IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1108/2019 BETWEEN:
THE STATE OF KARNATAKA BY POLICE SUB-INSPECTOR UPPINANGADY POLICE STATION D.K.MANGALURU REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 01 (BY SRI M.DIVAKAR MADDUR, HCGP.) AND:
…APPELLANT PRAMOD B.V.
S/O. VENKAPPA GOWDA AGED ABOUT 27 YEARS R/AT. BAGILAGADDE HOUSE SHIRADI VILLAGE, UDANE POST PUTTUR TALUK – 574 201 …RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C. PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMETN AND ORDER OF ACQUITTAL DATED 05.02.2019 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS (SPECIAL) JUDGE, D.K., MANGALURU IN SPL.C.NO.53/2015 ACQUITTING THE ACCUED / RESPONDENT FOR THE OFFENCE P/U/S 354 OF IPC AND SECTIONS 9(m) AND 10 OF THE POCSO ACT ETC.
THIS CRIMINAL APPEAL COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT The present appeal has been preferred by the State being aggrieved by the judgment and order of acquittal passed by the II Additional District and Sessions (Special) Judge, D.K., Mangaluru in Spl.C.No.53/2015 dated 05.02.2019.
2. I have heard the learned Government Pleader for the appellant - State.
3. Though this case is listed for order on I.A.No.1/2019 filed for condonation of delay, on perusal of the record, that it is felt that notice to respondent – accused is not necessary and the same is dispensed with.
4. The case of the prosecution is that, on 10.02.2015, when the complainant was working in the hotel at Udane at about 6.00 p.m., is wife and minor daughter aged about 4 years were in the hotel. By the side of the hotel, there was a tyre puncher repair shop owned by one Venkappa Gowda and the accused is the son of the said Venkappa Gowda. On the date of the alleged incident, accused alone was there in the shop and complainant’s daughter was playing. Accused had been to the spot and by offering chewing gum to the victim girl taken her near by the tyre puncher shop and even after half an hour, when the victim minor girl did not return, the complainant went in search of the victim girl and at that time, he saw that the tyre puncher shop was closed with tarpaulin. When he saw inside, nearby the side of the vegetable shop that the victim girl was sleeping on the wooden cot and accused was sucking the private part of the minor victim girl. When the complainant turned back to inform the same to his wife, the same was noticed by the accused and acted as if he has not done anything. The complainant along with the victim and his wife came and scolded the accused and the accused ran away from the spot. When they made enquiry from the victim, she narrated the actual act which has been committed by the accused. A complaint was registered and after investigation, the charge sheet was filed against the accused. After committal to the Sessions Court, the Sessions Judge took cognizance and secured the presence of the accused. After hearing the learned public prosecutor and the learned counsel for the accused, the charge was framed and read over to the accused. Accused pleaded not guilty and he claimed to be tried and as such, trial was fixed.
5. In order to prove the case, the prosecution examined 9 witnesses as PWs.1 to 9 and got marked 7 documents as Exs.P.1 to P.7. Thereafter, the statement of the accused was recorded by placing incriminating circumstances against him. He denied the same and did not lead any defense evidence. After hearing the learned counsel for the parties, the trial Court came to the conclusion that there is no incriminating material or circumstance against the accused and by its judgment and order acquitted the accused. Challenging the legality and correctness, the State is before this Court.
6. Learned Government Pleader contends that the judgment of the trial Court is not sustainable in law and facts. The trial Court has erred in acquitting the Accused. It is his further submission that the evidence of PW.1 itself is sufficient to bring home the guilt of the accused. She has categorically stated about the heinous act said to have committed by the accused. The said evidence is corroborated by the statement of the complainant – PW.1. It is his further submission that the documentary testimony produced by the prosecution has remained unchallenged and even then the trial Court has erred in acquitting the accused. The Court below by giving much importance to the minor contradictions has acquitted the accused. On these grounds, he prays to allow the appeal by setting aside the judgment of acquittal.
7. I have heard the learned Government Pleader and perused the records including the depositions and other materials made available by him.
8. On close reading of the said records, prosecution in order to prove the case got examined 9 witnesses. PW.1 is the minor victim girl. The Court has observed that on preliminary enquiry by questioning it has come to the conclusion that victim was unable to depose as regards the prosecution case and as such, she has been dropped. PW.2 is the father of the minor victim girl. He has deposed that he does not know the accused and has not given any sexual harassment to his daughter. He did not see the sexual harassment given by the accused to the victim. He has not supported the case of the prosecution.
PW.2 has also further stated that he is unable to say for which purpose he has given complaint as per Ex.P.1. During the course of cross-examination by the learned public prosecutor, he has denied all the suggestions. PW.3 is the mother of the victim she has also not supported the case of the prosecution, she has been treated hostile and nothing has been elicited during the course of cross-examination to substantiate the case of the prosecution. PWs.4 and 5 are the eyewitnesses to the alleged incident. They have not supported the case of the prosecution and have been treated as hostile. PWs.6 and 7 are the attesting witnesses to the spot mahazaar - Ex.P.2 and rough sketch Ex.P.3. They have identified only the signatures on the said records and do not know the contents of the said documents. They have also treated as hostile. PW.8 is the Anganawadi worker, she has deposed with regard to the age of the victim and issuance of Ex.P.7 the birth confirmation certificate. PW.9 is the investigating officer, who investigated the case and has filed the charge sheet against the accused.
9. On close reading of the materials and evidence of the witnesses, it clearly go to show that the witnesses have not supported the case of the prosecution and not even iota of evidence is there to come to the conclusion that accused has committed the alleged offences.
10. After going through the judgment of the trial Court and other material on record, it is clear that the trial Court has come to the right conclusion and has acquitted the accused of the offence. There is no good ground to interfere with the judgment of the trial Court. It is well settled proposition of law that if the trial Court after exercising discretion and has acquitted the accused, then under such circumstances, the Appellate Court will be slow to interfere with such judgment and order. In that light, I do not find any illegality or perversity in the judgment of the trial Court. Hence, the appeal is devoid of merits is dismissed.
I.A.No.1/2019 is also disposed of as it does not survive for consideration.
Sd/- JUDGE nvj