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2025 DIGILAW 1829 (KAR)

Rajanna S/o Munichinnappa v. State of Karnataka

2025-12-12

G.BASAVARAJA

body2025
JUDGMENT : G. BASAVARAJA, J. 1. The appellant has preferred this appeal against the judgment of conviction and order on sentence passed by the Additional District and Sessions Judge, FTSC-II, Bengaluru Rural District, Bengaluru in Special Case No.430/2017 dated 02.07.2022. 2. For the sake of convenience, the parties herein are referred to as per their status before the trial Court. 3. The brief facts leading to this appeal are that the Circle Inspector of Police, Nandagudi Circle, Sulibele Police Station submitted the charge-sheet against the accused for the offence under Section 376(2)(i) of Indian Penal Code and under Section 6 of POCSO Act. 4. It is alleged by the prosecution that on 20.09.2017, PW.14-Sri. Govind B. M, Assistant Sub-Inspector of Police was the Station House Officer of Sulibele Police Station. On that day, on the basis of MLC intimation from Vani Vilas Hospital, Bengaluru, PW14 and a Women Police Constable-CW7 visited the hospital and recorded the oral complaint-Ex.P5 given by the victim’s mother-PW8. Later, returned to the police station at 02.30 P.M. and registered the FIR. 5. The CW1-Informant, has stated that the victim girl aged about eight years and another daughter by name Kavitha aged about six years were residing in a rented premises belonging to one Suhail. The wife of Suhail used to abuse her daughters every day. As such, they vacated the said premises. Thereafter, they resided in a rented premises belonging to one Basamma in Janata Colony. Since the owner of the house had demanded for an amount of Rs.3,000/- as advance and they did not have any money, they had vacated the said premises too. After vacating the said premises when they were standing near bus stand at the Sulibele, the accused being acquainted to them, had asked them to accompany to his premises until they find a rented premises. The accused was residing alone in his house. From 10.09.2017 they resided at the house of accused. Such being the situation on 11.09.2017, during the night hours, informant, her husband and second daughter were sleeping in the hall, the accused and the victim girl were sleeping on the couch placed in the hall. During the night hours the accused had carried the victim girl to the adjacent room and had committed rape on her. Such being the situation on 11.09.2017, during the night hours, informant, her husband and second daughter were sleeping in the hall, the accused and the victim girl were sleeping on the couch placed in the hall. During the night hours the accused had carried the victim girl to the adjacent room and had committed rape on her. On the next day, her daughter/victim complained about stomach ache and when enquired, her daughter/victim girl informed her that the accused on the previous night had taken her to the next room and had forcibly stuffed a cloth into her mouth and after removing her clothes, had committed sexual assault on her. When the informant questioned the act of the accused, the accused denied any such act and went away from the house by asking them to vacate the house. 6. Thereafter, on 13.09.2017, the complainant after informing her husband about the incident, vacated the house of the accused. Thereafter, for about two to three days, they stayed in the compound of the Government School situated at Mulabagilu and during the said period, her daughter/victim girl used to complain about stomach ache. The informant had taken the victim girl for treatment to Mulabagilu Government Hospital, but did not inform the doctors about the incident. On 19.09.2017, while they were returning to Malur from Mulabagilu in a bus, her daughter/victim girl once again complained about stomach ache. At that time, her husband hit the daughter/victim girl in the bus and the passengers in the bus shouted at him. A person by name Ramya intervened and questioned as to why her husband was assaulting the victim. At that time, the complainant told Ramya about the incident. Thereafter, they had visited Vijayapura Government Hospital and after the treatment of victim as per the direction of the doctor, they had shifted the victim to Vani Vilas Hospital in an ambulance. While the victim girl was taking treatment at the hospital, the police officials had visited the hospital and recorded the oral statement of the informant as per Ex.P5. 7. On that basis, case was registered in Crime No.78/2017. After the investigation, the Investigating Officer has submitted the charge-sheet against the accused for the offence under Section 376(2)(i) of Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act. 8. After taking cognizance, case was registered in Special Case No.434/2017. 7. On that basis, case was registered in Crime No.78/2017. After the investigation, the Investigating Officer has submitted the charge-sheet against the accused for the offence under Section 376(2)(i) of Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act. 8. After taking cognizance, case was registered in Special Case No.434/2017. On hearing the charges, the trial Court has framed the charges against the accused for the commission of alleged offences. Same was read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried. 9. To prove the guilt of the accused, prosecution, in all, examined 18 witnesses as PW1 to PW18 and 16 documents were marked as Ex.P1 to Ex.P16. Two material objects were marked as M.O.1 and M.O.2. 10. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C was recorded. Accused has totally denied the evidence of prosecution witnesses. However, he did not choose to lead any defence evidence on his behalf. 11. Having heard the arguments on both sides, the trial Court has convicted the accused for the offence under Section 376(2) of Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act and passed a sentence to undergo rigorous imprisonment for a period of 10 years with fine of Rs.10,000/-. Being aggrieved by this judgment of conviction and order on sentence, the appellant has preferred this appeal. 12. The learned counsel appearing on behalf of the appellant would submit that the trial Court has committed an error in convicting the appellant without cogent evidence and without proving the case beyond all reasonable doubt. There is a delay in lodging the First Information Report, which was not satisfactorily explained by the prosecution. The alleged incident took place on 11.09.2017. The complaint and the FIR came to be lodged on 20.09.2017. It is admitted case of the prosecution that after the alleged incident the victim has been taken to Mulabagilu Government Hospital and did not inform the incident to the doctor. The very projection of the prosecution case itself is doubtful and moreover there is a delay of nearly 9 days in lodging the FIR. The trial Court has not considered that the delay in lodging the FIR is fatal to the prosecution case or not. 13. The very projection of the prosecution case itself is doubtful and moreover there is a delay of nearly 9 days in lodging the FIR. The trial Court has not considered that the delay in lodging the FIR is fatal to the prosecution case or not. 13. The trial Court has committed an error in holding that, prosecution has proved the case only testimony of PW7 to PW9 that the very launching of the prosecution case is on the basis of the narration of the story to one Ramya, who is the inmate of the bus on 19.09.2017, and thereafter the victim was taken to doctor. The said crucial witness has not been examined before the Court, though she is cited as a witness- CW5 and therefore, the prosecution case is highly doubtful. It is the case of the prosecution that victim's parents were sleeping together in hall on the alleged date of commission of offence. The said crucial witness who is none other than the father of the victim has not been cited as witness or examined before the Court. The investigation was done in a pick and choose manner and hence lacks fair investigation. The same will not enure to the benefit of the victim. 14. From the reading of the evidence adduced by PW7 and PW8, it is clear that the entire prosecution case is a cooked up story in order to escape from the liability to pay the amount to the accused which has been borrowed from the father of PW8. The non-examination of the father of PW8 fortifies the defence and makes the prosecution case doubtful. From the evidence of the doctor-PW9, coupled with Ex.P7 to Ex.P9, there are no external injuries in the pelvic area, and more particularly, no injuries were found anywhere in the body. The Medical Officer has not followed the guidelines for the medical examination of the victim girl under Section 27 of POCSO Act. 15. Ex.P7-the MLC register shows that the alleged incident has been narrated by PW1 and the victim. The statement recorded under Section 164 as per Ex-C1, the victim has stated a different story, which is quite contrary to the case of the prosecution. 15. Ex.P7-the MLC register shows that the alleged incident has been narrated by PW1 and the victim. The statement recorded under Section 164 as per Ex-C1, the victim has stated a different story, which is quite contrary to the case of the prosecution. PW8, during her examination before the Court for the first time, has supported the prosecution case by improving her version contrary to Ex.P7 and also statement under Section 164 Cr.P.C. Therefore, the evidence of PW8- victim is not trustworthy and does not inspire the confidence of the Court in order to convict the accused. The trial Court has not considered the material contradictions and omissions, rather convicted the accused without the presence of any other corroborative evidence. Further, it is submitted that trial Court has not examined the concerned Magistrate who has recorded the statement under Section 164 of Cr.P.C. Further, the Trial Court has not followed the provision of Section 26 of POCSO Act. 16. The Learned Magistrate has not verified the presence of the parents before recording the statement and same has not been recorded through electronic means. Therefore, Ex.C1 recorded is contrary to Section 26 of the Act and hence, it is an inadmissible evidence and the same cannot be used against accused. PW1 is said to be independent witnesses, PW2 is witnesses to the mahazar-Ex.P4 and PW3, who is a panch witness to Ex.P4, has turned hostile. The trial Court has only considered the incriminating materials, the evidence of PW7 to PW9, but has not taken the defence taken by the accused and has also ignored non-examination of material witnesses to the incident. This indicates the case to be false. The trial Court has not considered all these contradictions, omissions and other materials which will give benefit to the accused. Hence, the trial Court has convicted the accused without any legal evidence. Further, the trial Court has not properly appreciated the evidence on record in accordance with law and facts. On all these grounds, it is sought for allowing this appeal. 17. To substantiate his arguments, he has relied on the decision in the case of Ramesh Rai Vs. State of Sikkim, 2024 SCC OnLine Sikk 72. 18. Further, the trial Court has not properly appreciated the evidence on record in accordance with law and facts. On all these grounds, it is sought for allowing this appeal. 17. To substantiate his arguments, he has relied on the decision in the case of Ramesh Rai Vs. State of Sikkim, 2024 SCC OnLine Sikk 72. 18. On the other hand, learned High Court Government Pleader Sri.B.Lakshman, submits that the trial Court has properly appreciated the evidence on record in a proper manner and that there are no grounds to interfere with impugned judgment. Accordingly, he sought for dismissal of the appeal. 19. Having heard the arguments on both sides and perusal of materials, the following points arise for my consideration: 1. Whether the trial Court is justified in convicting the accused for the offence punishable under Section 376(2) of Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act? 2. What order? Regarding Point No.1: 20. I have examined the materials placed before this Court. The genesis of the prosecution is arising out of the complaint filed by the complainant-Smt.Kavya, mother of the victim, in which she has stated as under: 21. On the basis of this complaint, Sulibele Police have registered the case in Crime No.78/2017 against the accused for the offence under Section 6 of Protection of Children from Sexual Offences Act and Section 376(2) of Indian Penal Code and submitted the First Information Report to the Court as per Exhibit P12. The alleged incident took place on 11.09.2017 at night. After lapse of 9 days, the complaint was filed. The complainant-Kavya, examined as PW7, has reiterated the averments made in the complaint-Exhibit P5. She has also deposed that the victim has given statement before the Medical Officer, Vanivilasa Hospital as per Exhibit P6 on 20.09.2017. Further, she has deposed as to the mahazar conducted by the police as per Exhibit P4. 22. PW8-the victim has deposed that she, her mother, her sister, her father and Rajanna were in the house of Rajanna. During the night, when her younger sister, her parents were sleeping, she was watching TV, then Rajanna switched off the TV, took her to room forcefully and stuffed cloth in to her mouth. Despite her protest, Rajanna assaulted her. Rajanna has removed his pant and squeezed her private part, Rajanna has inserted his private part into her private part twice. During the night, when her younger sister, her parents were sleeping, she was watching TV, then Rajanna switched off the TV, took her to room forcefully and stuffed cloth in to her mouth. Despite her protest, Rajanna assaulted her. Rajanna has removed his pant and squeezed her private part, Rajanna has inserted his private part into her private part twice. Next day morning the victim was suffering from bleeding. However, she did not tell the same to her mother. She changed her dress. While going in the bus, her father asked her about the sounds he had heard the previous night. Then she told about the act of the accused. After hearing the victim, her father assaulted her. When one of the inmates of the bus came and enquired, he narrated the incident to her. She advised them to go to Bangalore Hospital. The victim along with her mother went to the hospital and was admitted in the hospital for 8 days. Police came to the hospital and recorded her statement as per Exhibit P6. 23. PW9-Dr.Shashikala B Patil, Asst.Professor, OBG Department, Vanivilasa Hospital, Bengaluru has deposed that on 19.09.2017, CW1 and CW2 came to the hospital referred by Vijayapura Govt. Hospital with the history of sexual assault. The victim narrated the story and the same was mentioned in the register of hospital as per Exhibit P7. She has examined the victim girl physically and internally. During the physical examination, she found that no external or internal injuries on the victim. On genital examination, she found hymen was not intact. She has collected articles from the victim's vaginal swab and vaginal smear. She has packed the said articles, sealed and handed it over to the police on the same day for FSL examination. She has given provisional report as per Exhibit P8. After receiving the report of articles sent for chemical examination, she was of the opinion that there are signs suggestive of an act of sexual intercourse and has mentioned the same in Exhibit P9. 24. PW10-Lokesh, Head Constable No.646, has deposed in his evidence as to the submission of a First Information Report to the Court at the instance of his higher officers. Further, he has deposed that on 20.10.2017, CW18 deployed him for submitting the articles in this case before the RFSL Mysuru. Accordingly, he had submitted two sealed articles before RFSL Mysore and received the acknowledgment. Further, he has deposed that on 20.10.2017, CW18 deployed him for submitting the articles in this case before the RFSL Mysuru. Accordingly, he had submitted two sealed articles before RFSL Mysore and received the acknowledgment. In turn, he produced the acknowledgment before CW20. He gave statement and he has identified the articles as per MO.1 and 2. 25. PW11-Dr.Gangadharaiah, Intensity Care Medical Officer, Vanivalas Hospital, Bengaluru, has deposed that on 20.09.2017, the victim was admitted as an inpatient in the hospital, when he was duty doctor. The police gave intimation and requested to assist for recording the statement of victim. The Sulibele police came to the hospital for recording the statement of the victim. He certified that victim was able to give statement. Police enquired the victim and recorded her statement in presence of victim's mother and himself. 26. PW12-C.Indrani, in-charge Head Mistress, Government Higher Primary School, Giddappanahalli, has deposed that on 03.11.2017, she received a requisition from Sulibele Police for furnishing school certificate of victim girl. Accordingly, she had perused the school records and issued the certificate on the same day. The date of birth of victim girl is mentioned 10.03.2010 and the registration number is 05/2017- 18, when she was studying in first standard in the school. The certificate is marked as Exhibit P11. 27. PW13-Ramanjini, Police Constable, Nandagudi Circle Office has deposed that on 03.11.2017, he was on duty at police station, CW20 deployed him to collect and produce the school certificate belonging to victim from CW17. Accordingly, he had been to the Govt. Primary School, Gidappanahalli and submitted the requisition, in turn he received the study certificate of the victim from CW17 and same was submitted before CW20. The study certificate is marked as Exhibit P7. 28. PW14-Govind.B.M, PW15-S.R.Manjunatha and PW17-B.N.Srikantaiah have deposed in their evidence as to their respective investigation. 29. PW16-Dr.M.P.Pradeep Kumar, Assistant Professor, Bengaluru has deposed that on 21.09.2017 at about 12.30 p.m, he received a requisition from CPI-Nandugudi Police Station for medical examination of the accused with the history of sexual assault. He was brought to PC-1064/CW8, PC- 1489/CW9. He obtained the consent of the accused for medical examination and examined him from 12.30 p.m. to 01.00 p.m. He has not found any external or internal injuries on the accused. He has given report as per Exhibit P15. The accused was aged about 28 years. He was brought to PC-1064/CW8, PC- 1489/CW9. He obtained the consent of the accused for medical examination and examined him from 12.30 p.m. to 01.00 p.m. He has not found any external or internal injuries on the accused. He has given report as per Exhibit P15. The accused was aged about 28 years. There was nothing to suggest that the accused is incapable of performing sexual intercourse. 30. PW18-Nataraj Murthy, ASI Sulibele Police Station has deposed in his evidence that on 28.03.2022, he has deputed to issue proclamation to CW3-Jagadeesh, on the same day, he has issued the proclamation as per the procedure and conducted mahazar as per Exhibit P16. 31. The alleged incident took place on 11.09.2017, the complaint came to be filed on 20.09.2017. The prosecution has not given any proper acceptable explanation for the delay in filing the complaint for 09 days. But in Exhibit P12-First Information Report, it is stated that since there is no legal knowledge she could not file complaint. But same is not deposed by the complainant-Kavya. In Exhibit P5, PW7 has deposed in her evidence that she took the victim to the Govt. Hospital, Vijayapura. The Medical Officer has informed them to shift her to Vanivilasa Hospital, Bengaluru. Then in an ambulance, victim was shifted to Vijayapura Government Hospital and later to Vanivilasa Hospital, Bengaluru on 19.09.2017 at 8.00 p.m. 32. PW9-Dr.Shashikala B Patil, has stated as to the issuance of Exhibit P7. 33. Exhibit P8 is the provisional report and Exhibit P9 is the final report issued by the Medical Officer. Exhibits P8 and P9 reveal that there is no external recent injuries anywhere on the body of the victim. The date on which the mother of the complainant took the victim to the Vijayapura Hospital has not been disclosed by the prosecution. The Investigating Officer has not collected any materials to show that victim has taken treatment at the first instance in Vijayapura Hospital, and no documents are produced in this regard. If really the victim was examined by the Vijayapura Hospital Authorities, they ought to have registered the case as a medico legal case and informed the same to the concerned police. Medical practitioner has failed to comply the mandatory provision of Section 164A of the Code of Criminal Procedure. But they have not done so. If really the victim was examined by the Vijayapura Hospital Authorities, they ought to have registered the case as a medico legal case and informed the same to the concerned police. Medical practitioner has failed to comply the mandatory provision of Section 164A of the Code of Criminal Procedure. But they have not done so. Though the incident took place on 11.09.2017 and victim has stated the alleged incident on the next day to her mother, her mother has not taken the victim to the hospital and she has not lodged any complaint to the police. From 11.09.2017 to 19.09.2017, the complainant, victim or the father of the victim have not taken any steps to provide medical treatment to the victim or to file a complaint against the accused. 34. The prosecution has not examined the father of the victim and one Ramya, who has intervened the clash between the father and victim. The victim has not whispered anything as to why her mother has not taken her to the hospital though there was bleeding on her private part. While recording the statement under Section 164 of Code of Criminal Procedure, the victim has not whispered, on which date the alleged incident has taken place and she has not deposed as to the alleged bleeding as stated in her examination-in-chief. Further, she has admitted that she had informed about the incident to her parents. She has not deposed in her evidence as to treatment taken in Vijayapura Hospital. 35. The Investigating Officer has not explained anything regarding the abnormal delay of 9 days in filing the complaint, after the alleged incident. The accused has not absconded, he was very much available in his house and the police have arrested the accused on the next day of filing the complaint. Therefore, admittedly the victim and her parents were residing in the house of the accused even after 2 days of the alleged incident. Only after 2 days, i.e. on 13.09.2017, the complainant has vacated the house and shifted to the Government School compound. They have stayed there for 3-4 days and after the victim was complaining of stomach ache, the mother of the victim has shifted the victim to the Government Hospital, Mulabagilu. But Investigating Officer has not collected any materials from the Government Hospital, Mulabagilu. They have stayed there for 3-4 days and after the victim was complaining of stomach ache, the mother of the victim has shifted the victim to the Government Hospital, Mulabagilu. But Investigating Officer has not collected any materials from the Government Hospital, Mulabagilu. If really the incident took place as alleged by the prosecution, the mother of the victim or the victim would have stated the reason of stomach ache at the Government Hospital, Mulabagilu. The averments made in the complaint also reveal that the victim had taken injection in the Government Hospital, Mulabagilu. Even at that point in time, the victim and her mother have not disclosed the alleged incident. The victim has not whispered anything in her examination-in-chief or statement under Section 164 Code of Criminal Procedure as to the treatment taken in the Government Hospital at Mulabagilu. 36. PW8 has admitted in her evidence that the accused was doing mason work along with her parents. The accused has provided food, clothes and shelter to the victim and her parents and it was suggested that when the accused asked them to return the money, the complainant has lodged complaint. But to this question, PW8 has stated that she does not know about the monetary transaction between the accused and the complainant. 37. On careful examination of the entire evidence on record, it is crystal clear that after the alleged incident, the victim was examined by the Medical Officer, Government Hospitals, Mulabagilu and Vijayapura prior to filing this complaint. The victim or her parents have not disclosed the alleged incident before the Medical Officer. The Investigating Officer has failed to collect the relevant documents from the concerned hospital authorities to ascertain whether the victim had taken treatment in Vijayapura and Mulabagil Hospital. The Investigating Officer has not explained anything regarding non- production of the material piece of evidence. The abnormal delay of 9 days and the inconsistent statement of the victim and her mother, will create the doubt as to the alleged act of the accused. 38. The evidence of PW7 and PW8 appears to be quite unnatural and against the conduct of a prudent man. The evidence of the victim and her mother is not trustworthy, unbelievable does not inspire confidence of this Court to convict the accused. The evidence of the victim has not been corroborated by the medical evidence. 39. 38. The evidence of PW7 and PW8 appears to be quite unnatural and against the conduct of a prudent man. The evidence of the victim and her mother is not trustworthy, unbelievable does not inspire confidence of this Court to convict the accused. The evidence of the victim has not been corroborated by the medical evidence. 39. Viewed from any angle, there is no cogent, corroborative, clinching, trustworthy evidence before the Court to convict the accused for the commission of alleged offence. The evidence placed before the Court will create reasonable doubt as to the alleged act of the accused. Hence, in view of the principle of criminal law, benefit of doubt shall go to the accused. The trial Court has not properly appreciated the evidence on record in accordance with law and facts. Hence, I answer point No.1 in Negative. Regarding Point No.2 40. For the foregoing reasons and discussions, I proceed to pass the following: ORDER i. Appeal is allowed. ii. The judgment of conviction and order on sentence passed by the Addl. District and Sessions Judge, FTSC-II, Bengaluru Rural District, Bengaluru in Spl. Case No. 430/2017 dated 02.07.2022 and 04.07.2022, are set aside. iii. The accused is acquitted of the offence under Section 376(2) of Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act. iv. The Registry is directed to intimate the order to the Jail Authorities to release the appellant/accused, if he is not involved in any other cases. v. Registry is directed to send the copy of this order along with Trial Court records to the trial Court.