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2020 DIGILAW 1147 (KAR)

Ritesh Maruti Dodamani v. State Of Karnataka

2020-06-19

B.A.PATIL

body2020
JUDGMENT B A Patil, J. - Though this appeal is listed for admission, but with the consent of both the counsels, matter is taken up for disposal. 2. This appeal is directed against the judgment of conviction and order of sentence dated 29.08.2019 and 03.09.2019 passed by the learned III Addl. Dist. & Sessions Judge & Special Court under POCSO Act, 2012, Belagavi, wherein the appellant-accused has been convicted for the offences punishable u/s 363 and 506 of IPC and Sec. 8 of the POCSO Act. 3. I have heard the learned counsel for the appellant and the learned Addl. SPP for the respondent- State. 4. The genesis of the case of the prosecution is that the accused inspite of having knowledge that the victim is a minor, used to follow her when she use to go to the Computer classes and College. He also use to tell her that he loves her and will marry her and thereby he use to give sexual harassment to her. In that light, on 01.02.2018 at about 7.30 AM in front of Ankali bus stop when the victim was there, the accused kidnapped her from her lawful guardianship by threatening her with dire consequences. He also threatened that, if she screams she will face the dire consequences. Thereafter, he took the victim towards Miraj side. Based on the complaint, a case has been registered in Crime No. 27/2018 and after investigation charge sheet has been filed. 5. The Special Court took cognizance and after following procedure and furnishing charge sheet materials, charge was framed, the accused pleaded not guilty and he claimed to be tried, as such, the trial was commenced. The prosecution in order to establish its case got examined 12 witnesses and got marked 17 documents. Thereafter, the statement of the accused was recorded u/s 313 of Cr.P.C. The accused denied the same and has not led any evidence nor produced any documents. After hearing both the parties, the impugned judgment came to be passed. 6. It is the submission of the learned counsel for the appellant that the impugned judgment of conviction and order of sentence is not sustainable in law and it is perverse and illegal. Though the material witnesses have not supported the case of the prosecution, the trial Court only taking shelter u/s 29 of the POCSO Act, has wrongly convicted the accused. Though the material witnesses have not supported the case of the prosecution, the trial Court only taking shelter u/s 29 of the POCSO Act, has wrongly convicted the accused. The initial burden always rests on the prosecution to prove its case thereafter presumption has to be drawn and then the burden shifts upon the accused to disprove the said fact. In the absence of any proof the trial Court ought to have acquitted the accused. Even the victim has not made out any iota of allegation and even then the trial Court relied upon the said evidence and has wrongly convicted the accused. On these grounds, she prayed to allow the appeal and acquit the accused. 7. Per contra, learned Addl. SPP vehemently argued and submitted that the provisions of Sec. 29 of the POCSO Act gives a presumption regarding commission of the offence, when an accused has been charge sheeted. The accused has not made out any case and the trial Court has rightly taken the provision of law and has come to a right conclusion. There is no necessity to initial discharge of the burden by the prosecution but it is for the accused to disprove the allegations made. When he fails, then under such circumstances, the accused is liable to be convicted. On these grounds he prayed to dismiss the appeal. 8. To prove the case of the prosecution, 12 witnesses have been got examined. PWs 1 and 2 are the parents of the victim. In their evidence they have deposed that they have filed a missing complaint as per Ex.P.1 and when they made an enquiry with the victim she told that the accused has forcibly taken her to Bombay and nothing further has been stated. Though these two witnesses have been cross-examined in length, their evidence is only a hearsay evidence and no progress can be made in the case of the prosecution. 9. The star witness is PW3, the victim. On perusal of her evidence, it is evident that she has completely given a go-bye to her earlier statement. She has deposed that the accused has not followed her, not spoken with her, not loved her, the accused has neither given her any ill-treatment nor sexual harassment and he has not taken her to Bombay through Pune. On perusal of her evidence, it is evident that she has completely given a go-bye to her earlier statement. She has deposed that the accused has not followed her, not spoken with her, not loved her, the accused has neither given her any ill-treatment nor sexual harassment and he has not taken her to Bombay through Pune. This witness has been fully treated as hostile and even when the learned Public Prosecutor cross-examined this witness, nothing has been elucidated so as to substantiate the case of the prosecution. 10. P.Ws.4 and 5 are the spot mahazar to Ex.P-5 and P-6. They have not supported the case of the prosecution. They have been treated as hostile. P.Ws.6 and 7 are the eyewitnesses to the incident where the accused has eloped the victim. They have also not supported the case of the prosecution and they are treated as hostile. P.W.8 is the scribe who has written the complaint, as per Ex.P-1. He has also not supported the case of the prosecution. P.W.9 is the Doctor, who examined the victim. In the evidence, he has deposed that he was not given permission for examination of the victim and as such, he has not examined and he has given the report, as per Ex.P-13. 11. P.W.10 is the Police Constable who has carried the FIR Ex.P-14 to the Jurisdictional Court and submitted the same. P.W.11 is the Woman Head Constable, who took the victim and produced before the learned JMFC Chikkodi for recording the statement of the victim under Section 164 of Cr.P.C. P.W.12 is the PSI, who has registered the case and after investigating the case, charge sheet has been filed as against the accused. 12. On perusal of the evidence, which has been produced before the Court, it indicates that there is no iota of evidence brought on record to come to the conclusion that the accused knowing fully well that the victim is the minor, he has kidnapped with an intention to sexually harass her. Victim herself has given go-bye to her statement and that she has not supported the case of the prosecution. Under such circumstances, I am of the considered opinion that the Trial Court ought not to have taken the shelter under Section 29 of the POCSO Act. 13. For the purpose of brevity, I quote Section 29 of the POCSO Act which reads as under: "29. Under such circumstances, I am of the considered opinion that the Trial Court ought not to have taken the shelter under Section 29 of the POCSO Act. 13. For the purpose of brevity, I quote Section 29 of the POCSO Act which reads as under: "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 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. " 14. Section 29 of the POCSO Act provides presumption as to certain offences. But it is well settled proposition of law, even by the Hon ble Apex Court that always the initial burden lies upon the prosecution to establish its case as contended by it and only when the initial burden is established, then the burden shifts upon the accused to rebut the said presumption. 15. On close reading of Section 29 of the POCSO Act, though the word used in the said Section on the face of it appears to be that the Court has to draw a presumption, but it is not the interpretation that merely because a case has been registered under the said sections a presumption has to be drawn that the accused has committed the alleged offence. When all the material witnesses have not supported the case of the prosecution and when there is no iota of evidence before the Trial Court, then under such circumstances, the Trial Court ought not to have convicted the accused by drawing a presumption under Section 29 of the POCSO Act. 16. In the case of Harikumar vs. State of Karnataka, (1993) ILR(Kar) 3035 , it has been observed that the rule of evidence causing burden in certain cases is of accused, but initial burden is on prosecution to prove basic ingredients of the offence and thereafter shifting of the burden on the accused to show that he has not committed any offence or his innocence. When that the law itself has been clear in this behalf, then under such circumstances, the Trial Court ought not to have interpreted the said section and convicted the accused for the alleged offence. 17. When that the law itself has been clear in this behalf, then under such circumstances, the Trial Court ought not to have interpreted the said section and convicted the accused for the alleged offence. 17. Taking into consideration the above said facts and circumstances, I am of the considered opinion that though there is no material as against the accused, the Trial Court has erroneously convicted the accused for the alleged offences. 18. I have carefully and cautiously gone through the judgment of the Trail Court. The judgment of the Trial Court is perverse and it has not applied the proposition of law in its right perspective and has erroneously drawn the presumption and has wrongly convicted the accused. In that light, it requires inference at the hands of this Court. 19. Taking into consideration, the above said facts and circumstances, the appeal is allowed. The judgment of conviction and order of sentence passed by the III Additional District and Sessions Judge and Special Court under POCSO Act, 2012, Belagavi in S.C. No.273/2018 dated 29.08.2019 is set aside. The appellant - accused is acquitted of all the charges levelled against him. The bail bonds and surety bonds executed by the appellant - accused are stood cancelled. The fine amount deposited by the appellant be returned to him on proper identification and acknowledgment. Send back the Trial Court records.