Karnataka High Court
The State Of Karnataka vs Siddappa @ Siddu Sangappa Bhadrapura on 5 April, 2022
Bench: H.T.Narendra Prasad, Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF APRIL 2022
PRESENT
THE HON'BLE MR. JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRL.A. NO.100284/2018
BETWEEN
THE STATE OF KARNATAKA
POLICE OF BANKAPUR POLICE STATION,
HAVERI DISTRICT, HAVERI,
REPRESENTED BY THE
SPECIAL PUBLIC PROSECUTOR,
HIGH COURT, DHARWAD.
.....APPELLANT
(BY SRI V.M. BANAKAR, ADDL. SPP)
AND
SIDDAPPA @ SIDDU SANGAPPA BHADRAPURA,
AGED ABOUT 27 YEARS, OCC. COOLIE,
R.O IBRAHIMPURA, TQ. SHIGGAON,
DIST. HAVERI.
.....RESPONDENT
(BY SRI NITIN R BOLABANDI, ADV.)
THIS CRIMINAL APPEAL IS FILED U/SECTION 378 (1) & (3)
OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 19.01.2018 PASSED
BY THE PRL. DIST. & SESSIONS & SPECIAL JUDGE, HAVERI IN
SPL.S.C.NO.31/2015, FOR THE OFFENCES P/U/S 363, 366, 376 OF
IPC AND U/S 4 & 12 OF POCSO ACT AND TO SET ASIDE THE
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JUDGMENT AND ORDER OF ACQUITTAL DATED 19.01.2018 PASSED
BY THE PASSED BY THE PRL. DIST. & SESSIONS & SPECIAL JUDGE,
HAVERI IN SPL.S.C.NO.31/2015, FOR THE OFFENCES P/U/S 363,
366, 376 OF IPC AND U/S 4 & 12 OF POCSO ACT AND CONVICT
THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 363, 366,
376 OF IPC AND U/S 4 & 12 OF POCSO ACT.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 16.03.2022, THIS DAY,
RAJENDRA BADAMIKAR, J. PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed by the State through Bankapur Police in Haveri District challenging the judgment of acquittal dated 19.01.2018 passed by the Principal District and Sessions Judge and Special Judge, Haveri in Spl. S.C.No.31/2015 whereby the leaned Sessions Judge has acquitted the accused for the offence punishable under Sections 363, 366, 376 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC', for short) and under Section 4 and 12 of the Protection of Children from Sexual Offices Act, 2012 (hereinafter referred to as 'POCSO Act', for short).
2. For the sake of convenience, the parties herein are referred to with their original ranks occupied by them before the trial Court.
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3. Brief factual matrix leading to the case is as under:
That the complainant's daughter victim aged about 16 years had gone to her grandparents' house situated in Ibrahimpur at Shiggaon Taluk. During her stay there, she had developed friendship with the accused who was residing there itself and they started to love each other and he gave her false assurance of marriage. It is the further case of the prosecution that on 23.07.2015 at 12.00 p.m., when the victim had gone to Bankapur Darga along with her aunt, accused called her and induced her to come near bus stand and when she went there, he kidnapped her from the lawful guardianship and took her to Haveri, then to Davanagere by bus and then by a train to Bengaluru. Further, it is alleged that they went to Karmade in Mettupalyan taluk, Koimbatore District, Tamilnadu State and stayed there in a rented house. It is the further case of the prosecution that on 25.07.2015, accused committed rape on the victim having full knowledge that she is a minor. The father of the victim has lodged a complaint and on the basis of the same, the police have apprehended the accused and victim in Karmade village in 4 Tamil Nadu State and brought to Bankapur Police Station. Thereafter, the victim as well as accused subjected to medical examination and statement of the victim under Section 164 of Code of Criminal Procedure , 1973 (hereinafter referred to as 'Cr.P.C.', for short) was recorded. The accused was remanded to judicial custody. The Investigating Officer has investigated the crime and collected the materials regarding age, sexual assault on the victim and then found that there are sufficient materials as against the accused and as such, he has submitted the charge sheet against the accused.
4. After the submission of the charge sheet, cognizance was taken. The accused was represented by a counsel and the prosecution papers were furnished to the accused. After hearing learned Public Prosecutor and defence counsel, the charges under sections 363, 366 and 376 of IPC read with Sections 4 and 12 of POCSO Act were framed against the accused and the same is read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.
5. To prove the guilt of the accused, the prosecution has examined in all 28 witnesses and also placed reliance on 5 26 documents and got marked 8 M.Os. After conclusion of the evidence of the prosecution, the statement of accused under Section 313 of Cr.P.C. is recorded to enable him to explain the incriminating evidence appearing against him in the case of the prosecution. The case of accused is of total denial. However, he did not choose to lead any oral and documentary evidence in support of his defence.
6. After having heard the arguments in detail, learned Sessions Judge/Special Judge found that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and as such, acquitted the accused for the offences charged against him. Being aggrieved by the judgment of acquittal, the State has filed this appeal.
7. Learned Additional State Public Prosecutor has contended that the victim was kidnapped on 23.07.2015 and taken to Tamil Nadu by the accused wherein sexual assault was committed on the minor. He further contended that the evidence of PW-23 and the school certificate at Ex.P-25 disclose that the victim was minor and admittedly, the victim was found in the custody of the accused. As such, he would 6 contend that the Trial Court has ignored the evidence in this regard. He would further contend that the evidence of PW-22 establishes that the victim and accused were residing in Tamil Nadu and the victim has also supported the case of the prosecution and no reasons are forthcoming to ignore the evidence of victim. He would contend that the victim has specifically asserted the sexual assault committed on her by the accused and there is no reason for ignoring the said evidence. He would also contend that merely because the other witnesses are family members, their evidence cannot be ignored. There is material evidence in the form of medical evidence and independent evidence including the evidence of victim to prove the guilt of the accused. Hence, he would contend that the Trial Court on surmises has come to a wrong conclusion by ignoring the fact that there was sexual assault on the victim who was a minor and Trial Court ought to have been more sensitive in such matters. Hence, he would contend that the judgment of acquittal has resulted in miscarriage of justice and as such, he would seek for setting aside the impugned judgment of acquittal and prayed for convicting the accused by allowing the appeal. 7
8. Per contra, learned counsel appearing for the respondent/accused would support the impugned judgment of acquittal and contended that the material evidence did not support the case of the prosecution and except Ex.P-25, school certificate, there is no material to show the age of the victim. He would also contend that the evidence of the complainant itself discloses that he has given the date of birth while admitting the victim to the school but the evidence of his wife discloses that it was entered by the grandfather of the victim and they are inconsistent statements. He would also contend that the radiological report was not obtained to ascertain the exact date and 164 statement of the victim is completely inconsistent and contrary to the evidence given before the Court. He would also contend that there is lot of delay in recording 164 statement, which is not properly explained and considering these lacunas, he would contend that the Trial Court is justified in acquitting the accused. Hence, he would pray for dismissal of appeal by confirming the judgment of acquittal.
9. We have heard both the counsels at length and we have also given our anxious consideration to the grounds 8 urged by both the parties. We have also perused the records placed before us.
10. Now the following points would arise for our consideration:
1) Whether the prosecution proves beyond all reasonable doubt that accused/respondent herein has committed offences punishable under Sections 363, 366 and 376 of IPC and Sections 4 and 12 of POCSO Act as alleged by the prosecution?
2) Whether the judgment of acquittal passed by the Trial Court is perverse, erroneous and arbitrary so as to call for any interference by this Court?
11. It is the contention of the prosecution that the accused in the guise of loving the victim, who was aged 16 years, kidnapped her by taking her to Karmade in Tamil Nadu State and he stayed there for 3 to 4 days and committed rape on her. On the contrary, the accused has denied these allegations. However, he admits that he was in love with the victim and disputed that the victim is a minor. 9
12. PW-1 Gousmodin Sunkad is the father of the victim while PW-15 Halimabi Sunkad is the mother of the victim. PW-2 and PW-3 are spot mahazar witnesses while PW-4 and PW-5 are recovery witnesses in respect of M.Os.1 to 8. PW-7 Fairozabanu is a material witness. However, she has turned hostile. PW-8 and PW-9 are mahazar witnesses of spot in Karmade in Tamilnadu State while PW-11 and PW-12 are grandparents of victim and parents of PW-15. PW-11 has turned hostile. PW-16 Dr. Padmavathi Pattar is the medical officer who examined the victim by issuing report at ExP.16. PW-17 Dr.G.Y. Gururaj is also a Medical Officer who examined the accused and issued report as per Ex.P-19. PW-22 Manikantan is a resident of Karmade and according to the prosecution, he was neighbour of accused and victim in Karmade village. PW-10 is the material witness i.e., the victim.
13. PWs-2, 4, 5, 6, 7, 11 and 13 have turned hostile.
14. PW-1 Gousmodin is the father of the victim and PW-12 is the wife of PW-11 and grandmother of the victim. PW-15 is wife of the complainant and mother of the victim. The evidence of these witnesses discloses that they are family 10 members but their evidence simply discloses that on 23.07.2015 when the victim had gone to Bankapur Darga along with PW-7 Fairoza, she went away saying that she will change her clothes and come back but thereafter she did not return. When the matter was brought to the notice of the complainant, a missing complaint came to be lodged by setting the law in motion. Admittedly, none of these witnesses are eyewitnesses to the incident and relevant witness Fairoza has turned hostile to the case of the prosecution.
15. According to the prosecution, the incident has occurred on 23.07.2015 and the victim was traced on 31.07.2015 and she was brought back to Bankapur police station. It is also evident from the records that from 31.07.2015 to 10.08.2015 victim was in the custody of Child Welfare Committee of Haveri. In this period, her parents used to meet her and accused was in judicial custody from 31.07.2015 till the judgment is being pronounced. Hence, it is evident that question of accused influencing the victim does not arise at all.
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16. The victim was examined as PW-10 and in her evidence, she has deposed that she had come to Ibrahimpur to the house of her maternal grandparents and in front of the said house, the house of accused is situated and accused used to talk to her. She further deposed that accused used to disclose his love towards her assuring her of marriage and she also used to love him. In her further examination-in-chief, she claims that she has not seen her date of birth certificate and her evidence discloses that she was regularly in conversation on phone with accused. According to the prosecution, when she had been to Darga of Bankapur, accused called her on mobile and secured her and thereafter kidnapped her by enticing her. But in her examination-in- chief, she specifically deposed that she herself has called accused on phone and when he asked her to come to bus stand, she went to bus stand by giving lame excuse to PW-7. Though she claimed that initially she has refused to come with him, he threatened her of reporting the same to her parents. Therefore, she accompanied him. Her evidence discloses that all along she has not raised any hue and cry and she has voluntarily accompanied him. She has also deposed that 12 accused has committed sexual assault on her. However, in the cross-examination she asserts that she was in love with accused. She admitted that she has not raised any objection for sexual relationship nor she raised any hue and cry while traveling with accused. This witness though supported the case of the prosecution, it is evident that she has not disclosed the true facts and concealing certain material objects. In her evidence she claimed that the accused asked her to come to bus stand and she went there and accused threatened her to join her. But her 164 statement marked at Ex.P-11 discloses that she herself contacted the accused and secured him and then from Bankapur she went to Haveri along with accused. Hence, her 164 statement discloses that she has taken lead all along. She has also specifically stated that accused never forced or enticed her and she has voluntarily accompanied him and after having married him, she had physical relationship with him. But during the course of the evidence, she has given a goby to this evidence and no explanation is forthcoming as to why she has given an inconsistent statement before the learned Magistrate which was recorded under Section 164(5) of Cr.P.C. 13
17. Apart from that, her further cross-examination discloses that when she was housed in the Protection Home in Haveri wherein she stayed for 4½ months, she along with one, another victim Asmabanu has escaped from the Protection Home. Later on they went to Ranebennur and they were again produced before the same Court. This conduct of the victim clearly discloses that victim is extra active in all these matters and she herself has persuaded the accused to accompany her. Though she admitted that she has not seen her date of birth certificate, she claims her age as 16 to 17 years. On the contrary, PW-1 in his cross-examination has deposed that he has got admitted the victim to the school but his specific statement is that as per the information provided by him, the teacher has made entries. He also admitted that Tahasildar has not given date of birth certificate of victim but the same is available in Bankapur Municipality. He claims that he has provided the said document to the police but the records and the evidence of Investigating Officer discloses that no such certificate was secured by the Investigating Officer.
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18. On the contrary, PW-15, who is the wife of complainant and mother of victim pleaded ignorance to the suggestion that the date of birth of the victim is 04.07.1997. The complainant claims that he has got admitted the victim to the school and given information regarding her date of birth. On the contrary, PW-15 in her cross-examination claims that her father-in-law has admitted the victim to the school. These stands of PW-1 and PW-15 are inconsistent and contrary to each other. The prosecution is relying on the evidence of PW-23 and Ex.P-25 to prove the age of the victim as 20.05.1999. His evidence discloses that the victim had initially studied in Primary School at Panigatti and the documents pertaining to Panigatti School are not produced. He has also admitted that at the time of admission of the students, the date of birth will be entered in the school records based on the birth certificate. But no such evidence is forthcoming that the date of birth is entered on the basis of any birth certificate. The prosecution is simply relying on Ex.P-25.
19. The evidence of PW-1 and PW-15 is inconsistent as to who has admitted the victim to the school. Further, PW- 15 1 specifically asserts that the date of birth of the victim is entered in Bankapur Municipality records. But the investigating agency has not made any attempts to secure the birth certificate in this regard. That would have been the best piece of document but that was not done. Hence, the date of birth of the victim itself is doubtful and heavy burden is on the prosecution to establish that the victim was minor as on the date of alleged incident and her date of birth is 20.05.1999.
20. PW-16, the Medical Officer has examined the victim girl and issued certificate as per Exs.P-17 and P-18. She has deposed that victim was healthy and development was normal and there were no injuries on her body. However, her evidence clearly discloses that the hymen was not intact and she opines that she did suffer sexual assault. But there is no evidence regarding recent sexual assault. In her cross-examination, she admits that hymen may rupture for various reasons but she has not disclosed any other reason in this regard. Interestingly, she has not subjected the victim to radiological or dental examination for ascertaining the exact age of the victim. Even the Investigating Officer has also not made any attempt to 16 subject the victim to specialized test to ascertain her exact age. Hence, when the age of the victim itself is under dispute, the initial burden is on the prosecution to prove the same.
21. The prosecution has relied on evidence of PW-22 who claims that he was residing in Karmade in the house of one Pongiyamma on rent and accused along with one lady stayed for 3-4 days in the adjoining room. However, his evidence discloses that he did not identify the victim. Further, he claims that accused was staying with one lady and he was neighbour to him. But the prosecution ought to have examined the landlady Pongiyamma, who would have been the best witness in this regard. Hence, the evidence of PW-22 does not assist prosecution in any way.
22. PW-26 the Investigating Officer admitted that he did not obtain any property extract of house wherein accused was alleged to have been stayed with victim in Karmade. This is also a material lapse on the part of the investigating agency.
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23. Learned counsel for respondent would specifically contend that the prosecution has not made any attempt to ascertain the exact age of the victim and the evidence discloses that it was a consensual act and all along victim has taken a lead in securing the accused. In fact, the accused himself was victimized because of the acts of the victim. In this context, learned counsel for respondent placed reliance on a decision of the Hon'ble Apex Court in the case of Alamelu and another Vs. State represented by Inspector of Police reported in (2011) 2 SCC 385 wherein the Hon'ble Apex Court had an occasion to consider the school certificate and radiological report and it is observed in para 39 and 40 which reads as under:
39. "We will first take up the issue with regard to the age of the girl. The High Court has based its conclusion on the transfer certificate, Ex.P16 and the certificate issued by PW8 Dr. Gunasekaran, Radiologist, Ex.P4 and Ex.P5.
40. Undoubtedly, the transfer certificate, Ex.P16 indicates that the girl's date of birth was 15-
6-1977. Therefore, even according to the aforesaid certificate, she would be above 16 years of age (16 years 1 month and 16 days) on the date of the 18 alleged incident, i.e., 31-7-1993. The transfer certificate has been issued by a government school and has been duly signed by the Headmaster.
Therefore, it would be admissible in evidence under Section 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined."
24. In view of the observations of the Hon'ble Apex Court, it is evident that though Ex.P-25 is admissible in evidence under Section 35 of the Evidence Act, the admissibility of the document would not have much evidentiary value to prove the age of the girl in the absence of material on the basis of which, age is recorded. In the instant case, PW-1 father claims that he has given the date of birth while admitting the victim to the school but PW-15 claims that victim got admitted by her father-in-law i.e., father of the complainant. These stands are inconsistent. Apart from that, PW-1 himself claims that the date of birth of the victim was entered in Bankapur Municipality and he has handed over the 19 relevant documents to the Investigating Officer but the said document was not placed before the Court. Further, the Investigating Officer has not made any efforts to subject the victim to radiological test. Under these circumstances, Ex.P- 25 cannot be given much importance as it does not have much evidentiary value as per Section 35 of Evidence Act. It was the duty of the Investigating Officer to collect the material evidence but that was not done by him and evidence was inconsistent in this regard. Further, in the case of Birad Mal Singhvi Vs. Anand Purohit reported in 1988 Supp SCC 604, the Hon'ble Apex Court in para 14 has observed that the date of birth mentioned in the school register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. In the instant case, PW-23 has not recorded the date of birth and the evidence of PW-1 is consistent and contrary in this regard. As such, there is no material evidence placed by the prosecution to prove that victim was a minor as on the date of alleged incident.
25. Learned counsel for respondent has further invited the attention on the observation of the Hon'ble Apex Court in the case of Alamelu (supra) wherein it is held that even 20 though the victim had several opportunities to protest and raise an alarm, she did not do so and conviction on the sole testimony of victim/prosecutrix on facts is not sustainable. In the instant case also evidence of victim discloses that she herself has taken the lead and she has also not raised any alarm and it was a consensual relationship.
26. Learned counsel for respondent has also placed reliance in the case of Sanwat Singh Vs. State of Rajasthan reported in wherein the Hon'ble Apex Court has held that it is not enough for High Court to take a different view of the evidence and there must be substantial and compelling reasons for holding that the Trial Court was wrong. It is further observed in the decision of Azmer Sing Vs. The State of Punjab reported in (1953) SCR 418, the Hon'ble Apex Court has held that if the High Court takes a reasonable view on the facts of the case, interference is not justifiable unless real strong reasons for reversing that view are forthcoming. No such evidence is forthcoming in the instant case. Learned counsel for respondent has also placed reliance on the decision of the Hon'ble Apex Court in the case of Ghurey Lal Vs. State of U.P. reported in (2008) 10 SCC 21
450. On appreciating these facts and circumstances, it is evident that the victim was not minor at the time of incident and prosecution has failed to establish the same. The evidence of victim is inconsistent and is not reliable and her conduct in escaping from protection home also discloses her conduct. Under such circumstances, no much importance can be given to her evidence and there is no other material evidence to prove that the victim was minor and her evidence discloses that she has voluntarily accompanied the accused as well as she has voluntarily secured him. Apart from that, it is alleged that she had conversant with the accused and even in Bankapur Darga, she called the accused on mobile and all along in touch with him. The Investigating Officer did not bother to secure the mobile numbers of victim and accused and call details in this regard to fix the allegation or time. All these facts and circumstances clearly establish that the prosecution has miserably failed to bring home the guilt of the accused beyond all reasonable doubt.
27. Learned Sessions Judge/Special Judge has considered all these aspects and has appreciated the oral and documentary evidence in proper prospective. No doubt, he 22 has not considered the age of the victim in the light of the observations made by the Hon'ble Apex Court. However, his finding is in accordance with law and does not suffer from any perversity, infirmity or irregularity so as to call for any interference by this Court. Considering all these aspects, both the points under consideration are answered in negative. Accordingly, we proceed to pass the following:
ORDER The appeal is dismissed by confirming the judgment of acquittal dated 19.01.2018 passed by the Principal District and Sessions Judge and Special Judge, Haveri in Spl. S.C.No.31/2015.
Sd/-
JUDGE Sd/-
JUDGE Naa