IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1983 OF 2019 Between:
Sri. Murali, S/o Gare Muneppa, Aged about 25 years, Painter, R/o Sunnur Village, malur Taluk, Kolar District – 563 130. ... Appellant (By Sri.M.R.Nanjundagowda, Adv.) And:
State of Karnataka, By Mulbagal Police, Represented by State Public Prosecutor, High Court Building, Bengaluru – 560 001.
... Respondent (By Sri.M. Divakar, HCGP) This Criminal Appeal is filed u/s.374(2) of Cr.P.C., praying to set aside the judgment, order of conviction and order regarding sentence dated 18.11.2019, passed by the II Additional District and Sessions Judge, Kolar in S.C.No.71/2018, convicting the appellant/accused for the offence P/U/S 363, 376 of IPC and Section 6 of POCSO Act and Section 9 of Child Marriage Restraint Act.
This Criminal Appeal coming on for Admission, this day, the Court delivered the following:
J U D G M E N T This appeal has been preferred by the appellant/accused challenging the judgment of conviction and order of sentence passed by II Additional Sessions Judge, Kolar in S.C. No. 71/2018 dated 18.11.2019.
2. I have heard the learned counsel for the appellant-accused and learned HCGP for 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 genesis of the case as per the prosecution are that on 24.09.2017 at about 5:30 p.m. when the victim was in her mother’s house, accused induced and procured the victim and took her to Malur in his TVS Star City two wheeler bearing registration No.KA-08-Q-3233 and from there to Ramasandra village at Andra Pradesh with an intention to marry her and kept her in the house of one Pramod at Ramasandra village, then he tied tali to the victim in Maramma temple and thereafter he took her to Yapanapalli village and then to Jigala village and took her to the house of one Anasuya which house was taken on rent basis and during that stay he sexually assaulted the victim.
5. On the basis of the complaint given by the mother of victim, a case was registered in Crime No. 219/2017 and thereafter, after investigation the charge- sheet was filed. The Sessions Court took cognizance for the offences incorporated in the charge sheet and after hearing the learned counsel appearing for the accused before framing charge, charge was framed against the accused for the offence punishable under Sections 363, 376 of IPC, Section 6 of POCSO Act and Section 9 of Child Marriage Restraint Act, wherein accused pleaded not guilty and claims for trial.
6. In order to prove the case, the prosecution examined 24 witnesses as PW.1 to 24 and got marked Ex.P1 to 34 and Material objects 1 to 18. Thereafter, the accused statement was recorded as contemplated under Section 313 of Cr.P.C., wherein accused has denied the incriminating circumstances as against him and he has not led any evidence nor got marked any documents.
7. After hearing the learned counsel appearing for the parties, the Court below has come to the conclusion that the accused has committed an offence and was convicted for the offences punishable under Sections 363, 376 of IPC and also under Section 6 of POCSO Act and Section 9 of Child Marriage Restraint Act. Challenging the legality and correctness of the judgment of the trial Court, the appellant-accused is before this Court.
8. The main grounds urged by the learned counsel for the appellant-accused are that the judgment of conviction and order of sentence passed by the trial Court is contrary to the evidence and material placed on record. The trial Court without properly appreciating the evidence has come to a wrong conclusion and has wrongly convicted the accused. It is his further submission that PWs-1, 2, 4 to 13 and 21 have not supported the case of the prosecution, they have been treated as hostile and they are the material witnesses. When the victim and other witnesses have not supported the case of the prosecution, then eloping of a minor girl from the custody of PW-1 does not establish.
The statement of the victim at Ex.P3 clearly shows that she has gone with the accused voluntarily and under such circumstances, the trial Court ought to have acquitted the accused for the alleged offence. It is his further submission that the prosecution has got examined the Head Master as PW-18 who has issued date of birth certificate at Ex.P.19 based on school records and on records her date of birth is 22.02.2000 i.e., she is aged about 17 years, 7 months and 2 days. That itself shows that as on the date of incident, she was nearing the age of majority and knowing the consequences has gone along with the accused voluntarily. The age determination certificate issued by the Doctor – PW14 indicates that the victim was aged about 18 years. It is his further submission that when the victim has already attained the age of majority, under such circumstances, the question of attracting the offences alleged in the charge does not arise. Without any substantiate evidence, the trial Court has convicted the accused under Sections 363, 376 of IPC, Section 6 of POCSO Act and Section 9 of Child Marriage Restraint Act. On these grounds, he prayed to allow the appeal and to set aside the impugned order.
9. Per contra, learned HCGP vehemently argued and submitted that though material witnesses have not supported the case of the prosecution, but date of birth and age certificate issued as per Ex.P12 clearly goes to show that the victim was a minor girl at the time of alleged incident. It is his further submission that PW15-Doctor who has examined the victim has clearly stated that hymen was not intact and has been ruptured. The report given by the Doctor clearly goes to show that the victim has been sexually assaulted. He further contended that the trial Court by considering the materials placed on record has come to right conclusion and has rightly convicted the accused. On these grounds, he prays to dismiss the appeal.
10. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties and perused the records.
11. In order to prove the case of the prosecution, prosecution has got examined 24 witnesses. PW1 is the mother of the victim and also the complainant. She has not supported the case of the prosecution, has been treated as hostile. PW2 is the victim, she has not supported the case of the prosecution and has been treated as hostile. PW3 is the Supervisor of Ramananda Swamy Temple who has deposed that the victim along with the accused had been to temple and told that they have not taken food from three days and in that light, they have provided the food. Except that nothing has been stated, which is incriminating as against the accused. PW4 – Reddappa has stated that, he knows Venkatalakshmamma, who is the sister of the complainant and has signed Ex.P.6 – Spot mahazar, the place from where the victim has been eloped as per Ex.P1 - complaint. PW5 is the Panch witness to Ex.P6- spot mahazar. PW6 is a witness in whose house the accused and the victim are said to have been stayed. PW7 is also panch witness to Ex.P6 – spot mahazar. PW8 is a person who has attended the marriage of the victim and the accused. PW9 is a panch witness to spot mahazar - Ex.P6. PW10 is the panch witness to Ex.P9 and P10. PW11 is the panch witness to Ex.P9 and 10. PW12 is the Jewelry shop in which the accused purchased the taali and toe rings. PW13 is the panch witness to Mahazar – Ex.P4. All these witnesses have not supported the case of prosecution and they have been treated as hostile. Even during the course of cross- examination of these witnesses, nothing has been elicited so as to support the case of the prosecution. PW14 – Doctor, who examined the victim for determination of age, in his report at Ex.P12 has deposed that the age of the victim is about 16 to 18 years. During the course of cross-examination, nothing has been elicited so as to discard his evidence. PW15 – Doctor has examined the victim with the history of rape and has stated that on 24.09.2017 she went with one Murali to Ramasandra, got married, stayed together for three months and they had sexual intercourse. On examination, there were no external injuries on private part and hymen has ruptured and stated that there are signs of sexual assault. She collected some materials and sent for FSL. She gave primary report as per Ex.P14 and FSL report was got marked as per Ex.P15 and gave her final opinion as per Ex.P.16. She denied all other suggestions made to her. She has also further deposed that there are possibilities of rupturing of hymen at the time of cycling or while doing exercises.
12. PW16 – Doctor has examined the accused based on the complaint given by PW1 with the history of rape. On examination, he found no external injuries and there was no impediment for him to do the sexual intercourse. He has given report as per Ex.P.17.
13. PW17 is the Deputy Director, working in RFSL, Davanagere and she has given her report as per Ex.P18. In her report she has stated that there were no seminal stains or any other skin tissues found in the articles seized. PW18 is the Head Master of the school in which the victim was studying. He has stated that he has issued date of birth certificate as per Ex.P19 based on school records of the victim. During the course of cross-examination, nothing has been elicited through this witness. PW19 is the Police Constable who went along with PW20 – Police Constable and apprehended the victim and the accused and produced them before the Investigating Officer and has given report as per Exs.P21 and 22. PW21 is the Panch witness to Ex.P5 and he has not supported the case of the prosecution and he has been treated as hostile. PW22 is Assistant Sub Inspector who received the complaint and thereafter he registered the case and issued FIR as per Ex.P24. PW23 is the Head Constable before whom the accused and victim have been produced by giving a report as per Ex.P21. PW24 is the Police Inspector who investigated the case and has filed the charge sheet as against the accused.
14. The learned counsel for the appellant has made available the statement of the witnesses and all the material documents. On close reading of the said evidence of all independent witnesses, none of the witnesses have supported the case of the prosecution and they have treated as hostile.
15. In order to prove the guilt of the accused under Section 363 of the IPC, the prosecution has to establish that the accused has eloped the minor girl from lawful custody of the parents. Under such circumstances, the Court below without looking into ingredients and without there being any material has come to a wrong conclusion and has wrongly convicted the accused under Section 363 of IPC. As per the evidence of PW-2 – victim, it clearly goes to show that she has not supported the case of the prosecution and even as per Ex.P.3 – Statement recorded under Section 164 of Cr.P.C., no such incriminating material has been stated against the accused. She has stated that she herself has insisted the accused to run away and to get marry. Even as could be seen from the date of birth certificate issued by the Head Master – PW-18, the victim is aged about 17 years 7 months and 2 days. In that light, entire materials on record goes to show that the victim was knowing the consequences and she has intentionally gone along with the accused and thereafter the alleged incident has taken place. When the victim is said to have nearing the age of majority i.e., about 17 years 7 months and 2 days then under such circumstances, it can be inferred that she was knowing of consequences and she has voluntarily gone. In that light it can be held that it is nothing but a consensual sex. Even the evidence and other materials go to show that there was no resistance from the side of the victim and even the said fact supports the evidence of doctor – PW15, wherein she has clearly stated that there were no injuries found over the body of the victim and even the FSL Report at Ex.P-15 also supports the case of the accused.
16. In the light of the discussion held by me above, I am of the considered opinion that the prosecution has utterly failed to prove the case as against the accused and the trial court without properly appreciating and considering the merits of the case, has gone to the other side and has wrongly convicted the accused.
17. I have carefully and cautiously gone through the judgment of trial Court. The judgment of the trial Court reveals that without application of mind and without properly appreciating the evidence has come to the wrong conclusion and has wrongly convicted the accused. Hence, I pass the following:
ORDER Appeal is allowed. Judgment of conviction and order of sentence passed by the II Additional Sessions Judge, Kolar in S.C.No.71/2018 dated 18.11.2019 is set-aside and accused/appellant – Murali herein is acquitted of all the charges leveled against him. He is released forthwith, if not required in any other case.
Concerned Jail Authorities are hereby directed to release the accused forthwith, if he is not required in any other case.
Registry is directed to communicate the operative portion of the judgment forthwith, to the concerned jail authorities to release the accused/appellant – Murali S/o Gare Muneppa, if he is not required in any other case.
In view of the disposal of the main petition, I.A.No.1/2019 does not survive for consideration and accordingly, it is disposed of.
Sd/- JUDGE BVK/MH