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2023 DIGILAW 841 (KAR)

State v. Ambarish

2023-07-04

G.BASAVARAJA, SREENIVAS HARISH KUMAR

body2023
JUDGMENT SREENIVAS HARISH KUMAR J. - This appeal is directed against the judgment dtd. 30/4/2016 rendered by the LIII Addl. City Civil and Sessions Judge, Bengaluru in Spl.C.C.No.277/2015. Respondent no.1 was prosecuted for the offences punishable under Sec. 363, 366 and 376 IPC and Sec. 5(J) (ii) and Sec. 6 of POCSO Act in relation to offence said to have taken place on 27/9/2013. 2. The prosecution case is that the accused was in love with PW.4 for about two years since before 27/9/2013 and on that day at about 4.00 p.m., when PW.4 was returning from college, the accused enticed her to elope with him so that they could get married. They went to Vijayawada and from there to a village called Margianapalli where they got married in a temple and returned to Bengaluru. For about eight months they resided together in a rented house and during that time they had intercourse. Some time later the accused tried to marry another girl and this resulted in FIR being registered, investigation held and charge sheet filed against the accused. 3. Four witnesses adduced evidence before the court. PW.1 is the doctor and professor of FSL at Dr.B.R.Ambedkar Medical College, Bengaluru and his evidence is that when he examined PW.4, he noticed signs of her having had sexual intercourse. PW.2 was the Principal of Chaitanya Pre-University College where the girl was studying and her evidence shows that she issued the certificate confirming the date of birth of PW.4 as 24/6/1997. Ex.P.3 is the certificate issued by her. PW.3 is the mother of the girl. She turned hostile and simply stated that her daughter had been to relatives house without informing her and therefore she made a missing complaint as per Ex.P.4. PW.4 is the girl, who according to prosecution was subjected to intercourse. But she turned hostile completely and did not support the prosecution case and even the efforts by the Public Prosecutor to impeach her in the cross-examination failed and therefore nothing worth was elicited from her. 4. In para 8 of the impugned judgment it is found that the public prosecutor made a oral request to the court for summoning CW.3 to CW.7 and CW.10 to CW.14. 4. In para 8 of the impugned judgment it is found that the public prosecutor made a oral request to the court for summoning CW.3 to CW.7 and CW.10 to CW.14. The trial court rejected the request opining that since the material witnesses did not support the prosecution case, no purpose would be served even if CW.3 to CW.7 and CW.10 to CW.14 were examined and it would be a futile exercise. 5. Sri. K.S.Abhijith, learned Government Pleader argues that though PW.3 and PW.4 did not support the prosecution case, in view of the evidence given by PW.1, the doctor, that he noticed the signs of the girl having sexual intercourse in the past, if CW.3 to CW.7 and CW.10 to CW.14 had been summoned, the prosecution would have been able to establish its case and in this view the trial court committed an error in not issuing summons and thereby there is a case for setting aside the impugned judgment and remanding the case to the trial court. But Sri. P. Chandrashekar, learned counsel for the accused submits that in a case of this type, the evidence of the prosecutrix is very important and as she did not support, even if the prosecution examined CW.3 to CW.7 and CW.10 to CW.14, it would have served no purpose and would not have proved the case of the prosecution in any way. Thus he supported for sustaining the impugned judgment. 6. We find no reason to interfere with the judgment impugned in this appeal. It appears that the investigating officer did not think it necessary to produce the victim girl before the Magistrate for obtaining her statement under sec. 164 Cr.P.C. When PW.4 did not support the prosecution case, the statement under Sec. 164 Cr.P.C. could have been confronted to her had it been obtained. Even if we peruse the cross examination made by the public prosecutor, except giving suggestion to PW.4 on lines with her statement under Sec. 161 Cr.P.C. no further effort was made by the public prosecutor to elicit from her that she turned hostile purposefully. Therefore we have to hold that testimony of PW.4 has not been assailed. Even if we peruse the cross examination made by the public prosecutor, except giving suggestion to PW.4 on lines with her statement under Sec. 161 Cr.P.C. no further effort was made by the public prosecutor to elicit from her that she turned hostile purposefully. Therefore we have to hold that testimony of PW.4 has not been assailed. Whatever may be the evidence of PW.1, when the girl herself does not speak that the accused did not have sexual intercourse with her, there is no other go but to acquit the accused and in this view we do not find merit in the appeal. Hence appeal is dismissed.