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2020 DIGILAW 1945 (KAR)

State Of Karnataka v. Sainath

2020-09-30

P.S.DINESH KUMAR, S.VISHWAJITH SHETTY

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JUDGMENT S. Vishwajith Shetty, J. - State has f iled this appeal chal lenging the Judgment and Order of acquittal passed by the III Additional District and Sessions Judge and Special Judge, Belagavi in Sessions Case No.146 of 2013. 2. We have heard Shri V.S.Kalsurmath, learned H.C.G.P. for appel lant-State and learned counsel Shri Vitthal S. Tel i, appearing for the respondent/accused. 3. It is the case of the prosecution that the victim girl is the daughter of the complainant. The accused, about two years prior to the date of complaint was harassing the victim girl to marry him. Though the complainant and others had advised the accused, he did not heed to their advice and continued to harass the victim girl . The victim girl was studying II-P.U.C in St. Xavier Col lege, Belagavi and she was staying in a rented room in Atavan Bui lding, Kangral i Gal l i, Belagavi. The victim had al legedly informed the complainant that accused even visited her col lege and harassing her to marry him. 4. On 27.02.2013, complainant went to Belagavi to meet her daughter and on the way she met one Mal lesh Neelgund who informed the complainant that on 26.02.2013 at about 4.00 p.m. victim was near Lingaraj Circle along with a person who was pressurizing her to go along with him. When Mal lesh Neelgund asked the said person why he was harassing the victim girl , the stranger said that victim girl was his relative and he was taking her to his vil lage. Thereafter, complainant visited the building where the victim was staying and enquired with the owner about the whereabouts of her daughter (victim girl ), who in turn informed that victim girl had left on 26.02.2013 and thereafter had not returned to her room. Immediately, the complainant lodged a complaint before the Khade Bazar Pol ice Station, Belagavi against the accused person, which was registered in Crime No.35 of 2013 for offence punishable under Sections 366(A) and 363 of IPC. Thereafter police arrested the accused, and the victim girl was medically examined and her clothes were seized. The Investigating Of f icer after completion of the investigation f i led the charge sheet against the accused person for the of fences punishable under Sections 366, 344, 376(2) (n), 417 and 506 of IPC and under Sections 4 and 6 of POCSO Act, 2012. The Investigating Of f icer after completion of the investigation f i led the charge sheet against the accused person for the of fences punishable under Sections 366, 344, 376(2) (n), 417 and 506 of IPC and under Sections 4 and 6 of POCSO Act, 2012. 5. After committal of the case, the trial Court framed charges against the accused for the aforesaid of fences and the accused denied the same and claimed to be tried. During the course of trial, the prosecution in all examined 17 witnesses as P.Ws.1 to 17 and got marked Ex.Ps.1 to 25 and M.Os.1 to 12. The accused has denied the entire incriminating evidence against him during the course of recording of his statement under Section 313 of Cr.P.C. However, he has not led any defence evidence nor produced any documents. The trial Court after completion of the trial , heard the arguments of both the parties and on appreciation of the material evidence avai lable on record by means of impugned Judgment and order acquitted the accused. 6. The learned H.C.G.P. appearing for the appellant-State submitted that the trial Court has erred in appreciating the oral and documentary evidence available on record. He also submitted that the trial Court has erred in coming to a conclusion that the victim girl was aged more than 18 years at the time of incident and she was a consenting party to the sexual intercourse. He submits that the evidence of P.Ws.1, 2, 14 and P.W.15 clearly establ ishes the alleged offences for which the accused was charged and therefore, he prays to allow the appeal and convict the accused. 7. On the other hand, the learned advocate for the accused submits that the Judgment and Order of acquittal passed by the trial Court is sound and proper and needs no interference by this Court. He submits, even i f there is a possibil ity of taking a dif ferent view of the matter, the view of the trial Court cannot be interfered unless the same is perverse and total ly i llegal. He therefore, prays to dismiss the appeal . 8. We have careful ly considered the arguments addressed by both parties and also perused the entire material evidence available on record. 9. He therefore, prays to dismiss the appeal . 8. We have careful ly considered the arguments addressed by both parties and also perused the entire material evidence available on record. 9. The point for consideration that arises in this appeal is as follows : "Whether the Judgment and Order of acquittal passed by the trial Court suf fers from any il legal ity or irregularity which calls for interference by this Court." 10. The prosecution, in order to prove the guilt of the accused, has, in all examined 17 witnesses. P.W.1 is the complainant. She has narrated the facts as stated in her complaint which is marked as Ex.P.1. She has also stated that on 12.03.2013 pol ice had asked her to go to the Police Station and when she went there, her daughter/victim girl and the accused were present in the Police Station and when she enquired with the victim girl , she had stated that the accused had taken her to K.K.Koppa vi llage and kept her in a shed and had forcible sexual intercourse with her repeatedly and he also threatened her with dire consequences if she informed about the incident to anybody. On 11.03.2013, victim and the accused had gone to Kolhapur Ambabai Temple and when they were returning, the pol ice arrested the accused and brought them to Police Station. She also stated that the victim girl was aged about 17 years and the accused had forcible sexual intercourse with her who was a minor. 11. P.W.2 is the victim girl and she has stated her date of birth as 26.03.1995. She has stated, she was studying II-P.U.C in St. Xavier Col lege, Belagavi and accused was harassing her to marry him. She also narrated the incident as stated by her mother P.W.1. She also speaks about the spot mahazar report conducted by the pol ice. M.Os.1 to 12 were marked through her. In her cross-examination, she has stated that a stone crushing unit was situated near the shed where she was al legedly kept in custody by the accused. She has also stated that between 26.02.2013 to 13.03.2013 accused had taken her to various places by public transport. 12. P.Ws.3 to 6 who are panch witnesses for the spot mahazar and seizure mahazar report have not supported the case of the prosecution. She has also stated that between 26.02.2013 to 13.03.2013 accused had taken her to various places by public transport. 12. P.Ws.3 to 6 who are panch witnesses for the spot mahazar and seizure mahazar report have not supported the case of the prosecution. P.W.7 is the owner of the building in which the victim girl was staying in a rented accommodation. P.W.8 the Supervisor of the stone crushing company and P.W.9- owner of the stone crushing machine are treated as hostile witnesses by the prosecution. P.W.10 is the Pol ice Constable, who has carried the f irst information report to the Jurisdictional Court of Magistrate. P.W.11 is the Woman Head Constable, who was looking after the victim girl during the course of her Medical Examination. P.W.12-P.S.I . has registered the F.I.R. on the complaint of P.W.1 and forwarded the same to the Jurisdictional Magistrate Court through P.W.10 and thereafter handed over further investigation to Circle Inspector of Pol ice. P.W.13 is the A.S.I . who has recorded the further statement of the complainant and victim girl . 13. P.W.14 is the Principal of St. Xavier College, Belagavi who has issued certi ficate as per Ex.P.19 certifying the date of birth of the victim girl as 26.03.1995. P.W.15 is the Doctor who has medical ly examined the victim girl and he states that for the purpose of determination of her age, he had referred the victim girl to a Dentist and Radiologist and as per the reports received by him, the age of the victim is between 18 to 20 years. He has also stated the victim girl's hymen was ruptured and she was used for sexual intercourse. P.W.15 also states that he had medical ly examined the accused and issued a certif icate stating that the accused was potent. P.W.16 a cool ie working in stone crushing unit is treated as hosti le to the case of the prosecution. P.W.17 is the Dy.S.P. who has taken over the investigation from P.W.13 and carried further investigation and fi led charge sheet against the accused. He has stated about Ex.P.19, the certi f icate issued by the col lege in which the victim girl was studying and he has also recorded the further statement of the witnesses. He also speaks about the seizure panchanama and about forwarding the inner garments of victim girl for chemical examination. He has stated about Ex.P.19, the certi f icate issued by the col lege in which the victim girl was studying and he has also recorded the further statement of the witnesses. He also speaks about the seizure panchanama and about forwarding the inner garments of victim girl for chemical examination. He also speaks about Ex.P.10 spot mahazar report prepared by him and about recording the statement of panch witnesses. 14. To prove the guilt of the accused, prosecution is mainly required to establish two things in the present case. The first one is the age of the victim girl and the second is about the accused forcibly taking the girl with him and having sexual intercourse with her against her wil l and thereafter intimidating her. For the purpose of establishing the age of the girl , the prosecution has mainly rel ied upon Ex.P.19-certif icate issued by the Principal of St. Xavier Col lege, where the victim girl was studying at the time of incident. As per the said certi ficate, the date of birth of the victim girl is 26.03.1995. P.W.14 who has issued the said certi f icate has stated that the date of birth mentioned in Ex.P.9 is based on the information given by the parents of the victim girl at the time of her admission to the col lege. Admittedly, the victim girl was studying in IInd P.U.C. at the time of incident. To prove her date of birth, her S.S.L.C. marks card would have been the best piece of evidence. For the reasons best known to the prosecution, the said document has not been produced by them. 15. On the other hand, they sought to rely upon Ex.P.19 alone for the purpose of proving the age of the victim girl. Doctor P.W.15 has stated that the girl was cl inical ly examined by the Dentist and Radiologist for ascertaining her age. As per their report, the age of the victim girl was between 18 to 20 years. The trial Court on appreciation of the material available on record has come to a conclusion that the prosecution has fai led to prove the exact age of the victim girl . 16. As per their report, the age of the victim girl was between 18 to 20 years. The trial Court on appreciation of the material available on record has come to a conclusion that the prosecution has fai led to prove the exact age of the victim girl . 16. Further, from the evidence of victim girl P.W.2, it is very clear that from 26.02.2013 till 12.03.2013 she was with the accused and during the said period he had taken her to various places by using publ ic transport. She has clearly admitted that there were many people when they so travell ing, but she had not raised any hue and cry to help her. She has also admitted that though there were many persons working near the shed where the accused al legedly had forcible intercourse with her, she has not cal led any one of them to help her. P.Ws.8, 9 and 16 examined by prosecution have turned hostile. Even in Ex.P.20 which is the medical examination report of the victim girl, the Medical Of ficer has recorded that victim has stated that she voluntarily went with the accused person. Further, P.W.15 Doctor who has examined the victim girl has stated that there were no marks on the private parts or on the body of the victim girl. If at all , the victim girl was kept in captivity and sexually assaulted for a period of nearly 2 weeks and then definitely there should have been corresponding injuries on the private parts and on the body of the victim girl . The trial Court on appreciation of the legally admissible evidence avai lable on record, has rightly come to a conclusion that the prosecution has failed to prove the age of the victim and also that the accused had forcible sexual intercourse with the victim girl . 17. The prosecution has mainly rel ied upon the evidence of P.Ws.1, 2, 14 and 15 to prove the guilt of the accused. The other independent witnesses examined by the prosecution including the panch witnesses have not supported the prosecution case. On appreciation of the evidence of P.Ws.1, 2, 14 and 15, the trial Court has arrived at a right conclusion that the prosecution has failed to prove the age of the victim girl and victim girl was a consenting party to the alleged sexual intercourse by the accused. On appreciation of the evidence of P.Ws.1, 2, 14 and 15, the trial Court has arrived at a right conclusion that the prosecution has failed to prove the age of the victim girl and victim girl was a consenting party to the alleged sexual intercourse by the accused. We are of the considered opinion that the trial Court on a over al l appreciation of the material evidence available on record has rightly acquitted the accused and therefore, the impugned Judgment and Order passed by the trial Court do not call for interference and accordingly, the point for consideration is answered by us in the negative. The appeal therefore, fai ls and accordingly, it is dismissed.