Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 112 (KAR)

State Of Karnataka v. Rajesab

2020-01-13

NATARAJ RANGASWAMY, P.B.BAJANTHRI

body2020
JUDGMENT 1. This Criminal Appeal is filed by the State challenging the Judgment and Order of acquittal dated 29.04.2015 passed by the II Addl. District and Sessions Judge and Special Judge, Dharwad in Special Case No.2/2014. 2. The case of the prosecution as is evident from Ex.P1 is that the prosecutrix had lodged a complaint on 31.10.2013 at 19.20 hours accusing her father-accused herein of sexual abusing her from the year 2012. Based on the complaint the Appellant registered a case in Crime No.108/2013, for the offences punishable under Sections 376(2), 377, 342, 324, 504, 506 of IPC and Section 6 of the POCSO Act, 2012. 3. The statement of the prosecutrix was recorded under Section 165(5) of Cr.P.C. on 07.11.2013. The prosecutrix was subjected to medical examination on 31.10.2013 at Karnataka Institute of Medical Sciences, Hubballi on 31.10.2013 and it was provisionally mentioned that the prosecutrix was 'used to the act like that of sexual intercourse' 'there is no evidence of recent sexual intercourse' and the final opinion was to be given after obtaining the reports from Forensic Science Laboratory, Bengaluru. The Regional Forensic Laboratory gave its report indicating that there were seminal stain in item Nos.1, 2, 3, 4, 5, 6, 7 and 8. Based on the opinion of the Forensic Science Laboratory, a final opinion was given reiterating the provisional opinion. The accused was subjected to medical examination and was found fit to indulge in intercourse. The Investigating Officer has recorded the statement of the complainant, panch witnesses namely CW-2, 3, 4 & 5 and CW-6 to CW-28. 4. Based on the above, the prosecution filed a final report in Spl. Case No.02/2014. The trial Court took cognizance of the offence and charged the accused on 20.06.2004 for the offence under Section 376(2) of IPC, Section 6 of POCSO Act, Sections 377, 342, 324, 504 and 506 of IPC. The charge was altered on 20.04.2015. The accused pleaded not guilty and requested to be tried. 5. The Trial Court examined PW1 to PW14 and got marked EX.P1 to P32(a) and material objects No.1 to 11. The Trial Court after considering the material available on record and the oral and documentary evidence passed a Judgment and Order dated 29.04.2015 acquitting the accused of the offences punishable under Sections 376(2), 377, 342, 324, 504, 506 of IPC R/W Section 6 of POCSO Act, 2012. 6. The Trial Court after considering the material available on record and the oral and documentary evidence passed a Judgment and Order dated 29.04.2015 acquitting the accused of the offences punishable under Sections 376(2), 377, 342, 324, 504, 506 of IPC R/W Section 6 of POCSO Act, 2012. 6. Being aggrieved by the aforesaid Judgment and Order of acquittal, the State is in appeal before this Court. 7. Sri.V.M.Banakar, learned Addl.SPP vehemently submitted that the Trial Court ought to have considered that the offence was serious in nature and was committed within the four walls of a house and that too by the father himself who is the natural guardian. He also took us through the deposition of PW1 and submitted that she supported the case of the prosecution initially and later she was recalled and subjected to further cross examination on 08.12.2014 when she turned hostile. He therefore submitted that the evidence of PW-1 need not be completely rejected but could still be relied upon to prosecute the accused. He also took us through the evidence of PW-3 who is the mother of the prosecutrix. Further, we were taken through the deposition of PW-4 who is maternal aunt of the prosecutrix. He highly relied upon the deposition of PW-9 who was the doctor who clinically examined the prosecutrix. He then took us through the deposition of PW-10 which disclosed that the prosecutrix was a minor on the date of the crime. The deposition of the Senior Civil Judge was recorded as PW- 12 who deposed about the recording the statement of prosecutrix under Section 164(5) of Cr.P.C. The investigation officer was examined as PW13 and the Deputy Superintendent of Police, Dharwad was examined as PW-14. 8. It is seen from the lower Court records that the prosecutrix had recorded her further statement on 03.11.2013 wherein she had alleged that on 29.10.2013 and 30.10.2013, the accused had sexually assaulted the prosecutrix. 9. It reveals from the Ex.P-9 that she was examined on 31.10.2013 which disclosed that there is no evidence of injuries anywhere on the body or on the external genitalia. It also revealed that the hymen was ruptured and healed. It also discloses that there is no evidence of recent sexual intercourse. 9. It reveals from the Ex.P-9 that she was examined on 31.10.2013 which disclosed that there is no evidence of injuries anywhere on the body or on the external genitalia. It also revealed that the hymen was ruptured and healed. It also discloses that there is no evidence of recent sexual intercourse. The prosecution has also placed on record Ex.P-15 which is a compact disc containing the video where the prosecutrix had been physically present at the Police Station to lodge a complaint. However, there is no certificate accompanying this compact disc as required under Section 65(B) of the Evidence Act. The accused in his statement under Section 313 of Cr.P.C. has stated that the prosecutrix was used to mingle with vagabond boys in the village and that he had warned against her conduct. 10. It is seen from the evidence of prosecution witnesses that the prosecutrix supported the prosecution initially. But, later when she was recalled for further cross examination, she turned hostile. The other witnesses namely PW-3, 4, 5, 6 and 7 also turned hostile. PW-12 was the Judicial Officer before whom the statement of the prosecutrix was recorded under Section 164(5) of Cr.P.C. She was administered voir dire and her statement was recorded as per Ex.P-2. PW-12 in his deposition has categorically stated that Ex.P-2 was recorded after creating a fear free environment and after ascertaining her levels of comprehension. The investigating officer namely PW-13 and the Dy.S.P.(PW-14) have withstood the test of cross examination. 11. It is true that in a case of this nature, the evidence of the sole prosecutrix coupled with the evidence of PW-2 has to be scrutinized before recording the guilt of the accused. The applicable test is whether the evidence placed is sufficient to reverse the order of acquittal and sentence the accused. In this regard, it is profitable to refer to the Judgment of the Apex Court in the case Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 . Para 37 of which reads as under: 37. It is pertinent to note here that in the aforesaid case the decision rendered in Sita Ram v. State of Rajasthan 32 was pressed into service. In the case of Sita Ram32 the complainant had turned hostile in the Court of Special Judge. However, the trial Judge convicted the accused who was tried along with another accused, namely, Vikram Singh. It is pertinent to note here that in the aforesaid case the decision rendered in Sita Ram v. State of Rajasthan 32 was pressed into service. In the case of Sita Ram32 the complainant had turned hostile in the Court of Special Judge. However, the trial Judge convicted the accused who was tried along with another accused, namely, Vikram Singh. The High Court on appreciation of the evidence acquitted Vikram Singh but maintained the conviction against Sita Ram. This Court opined that the presumption under Section 4(1) of the 1947 Act could not be drawn in the facts of the case. The question, whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complaint was not considered. The Court in Hazari Lal30 distinguished the pronouncement in Sita Ram32 by stating thus: Hazari Lal case30), SCC pp.396-97, para11) '...The question whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complainant was not considered. All that was taken as established was the recovery of certain money from the person of the accused and it was held that mere recovery of money was not enough to entitle the drawing of the presumption under Section 4(1) of the Prevention of Corruption Act. The Court did not consider the further question whether recovery of the money along with other circumstances could establish that the accused had obtained gratification from any person. In the present case we have found that the circumstances established by the prosecution entitled the court to hold that the accused received the gratification from PW 3. In Suraj Mal v. State (Delhi Admn.) 33 , also it was said mere recovery of money divorced from the circumstances under which it was paid was not sufficient when the substantive evidence in the case was not reliable to prove payment of bribe or to show that the accused voluntarily accepted the money. There can be no quarrel with that proposition but where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received gratification from some person the court would certainly be entitled to draw the presumption under Section 4(1) of the Prevention of Corruption Act. There can be no quarrel with that proposition but where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received gratification from some person the court would certainly be entitled to draw the presumption under Section 4(1) of the Prevention of Corruption Act. In our view both the decisions are of no avail to the appellant and as already observed by us conclusions of fact must be drawn on the facts of each case and not on the facts of other cases.' 12. The Judgment of the Apex Court reported in 2014(2) KCCR SN 91 (SC), Veer Singh and Others v. State of U.P. is also useful. 13. Be that as it may, what needs to be seen is whether on a compendious reading of the material on record, would this Court be justified in reversing the Order of acquittal. We are reminded of the Judgment of the Apex Court in the case of Sudarshan Kumar v. State of Himachal Pradesh , which is extracted below: Criminal Procedure Code, 1973-Sec.378-Appeal against order of acquittal-principles-culled out regarding exercise of power by the appellate court therein: 1) The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial Court. The trial Courts acquittal bolsters the presumption that he is innocent. 2) The power of reviewing evidence is wide and the appellate court can respondent-appreciate the entire evidence on record. It can review the trial courts conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court. 3) The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanor of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses. 4) The appellate court may only overrule or otherwise disturb the trial courts acquittal if it has 'very substantial and compelling reasons' for doing so. 5) If two reasonable or possible views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused.' 14. 4) The appellate court may only overrule or otherwise disturb the trial courts acquittal if it has 'very substantial and compelling reasons' for doing so. 5) If two reasonable or possible views can be reached-one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused.' 14. The Apex Court in Krishna alias Krishnappa v. State of Karnataka reported in 2014 (15) SCC 596 has held that Judgment of acquittal should not be lightly reversed if the view taken by the Trial Court is a possible view. 15. Having regard to the aforesaid, it is found from the case of the prosecution that the prosecutrix had alleged that she was raped by the accused on 29.10.2013 and 30.10.2013. However in her complaint she had not disclosed about this allegation but in her further statement she claimed that she was raped on 29.10.2013 and 30.10.2013 and she had not disclosed about any injuries on her body. This further statement of the prosecutrix was not marked by the prosecution in evidence. However, when she was clinically examined, there was no evidence of rape or recent sexual intercourse. There was no evidence of seminal stain on the clothes that she worn though the prosecutrix alleged that after the accused sexually assaulted her on 30.10.2013 she had not bathed or changed her clothes. The injuries found on her left palm were not sustained during the alleged sexual assault. The prosecutrix turned hostile and alleged that she was tutored by the authorities of Women and Child Welfare to register the complaint and give evidence. The mother of the prosecutrix has turned hostile and denied the accusation by the prosecutrix. The maternal aunt of the prosecutrix who is also the wife of the accused has also turned hostile. Though, the case presents an abhorrent, disgusting and disturbing narration in view of the statement of the accused that the prosecutrix was used to mingle with boys, it is difficult to completely rely upon the sole testimony of the prosecutrix to reverse the Judgment and decree of acquittal. Hence, the following: ORDER This Criminal appeal is dismissed and the Judgment and Order of acquittal dated 29.04.2015 passed by the II Addl. District and Sessions Judge and Special Judge, Dharwad in Special Case No.2/2014 is confirmed.