Karnataka High Court
State Of Karnataka vs Janardhan S/O Hosabu Patagar on 8 July, 2024
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NC: 2024:KHC-D:9406
CRL.A No. 100141 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100141 OF 2017 (A)
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR, GOKARNA POLICE STATION,
KUMTA, THROUGH THE
ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI M.M.KHANNUR, AGA)
AND:
JANARDHAN
S/O. HOSABU PATAGAR,
AGE: 28 YEARS,
R/O: HIREGUTTI, TQ: KUMTA.
Digitally signed
by VINAYAKA B V ...RESPONDENT
Location: HIGH
COURT OF (BY SRI HAREESHA S.NAYAK, ADVOCATE AND
KARNATAKA SIR VYAS DESAI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) AND (3) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE
TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 07.11.2015 PASSED BY THE ADDITIONAL
J.M.F.C., KUMATA IN C.C.NO.848 OF 2006 AND ETC.,
THIS CRIMINAL APPEAL, COMING ON FOR HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:9406
CRL.A No. 100141 of 2017
JUDGMENT
The State has preferred this appeal against the judgment of acquittal dated 07th November, 2015, passed in CC 848 of 2006 by the Additional JMFC, Kumta (for brevity, hereinafter referred to as the "trial Court".
2. For the sake of convenience, the parties herein are referred to as per their status and rank before the trial Court.
3. Brief relevant facts that led to filing of this appeal are that the Police Sub-Inspector of Gokana has submitted charge sheet against the accused for the offence punishable under Sections 417 and 506 Indian Penal Code. The case of the prosecution is that the accused and complainant were in love since 2004. The accused promised the complainant that he will marry her. By believing the words of the accused, she developed physical relationship and due to cohabitation, she became pregnant in the month of October 2005 and conveyed the same to the accused. Accused promised her that he will marry her and not to disclose the same to anyone. During her six month pregnancy, the accused denied to marry her and threatened her with dire consequences. Then in the month of March, 2006 she disclosed about her pregnancy to her family -3- NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 members and filed a complaint with Gokarna police. On investigation, the Gokarna Police filed a charge sheet against the accused under Sections 417 and 506 Indian Penal Code. After filing the charge sheet, case was registered in CC No.848 of 2006. In pursuance to summons issued by the trial Court, the accused appeared before the trial Court and took bail. Charges were framed for the commission of offence punishable under Sections 417 and 506 of Indian Penal Code and the same was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the prosecution, in all, examined 12 witnesses as PWs.1 to 12 and marked 10 documents as per Exhibits P1 to P10. On closure of prosecution side evidence, statement under Section 313 of Code of Criminal Procedure was recorded. Accused has denied all the incriminating evidence of prosecution side, but has not led any defence evidence on his behalf. Having heard both sides, the trial Court acquitted the accused. Being aggrieved by the judgment of acquittal, the State has preferred this appeal.
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NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017
4. Sri Madan Mohan Khannur, learned Additional Government Advocate for the State would submit that the judgment and order of acquittal passed by the trial Court is contrary to law and facts of the case and evidence on record, same is not sustainable and is liable to be set aside. He would submit that the trial Court has taken cognizance of offence for offence punishable under Sections 417 and 506 of Indian Penal Code and also framed charges for the said offence. During the course of trial, the PW1 has specifically and categorically stated about the sexual assault committed by the accused and the trial Court taking into consideration the evidence of PW1, ought to have committed the case to District and Sessions Judge for trial under Section 323 of Indian Penal Code. Failure to commit the case to Sessions Court has resulted in miscarriage of justice. The trial Court has not exercised its power under Section 323 of Indian Penal Code though there is ample evidence on the record to show that the accused committed sexual assault on the victim which is punishable under Section 376 of Indian Penal Code. Failure to commit the case has prejudiced the interest of prosecution. The trial Court, without committing the case to the Sessions Court, has discussed the -5- NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 evidence and acquitted the accused. Same is without jurisdiction and is not sustainable in the eye of law. The trial Court ought to have convicted the accused by taking into consideration the evidence of PWs.1 to 4 and other circumstantial evidence of PWs.5, 6, 11 and 12 and Medical Officers PWs.8 and 9. Failure of non-consideration of evidence, has resulted in miscarriage of justice. On all these grounds sought to allow the appeal.
5. On the other hand, Sri Hareesh S. Nayak, learned counsel appearing for the respondent-accused would submit that the trial Court has appreciated the evidence on record in accordance with law and facts and passed the judgment of acquittal, which needs no interference. He would further submit that to constitute an offence punishable under Section 417 Indian Penal Code, there must be an allegation that, from inception, the intention of the accused was to cheat the informant. A mere promise to marry is not an inducement and offence of cheating is not attracted. With regard to the offence under Section 506 Indian Penal Code also there is no evidence to attract the provisions of said Section. On all these grounds he sought for dismissal of the appeal. To substantiate his -6- NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 argument, he relied upon the decision of the co-ordinate Bench of this Court in Writ Petition No.101484 of 2021 decided on 11th April 2022 rendered in the case of VINAYAK v. SMT. VISHRANTI AND OTHERS.
6. Having heard the learned counsel for the parties and perusal of appeal papers and original records, the following point would arise for my consideration:
1. Whether the prosecution has made out a ground to interfere with the impugned judgment of acquittal;
2. What order?
7. My answer to the above points is as under:
Point No.1: in the negative;
Point No.2: as per final order.
Regarding Point No.1:
8. Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal. -7-
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9. In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus:
"23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:-
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere -8- NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
10. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under:
"16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed -9- NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. ..."
11. In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus:
"4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis- appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the
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NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice...."
12. In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under:
"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction
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NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 to be more probable. The interference would be warranted only if the view taken is not possible at all."
13. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus:
"12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion."
14. It is the case of the prosecution that, accused and complainant were in love since 2004. The accused promised the complainant that he will marry her. By believing the words of the accused, she developed physical relationship and due to cohabitation, she became pregnant in the month of October
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NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 2005 and conveyed the same to the accused. Accused promised to marry her and told not to disclose the same to anyone. It is only during her sixth month pregnancy, the accused denied to marry her and threatened her with dire consequences. Then in the month of March, 2006 she disclosed about her pregnancy to her family members and filed a complaint with Gokarna police. To substantiate the case of prosecution, in all, examined 12 witnesses as PWs.1 to 12 and marked 10 documents as Exhibits P1 to P10. During the course of cross-examination of PW1 witness, Exhibits D1 to D3 marked. As could be seen from the charge sheet, there are 13 witnesses. Out of them 12 witnesses are examined as PWs.1 to 12. CW2-father of PW1-victim and PW3 is the mother and PW4 is the brother of the victim, have not supported the case of prosecution. PW5 who is the hearsay witness has also not supported the case of prosecution. PW6 has not supported the case of prosecution. PW7 has deposed as to his part of investigation. PW8-Prashant Ganapati Bhatta, Doctor has deposed as to the potentiality of the accused and issuance of certificate Exhibit P7 which is issued as per request of police as per Exhibit P6.PW9-Dr. Prashanth Manakikar, has deposed that
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NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 on 10th May, 2006, the complainant came to hospital with the complaint of labour pain and at 3.30 am, she delivered a girl child and she has taken treatment as an out-patient from 05th May, 2006. PW10-Raghavendra Gaonkar, PW11-Savita Gaonkar, PW12-Shivananda Subbaraya Patagar, have not supported the case of prosecution. Even in their cross- examination made by the Assistant Public Prosecutor, after treating them as hostile witnesses, the prosecution has failed to elicit any favourable answer from any witness. During the course of cross-examination of these witnesses the prosecution has marked Exhibits P3, 9 and 10 said to have been recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure and the same was denied by these witnesses.
15. Now, I have to analyse the evidence of PW1. She has deposed in her evidence that the house of accused is adjacent to her house. In her house she is residing with her parents, brother and sister. The accused and she were in love since last three years. The accused promised her that he will marry her. By believing his words, she developed physical relationship with him and became pregnant. She came to know
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NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 about her pregnancy in the month of October, 2005. The accused told her not to disclose about her pregnancy to her family members and hence she has not disclosed the same to her family members. She requested the accused to marry her. He continued to promise her that he will marry and stated that she has to seek permission from his family members. When she was sixth month pregnant, the accused refused to marry her and also threatened her that if she gives complaint, he will finish her. Thereafter, she disclosed to her family members about her being pregnant, and on 26th April, 2006 she gave complaint to the Police as per Exhibit P1. Further, she has deposed that on 10th May, 2005 she gave birth to a girl baby and the child is in her custody.
16. As regards evidence of PW1 is concerned, at paragraphs 41 to 44 of the judgment, the trial Court has observed as under:
"41. In this types of cases for proving the alleged relationship between the accused and complainant evidence of the victim is important. The prosecution examined the complainant as PW1. In sexual inter course matter victim evidence plays vital role but that evidence should be credible. In the present case the complainant has stated that the accused promised her that he will marry her and he developed physical
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NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 relationship with her. To prove the physical relationship and pregnancy and by accused the complainant become pregnant medical evidence is very important. In the present case the investigation officer has not sent the accused and complainant for DNA test. Further it is the case of the prosecution that the complainant and accused were in love since last 3 years from the date of lodging the present complaint and several persons know about the same. But in the present case family members, close friend and neighbours' of the complainant are turned hostile. Further the prosecution stated that there was a panchayath by the community leaders but none of them have been examined in this case.
42. The PW1 in her cross examination stated that at the time of alleged relationship she was major and she know the consequences. Further she admitted that she, on her own will she started illicit relationship with the accused. In the present case the prosecution has failed to prove the alleged fact and ingredients' of section 415 of IPC. The PW1 stated that her love matter was known to one Kamala Patagar but she is not examined in this case. Further she stated that when she was carrying her 3months pregnancy she informed about the same to her parents but her parents in their evidence denied the same. It is common that when a boy and girl are in love for a long time in a small village it will come to the knowledge of some persons at least to the friends and neighbors' but in the present case except CW1 none know about her love which creates doubt about the allegation of the CW1.
43. In the present case if the CW1 was carrying 6 months at the time of lodging complaint her mother would have noticed and it is common when a women is carrying her 6 months pregnancy it is visible to a common man. But in the present case the family members of the CW1 have stated that they do not know about the pregnancy of the CWI till lodging the
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NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 present case, which is unacceptable story. In the present case the prosecution has not stated a single word produced any evidence about cheating and dishonest intention of the accused and the investigation officer has not investigated on these points.
44. To find out the alleged relationship mere test (potentiality) of the accused is not sufficient and it proves the accused ability only. But to prove the physical relationship it will not help, it requires only in case where the accused claims he is suffering from impotency. Even for conducting the said test, also court permission is required in the present case the investigation officer has not taken any permission from the court."
17. The trial Court has also observed as to the lapses of the Investigating Officer. A perusal of the decision of Co- ordinate Bench of this Court in the case of VINAYAK (supra), it could be seen that in order to constitute an offence punishable under Section 417 of Code of Criminal Procedure, there must be allegation that, from inception, the intention of the accused was to cheat the informant. A mere promise to marry is not an inducement and the offence of cheating is not attracted. With regard to the offence under Section 506 of Indian Penal Code is concerned, except the interested testimony of PW1, the same is not supported by any other cogent and convincing evidence before this court. Considering all these lapses committed by
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NC: 2024:KHC-D:9406 CRL.A No. 100141 of 2017 the prosecution, since there was no cogent, convincing, trustworthy and corroborative legal evidence before the trial Court, the trial Court has acquitted the accused by giving benefit of doubt to the accused.
18. On re-appreciation/reconsideration and re- examination of entire evidence on records, and keeping in mind the abovementioned decisions, I do not find any error/legal infirmity/illegalities in the impugned judgment. Hence, I answer point No.1 in the negative.
Regarding Point No.2:
19. For the aforestated reasons and discussions made above, I proceed to pass the following:
ORDER Appeal is dismissed.
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JUDGE LNN List No.: 1 Sl No.: 25