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2022 DIGILAW 26 (KAR)

State of Karnataka v. Devaraju

2022-01-04

B.VEERAPPA, M.G.UMA

body2022
JUDGMENT : M.G.UMA J. The State is in appeal impugning the judgment of acquittal dtd. 19/9/2015 passed in Spl.Case No.369 of 2013 on the file of III Additional Sessions Judge and Special Court for trial of cases under SC/ST (POA) Act, 1989 at Tumakuru (hereinafter referred to as 'the Trial Court'), acquitting the accused for the offences punishable under Ss. 366A, 342, 376 and 343 of Indian Penal Code (for short 'the IPC') and under Sec. 4 of the Protection of Children from Sexual Offences Act (for short 'the POCSO Act'). 2. Brief facts of the case are that, PW1 lodged the first information against the accused as per Ex.P1 dtd. 10/10/2013 stating that the victim is his daughter and she had not returned from the college from 5/10/2013. Even though he searched her for 4 to 5 days, he could not trace her whereabouts. On the other hand, he learnt that the accused had forcibly kidnapped her. The victim was born on 4/11/1997 and aged 15 years 11 months. Therefore, he requested the police to register the case against the accused and to trace the victim. On the basis of this first information, FIR as per Ex.P17 was registered for the offence punishable under Sec. 366A of IPC and the investigation was undertaken. During investigation, it was found that the accused forcibly kidnapped, wrongfully confined the minor girl, married against her will and committed forcible sexual assault. Therefore, the charge sheet came to be filed. 3. The accused who appeared before the Trial Court pleaded not guilty for the charges leveled against him and claimed to be tried. The prosecution examined 15 witnesses, got marked 19 documents and identified 13 material objects in support of its contention. The accused has denied all the incriminating materials available on record in his statement recorded under Sec. 313 of Cr.P.C., but has not chosen to lead any evidence in support of his defence. However, Ex.D1 came to be marked during cross examination of PW2. The Trial Court on the basis of these materials on record came to the conclusion that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt. Therefore, the accused was acquitted as per the impugned judgment passed by the Trial Court. Being aggrieved by the same, the State has preferred this appeal on various grounds. 4. Therefore, the accused was acquitted as per the impugned judgment passed by the Trial Court. Being aggrieved by the same, the State has preferred this appeal on various grounds. 4. We have heard the learned counsel for the parties. 5. Sri.Vijaykumar Majage, learned Additional State Public Prosecutor in support of his contention contended that the impugned judgment of acquittal passed by the Trial Court is perverse and illegal. The Trial Court has not appreciated the oral and documentary evidence placed before it in a proper perspective. Ex.P1 - the first information lodged by PW1 at initial stage is not corroborated by the evidence of PW1-the informant and PW2 who is the victim. He further contended that The Trial Court has ignored the evidence of the material witnesses and also the circumstantial evidence placed before the Court, including the medical evidence. When the prosecution is successful in proving the guilt of the accused beyond reasonable doubt, the Trial Court should have convicted him for the above said offences. There is absolutely no reason as to why the evidence of the victim girl has to be disbelieved by the Trial Court. The impugned judgment is not a reasoned one and it calls for interference by this Court. Hence, he prays for allowing the appeal by setting aside the impugned judgment of acquittal passed by the Trial Court and to convict the accused for the above said offences. 6. Per Contra, Sri.V Karthik Yadav, learned counsel representing the respondent-accused contended that the Trial Court has properly appreciated the oral and documentary evidence placed before it and has arrived at a right conclusion in acquitting the accused. There is absolutely no material to prove the age of the victim to contend that she is still a minor. Except the interested testimony of PW2, there is absolutely no material to connect the accused to the offence in question. Ex.D1 is the portion of statement said to have been given by PW2. Therefore, her contention cannot be believed. The medical evidence does not support the case of prosecution in any manner. Under such circumstances, the Trial Court was right in acquitting the accused. The impugned judgment do not call for interference by this Court. Hence, he prays for dismissal of the appeal as devoid of merits. 7. Therefore, her contention cannot be believed. The medical evidence does not support the case of prosecution in any manner. Under such circumstances, the Trial Court was right in acquitting the accused. The impugned judgment do not call for interference by this Court. Hence, he prays for dismissal of the appeal as devoid of merits. 7. In view the rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration is: "Whether the State has made out any grounds for interference with the impugned judgment of acquittal passed by the Trial Court in acquitting the accused for the offences punishable under Ss. 366A, 342, 376 and 343 of IPC and under Sec. 4 of POCSO Act?" We have given our thoughtful consideration for the arguments advanced by the learned counsel for the parties and the entire records including the original records carefully. 8. It is the specific contention of the prosecution that the victim was aged 16 years and she was born on 4/11/1997. PW1 - the father in his evidence states that the victim girl was aged 15 years and 11 months, but pleaded his ignorance about her date of birth. PW2 the victim states that she was born on 4/11/1997 and was studying in first year PUC at the time of incident. Strangely, the prosecution has not produced any material in support of its contention that the victim was born on 4/11/1997 or that she was aged 16 years at the time of incident. Ex.P2 is the medical certificate dtd. 17/10/2013 issued by the Medical Officer, Department of Forensic Medicine, Chikkanayakanahalli. As per this document, the Medical Officer has advised to take opinion from the Dentist and Radiologist to determine the age of victim girl, but no such steps was taken by the Investigating Officer to place on record the material to prove the age of victim as on the date of incident. Apart from the interested say of PW2 that she was born on 4/11/1997, there is absolutely no other material to substantiate the same. 9. It is pertinent to note that the prosecution has produced Ex.P18 the school admission extract issued by the Head Master of Government Higher Primary School of Ramanahalli, but it refers to the accused and not the victim girl. 9. It is pertinent to note that the prosecution has produced Ex.P18 the school admission extract issued by the Head Master of Government Higher Primary School of Ramanahalli, but it refers to the accused and not the victim girl. The prosecution has also not produced the school records to prove the age of the victim even though it is its contention that the victim was studying in 1st year PUC as on the date of incident. Under such circumstances, it has to be concluded that the prosecution has failed to prove its contention that the victim was minor at the date of incident. When the accused has specifically denied that the victim was a minor, the burden is on the prosecution to prove the same by placing cogent material. Under such circumstances, we are of the opinion that the prosecution has failed to prove these material fact. 10. It is the contention of the prosecution that the accused had kidnapped the minor girl from the lawful custody of her guardian. To prove this fact, the prosecution relies on the evidence of PW2. She states that on the date of incident i.e., on 5/10/2013 she had been to college in the morning and came back to her village by bus at 3.00 p.m. She was asked by the accused to come to Chikkanayakanahalli and accordingly she came there. She found that the accused was waiting for her. Thereafter, both of them went to KB cross in a KSRTC bus and reached Majestic at 7.00 p.m. Both of them went to the house of one Vijay who is the friend of the accused, situated at Bommanahalli and stayed there. The accused committed sexual assault on her on that night and on the next day morning i.e., on 6/10/2013, both of them went to Chamundi temple near Bengaluru and married in the presence of one Suresh who is the friend of the accused, the priest and local persons. Thereafter, they stayed in Bommanahalli in the house of Vijaykumar. Witness also states that on the next day morning i.e., on 7/10/2013 both of them went to railway station and reached Chamarajanagar and stayed in the house of one Guru who is the friend of accused, in Killahalli. Several persons were there in that house and again the accused committed sexual assault. Witness states that the accused has repeatedly committed the offence till 15/10/2013. Several persons were there in that house and again the accused committed sexual assault. Witness states that the accused has repeatedly committed the offence till 15/10/2013. Thereafter, on 16/10/2013, the Women Police Constable came and took her to Chikkanayakanahlli Police Station. She was kept in Shelter home for 3 to 4 days. Thereafter, she was taken to her house and that she had not narrated the incident to her mother. She was medically examined by the doctor. She has given her clothes to the doctor which are as per Mos.1 to 4. 11. This witness during cross examination by the learned counsel for the accused denied the suggestion that her date of birth is not 4/11/1997 as stated by her and that she was not studying in first year PUC. She admitted that she has given her statement before the police as per Ex.D1. Witness specifically states that as on the date when she went along with the accused, she was waiting for the accused and thereafter, both of them went to KB cross. Witness stated that when she visited the house of the friend of the accused, the inmates of the house had enquired about her. But she had not complained against the accused to anybody. Witness states that she has not raised her voice nor resisted the act of the accused. 12. PWs.3, 4, 5 and 11 are examined to prove the marriage of accused with the victim. None of these witnesses have supported the case of prosecution. PWs.6, 7, 9 and 10 are examined as mahazar witnesses to Exs.P6, 7 and 11. They have also not supported the case of prosecution. If all these materials are taken into consideration, it cannot be said that the victim was kidnapped by the accused forcibly against her will, as contended by the prosecution. Even though PW2 states that she was accompanied by the accused, she also does not say that she was forcibly kidnapped by the accused. Of course, if the prosecution was successful in proving that PW2 was a minor aged 16 years, the prosecution could have contended that the consent of the victim cannot be a ground to acquit the accused. Even though PW2 states that she was accompanied by the accused, she also does not say that she was forcibly kidnapped by the accused. Of course, if the prosecution was successful in proving that PW2 was a minor aged 16 years, the prosecution could have contended that the consent of the victim cannot be a ground to acquit the accused. But in the present case as discussed above, the prosecution has failed to prove the age of the victim and under such circumstances, it is the bounden duty of the prosecution to prove the kidnap of the victim by the accused. There is absolutely no material to prove the same. 13. It is the contention of prosecution that the accused has committed sexual assault on the victim girl repeatedly and thereby committed the offence punishable under Sec. 376 of IPC and under Sec. 4 of the POCSO Act. PW2 has stated in her evidence that accused has committed sexual assault against her will repeatedly from 5/10/2013 till 15/10/2013. It is her contention that she stayed along with the accused in the house of the friend of the accused, wherein other inmates were staying. Admittedly, she never complained against the accused with anybody. Even after she was brought back by the Women Police Constable on 16/10/2013, she has given her statement as per Ex.D1 and stated that, herself and the accused were loving each other and she voluntarily went with the accused and they had married. 14. It is pertinent to note that PW2 was subjected to medical examination on 17/10/2013 and the medical report is as per Ex.P2. As per this document, there were no external injuries on the body and there were no sign of recent sexual intercourse. A bald opinion is given by the medical officer stating that she might have had sexual intercourse. PW8 - the Medical Officer who examined the victim and issued Ex.P2. Nothing has been elicited from this witness as to how she opined that she might have had sexual intercourse, when she has specifically stated in Ex.P2 that there were no signs of recent sexual intercourse. It is also pertinent to refer to Ex.P19 - the FSL report relied on by the prosecution. Nothing has been elicited from this witness as to how she opined that she might have had sexual intercourse, when she has specifically stated in Ex.P2 that there were no signs of recent sexual intercourse. It is also pertinent to refer to Ex.P19 - the FSL report relied on by the prosecution. MOs.1 to 13 were sent for examination, but the report states that the presence of seminal stains were not detected in item Nos.2 to 7 and 10 to 13 and the presence of spermatozoa was not detected in item No.8. It is stated that the contents of item No.1 was disintegrated and it was not fit for examination. Therefore, Ex.P19 - the FSL report is also of no help to the prosecution. To prove the commission of offence committed by the accused, the evidence of PW8 and Ex.P2 are also not helpful. 15. The uncorroborated evidence of PW 2 do not inspire confidence in the mind of the Court. Even though PW2 states that there were several persons who were in the house where she stayed with the accused and where she married the accused, those witnesses are not examined by the prosecution. Even though, PWs.3 to 5 were examined, they have not supported the case of prosecution. 16. In view of the discussions held above, we are of the opinion that the prosecution is not successful in proving the guilt of the accused for any of the offences alleged against him. We have gone through the impugned judgment of acquittal passed by the Trial Court. The Trial Court has considered all these facts and circumstances and has arrived at a right conclusion and acquitted the accused. We do not find any reason to interfere with the same. Hence, we answer the above point in 'Negative'. 17. Apart from the merits of the case, it is relevant to state at this stage that in pursuance of the notice issued, the complainant and the victim were present before the Court on 2/12/2021. The complainant submitted that the victim has been married to a third person and he does not want the victim to be exposed to further litigation as it is likely to harm or cause disharmony in the married life of the victim. Both the victim as well as the complainant submitted that they are not interested in participating in the proceedings. The same was placed on record. Both the victim as well as the complainant submitted that they are not interested in participating in the proceedings. The same was placed on record. 18. In view of the above, we pass the following: ORDER (i) The appeal is dismissed as devoid of any merits. (ii) The impugned judgment of acquittal dtd. 19/9/2015 passed in Spl.C.No.369 of 2013 by the learned III Additional Sessions Judge and Special Court for trial of cases under SC/ST(POA) Act, 1989 at Tumakuru, is hereby confirmed. Registry is directed to send back the Trial Court records with a copy of this judgment.