of the victim is 01.02.1997.
18. P.W.5-Ayyappa is the father of the victim. In his evidence he has stated that, about 11 months back he had
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CRL.A No. 100151 of 2016gone to Bellary for his work and at that time his uncle had telephoned him and informed the incident, thus he came back to the village and on the same night P.W.1 lodged the complaint.
19. P.W.6-Narahari who has issued birth extract of the accused as per Ex.P7 and as per Ex.P7, date of birth of the accused his 03.06.1995.
20. P.W.7-Dr.Mahendra S. V. who examined the accused and drawn the blood from the accused, has stated that on 31.07.2014, the Investigating Officer of this case requested him to draw blood from the accused in front of the learned CJM, Koppal, accordingly he drawn the blood of accused and handed over the same to the Investigating Officer.
21. P.W.8-Dr.Surekha S.M. who examined the victim physically in her evidence she has stated that, on 23.07.2014, victim was brought by the police for medical examination. Hence, she collected vaginal swab, two vaginal smear slides, cervical swab, two cervical smear
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CRL.A No. 100151 of 2016slides, pubic hair, nail clipping, one underwear, one chudidar pant, one petticoat, one chudi top from the victim, sealed the same and sent it to the FSL for chemical examination. She has identified all the material objects collected by her as per Exs.M.Os.1 to 10. In this regard, she has issued medical certificate of the victim as per Ex.P9. Further, on the basis of the FSL report, she has given her final opinion. She has opined that, possibility of remote sexual intercourse cannot be ruled out.
22. P.W.9-Dr.V.Yogiraj who examined the victim to ascertain the age and issued age certificate as per Ex.P12. As per P.W.9, as on the date of her radiological examination, the age of the victim is between 14-17 years.
23. P.W.10-Anjeyana D.S. is the Police Sub- Inspector of Gangavathi Traffic Police Station who received the complaint from P.W.1 and registered the case in crime No.202/2014 and sent the FIR to the court and his higher authorities. He also sent the victim to the Government
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CRL.A No. 100151 of 2016Hospital for medical examination and handed over the case for further investigation to the Investigating Officer.
24. P.W.11-Vincent Shantakumar is the Deputy Superintendent of Police, Gangavathi who investigated the matter and filed charge sheet against the accused.
25. P.W.12-Smt.Sudha S.Omkar, Senior Civil Judge and CJM, Gangavathi who recorded the statement of the victim under Section 164 of Cr.P.C. as per Ex.P23.
26. Perused the entire evidence on record regarding the accusations of sexual assault, rape or penetrative sexual assault, it can be said that the prosecution case or the allegations made therein cannot be viewed in perspective of evidence brought on record to conclude that there is there is proof of accused committing the alleged offences. The statement of the victim that after accused called her, stopped to talk and she started running and while running she tumbled on the ground raises suspicion because there is no evidence that in spite of she falling on the ground her clothes had not soiled or she had not
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CRL.A No. 100151 of 2016sustained any injuries like abrasions and braises when it was admittedly in the filed of C.W.7. If really she had fallen down in that manner her clothes ought to have got soiled or she must have sustained injuries depending upon the force or the manner in which he fell down on her body and nothing is forthcoming about this. Further, if her version tat accused had tied her hands with vale and gagged her mouth stuffing with his pant and raped, is true, there should have been soil on her dress or on clothes worn by the accused. Admittedly, in the instant case, the clothes have not been seized by the Investigating Officer and the reasons for non-seizure of the said material object is not forthcoming in the evidence. Even though her clothes and that of the accused are seized by the police, nothing could be made about these facts from the forensic evidence.
27. So far as medical evidence is concerned, P.W.8 in her evidence has stated that possibility of remote sexual intercourse cannot be ruled out itself is not certain or
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CRL.A No. 100151 of 2016definite about sexual assault. There are no external or internal injuries on the vagina, perineum, cervics because if really accused had raped in the manner stated by the victim, there should have been minimum number of injuries found on the vagina or her private parts along with presence of spermatozoa in vaginal swab or cervical swab. But nothing is found either in the medical evidence or forensic evidence. On perusal of Exs.P9 and P10, medical certificate of the victim and FSL report, it appears that sperm of the accused has not been detected. Therefore, the evidence of P.W.8 that possibility of remote sexual intercourse cannot be ruled out, cannot be connected to the accused. Further, the clothes of the accused seized by the police are the same clothes worn by him at the time of the incident is not revealed in the evidence. Further, the clothes were not identified during investigation from the victim to know whether M.O.12-pant and M.O.13- underwear were the one worn by the accused. On the contrary, these clothes were sized on the next day of the incident when accused was arrested and possibility of
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CRL.A No. 100151 of 2016clothes being changed or if not changed there is possibility of evidence being destroyed or being washed away which could have been collected that was left in the process of the alleged incident. As per the version of the victim, the alleged incident taken place between 12.00 to 1.00 in the noon, she was examined night at 1.30 and she had changed her clothes or not is not stated by her. If really she was sexually assaulted by the accused, there could have been possibility of draining of semen from her private part. Further, if her mouth gagged with pant, dryness will be there in the mouth, redness or inflammation in the throat and there must have been congestion on the wall of the throat and the medical evidence does not reveal any of these facts which is natural when the mouth is gagged. Thus, the medical evidence or investigation do not bring into light several aspects as a result of rape, if really it was committed by the accused as narrated by the victim. All these factors leads to suspicion and doubt in the prosecution case.
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CRL.A No. 100151 of 2016
28. Admittedly, the date of offence is 22.07.2014 and as on the date the victim was aged bout 17 years and 5 months. To substantiate this aspect, the prosecution examined P.W.4-Headmaster of the school who has issued school admission extract as per Ex.P5. The Investigating Officer has not collected SSLC marks card or any other document to ascertain the date of birth of the victim.
29. In the case of Sham Singh Vs State of Haryana reported in (2018) 18 SCC 34, the Hon'ble Apex Court has discussed principle of corroboration in case of rape, which reads as under:
"Testimony of the victim in rape cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury."
30. In the case of State of Punjab Vs. Gurmit Singh and Others reported in (1996) 2 SCC 384, the
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CRL.A No. 100151 of 2016Hon'ble Apex Court has held that under Section 376 of IPC, corroboration is necessary. Therefore, principle of corroboration has been enunciated in this decision, which reads as under:
"Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her
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testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
31. In the instant case, the oral testimony of the victim is not corroborated with each other as to her statement under Section 164 of Cr.P.C. recorded by P.W.12 - Magistrate and the medical evidence. Admittedly, the statement recorded under Section 164 of Cr.P.C. by the learned Magistrate shall be given more weightage, it has more probative value. But, in the absence of medical evidence, statement of the victim does not inspire confidence of the court that the accused has committed sexual assault on the victim.
32. In cases concerning the offences under POCSO Act, sheet anchor of the arguments made on behalf of State is the presumption that operates against accused under Section 29 of the POCSO Act. It is
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CRL.A No. 100151 of 2016also contended that in cases pertaining to POCSO Act, as contended in the present case by learned Addl. SPP on behalf of the appellant-State, court has to presume that accused has committed the alleged offence for which he is charged under the said Act, unless contrary is proved. On this analysis, it is contended on behalf of the State that it is for accused to have proved contrary and burden was entirely upon him to prove his innocence, which he had failed to discharge.
33. In light of aforesaid contention raised by the State, it is necessary to examine the effect of presumption arising under Section 29 of POCSO Act and the manner in which accused can rebut such presumption. Section 29 of the POCSO Act reads as follows:
"Section 29 - Presumption as to certain offences - Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume, that such person has committed or abetted or attempted
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to commit the offence, as the case may be, unless the contrary is proved."
34. Perusal of the above provision does indicate that it is for the accused to prove the contrary namely, he has not committed or abetted the commission of an offence under section 3, 5, 7 and 9 of the POCSO Act and in case he fails to do so, presumption would operate against him leading to his conviction under the provisions of the Act. It cannot be disputed that no presumption is absolute and every presumption is rebuttable.
35. It cannot be countenanced that presumption under Section 29 of the POCSO Act is absolute. It would come into operation only when prosecution is first able to establish the fact and that would form the foundation for presumption under Section 29 of the POCSO Act to operate. Otherwise, all the prosecution would be required to do is to file a charge-sheet against the accused under the
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CRL.A No. 100151 of 2016provisions of the said Act and then claim that evidence of prosecution witness would have to be accepted as gospel truth and entire burden would be on the accused to prove to the contrary. Such a position of law or interpretation of the presumption under Section 29 of the POCSO Act cannot be accepted as it would clearly violate the constitutional mandate and no person can be deprived of liberty, except in accordance with the procedure established by law.
36. In the case of Sachin Baliram Kakde Vs. State of Maharashtra (2016 ALL MR [Cri] 4049), the Bombay High Court in the context of presumption under Section 29 of the POCSO Act after quoting the said provision has held as follows:
"17. Thus, when a person is prosecuted for commission of the offence specified in the said section, the court is required to presume that the said person has committed the said offence unless the contrary is proved.
18. The presumption, however, cannot be said to be irrefutable. In-fact, no presumption is
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irrebuttable in law, as this cannot be equated with conclusive proof. The provisions of Section 29 of the POCSO Act mandates the court to draw the presumption unless contrary is proved.
19. One has to keep in mind, as expressed by an eminent jurist that presumptions are bats in law, they fly in twilight but vanish in the light of facts."
37. In the matter of Subrata Biswas & Anr. Vs. State (2019 SCC ONLINE CAL 1815) it has been held as under:
"21. I am not unconscious of the statutory presumption engrafted in Section 29 of the POCSO Act which reads as follow:-
"Presumption as to certain offences.-
Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3,5,7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved".
22. The statutory presumption applies when a person is prosecuted for committing offence under Sections 5 and 9 of the Act and a reverse burden is imposed on the accused to prove the
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CRL.A No. 100151 of 2016contrary. The word "is prosecuted" in the aforesaid provision does not mean that the prosecution has no role to play in establishing and/or probablising primary facts constituting the offence. If that were so then the prosecution would be absolved of the responsibility of leading any evidence whatsoever and the Court would be required to call upon the accused to disprove a case without the prosecution laying the firm contours there of by leading reliable and admissible evidence. Such an interpretation not only leads to absurdity but renders the aforesaid provision constitutionally suspect. A proper interpretation of the said provision is that in a case where the person is prosecuted under Section 5 and 9 of the Act (as in the present case) the prosecution is absolved of the responsibility of proving its case beyond reasonable doubt. On the contrary, it is only required to lead evidence to establish the ingredients of the offence on a preponderance of probability. Upon laying the foundation of its case by leading cogent and reliable evidence (which does not fall foul of patent absurdities or inherent probabilities)the onus shifts upon the accused to prove the contrary. Judging the evidence in the present case from that perspective, I am constrained to hold that the version of the victim (PW-1) and her mother (PW-2) with regard to twin
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CRL.A No. 100151 of 2016incidents of 24th March, 2016 and 18th April, 2016 if taken as whole, do not inspire confidence and runs contrary to normal human conduct in the backdrop of the broad probabilities of the present case."
23. Hence, I am of the opinion that the evidence led by the prosecution to establish the primary facts suffer from inherent contradictions and patent improbabilities particularly the inexplicable conduct of the victim herself. One part of the prosecution case improbabilises the other part to such an extent that no man of reasonable prudence would accept the version as coming from the witnesses. Hence, I am of the opinion that the factual matrix of the case does not call for invocation of the aforesaid statutory presumption so as to convict the appellant on the charges levelled against him."
38. In the case of Sitaram Das vs. State Of West Bengal (2020 SCC ONLINE CAL 522) it has been held as under:
"29. Let us now address the applicability of Section 29 of the POCSO Act dealing with availability of presumption to be attracted to
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against the accused/appellant, in the given set of facts.
30. Most of the witnesses during trial either being declared hostile to prosecution, or not having rendered desired support to the prosecution version, shown in FIR, for the reasons ascribed in the judgment, learned Trial Judge thought it prudent to make the presumption applicable against the accused person, available under Section 29 of the POCSO Act. The principal thrust of this appeal was the imperfect application of Section 29 of the POCSO Act dealing with presumption in a case, where victim herself had given a go-by to the persecution story developing a separate story in her own version, contrary to the case set up in F.I.R, and subsequently in her 164 statement. The evidence adduced by the prosecution irresistibly indicates one and only important feature that the foundational evidence with respect to the offence charged has not been led in the instant case. It would be most improper, if the presumption available in Section 29 of the POCSO Act is straightway made applicable in a case even in absence of foundational evidence being led by prosecution. As has already discussed that besides medical evidence, there was no other evidence in making
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out a case, either of rape or aggravated sexual penetrative assault, and that medical evidence cannot be considered to be conclusive in sense in the given set of facts, so in the absence of proof of foundational evidence corresponding to the charges framed in this case against the accused person, there hardly left any circumstances for making any application of presumption available under Section 29 of the POCSO Act. The words appearing in Section 29 of the POCSO Act "Where a person is prosecuted" embraces a complete exercise on the part of the prosecution to prove the prime allegation set out in F.I.R. corresponding to the charge framed against the accused person during the course of trial, which is of course rebuttable subject to developing a strong case, contrary to that established by prosecution during cross- examination by defence. When a different story is developed during trial by the victim prosecutrix, contrary to the story of prosecution, and that developed story received ratification from the near relatives of the victim prosecutrix, in the given facts situation, it stands to reasons that despite having been provided with sufficient opportunity to prove the case, prosecution failed to probalise the incident complained of in the F.I.R."
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39. Keeping the aforesaid position of law in mind, evidence of prosecution witnesses in the present case, will have to be examined to find out whether prosecution has established the presumption arising under Section 29 of POCSO Act.
40. Therefore, the trial Court has not raised presumption under Section 29 of the POCSO Act, 2012 as it is bounden duty of the prosecution to prove the primary facts. Admittedly, in the instant case there were glaring discrepancies in the evidence of the victim, lack of medical evidence, enmity and lack of corroborative evidence creates reasonable doubt in the evidence adduced by the prosecution.
41. The report of forensic laboratory did not bear any criminal evidence and it is all no avail to prove prosecution case. The broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to case of rape and there could be no presumption
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CRL.A No. 100151 of 2016that prosecutrix would always tell the entire story truthfully.
42. In view of the above observations also in the present case, the total evidence placed on record by the prosecution is not beyond suspicion. Even there are minor inconsistencies, discrepancies can be overlooked, nevertheless the evidence of the victim and the medical evidence does not inspire confidence and the offences punishable under Section 376 of IPC and Section 4 of POCSO Act, 2012 are not made out.
43. It is an undisputed fact that victim girl - PW2 was of tender age when the alleged incident took place and also when her evidence was recorded in the court. Being a child witness of tender age and sole direct witness in support of the prosecution case, evidence of PW2 has to be evaluated with great care and caution. In this context, judgment of Hon'ble Apex Court in case of Radheshyam Vs. State of Rajasthan can be
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CRL.A No. 100151 of 2016noted with benefit whereunder it has been held as follows:
"In Panchhi, (1998 SCC (cri) 1561) after reiterating the same principles, this Court observed that the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child witness is an easy pray to tutoring. This Court further observed that the courts have held that the evidence of a child witness must find adequate corroboration before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by learned counsel because they reiterate the same principles. The conclusion which can be deduced from the relevant pronouncements of this Court is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find adequate corroboration to the child witness's evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be accepted without hesitation"
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44. Keeping the aforesaid authoritative principles laid down by Apex Court in mind pertaining to appreciation of evidence of witnesses, particularly a child witness, it will have to be first examined as to which category the testimony of PW2 (victim) would fall in the present case. If the testimony is found to be wholly reliable, there would be no necessity of corroboration and if it was found to be wholly unreliable, it would have to be discarded. But, if it is found neither wholly reliable nor wholly unreliable, it would definitely require corroboration.
45. Admittedly, though corroboration should ordinarily be enquired in the case of a grown up woman, it is unnecessary in the case of child of tender age, but as a matter of prudence, a conviction should not ordinarily be based on the uncorroborated evidence of a child witness, as held in Rameshwar Vs. State of Rajasthan, reported in AIR 1952 SC 54.
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46. On perusal of the medical evidence, PW8 the doctor who examined the victim has opined that, possibility of remote sexual intercourse cannot be ruled out. PW8 has furnished her opinion on the basis of Ex.P9
- FSL report. Hence, the medical evidence in the present case is also of no assistance to the prosecution. On the other hand it is against the victim. This report clearly establishes that possibility of remote sexual intercourse cannot be ruled out.
47. This lead us to draw the irresistible conclusion that offence under Section 376 IPC and Section 4 of POCSO Act is not proved by the prosecution or in other words, the burden cast on the accused stands rebutted.
48. Therefore, only evidence available in the present case is the self serving testimony of victim girl PW2. Applying the principles governing the manner in which evidence of a solitary child witness is to be analyzed and accepted in a criminal trial as discussed by
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CRL.A No. 100151 of 2016Hon'ble Apex Court in Radheshyam's case referred to supra to the case on hand, it becomes evident that corroboration was required from other evidence and material on record.
49. It is clear that PW5 i.e., father of PW2 (victim) was deposing on the information allegedly given by the victim, rendering his evidence as a hearsay evidence. There was no other prosecution witness who would support the statement of child witness PW2 (victim). The medical evidence on record did not show any corroboration of sexual assault on the victim. This creates a serious doubt about the veracity of the statement made by PW2 and it appears that she has made a statement on being told to do so or in other words she was tutored.
50. A reading of the evidence of these witnesses i.e., PWs. 2 and 5 clearly establishes that it would not be safe to rely upon the sole testimony of child witness i.e., PW2 to convict the accused in the present
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CRL.A No. 100151 of 2016case. There is no corroboration to the evidence of the said child witness PW2 and evidence of other witnesses would not support the case of prosecution and they have turned hostile. As there is no medical evidence on record to support the theory of prosecution that victim was subjected to sexual assault by the accused, it becomes difficult to reverse the acquittal judgment passed by the trial Court.
51. The trial Court on considering the evidence of prosecution inclusive of defence theory rendered the judgment of acquittal. Whereas it is relevant to refer the judgment of the Hon'ble Apex Court rendered in the case of Sharad Birdhi Chand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 wherein at paragraph 163, it is held as under:
"164. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an
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accused, the accused undoubtedly entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh, [(1973) 2 SCC 808] this court made the following observations (para 25 p.820).
"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, they view which is favourable to the accused would be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence."
52. The Hon'ble Apex Court in the case of Umedbhai Jadavbhai Vs. State of Gujarat reported in 1978 SCC (Cri) 108 wherein at paragraph 10 held as under:
"10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge
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if the same were arrived at after proper appreciation of the evidence."
53. In the backdrop of the above said contentions of the learned counsel for the parties and the evidence placed on record, we may refer to a decision of Hon'ble Apex Court in regard to the jurisdiction and limitations of the Appellate Court while considering the appeal against an order of acquittal.
54. In Tota Singh Vs. State of Punjab reported in (1987) 2 SCC 529, the Hon'ble Apex Court in para 6 has held as under:
"6. ... The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterized as
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perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous."
55. In view of the above proposition of law and decisions cited supra, in the present case, we have independently analyzed and scrutinized the evidence of the material witnesses and found that there is practically no evidence to show that accused restrained victim girl, shut her mouth, lifted her, laid her by the side of small canal, tied her both hands with her chudidar vail, gagged her mouth by his pant and committed sexual assault on her.
56. The learned trial Judge has appreciated the evidence of PWs.1 to 12 in its right perspective and concluded that the evidence of these witnesses have not
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CRL.A No. 100151 of 2016been established that the victim was sexually assaulted by the accused.
57. The Hon'ble Apex Court in the case of Harendra Narain Singh Vs. State Of Bihar reported in AIR 1991 SC 1842, has held that if there are two views possible from the evidence on record, one pointing to the guilt of accused and another to the innocence of accused, then, the view, which is favourable to the accused, is to be accepted and benefit of doubt shall be given to the accused. The Learned Sessions Judge placing reliance on the aforesaid judgment of the Hon'ble Apex Court, has given benefit of doubt to the accused.
58. There is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of the Justice in criminal cases is that,
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CRL.A No. 100151 of 2016if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. This ratio is laid down in the case of Ramanand Yadav Vs. Prabhunat Jha and in the case of C.K. Dase Gowda And Others Vs. State of Karnataka, reported in (2003) 12 SCC
606.
59. Proper analysis of the evidence of prosecution witnesses and medical evidence brought on record by prosecution shows that foundational facts necessary in the present case to raise a presumption under Section 29 of POCSO Act, have not been laid or established beyond reasonable doubt by the prosecution. The defence has been able to demonstrate that
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CRL.A No. 100151 of 2016prosecution story cannot be believed and therefore the presumption would not operate in favour of victim girl and even otherwise it had stood rebutted by the medical evidence and oral evidence of PW2 and documentary evidence Ex.P9 - medical report of victim, FSL report (Ex.P10) and final medical report of victim (Ex.P12), issued by PW8 - doctor.
60. The fact that there is no independent witness to support the case of the prosecution, it requires that the standard of evidence tendered through an independent witness and official witness is to be an unimpeachable nature. But the very sequence of events is not convincingly portrayed. On the other hand, it is demonstrated that, the oral testimony of PWs. 2 and 5 and other official witnesses falls short of the standard of proof required to connect the accused with the offence alleged. All these factors when view cumulatively, we are of the considered opinion that the evidence placed on record is not sufficient enough to prove the charges
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CRL.A No. 100151 of 2016levelled against the accused beyond all reasonable doubt.
61. On careful scrutiny of the evidence available on record, we hold that the prosecution has failed to bring home the guilt of the accused beyond reasonable doubt. Therefore, the trial Court has rightly acquitted accused for the aforesaid offences.
62. Considering all these aspects of the matter, the learned Sessions Judge has rightly extended the benefit of acquittal to respondent / accused. Hence, we do not find any grounds to interfere with the well reasoned judgment passed by the trial Court.
63. Hence we answer point No.1 in the negative, holding that the criminal appeal filed by the State is liable to be dismissed.
64. Therefore, on the basis of the evidence of the victim alone, the accused cannot be held guilty to convict him. Hence, there is no proof beyond reasonable doubt.
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CRL.A No. 100151 of 2016Hence, we are of the opinion that trial court has appreciated the oral and documentary evidence placed before it and has rightly acquitted the accused for the aforesaid offences. Hence, we answer point Nos.1 to 3 in the negative and proceed to pass the following:
ORDER i. The criminal appeal is dismissed.
ii. The judgment of acquittal dated 12.01.2016 passed in SC(AC)No.17/2015 by the District and Sessions/Special Judge, Koppal acquitting the accused for the offences punishable under Section 376 of IPC, Section 4 of POCSO Act, 2012 and under Section 3(2)(v) of SC/ST, (P.O.A.) Act, 1989 is confirmed.
Sd/-
JUDGE Sd/-
JUDGE gab - para 2 MBS - para 3 to end ct-abn List No.: 1 Sl No.: 1