Research › Search › Judgment

Karnataka High Court · body

2019 DIGILAW 1306 (KAR)

Sunita v. Sanjay

2019-06-17

B.A.PATIL, BELLUNKE A.S.

body2019
JUDGMENT : B.A. PATIL, J. 1. The present appeal has been preferred by the appellant-complainant being aggrieved by the judgment and order of acquittal dated 18.05.2018 passed by the III Addl. District and Sessions Judge and Special Court under POCSO Act, 2012, Belagavi, in S.C.No.70/2013, whereunder the accused was acquitted for the offence punishable under Section 376 of IPC. 2. We have heard the learned counsel for the appellant-complainant, learned counsel for the accused and the learned Additional SPP. 3. The gist of the complaint is that, accused/ respondent No.1 is the husband of Smt. Sunita. Their marriage was solemanized on 28.11.2004. Out of that wedlock two children were born. One child was aged 41/2 years old and another child was one year old. Smt. Latha and Devagonda are the parents of Sunita and Ratna is the maternal grand mother of Sunita. They are all staying together. After leading marital life for some time, there was matrimonial dispute between the accused and said Sunita. Thereafter Sunita started living in her parents' house at Siddeshwar Galli. The accused was separately staying in a rented house in Santaji Galli. Under the said facts and circumstances, on 29.09.2012, the wife of the accused Sunita, victim, her maternal grand mother had gone to Siddeshwar temple. At about 11.30 am accused/respondent No.1 came there and forcibly took the victim child along with him and thereafter he brought the victim child to maiden's house of PW1 at about 7.00 pm. At that time, the victim was crying. On enquiry, the victim child told that she is having pain in her private part and she is not in a position to properly discharge the urine. By suspecting that her husband accused committed sexual intercourse with the victim child, the complainant consulted her maternal uncles and thereafter she lodged the complaint on 06.10.2012. On the basis of the complaint, after investigation, the Investigating Officer filed the charge sheet. Thereafter the learned Magistrate took the cognizance and as the case is triable by the Court of Sessions, after following the procedure, he committed the said case to the Sessions Court. The committal Court took the case and secured the presence of the accused and thereafter after hearing the learned Public Prosecutor and the learned counsel for the accused, charge was read over and explained to the accused. The committal Court took the case and secured the presence of the accused and thereafter after hearing the learned Public Prosecutor and the learned counsel for the accused, charge was read over and explained to the accused. Accused pleaded not guilty and he claims to be tried and as such trial was commenced. 4. In order to prove its case, the prosecution examined 7 witnesses and got marked 13 documents and also 9 material objects. The statement of the accused came to be recorded and the accused denied the incriminating materials and thereafter the accused has not led any evidence nor got marked any documents. After hearing the learned public Prosecutor and the learned counsel for the accused, the court below came to the conclusion that the material which has been placed on record is not sufficient to come to the conclusion that the prosecution has proved the guilt and as such, it acquitted the accused. Being aggrieved by the same and challenging the legality and correctness of the said order of acquittal, the complainant is before this Court. 5. The first and foremost contention of the complainant is that, the Addl. District and Sessions Judge, Belagavi, recorded the evidence of PWs. 1 to 4 and subsequently the case was made over to the Special Court under the POCSO Act. The Special Court without following the procedure laid down under the POCSO Act and without recording the evidence of those witnesses who have been already examined, straight away proceeded by examining the remaining witnesses and has come to a wrong conclusion and acquitted the accused based upon the evidence which has been already recorded by the earlier Court which was not having jurisdiction. It is his further contention that the complaint and other material clearly goes to show that the victim has been molested and she has specifically stated that he has put his finger in the private part. Without considering the said fact the Court below has acquitted the accused. It is his further submission that the victim has narrated the incident as to how the accused has touched her private part and how she started crying. Even though the said evidence is there before the Court, wrongfully the accused has been acquitted and hence the judgment of the trial Court is liable to be set aside. It is his further submission that the victim has narrated the incident as to how the accused has touched her private part and how she started crying. Even though the said evidence is there before the Court, wrongfully the accused has been acquitted and hence the judgment of the trial Court is liable to be set aside. On these grounds he prays to allow the appeal and to set aside the impugned order of acquittal and prays to convict the accused. 6. Per contra, the learned counsel appearing on behalf of the respondent No.1/accused vehemently argued and submitted that the POCSO Act, 2012 came into force only on 14.11.2012. The alleged incident has taken place on 29.09.2012 and as such, there is no question of application of the said Act retrospectively. It is his further submission that the medical records which have been produced clearly goes to show that no external injuries were found on the private part of the victim, which itself clearly goes to show that no such incident has taken place. It is his further submission that, immediately after the incident one nurse examined the victim and the said nurse has not been cited as a witness for the prosecution and she has not been examined before the Court. These circumstances itself creates doubt about the happening of the incident. It is his further submission that there is a delay of seven days in filing the complaint. No explanation has been given in this behalf as to why there is delay in filing the complaint. He further submitted that on complaint the victim was examined and the doctor who examined the victim has not been examined before the Court for the reasons best known to the prosecution. Under these circumstances, the trial Court has rightly come to the conclusion and acquitted the accused. He further submitted that there is no corroboration with the evidence of PW1 and the victim. He further submitted that there was matrimonial dispute between the accused and PW1, his wife and PW4 - grand mother i.e., the mother of the wife of the accused. Even it has come in the evidence that, because of that particular matrimonial dispute, the accused has been falsely implicated in the said case. He further submitted that there was matrimonial dispute between the accused and PW1, his wife and PW4 - grand mother i.e., the mother of the wife of the accused. Even it has come in the evidence that, because of that particular matrimonial dispute, the accused has been falsely implicated in the said case. After considering the said facts and circumstances, the Court below has come to a right conclusion and there are no good grounds to interfere with the said judgment of acquittal and the same may be confirmed by dismissing the appeal. Even the State has also considered the said fact and has not preferred any appeal and the same may be confirmed. On these grounds he prayed to dismiss the appeal. 7. We have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. The prosecution in order to establish the case of the prosecution got examined seven witnesses. 8. Pw1 is the wife of the accused and the complainant and she is also the mother of the victim. She has reiterated the contents of the complaint. During the course of cross-examination, she has admitted that the matrimonial disputes were pending between the accused and the complainant. She has also admitted during the course of cross-examination that the accused used to often come and used to take the victim child along with him. She further admitted that earlier to the alleged incident, no such incident has taken place. It is further elicited that, while divorcing her husband, she has taken Rs.3,00,000/- and she has demanded Rs.10,00,000/- from the accused/respondent No.1. 9. Pw2 is the pancha to the spot mahazer. He has also supported the case of the prosecution. PW3 is the grand mother of the victim and she has also reiterated what the PW1 has stated. PW4 is the owner of the house where the victim PW1 and the grand mother used to stay. She has not supported the case of the prosecution and she has been treated as hostile. PW5 is the victim. She has reiterated the statement which has been given before the Police. PW4 is the owner of the house where the victim PW1 and the grand mother used to stay. She has not supported the case of the prosecution and she has been treated as hostile. PW5 is the victim. She has reiterated the statement which has been given before the Police. In her evidence, she has deposed that, when she was sleeping in the bed, accused removed her garments and inserted his finger in her private part and she was getting pain and begun crying as a result of the said act of the accused. Thereafter the accused left her to her maiden's house at about 7.00 pm. During the course of cross-examination, nothing has been elicited so as to disbelieve the evidence of this witness. PWs.6 and 7 are the police officials who examined the witness and thereafter after investigation the charge sheet has been filed. 10. The first and foremost contention which has been taken up by the learned counsel for the appellant is that, earlier the case was tried by 1st Addl. District and Sessions Judge through camera proceedings and subsequently the POCSO Act came and the same case was made over to the Special Court under the POCSO Act. The subsequent Court ought to have discarded the evidence of PWs.1 to 4 and thereafter it could have recorded the fresh evidence and disposed of the case. Admittedly the alleged incident has taken place as per the contents of the complaint on 29.09.2012 and it is also an admitted fact that the Protection of Child From Sexual Offences Act, 2012 came into force on 14.12.2012. When the alleged incident has taken place on 29.09.2012, then the question of application of the said Act to the said case is overruled. No act which has been constituted an offence under the said Act could be given a retrospective effect. 11. Be that as it may. Though the said case has been tried by the Special Court which is meant to try the cases of POCSO cases, it is not only meant for trying such cases but it is also a District and Sessions Court. Under such circumstances, the Special Court was having jurisdiction. 11. Be that as it may. Though the said case has been tried by the Special Court which is meant to try the cases of POCSO cases, it is not only meant for trying such cases but it is also a District and Sessions Court. Under such circumstances, the Special Court was having jurisdiction. Though it is the contention of the learned counsel for the complainant/ appellant that the evidence which has been recorded by the earlier Court it could have been discarded and fresh evidence of witnesses could have been recorded, the said argument is not supported by any contentions or the substances. It is clear that if a Court has recorded the evidence and subsequently if the said case has been transferred to a Court which is having an equal jurisdiction then under such circumstances, the evidence recorded by the Court and the Court which subsequently tried the case is having the same effect and the same can be considered to be an evidence before the Court and it can proceed in accordance with law on the basis of the evidence so which has been produced before the Court. Under the facts and circumstances of the case, we are of the considered opinion that the contentions which have been taken by the learned counsel for the complainant does not have any force and the same is liable to be rejected and accordingly it is rejected. 12. The next contention of learned counsel for the complainant/appellant is that though there is material, the trial Court without considering the material of the victim has come to a wrong conclusion and has wrongly acquitted the accused. Before considering the said fact it is well established principles of law under Section 118 of the Evidence Act that if there is child evidence, the said evidence has to be analyzed carefully and the said evidence has to be testified the possibilities of tutoring and even giving a false evidence. With the said facts and circumstances if we peruse the evidence of the victim PW- 5, in her evidence she has stated before the Court that the accused took her and he asked her to sleep on the bed. When she was sleeping, accused removed her undergarments, inserted his finger in her private parts. Thereafter, she started crying. With the said facts and circumstances if we peruse the evidence of the victim PW- 5, in her evidence she has stated before the Court that the accused took her and he asked her to sleep on the bed. When she was sleeping, accused removed her undergarments, inserted his finger in her private parts. Thereafter, she started crying. But when she came crying and informed the said fact to PW-1, the mother of the victim at that time, she has not narrated the said incident which has been deposed before the Court. If really the alleged incident has taken place as contended, then under such circumstances, definitely the child ought to have disclosed as it is before the complainant who is none other than her mother. Even the records indicate that immediately after narrating the said incident, victim complained of some pain in the private part and she is unable to pass the urine and she was taken to a private nurse and she examined the victim. For the reasons best known to the prosecution, the said nurse has not been cited as witness and her statement has also not been recorded. The best evidence is suppressed in this behalf. 13. Be that as it may. The complaint was registered on 06.10.2012, though the alleged incident has taken place on 29.09.2012. There is a delay of 7 days in filing the complaint. After 7 days, the victim was examined. The doctor's report which has been marked at Ex.P-7 would clearly go to show that there were no external injuries over the private part of the victim and hymen was also intact and even he has admitted that the vagina does not admit any finger. This evidence of the doctor clearly goes to show that there is nothing to suggest that the alleged incident has taken place as contended by the victim. There is no corroboration with the statement of the victim and the medical evidence. There are so many improvements which have been made during the course of evidence of the victim. 14. As could be seen from the evidence of PW-1, admittedly there are matrimonial disputes between the complainant and the accused. There is no corroboration with the statement of the victim and the medical evidence. There are so many improvements which have been made during the course of evidence of the victim. 14. As could be seen from the evidence of PW-1, admittedly there are matrimonial disputes between the complainant and the accused. Even it is brought to the notice during the course of cross-examination that the mother of the complainant received Rs.3,00,000/- from the first husband of PW-1 to get divorce and she is demanding Rs.10,00,000/- from this accused to get divorce from PW1. All these material would clearly go to show that because of vengeance, the said complaint might have been filed. Even the prosecution has also not examined the doctor who examined the victim. There are no independent witnesses to substantiate the fact that the alleged incident has taken place. On careful perusal of the evidence on record, it indicates that no such incident has taken place as contended. 15. At this juncture, learned counsel for the complainant/appellant submitted that at the most, the provision of Section 354 of IPC is attracted but the trial Court has ignored the same. But it is nobody's case at the initial stage. Subsequently it is made out that victim has been raped but subsequently the version has been changed and it has been deposed by the victim that the accused has inserted his finger into her private part. There is no consistency in the case of complainant itself. Looking from any angle, the evidence produced before the Court below does not inspire any confidence so as to bring home the guilt of the accused beyond all reasonable doubt. 16. It is also well established principle of law that when an accused is acquitted and against the said order of acquittal, if an appeal is preferred, the appellate Court will be very slow in interfering with such orders, as already the Court below, after analyzing the evidence has come to the conclusion. Only, if, such an order is erroneous, then only it can interfere with and reverse the order. No such circumstances have been brought to our notice so as to set aside the order. Under such facts and circumstances, we feel that there are no good grounds to interfere with the impugned judgment of acquittal. The same is liable to be dismissed and accordingly, it is dismissed.