IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.63/2018 BETWEEN:
P.A. Bharath S/o P.A. Aiyappa, Aged about 50 years, R/at Kohinoor Road, Hakathoor Village and Post, Madikeri Taluk, (By Sri B. Lethif, Advocate) AND:
The State of Karnataka By Inspector of Police, Madikeri Town Circle, Madikeri Police Station, Madikeri – 571 201.
Rep. by Public Prosecutor, High Court Complex, Bengaluru – 560 001.
(By Sri M Divakar Maddur, HCGP) ...Appellant ... Respondent This Criminal Appeal is filed under Section 374(2) Cr.P.C. by the Advocate to set aside the order dated 04.01.2018 and sentence dated 05.01.2018 passed by the Principal Sessions and Special Judge, Kodagu, Madikeri in Spl.C. (POCSO) No.32/2013 – convicting the appellant/accused for the offences punishable under Sections 376(2)(i), 506, 323, 354, 355 and 504 of IPC and Section 4, 6, 8 and 10 of Protection of Children from Sexual Offences Act, 2012.
This Criminal Appeal coming on Hearing on Interlocutory Application, this day, the Court made the following:
J U D G M E N T The present appeal has been preferred by the appellant-accused challenging the judgment and order of conviction and sentence passed by Principal Sessions and Special Judge, Kodagu, Madikeri in Special Case (POCSO No.32/13) dated 04/05.01.2018.
2. Though this case is posted for Hearing on Interlocutory Application with the consent of the learned counsel for the appellant and the learned High Court Government Pleader, the same is taken up for final disposal.
3. I have heard the learned counsel for the appellant and the learned High Court Government Pleader for the respondent-State.
4. The case of the prosecution in brief is that the complainant is the mother of the victim filed the complaint on 07.04.2013, alleging that the victim C.Ws.2 and 3 are the minor daughters. Accused is the father of C.Ws.2 and 3, C.W.2-victim disclosed that the accused has sexually assaulted on her on several times when she was studying in 6th standard and he also used to give life threat to her. It is further alleged that the accused also used to touch the private parts of C.W.3 victim and on the basis of the said say, she discussed the matter with C.W.4 who is the well-wisher and a complaint was registered as per Ex.P1.
5. On the basis of the said complaint, the case was registered in Crime No.68/2013 for the offence punishable under Section 376 of IPC and also under Sections 4 and 6 of Protection of Children from Sexual Offence Act (‘Act’ for short). After investigation the Investigating Officer filed the charge sheet against the accused. The special Court secured the presence of the accused who was on bail and after following the formalities by supplying the copies of the charge sheet after hearing the learned Public Prosecutor and the learned counsel for the accused charge was prepared and read over to the accused. Accused pleaded not guilty, he claimed to be tried and as such the trial was fixed.
6. In order to prove its case, the prosecution has got examined 16 witnesses as P.Ws.1 to 16 and got marked 12 documents as Ex.Ps1 to 12 and 5 material objects as Mos.1 to 5. After closure of the prosecution evidence, the statement of the accused was recorded under Section 313 of Cr.P.C. Accused denied all the incriminating materials and he has not led any evidence, but during the course of examination of the witnesses, got marked Ex.D1 to D11. After hearing the arguments, the impugned judgment of conviction and order of sentence came to be passed. Challenging the legality and the correctness of the said judgment, the appellant-accused is before this Court.
7. The main grounds urged by the learned counsel for the appellant-accused are that though there is scattered evidence, without appreciating the said facts in its right perspective, the court below has been swayed away by unreliable evidence of P.Ws.1 to 3. It is his further submission that as per the contents of the complaint, the sexual assault is said to have been committed on P.W.2 when she was studying at 6th standard. But she discloses the said fact, only when she was studying in 10th standard, that too when the accused seeing the victim was doing Whats App with her boyfriend in the morning session and he abused her and assaulted her. Thereafter, she disclosed the said fact to P.W.1 that itself is not acceptable. There is an inordinate delay in disclosing the said fact. It is his further submission that the contents of the complaint disclose the fact that the accused has also sexually assaulted P.W.3 who is the second daughter of the complainant. But for the reasons best known to the prosecution as well as the P.W.1 she has not been sent for medical examination. He further submitted that the evidence of P.Ws.2 and 3 is inconsistent with the evidence of Doctor P.Ws.13 and 16. Even P.W.13 is a pathologist and she has clearly admitted in her cross- examination that she has not examined the victim and only on the say of the Doctor P.W.16, she has issued the certificates. But even though, the Doctor P.W.16 is alive and he has deposed before the Court that he has examined the victim but he has not given any opinion or he has not issued any certificates, for the reasons best known to the prosecution. He further submitted that the evidence of the doctor also clearly goes to show that the victim has not been sexually assaulted by the accused. It is his further submission that the victim, her mother and father used to sleep at one room and even the victim has also admitted that she alone never used to stay in the house. When that being the case that too the grandfather of the victim was also staying in the same house, under such circumstances, the contentions of the victim that the accused has sexually assaulted her cannot be accepted. He further submitted that there is no corroboration between the ocular evidence and the medical evidence. It is his further submission that on 07.04.2013, the complaint has been filed and on 03.12.2010, the conciliation has been taken place at Santhwana Kendra, in the said conciliation as per Ex.D4, both the parties have agreed to stay amicably with love and affection. It is his further submission that there was already a matrimonial disputes existing between the accused and P.W.1 and the mother of the victim has also registered a complaint as per Ex.D5 in Santhwana Kendra and the relationship between the complainant and the accused was not cordial. It is his further submission that the accused was running a grocery shop and he used to collect the charges of the materials which used to be purchased by the complainant. It is his further submission that P.W.5 is the father of P.W.1 complainant and in his evidence he has deposed that P.W.1 is the wife of accused, P.W.1 complainant was insisting the accused for divorce and as the accused was not intending to divorce P.W.1, and as such a false case has been registered.
8. It is his further submission that P.W.14 is the Investigating Officer, he has clearly deposed in his evidence that when he wanted to send victim P.W.3 to the hospital, P.W.1 has subsequently stated that she has not been sexually assaulted and she is not going to be sent for the medical examination. When the complaint and the evidence is not corroborating with each other, under such circumstances the benefit of doubt ought to have been given to the accused and ought to have been acquitted. He further submitted that the FSL report also does not support the case of the prosecution and the fact which is borne from the record is that the victim P.W.2 was having a boyfriend by name Udayananda Devaiah and they were having close association. Even the doctor who examined the victim has clearly admitted the fact that the hymen can be ruptured in case if the victim participated in sports and cycling. Under such circumstances merely because of the absence of hymen, it would not be the accused has sexually assaulted. Under such facts and circumstances the court below without proper appreciation of the evidence has come to a wrong conclusion and accused is entitled to be acquitted for the charges levelled against him. On these grounds he prayed to set aside the impugned judgment of conviction and order of sentence and acquit the accused.
9. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the appellant-accused is none other than the father of the victims P.Ws.2 and 3. P.Ws.2 and 3 have categorically deposed before the Court below about the sexual assault used to be committed by the accused. P.W.3 has also deposed that the accused used to touch her private parts, chest and other parts. He further submitted that though the alleged incident has taken place and the victim was studying in 5th standard, because of the life threat given by the accused she did not disclose the said fact to anybody. It is his further submission that when the said fact was disclosed by C.W.2 to her mother and when the accused was summoned, he has been questioned in the presence of the P.Ws.1 and 4 and he has confessed and beg pardon by touching the feet of P.Ws.1 and 4. He further submitted that though the doctor who has examined the victim has clearly mentioned in the report about the history which has been given by P.W.2, that itself clearly goes to show that the accused used to sexually assault her and even the opinion expressed by the doctor also clearly goes to show that the victim has been sexually assaulted. In the light of the discussion held by the court below, the trial court after considering all the materials placed on record has rightly convicted the accused. The appellant-accused has not made out any good grounds, so as to interfere with the said order and acquit the accused. On these grounds, he prayed to dismiss the appeal.
10. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records, including the lower court records which have been secured in this case.
11. In order to prove its case, the prosecution has got examined 16 witnesses. P.W.1 is none other than the wife of the accused and mother of P.Ws.2 and 3.
P.W.1 has deposed in her evidence that P.W.2 is the elder daughter and P.W.3 is the second daughter and she got married with the accused about 17 years back. On 30.03.2013 early morning accused made to woke up P.W.2 for studying and assaulted P.W.2 with chappal and her back, legs, hands and face, taking the plea that she was playing with mobile and abused with filthy language. After the incident, the accused went to Mysuru along with his sister Parvathi. When she enquired with P.W.2, the victim discloses about the sexual assault used to be committed from 6th to 8th standard. It is further deposed that on enquiry to his second daughter she also reiterated the same. Thereafter, she discussed the matter before the family members then she filed the complaint as per Ex.P1. During the course of cross-examination she has admitted that till lodging of the complaint, P.W.4 Mohanthi Ganesh was on their back and assisting them and the said P.W.4 Mohanthi Ganesh came with Sumanth Palaksha, advocate for lodging the complaint. She has also admitted that she has given a complaint dated 03.12.2010 to Santhwana Koutumbika Salaha Kendra as per Ex.D3 and the said Kendra called her, accused and her father and settled the matter as per the proceedings Ex.D4. It is also admitted during the course of cross-examination that she has also filed a complaint against the accused on 24.07.2012 as per Ex.D5. She has also further admitted that in Santhwana Kendra they advised her to adjust. She has also further deposed that in the said petition as per Ex.D8, she has not mentioned that the accused was also giving sexual harassment to P.W.3. She has also further admitted that at the time of filing the said petition, she was knowing that the accused was giving sexual harassment to P.W.3, except that nothing has been elicited from the mouth of this witness.
12. P.W.2 is the victim, she has deposed that the accused used to come to her room and used to touch her breast, rub her private parts and also used to insert his private parts to her private parts and committing sexual intercourse and he also used to do such vulgar acts against her when she was studying in 6th to 8th standard. She has also further deposed that on 30.03.2013 at about 6.00 a.m., when she was playing with mobile, accused picked up a quarrel, snatched the mobile and thrown it and assaulted her with his chappal on her cheeks and back and also abused with filthy language. During the course of the cross- examination, she has deposed that prior to the incident on 30.03.2013 her relationship with accused-father and her mother was good. Witness also volunteers that she was very close with them. She has further deposed that she has not stated before the police that £ÀAvÀgÀ £À£ÀߣÀÄß NzÀĪÀÅ¢®è JAzÀÄ vÁ¬ÄAiÀĪÀgÀÄ ¦fUÉ ¸ÉÃj¹zÀgÀÄ as per Ex.D6. When a question has been put to her, when she was alone in the house accused tried to make a sexual assault on her, she has replied that she was not alone in the house. She also further admitted that accused used to encourage her to study and he used to tell her that he would give gift, if she gets good marks. She also admitted that her mother was not encouraging her to study well as like her father. She has further deposed that while accused was taking outside the house on the bike or in the car accused did not use to touch her. She also further admitted that she was liking one Udayananda Devaiah and he was also liking her. She has further admitted that the said incident was happened three months prior to 30.03.2013, the matter was also known to her mother and accused used to check the activities of her regularly, except that she has denied the suggestions that herself and her mother colluding with each other have filed a false complaint against the accused to keep away the accused from the house, except that nothing has been elicited from the mouth of this witness.
13. P.W.3 another victim and second daughter of P.W.1, has also deposed that the accused used to rub her private parts and breast and she never used to disclose the same to her mother P.W.1 as she was too young and could not understand the illegal and nature of the acts of the accused. During the course of cross examination she has admitted the fact that when accused tried to talk with her but she did not talk with him since her mother told her and she cannot go against her mother. She further admitted that at present her mother is looking after her at Mysore and her mother, Mohanthi aunty and her elder sister told that accused is a bad person.
14. P.W.4 is a neighbourer, she has deposed that she used to visit the shop of accused and there was a galata between P.W.1 and accused and she has advised accused. On 30.03.2013 at about 11.30 to 12.00 noon P.W.1 and C.W.2 came to her house by weeping and P.W.2 told that her father assaulted and has sexually assaulted her when she was studying in 6th to 7th standard and she used to refuse and when she refused, the accused admitted her to PG at Madikeri. During the course of cross examination of this witness it has been elicited that C.W.1 and accused used to quarrel and P.W.1 was having the grievances that the accused was maintaining the properties of her father and not providing anything. She has further deposed that P.Ws.1 and 2 stayed in her house almost two hours and except that nothing has been elicited.
15. P.W.5 is the father of P.W.1, he has not supported the case of the prosecution and he has treated as hostile. During the course of cross examination he has admitted that P.W.1 informed about this matter to C.W.4 and enquired the accused and thereafter, he enquired P.W.2 about the said incident.
P.W.2 told before him that when she was studying in 6th to 8th standard accused used to commit sexual intercourse on her. He has also stated that P.W.2 further told him if she discloses the said matter to anybody, accused would kill her. He has further admitted that his daughter was telling him now and then that she cannot continue matrimonial life with accused and she was asking for divorce and accused was not agreed and in this regard he advised his daughter, except that nothing has been elicited from the mouth of this witness.
16. P.W.6 is a pancha witness to Ex.P2 spot mahazar. P.W.7 is the Women Police Constable who carried P.W.2 to hospital and also brought the material collected from the hospital and produced before the Investigating Officer. P.W.8 is the Police Constable who signed Ex.P.4 and he is also a witness to the recovery of chappal and marriage certificate as per MO.5 and Ex.P5.
17. P.W.9 is the Doctor who examined the accused and issued the certificate as per Ex.P7. During the course of cross examination he has deposed that he has not mentioned whether the person who examined on that day was used to commit sexual intercourse or not and other suggestions have been denied.
18. P.W.10 is the Police Constable who brought the medical certificate as per Ex.P7. P.W.11 is the Police Constable who carried 15 articles to RFSL, Mysore for medical examination. P.W.12 is the Police Constable who carried the FIR as per Ex.P8.
19. P.W.13 is the Doctor who examined the victim, in her evidence she has deposed that on 08.04.2013 at about 4.05 p.m., P.W.2 was brought by WPC with the history of sexual assault by her father. She took the history and after lapse of two years, she was brought by her mother to casualty for medical examination on 08.04.2013 and she examined and collected 10 articles and handed over to WPC. Then the witness was questioned whether the victim was subjected to intercourse, sexual assault and there were any injuries on her body and the witness has answered that no such sings of recent or old injuries seen on her body during her examination and she has also deposed that no seminal discharge was found. During the course of cross examination, she has admitted that she is a pathologist and she used to refer the case of this nature to gynaecologist for examination. She has further admitted that she referred P.W.2 to gynecologist Dr.Nagaraj P.W.16 and she has further admitted that she has not personally, internally and clinically examined the victim and she did not give her personal opinion in this case. On the basis of the findings given by Dr.Nagaraj, she has given her opinion. She has further admitted that in her certificate Ex.P9 she has not mentioned on which date Dr. Nagaraj examined P.W.2 and P.W.2 did not state before her that the accused has committed sexual intercourse with her for three to four times, except that the other suggestions have been denied.
20. P.W.14 is the Investigating Officer who investigated the case and filed the charge sheet against the accused. P.W.15 is the PSI who registered the case and issued the FIR as per Ex.P8 and also recorded the statement.
21. P.W.16 is the Doctor, he has deposed that on 09.04.2013, P.W.13 referred CW.2 to him at 3.00 p.m., and he examined her and her vitals were stable. On examination of local genital he found no external injuries, hymen was absent, labiaminora was not well developed, vagina easily admits one finger and accordingly, he issued the certificate as per Ex.P9. During the cross examination he has admitted that in Ex.P9, the name, date and time were not mentioned in case sheet and he has not given case sheet to the Police. He further admitted that there is a possibility of absence of hymen in case if she has participated in sports and cycling. He has further admitted that in this case he has not given his opinion. With the above evidence, let me consider whether the prosecution has proved the guilt of the accused beyond all reasonable doubts.
22. On close scrutiny of the evidence which has been produced if clearly goes to show that there is inconsistency in the complaint and evidence produced by the prosecution. In the complaint Ex.P1, P.W.1 has stated that the accused has sexually assaulted P.W.2 as well as P.W.3 the second daughter. But in her cross examination she has admitted that there is no sexual assault committed on P.W.3 and surprisingly, P.W.3 has not been sent for medical examination.
23. P.W.14 is the Investigating Officer, in his evidence he has deposed that on 08.04.2013 he sent P.W.2 for medical examination along with WPC and on that day P.W.1 gave further statement to him saying that it is not necessary to examine P.W.3, since no rape is committed on her. When it is the specific case made out by the complainant that the accused has sexually assaulted not only P.W.2 but also P.W.3, but for the reasons best known to the complainant P.W.3 has not been sent for medical examination. Be that as it may, even if close perusal of the evidence of P.W.2, during the course of cross examination she has clearly admitted that accused used to encourage her to study and he used to tell her he would give gift if she get good marks and she has further admitted that her mother was not encouraging to study well as like her father and while accused was taking her outside the house on bike, he never used to touch her body. Even she has admitted the fact that she never used to stay alone in the house. In the said house her father, mother, grandfather and other witnesses also used to stay. He has further deposed that prior to 30.03.2013 her relationship with the accused and her mother was good and was very close with them. If this evidence is produced when the father was looking after them and he was very close to the victim P.W.2, under such circumstances, the contention of P.W.1 that because of the life threat, the alleged incident has not been disclosed by P.W.2 and the same has been disclosed only on 08.04.2013 is not acceptable. When P.W.2 has deposed before the Court that the accused used to commit sexual assault on her. But as could be seen from Ex.P9 she has given the history that when she was in 5th standard continuously for 4 years i.e., when she came to 8th standard the accused has sexually assaulted her by going to her bed room late night around 12.00 to 1.00 A.M. But as could be seen from the local genital examination by P.W.16 labiaminora was not well developed and the vagina easily admits one finger and even the Doctor P.W.16 who examined P.W.2, in his evidence he has deposed that there is possibility of absence of hymen in case participated in sports and cycling and he has opined that he has not given any opinion. He has admitted that in Ex.P9 name, date and time are not mentioned. On perusal of the evidence of P.W.13 she is a pathologist and she is not a gynaecologist. She has deposed that she has referred CW.2 to P.W.16 who is a gynecologist and she has further deposed that she has not personally, internally and clinically examined the victim and she did not give her personal opinion in this case, but she has given the opinion on the basis of the findings given by P.W.16 Dr. Nagaraj. But after perusing the evidence of P.W.16 he has only deposed that he has examined the local genital and found no external injuries, hymen was absent, labiaminora was not well developed and vagina easily admits one finger and accordingly, he issued a certificate as per Ex.P9. But he has not given any opinion, when the evidence is contrary to each other in between the two Doctors who have examined the victim, under such circumstances the evidence of P.Ws.2 and 3 is not acceptable. Even it has been brought on record by the accused that the matrimonial relationship with P.W.1 and accused was not cordial and the complaint was also registered in this behalf as per Ex.P.5 and even the matter was gone upto Santhwana Kendra. Even P.W.5 is the father of the P.W.1, he admitted the fact that his daughter was telling him now and then she cannot continue her matrimonial life with accused and she was asking for divorce and accused was not agreed and he has also advised his daughter. Though it is suggested that because to keep away the accused from P.W.1 such complaint has been filed, but the evidence of P.W.5 discloses the fact that only with particular intention to take revenge against the accused a false complaint has been registered.
24. This Court is very conscious of the fact that if a father sexually assaults on a minor daughter, under such facts and circumstances it is considered to be a very serious offence and not only legally but socially and morally such acts of the father cannot be encouraged. He acts as a guardian and protector to his daughter. If fence starts eating grass nobody can protect such a situation. Nowadays such type of cases are increasing but the Court has to keep in mind the false implication to take revenge. The Court has to evaluate the evidence and on appreciation it has to take a proper decision. On close scrutiny of the contents of the complaint and evidence of P.Ws1, 2 and 3 along with Doctors who examined the victim P.Ws.13 and 16, there is no consistency in the evidence and P.W.3 who is also said to be the victim of the said offence, non-examination of the victim by the Doctor is a fatal to the case of the prosecution. Be that as it may, even as per the case of the prosecution the alleged sexual assault is said to has been committed when P.W.2 was studying in between 6th to 8th standard and she never disclosed the said fact to anybody, even the evidence of P.W.2 discloses the fact that whenever the accused used to sexually assault her she used to get a pain in her private part and even sometimes she used to get a bleeding and the said fact has not been disclosed either to P.W.1 or to any other persons. If really she was suffered with the injuries, under such circumstances definitely she would have disclosed the said fact. Even there was no occasion to disclose the said fact on 08.04.2013, that too she has been assaulted by a father only because she is chatting with her boyfriend. Under such facts and circumstances, it clearly goes to show that it is a concocted and created story only with an intention to see that the accused has to be kept away from P.W.1. On looking into the evidence of P.W.3, in her evidence she has clearly deposed that sometimes her mother, Mohanthi Ganesh and her elder sister use to tell her that accused is a bad person, that itself goes to show that the said witnesses have tutored P.W.3 and only because of that, the witness has deposed in this behalf. Whenever a said minor witness has been examined before the Court, then under such circumstances a duty casts upon the Court as per Section 118 of the Evidence Act to consider such evidence with close scrutiny and only on being convinced about the guilty there of and the reliability, the Court can record the conviction. It is also established principles of law that the said evidence must inspire the confidence of the Court and there is no embellishment or improvement therein and the said witness has not been tutored, then under such circumstances the said evidence can be relied upon. But in the instance case on hand and on close perusal of the evidence of P.Ws.2 and 3, it is going to reveal the fact that the said witnesses are the tutored witnesses and their reliability is not so trustworthy and acceptable.
25. Under such circumstances, I feel that the court below without considering the said aspect in its right perspective has come to a wrong conclusion. There is no proper appreciation of the evidence placed on record. When there is glaring illegality and perversity on the part of the Court below and in the order of the trial Court, then this Court can interfere and set aside the impugned order.
26. For the reasons discussed above accused has made out a case to interfere with the judgment of the trial Court. In the light of the above discussions held by me, the appeal is allowed. The judgment and order of conviction and sentence passed by the learned Principal Sessions and Special Judge, Kodagu at Madikeri in Special Case (POCSO) No.32/2013 dated 04/05.01.2018 is set aside and the accused is acquitted of the charges leveled against him.
The accused is set at liberty forthwith, if he is not required in any other case.
Registry is directed to intimate the operative portion of this order forthwith to the concerned jail authorities to release him, if he is not required in any other case.
I.A.No.1/2019 does not survive for consideration, hence, the same is disposed of.
GJM Sd/-
JUDGE