IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1800/2019 BETWEEN:
Sri. Santhosh Kumar @ Chinna @ Santhosh, S/o Venkataramappa, Aged about 24 years, R/o Mallappanahalli Village, Avani Hobli, Mulbagal Taluk, Kolar District – 563 131.
(By Sri. M.R. Nanjunda Gowda, Advocate) AND:
State of Karnataka by Mulbagal Rural Police, Represented by State Public Prosecutor, High Court Buildings, Bengaluru – 560 001.
... Appellant ... Respondent (By Sri.M.Divakar Maddur, HCGP) This Crl.A is filed u/s.374(2) of Cr.P.C., praying to set aside the judgment of conviction and order of sentence dated 23.09.2019 passed by the II Additional Sessions Judge, Kolar in S.C. No.110/2018 – convicting the appellant/accused NO.1 for the offence p/u/s 363 and 376 of IPC and Section 6 of POCSO Act and Section 9 of Child Marriage Restraint Act.
This Crl.A 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 No.1 challenging the judgment of conviction and order of sentence passed by the Court of II Additional Sessions Judge, Kolar in S.C. No.110/2018 dated 23.09.2019.
2. I have heard the learned counsel for the appellant and the learned High Court Government Pleader for respondent – State.
3. Though this case is listed for admission and suspension of sentence, with the consent of learned counsel appearing for both the parties, the same is taken up for final disposal.
4. The factual matrix of the case of the prosecution in brief is that on 13.04.2018 at about 3.00 p.m., accused No.1 seduced the victim girl, who is aged about 17 years and took her to Byredapalli Mandalam, in Andhra Pradesh to the house of accused No.2. Subsequently on 14.04.2018, accused Nos.1 and 2 purchased Taali and toe rings from a jewellery shop and on 15.04.2018 at about 2.00 a.m. in the mid-night, accused No.1 tied Taali to the victim and kept the victim in the first floor of the house of one T. Venkataravanappa and there, he committed sexual assault as well as penetrative sexual assault and thereby, he committed the alleged offences. It is the further case of the prosecution that when the victim was eloped and was not found in the house, the father of the victim filed a missing complaint. On the basis of the complaint, during the course of investigation, accused and victim were apprehended and thereafter, a statement of the victim was recorded. After investigation, the charge sheet has been laid against the accused. The special Court took cognizance, secured the presence of the accused and after serving the copies of the charge sheet and after hearing the learned counsel for the accused and the learned Public Prosecutor, the charge was prepared, read over and explained to the accused. Accused pleaded not guilty. They claimed to be tried and as such, the trial was fixed.
5. In order to prove the case of the prosecution, it has got examined 21 witnesses and got marked 33 documents and also 24 material objects. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. and the accused has not led any evidence and not got marked any documents. After hearing the learned counsel appearing for the accused and learned Public Prosecutor, accused No.2 was acquitted of the charges leveled against him and accused No.1 was convicted for the offences punishable under Sections 363, 376 of IPC and also Section 6 of the POCSO Act, 2012 and Section 9 of the Child Marriage Restraint Act, 1929. Challenging the legality and correctness of the said judgment of conviction and order of sentence, appellant/accused No.1 is before this Court.
6. It is the submission of the learned counsel for the appellant that all the witnesses have not supported the case of the prosecution except the Doctor and the Police Officials. It is further submitted that the victim has clearly deposed before the Court that she has not been eloped by the accused and he has not taken her to Andhra Pradesh and has not got married with her and has not sexually assaulted her. Further it is submitted that the evidence of PW.20 – The Doctor, who examined the victim girl has clearly stated in her evidence that in case of cycling, jogging and running, there is likelihood of tearing of the hymen. It is also admitted that if a boy and girl had a sex against her will, there will be some injuries. If this evidence is perused along with the evidence of the victim, it clearly goes to show that the accused has not eloped and sexually assaulted her. Further it is submitted that as per Ex.P4, immediately after apprehension of the victim and the accused, the victim was came to be examined before the Senior Civil Judge and JMFC, Mulbagal and therein, she has clearly stated that there is no sexual assault and no physical contact. It is further submitted that the evidence of PW.1 - the victim has not corroborated with the evidence of other witnesses. Even other independent witnesses have not supported the case of the prosecution. Without considering the facts, the trial Court only on presumption and assumption has erroneously come to a wrong conclusion and has wrongly convicted the accused. It is further submitted that the FSL report does not substantiate the case of the prosecution. The opinion of FSL shows that the seminal stains were not detected but in one item, which has been examined, only a stain of blood was detected in item No.9. Even skin tissue and spermatozoa were not detected in any of the items. All these evidences clearly go to show that the prosecution has utterly failed to prove the case of the prosecution. The trial Court without looking into the legal aspects and materials placed on record has wrongly convicted the accused. On these grounds, he prayed to allow the appeal and to set aside the judgment of conviction and order of sentence and also to acquit the accused from the charges leveled against him.
7. Per contra, learned High Court Government Pleader vehemently argued and submitted that immediately after apprehending the victim, she has been examined by the learned Magistrate and a statement under Section 164 of Cr.P.C. has been recorded. The statement clearly goes to show that the victim has been sexually assaulted and there is corroboration with the evidence of PW.20 – the Doctor, who examined the victim has clearly deposed before the Court that hymen is raptured and he has received the FSL report as per Ex.P25. It is further submitted that in item No.9, stain of blood was found i.e., the human blood. Under the said facts and circumstance, a duty casts upon the Court to draw a presumption under Section 29 of the POCSO Act, 2012 and the accused has to rebut the said presumption. In that light, the trial Court has rightly apprehended the accused and has come to a right conclusion and has rightly convicted the accused. On these grounds, he prayed to dismiss the appeal as being devoid of merits.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
9. On close reading of the evidence which is made available by the learned counsel for the appellant, it indicates that the prosecution, in order to prove its case, has got examined 21 witnesses. PW.1 is the victim. In her evidence, she has deposed that she did not know accused Nos.1 and 2 and her date of birth is 01.06.2000 and accused is not residing by the side of her house, was not coming to her house and was not talking with her and not loving her and he has not taken her to Andhra Pradesh and he has not got married in Anjaneya Temple and they have not stayed in a newly built room at garden land of PW.10 and the police have not brought them from that place. Her statement has been got marked as Ex.P1 and the spot mahazar has been got marked as Ex.P2. This witness has been treated as hostile. Even during the course of her cross examination by the learned Public Prosecutor, nothing has been elicited so as to substantiate the case of the prosecution.
10. PW.2 is the father of the victim and the complainant. In his evidence, he has deposed that last year, her daughter - PW.1 had been to ITI college and after completing her studies, she used to stay in the house and about four months back at about 4.00 p.m., when he came back from coolie work, the victim was not there in the house and he filed a missing complaint as per Ex.P5. He also admitted the fact that he don’t know the contents of Ex.P6 – Spot mahazar and during the course of cross-examination nothing has been elicited from the mouth of this witness. He has not supported the case of the prosecution and he has been treated as hostile.
11. PW.3 is the mother of the victim, she has also not supported the case of the prosecution and she has been treated as hostile.
12. PW.4 is the senior uncle and he is one of the witness to the mahazar - Ex.P2. He has not supported the case of the prosecution and he has been treated as hostile.
13. PW.5 is the witness to Ex.P6 – Spot Mahazar. He has also not supported the case of the prosecution and he has been treated as hostile.
14. PW.6 is the panch witness to Ex.P6. He has not supported the case of the prosecution and he has been treated as hostile.
15. PW.7 is the owner of the jewellery shop from where the accused has purchased the Taali and toe rings. He has also not supported the case of the prosecution and he has been treated as hostile.
16. PW.8 is also a panch witness to Exs.P11 to P13 and PW.9 is also a panch witness to Exs.P11 to P13. They have not supported the case of the prosecution and they have been treated as hostile.
17. PW.10 is the landlord where the accused and the victim were stayed in a room after the marriage. He has also not supported the case of the prosecution and he has been treated as hostile.
18. PW.11 is the Assistant of the Secretary of Panchayath. He has also not supported the case of the prosecution and he has been treated as hostile.
19. PW.12 is the Doctor, who examined the accused and has issued the report as per Ex.P15.
20. PW.13 is the Head Master, who issued the date of birth certificate of the victim as per Ex.P16.
21. PW.14 is the mahazar witness to Ex.P17.
Whereunder, a mahazar has been drawn in the jewellery shop where, the accused has purchased Taali and toe rings. He has also not supported the case of the prosecution and he has been treated as hostile.
22. PW.15 is the Doctor, who examined the victim for determination of the age. In his evidence, he has deposed that the approximate age of the victim is in between 16 to 18 years and has issued the certificate as per Ex.P18 and his opined as per Ex.P19.
23. PW.16 is the Police constable, who went along with WPC, apprehended the accused and the victim and has given a report as per Ex.P20.
24. PW.17 is a women police constable, she has reiterated the evidence of PW.16.
25. PW.18 is the Head constable, who registered the case on the basis of the complaint - Ex.P5 and issued the FIR as per Ex.P22. He also went to the spot and recorded the spot mahazar. Before him, PWs.16 and 17 have brought the victim and the accused and produced before him and he directed to take them to the hospital.
26. PW.19 is the CPI, who investigated the case and filed the charge sheet against the accused.
27. PW.20 is the Doctor, who examined the victim. In her evidence, she has deposed that no external injuries were found, Hymen was raptured and there were no external injuries on her private part. She has issued the certificate as per Ex.P3 and has collected that pubic hairs, vulval smear, vaginal swab, vulval swab, vaginal smear, top, pant, dupatta, panty and the same have been handed over the same to police constable. She also deposed with regard to Exs.P25 and P26 - FSL reports. During the course of cross- examination, she admitted that when she examined the victim, she did not notice any recent sexual assault on the body of the victim. She further submitted that if a victim is riding the bicycle or jogging or running, under such circumstance, there is a possibility of tearing of the hymen and also when there is no consent, there is every possibility of causing injuries on the outer part of the body and private part of the victim.
28. PW.21 is the Assistant Director of RFSL, Davanagere. The Doctor has examined the articles sent and has given his opinion as per Exs.P25 and P33.
29. On going through the entire evidences produced by the prosecution including the victim, parents and the other independent witnesses, they have not supported the case of the prosecution and they have been treated as hostile. The only evidence which has been made available for the prosecution is that of PWs.12 to 21. Though they have deposed with regard to the various aspects conducted, during the course of investigation, the said evidences are not corroborated with any of the independent witness evidences. Though the Doctor – PW.20 has deposed that the hymen is raptured but she has clearly admitted that there were no external injuries found over the private part of the body of the victim. She has further admitted that if the victim rides a bicycle or if she swims or runs, under such circumstance, there is every possibility of tearing of the hymen.
30. This Court is conscious of the fact that under Section 29 of the POCSO Act, there is presumption to be drawn by the Court but always it is well established preposition of law that the initial burden is there on the prosecution to establish the ingredients of the alleged offences then the Court has to draw a presumption under Section 29 of the POCSO Act and if on the basis of the presumption if the said presumption is not rebutted by the accused, under such circumstance, the Court can convict the accused. In the instant case on hand, the victim has clearly stated in her statements recorded under Sections 164 and 161 of Cr.P.C. that no such incident has taken place and no statement has been recorded by the any of the Investigating Officer or anybody.
31. The effect of the statement recorded under Section 164 of Cr.P.C. is like that of statement recorded under section 161 of Cr.P.C. by the Investigating Officer. Without there being any corroboration, the trial Court relied upon the medical evidence and the evidence of the Investigating Agency and has come to a wrong conclusion and has wrongly convicted the accused. When there is no incriminating evidence to point out the guilt of the accused, then the accused has to be acquitted. But the trial Court by referring to the statement under Section 313 of Cr.P.C., and as the accused has not given any explanation, taking into consideration of all these aspects, it has come to the conclusion that the prosecution has proved the guilt of the accused.
32. I have carefully and cautiously gone through the entire evidence of the prosecution witnesses but no such incriminating material has been brought on record to show that the accused has sexually assaulted the victim and got married against her will knowing fully well that she was a minor. When no evidence is available then under such circumstance, drawing an inference that no explanation has been given by the accused and convicting the accused on that basis is also not correct.
33. It is well settled proposition of law that it is the prosecution which has to establish its case beyond all reasonable doubt. Even if the accused keep himself silent to disclose his defense, under such circumstance also, the Court cannot convict the accused. But the trial Court has erred in convicting the accused holding that no explanation is offered by the accused and as such, he is liable to be convicted.
34. Looking from any angle, without there being any basic ingredients to be proved by the prosecution, no presumption can be drawn against the accused and there is no question of rebutting the evidence by the accused.
35. Taking into consideration of the above facts and circumstances of the case, the appellant has made out a case to allow the appeal.
36. I have carefully and cautiously gone through the judgment of the trial Court. The trial Court without properly appreciating the evidence of the witnesses and without proper application of law has wrongly convicted and sentenced accused No.1. As such, the same requires to be set aside.
37. Accordingly, appeal is allowed. The judgment of conviction and order of sentence passed by the Court of II Additional Sessions Judge at Kolar in S.C. No.110/2018 dated 23.09.2019 is set aside and the appellant/accused No.1 is acquitted of the charges leveled against him in this case.
The Jail Authorities are hereby directed to release accused No.1 forthwith if he is not required in any other case.
Registry is directed to intimate the Jail Authorities to release accused No.1 forthwith if he is not required in any other case and send this operative portion of the judgment to the Jail Authorities.
In view of the disposal of the main matter, I.A. No.1/2019 does not survive for consideration. The same is liable to be dismissed and accordingly, it is dismissed.
VBS Sd/- JUDGE