IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE B.A. PATIL CRIMINAL APPEAL NO.881/2019 Between:
Sri Arun S/o. Hanumantharayappa Aged about 22 years R/o 3rd Cross, Anjana Layout Hegganahalli Cross Sanjeevini Nagara Bengaluru – 560 072.
Permanent resident of Hucchgeeranahalli Grama Melukunte Post, Kasaba Hobli Sira Taluk Tumkur District – 572 137. … Appellant (By Sri Rajakumar C, Advocate) And:
State by Rajagopala Nagara Police Bengaluru City Represented by State Public Prosecutor Karnataka High Court Building Bengaluru – 560 001. . …Respondent (Sri M. Divakar Maddur, HCGP Sri Ramesh H.E., Advocate for complainant ) This Criminal Appeal is filed under Section 374(2) of the Cr.P.C., praying to set aside the impugned judgment of conviction and order of sentence dated 11/15.04.2019 passed by the LIV Additional City Civil and Sessions Judge (CCH-55) sitting in Child friendly Court, Bengaluru in SPl.C.C. No.174/2015 – convicting the appellant/accused for the offence punishable under Sections 363, 366 of IPC and Section 376 of IPC R/w Section 6 of POCSO Act.
This Criminal Appeal coming on for Admission this day, the Court delivered the following:
J U D G M E N T The present 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 LIV Additional City Civil and Sessions Judge (CCH-55), sitting in Child Friendly Court, Bengaluru Urban District in Special C.C. No.174/2015 dated 11/15.04.2019 whereunder, the appellant/accused was convicted for the offences punishable under Sections 363, 366 and 376 of IPC Read with Section 6 of POCSO Act, 2012.
2. Though this case is posted for admission, with the consent of the learned counsel for the appellant/accused, the learned High Court Government Pleader and the learned counsel appearing on behalf of the complainant, the same is taken up for final disposal.
3. The case in proof of prosecution is that three months prior to 20.10.2014, the accused kidnapped the victim girl from her lawful guardianship with an intention to compel her to marry him against her will and seduced to illicit intercourse. He has also committed aggravated penetrative sexual assault on her against her will two times. Again on 20.10.2014, the accused telephoned to the victim girl to come to Hegganahalli. Accordingly, she went with a cash of Rs.2 lakhs and gold ornaments to Hegganahalli from there, the accused took the victim girl to Hongadevanahalli wherein the accused took a rented house and there also he committed aggravated penetrative sexual assault on the victim girl. Initially, a missing complaint was filed and the victim was traced and they came to know about the alleged incident and a complaint has been lodged. After investigation, the charge sheet was laid against the accused. The special Court took the cognizance after complying with provisions of Section 207 of Cr.P.C., After hearing the learned Public Prosecutor and the learned counsel for the accused, the charge was framed, read over and explained to the accused and the accused pleaded not guilty and claimed to be tried.
4. In order to prove its case, the prosecution has got examined 14 witnesses and marked 21 documents and 8 material objects. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C., by putting incriminating material as against him and he denied the same. On his behalf, neither he examined any witnesses nor he got marked any documents.
5. After hearing the arguments of the learned Public Prosecutor and the learned counsel for the accused, the impugned judgment came to be passed. Challenging the legality and correctness of the said judgment, the appellant/accused is before this Court.
6. It is the submission of the learned counsel for the appellant that the Court below has erroneously passed the impugned judgment without proper appreciation of the evidence. He further submits that PW.1 is the complainant as well as father of the victim girl, PW.2 is the mother of the victim girl, PW.3 is the victim girl and PW.4 is owner of the house. They have not supported the case of the prosecution and they have been treated as hostile. Though there is no substantial evidence to prove that the accused has eloped the minor girl and has committed sexual assault on her against her will, the trial Court has wrongly convicted the accused only on the basis of evidence of official witnesses. He further submitted that without there being any proof of the primary elements of the offence, the trial Court has jumped to Section 29 of the POCSO Act and by drawing a presumption, it has come to a conclusion that the said presumption has not been rebutted and has wrongly convicted the accused. The trial Court, though there is no material has convicted the accused without considering the material placed on record and without there being any corroboration with the evidence of material witnesses. He further submitted that the scanning report and urinary and pregnancy report have not been produced before the Court below to show that the victim girl was pregnant. He further submitted that the appellant/accused has not committed any offence and he is entitled to be acquitted. On these grounds, he prays to allow the appeal and to set-aside the impugned judgment of conviction and order of sentence.
7. Per contra, the learned High Court Government Pleader vehemently argued and submitted that PW.3 is the victim. Though she has not supported the case of the prosecution, PW.2 who is the mother of the victim has deposed with regard to the said facts and it has been corroborated with the evidence of PWs.5, 6 and other witnesses. He further submitted that the victim was a minor girl and the doctor who examined the victim has clearly stated that the victim girl is aged about 17 years at the time of the marriage. He further submitted that the material placed on record and the presumption drawn by the Court below are in accordance with law. There are no good grounds to allow the appeal. On these grounds, he prays to dismiss the appeal.
8. The learned counsel appearing on behalf of the complainant has also supported the arguments of the learned High Court Government Pleader and prays that a reasoned and legal order may be passed in accordance with law.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
10. In order to prove its case, the prosecution has examined in all 14 witnesses. PW.1 is the complainant as well as father of the victim girl, PW.2 is the mother of the victim girl and PW.3 is the victim girl. They have not supported the case of the prosecution and treated them as hostile. Though the learned Public prosecutor has cross-examined those witnesses in length, nothing has been elicited from the mouth of the said witnesses. Only because the victim girl had gone out, had not returned and a complaint has been filed, it cannot be inferred that the accused has eloped the victim girl and thereby, he has committed an offence under Sections 363 and 366 of IPC. The said PWs.1 and 2 have not supported the case of the prosecution in this behalf and there is no whisper of anything about eloping the victim from lawful possession of PWs.1 and 2 and in their evidence, they have not specifically averred about taking away of PW.3 out of their custody. Under such circumstances, the conviction of the accused for the alleged offences is not justifiable. Even as per Section 363 of IPC “mere recovery of the victim is not sufficient and he cannot be punished and roped under Section 363 of IPC unless there is evidence to show that he enticed the minor girl from lawful guardianship of the parents”. Even as per Section 366 of IPC “some force has to be used against the minor girl and after abducting the minor girl, the accused must induce or compel to go from the place and thereafter, she should be seduced to have an illicit intercourse”. But as could be seen from the evidence of PW.3, the victim who is aged about 17 years, no such evidence has been adduced to show that the accused has induced and seduced her to have an illicit relationship with him. In that light also the trial Court without properly looking into the facts and circumstances has wrongly convicted the accused for the offences punishable under Sections 363 and 366 of IPC. To convict under the said Sections, the Court cannot take shelter under Section 29 of the Act. Thereby, the trial Court has passed an erroneous judgment.
11. Be that as it may, even the conviction arrived for the offence punishable under Section 376 of IPC and also under Section 6 of POCSO Act is also not justifiable that too when PW.1, the complainant as well as father and PW.2, the mother of the victim girl, PW.3- the victim and PW.4 who is owner of the house have turned hostile. PW.5 is the doctor who examined the victim to determine the age of the victim and issued certificate as per Ex.P.8. PW.6 is the doctor who examined the victim and has issued certificate as per Ex.P.11. PW.7 is the Police Inspector, who registered the complaint and issued FIR and partly conducted the investigation in this case. PW.8 is ACP, who investigated the case and filed the charge sheet as against the accused. PW.9 is DYSP, he has also partly conducted the investigation. PW.10 is Head Master of the school, where the victim girl has studied and he has issued provisional marks card as per Ex.P.17. PWs.11 and 12 are the relatives of the accused, they have not supported the case of the prosecution and treated as hostile. Even during their cross-examination, nothing has been elicited. PW.13 is the Women Police Constable who has been deputed to trace the victim girl and she produced the victim girl before the Investigating Officer. PW.14 is counselor of the victim girl, she recorded the statement of the victim girl as per Ex.P.9.
12. On close reading of the entire materials on record and the evidence which has been recorded, it is seen that the material witnesses have not supported the case of the prosecution. Then, under such circumstances, the trial Court ought not to have drawn a presumption as contemplated under Section 29 of the Act. No doubt, under Section 29 of the POCSO Act, the Court has to draw presumption. But however, the basic rule of drawing a presumption is that the prosecution has to initially substantiate and prove the basic ingredients, which are required to be proved as per Section 6 of POCSO Act. There is no straight jacket formula that on filing of the charge sheet or leading of evidence a presumption has to be drawn. Always initial burden lies on the prosecution to establish its case and thereafter the Court has to draw a presumption as per Section 29 of the Act. But the Court below only on assumption and presumption has come to a wrong conclusion that PWs.1 to 3 have been yielded to some pressure and reached an understanding to exonerate the accused. When the presumption has suppressed the fact as to what happened to fetus that was found in womb of the victim girl instead of putting the burden on prosecution, by putting the burden on victim and her parents, which is not correct in accordance with law. As could be seen from the records, even though the blood and other materials were collected and scanning has been done, the said important documents have not been produced before the Court for the reasons best known to the prosecution. The Court below cannot infer and shift the burden on witnesses, if at all the Court below is having any doubt, then under such circumstances, it could have called the said documents by exercising its power under Section 165 of the Evidence Act, 1872 but instead of doing so, only on the basis of the presumption and assumption, it has come to the conclusion that the witnesses have been won over and due to pressure they have been turned hostile without there being any material. Looking from any angle, the order of the Court below is perverse and it is not in accordance with law and the same is liable to be set- aside.
13. When material witnesses have not supported, not even a piece of evidence is there to convict the accused with the said act said to have taken place by drawing presumption on wrong premises has come to a wrong conclusion. There is no proper application of factual as well as legal matrix as contemplated under the law.
14. I have gone through the judgment of the trial Court. It is perverse and not in accordance with law, as such, it is set-aside.
In the light of the discussion held by me above, the appeal is allowed. The judgment and order of conviction and sentence passed by LIV Additional City Civil and Sessions Judge (CCH-55), sitting in Child Friendly Court, Bengaluru Urban District in Special C.C. No.174/2015 dated 11/15.04.2019 is hereby set- aside and the appellant/accused is acquitted of all the charges levelled against him in this case. Bail bonds and surety bonds are cancelled.
M.O.1 being the old currency notes with denomination of Rs.500/- and in view of the Circular of Reserve Bank of India, bearing No.ID (BG)No.4007/03.12.004/2016-17, dated 14.6.2017 in which Notification No.G.S.R.460(E), dated 12.5.2017 issued by the Central Government, has been referred to, the trial Court is hereby directed to furnish the serial numbers of the Specified Bank Notes in which PF has been seized by depositing old currency notes by furnishing a copy of the aforesaid Circular of Reserve Bank of India, dated 14.6.2017 so also a copy of this judgment to the Bank concerned and get equivalent amount of the present notes which are in currency and the same shall be returned to PW.3. Insofar as M.Os.2 and 3 are concerned and the same are ordered to be released in favour of PW.3/victim.
Pending of I.A.No.1/2019 does not survive for consideration. Accordingly, it is disposed of.
Sd/-
JUDGE nms