IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1868/2019 Between:
Altaf @ Althu S/o Rafeeq, Aged about 22 years, R/at Jahangeer Mohalla, Mulbagal Town, Kolar District-563 131. … Appellant (By Sri Anand R.V., Advocate) And:
State of Karnataka By Sub-Inspector of Police, Mulbagal Town Police Station, Kolar District-563 131, Rep. by State Public Prosecutor, Attached to High Court Building, Bengaluru-560 001. ... Respondent (By Sri Vijaykumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment and conviction order and sentence dated 19.09.2019, passed by the II Additional District and Sessions Judge, Kolar in S.C.No.24/2019, convicting the appellant/accused for the offence P/U/S 363, 376 of IPC and Section 6 of POCSO Act.
This Criminal Appeal is coming on for Admission, this day, the Court delivered the following:
JUDGMENT This appeal has been preferred by the appellant/accused challenging the legality and correctness of the judgment of conviction and order of sentence passed by the Court of II Additional Sessions Judge, Kolar in S.C.No.24/2019 dated 19.09.2019 for the offences punishable under Sections 363, 376 of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short).
2. I have heard the learned counsel for the appellant and learned Additional State Public Prosecutor for the respondent-State.
3. Though this case is listed for admission, with the consent of learned counsel appearing for the parties, the same is taken up for final disposal.
4. The brief facts of the case of the prosecution are that on 26.11.2018 at about 5.45 a.m., the accused induced and procured CW.2/victim girl and took her in a bus from Mulbagal to Murugmalla of Chinthamani Taluk and stayed there for one night at dargah and thereafter, on 27.11.2018, took her to Shivanasamudra, Kollegala taluk, Chamarajnagara District and stayed for two days in a shed. During that stay, he has committed rape and aggravated penetrative sexual assault on the victim and thereby, committed the said offence. A complaint was filed by PW.2 – Mother of the Victim. On the basis of the complaint, a case has been registered in Cr.No.180/2018 and subsequently, the victim and the accused surrendered before the Court. After investigation recorded the statement of the victim and the charge sheet has been filed. The Special Court took the cognizance of the offence and after furnishing the copies of the charge sheet, the charge was framed and the accused pleaded not guilty. Hence, he claims to be tried. As such, the trial was held.
5. In order to prove the case of the prosecution, it has got examined 22 witnesses as PWs.1 to 22 and marked 35 documents at Exs.P1 to P35 and also 10 material objects have been marked as MOs.1 to 10. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. The accused denied the incriminating evidence and the accused has not chosen to lead any evidence or marked any documents. After hearing the learned counsel for the parties, the Court below has come to the conclusion that the accused is liable to be convicted for the alleged offences.
6. The main grounds urged by the learned counsel for the appellant is that the judgment of conviction and order of sentence passed by the Court below is not sustainable in law and the same is liable to be set aside. It is further submitted that PW.1 to 7 are the independent and material witnesses. They have not supported the case of the prosecution and they have been treated as hostile. Even then, the trial Court erroneously convicted the accused. PW.9-Doctor, who has examined the victim. In her evidence, she has clearly deposed that there is no evidence to prove recent sexual assault. Even, FSL report suggests absence of seminal stains in collected specimen. It is his further submission that in the absence of such material, the trial Court ought to have acquitted the accused but the trial Court only on the basis of evidence of official witnesses, have come to the wrong conclusion and has wrongly convicted the accused. On these grounds, he prayed to allow the appeal and to acquit accused.
7. Per contra, learned Additional State Public Prosecutor vehemently argued and submitted that PW.9-Doctor who examined the victim, in her evidence, though she has not stated that there is no signs of sexual assault but she has clearly deposed that the victim has been habituated to sexual act. If that aspect is taken with reference to Ex.P19, then there is corroboration. It is his further submission that as per Section 29 of POCSO Act, there is a presumption that the accused with an intention to have sexual act has eloped the minor girl and has committed the offence. It is his further submission that the trial Court after considering the said fact has come to a right conclusion and has rightly convicted the accused. There are no good grounds to interfere with the judgment of the trial Court. On these grounds, he prayed to dismiss the appeal.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
9. On close reading of the records, the prosecution got examined 22 witnesses in order to substantiate its case. PW.1 is the friend of the accused, who accommodated shelter in his shed to the accused and victim. He has not supported the case of the prosecution.
PW.2 is the mother of the victim, who filed the complaint at Ex.P2 and she has also not supported the case of the prosecution and she has been treated as hostile.
PW.3 is the victim girl, she has also not supported the case of the prosecution and even during the course of cross-examination by the learned Public Prosecutor, nothing has been elicited to substantiate the case of the prosecution. In the statement recorded under Section 164 of Cr.P.C. by the learned Magistrate, she has deposed that she did not know anything about this case and she has not gone out of the house and she is not having anything to say.
PWs.4, 5, 6 and 7 are the mahazar witness, they have not supported the case of the prosecution and they have been treated as hostile. Even during the course of cross-examination, nothing has been elicited to substantiate the case of the prosecution.
PW.8 is the Doctor, who examined the victim for determination of the age and he has issued certificate as per Ex.P16.
PW.9 is the Doctor, who examined the victim and issued certificates as per Exs.P17 to P19.
PW.10 is the Doctor, who examined the accused and issued certificate as per Ex.P20.
PW.11 is the PDO, who has issued property extract as per Exs.P21 and P22.
PW.12 is the Head Master, who has issued date of birth certificate at Ex.P23.
PW.13 is the Head Constable who brought the victim and accused to Chintamani and produced before PSI along with report as per Ex.P24.
PW.14 is the Spl.LAO, who has issued RTC extract where the alleged incidence has taken place as per Ex.P25.
PW.15 is the WPC, who took the victim to Mulbagal Government hospital for examination.
PW.16 is the WPC who accompanied PW.15 and also translated the complaint from Urdu to Kannada.
PW.17 is the CDPO who has recorded the statement of victim.
PW.18 is the P.C., who has produced the accused before the Doctor and collected the articles.
PW.19 is another P.C., who has written the statement of the victim as per Ex.P6.
PW.20 is the ASI, the accused and victim surrendered before him and he intimated to the jurisdictional police.
PW.21 is the investigation officer who investigated the case and filed the charge sheet.
PW.22 is the PSI who received the complaint and issued FIR as per Ex.P34.
10. On going through the evidence on record, the material evidence of PWs.1 to 7 have not supported the case of the prosecution and they have been treated as hostile. The only evidence which has been made available by the prosecution is that the official witnesses. When the victim herself has not supported the case of the prosecution and even, her statement recorded under Section 164 Cr.P.C. before the Magistrate as per Ex.P5, she has deposed that she has not gone out of the house and nothing has been happened to her. This evidence supported the case with the evidence of PW.9-Doctor, she has clearly stated that there are no signs of sexual assault, but however, she is habituated to sexual act. In that light, if it is taken into consideration, the main ingredients are very much necessary to prove the case.
11. I am conscious of the fact that there is a presumption under Section 29 of the POCSO Act about the intention of the accused to be gathered. The victim has not supported the case of the prosecution. No other independent evidence has supported to prove the guilt of the accused for having committed the alleged offence. Even the presumption also cannot be drawn in this behalf. In that light, the trial Court has not properly appreciated the evidence on record while recording the facts and circumstances. In that light, the judgment of the trial Court deserves interference.
12. In that light, the appeal is allowed and the judgment passed by the Court of II Additional Sessions Judge, Kolar in S.C.No.24/2019 dated 19.09.2019 is set aside and the appellant/accused is acquitted of the charges leveled against him and set at liberty forthwith, if he is not required in any other case.
Registry is directed to intimate the operative portion of this order to the jail authorities to release the appellant/accused forthwith, if he is not required in any other case.
Send back the lower court records.
In view of disposal of the main appeal, I.A.No.2/2019 for suspension of sentence does not survives for consideration. Accordingly, I.A.No.2/2019 is disposed of.
Sd/- JUDGE NR/-