IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.268 OF 2019 BETWEEN:
State of Karnataka By Deputy Superintendent of Police Puttur Sub-Division, Puttur Represented by State Public Prosecutor High Court Building Bengaluru – 560 001 (By Sri. M. Divakar Maddur, HCGP) AND:
Yashodhar S/o Late Lingappa Gowda Aged about 34 years Resident at Katla House Chibidre Village Belthangady Taluk D.K. District – 574 214 (By Smt. Pooja Kattimani, Advocate For Sri. Dinesh Kumar K. Rao, Advocate) ...Appellant ...Respondent This Criminal Appeal is filed under Sections 378(1) and (3) of Criminal Procedure Code, praying to grant leave to appeal against the judgment and order of acquittal dated 17.09.2018 passed in Special Case No.90/2015 on the file of the II Additional District and Sessions (Special) Judge, D.K., Mangaluru, thereby acquitting the accused/respondent for the offence punishable under Sections 448, 323 and 354A of IPC, Sections 8 and 12 of the POCSO Act, and Section 3(1) (xi) of SC/ST (POA) Act.
This Criminal Appeal coming on for Orders, this day, the Court delivered the following:
JUDGMENT The appellant-State is before this Court challenging the judgment and order of acquittal passed by the II Additional District and Sessions (Special) Judge, Dakshina Kannada, Mangaluru in Special Case No.90/2015 dated 17.09.2018, whereunder the accused was acquitted for the offences punishable under Sections 448, 323, 354A of IPC and also Sections 8 and 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’ for short) and Sections 3(1) (i) (xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘the SC & ST (POA) Act’ for short).
2. I have heard learned High Court Government Pleader for the appellant-State and learned counsel for the respondent-accused.
3. Though this case is listed for hearing on interlocutory application, with the consent of learned counsel appearing for the parties, the same is taken up for final disposal.
4. The factual matrix of the case as per the complaint are that on 27.02.2015, at about 2.45 p.m., the victim girl aged about 15 years belonging to Scheduled Caste was preparing for her examination in the veranda of her grandfather’s house. At that time, accused trespassed into the house and asked for drinking water and the victim girl brought drinking water. Thereafter, the accused under the pretext of assisting the victim for applying gum to her torn text book and when she was sitting there, he assaulted the victim on her shoulder and put his hand on her chest. The victim girl raised hue and cry and ran away and informed to her grandfather about the said incident. She informed the brother about the said incident over the phone. Subsequently, a complaint was lodged. On the basis of the complaint, case was registered in Crime No.64/2015. After investigation, the charge sheet was laid against the accused. The Special Court secured the presence of the accused and after hearing the accused, the charges was framed. The accused pleaded not guilty of the charges. In order to prove the case of prosecution, prosecution got examined 8 witnesses as PW.1 to PW.8 and got marked 10 documents as Exs. P1 to P10. Though the accused has denied all the incriminating circumstances appearing against him in statement under Section 313 of Cr.P.C., he did not choose to lead any evidence. But during the course of cross examination, 4 documents were got marked as Exs.D1 to D4. After hearing learned counsel appearing for the parties, the trial Court acquitted the accused for the alleged offences. Challenging the legality and correctness of the same, the State is before this Court.
5. It is the submission of learned High Court Government Pleader for the appellant that the judgment and order of acquittal passed by the Court below is contrary to law and evidence on record. The Court below has not correctly appreciated the evidence on probabilities. It is his further submission that the victim, PW.1 in her evidence has clearly stated about the outraging modesty of the women and also the act of the accused. The said evidence has been corroborated along with the evidence of PW.2-grandfather of the victim. Immediately, after the incident, the victim has disclosed the said fact to PW.2, who is her grandfather and informed PW.4, who is the brother of the victim over the phone. All these materials clearly goes to show that there were sufficient materials as against the accused to convict for the said offences.
6. He further submitted that as per Section 29 of the POCSO Act, there is presumption for certain offences. The Court without drawing the presumptions, came to the wrong conclusion and has wrongly acquitted the accused. There were only minor contradictions and omissions and the Court below considering the same has acquitted the accused. Though there are ample materials, trial Court has erred in passing the impugned order. On these grounds, learned High Court Government Pleader prays to allow the appeal and set aside the impugned order.
7. Per contra, learned counsel appearing on behalf of the respondent-accused vehemently argued and submitted that there are contradictions and omissions in the evidence of PW.1. There are lot of discrepancies in the case of the prosecution. As per the evidence of PW.1-the victim, the accused has put his hand on her chest and due to fear, she ran before PW.2- grandfather before whom she has informed about the incident. PW.2 - grandfather has deposed in his evidence that the victim told him that the accused hugged her. The statement of the victim was recorded under Section 164 of Cr.P.C and in the said statement, she has not stated anything about the hue and cry made as stated therein. Learned counsel further submitted that there is no material to show the fact of outraging her modesty and trial Court after considering the said factual matrix has come to a right conclusion and has rightly acquitted the accused. It is her further submission that it is brought on record that PW.4, the brother of the victim had undertaken the construction of house and the accused was called for the work. The accused refused the same and as such, a false complaint was registered against the accused. Even the contradictions have been marked at Exs.D1 to D4. They are all the vital evidences, which goes against the prosecution. She further submitted that the trial Court after considering all the materials placed on record, has come to a right conclusion and there are no good grounds to interfere with the judgment of the trial Court. On these grounds, she prayed to dismiss the appeal.
8. I have carefully and cautiously gone through the submissions made by learned counsel appearing for the parties and perused the records including the trial Court records. The prosecution in order to prove the case, got examined 8 witnessess as PW.1 to PW.8 and got marked 10 documents as Exs.P1 to P10.
9. PW.1 is the victim. In her evidence, she has deposed that she is studying First year PUC in Belthangady College and she is residing in the house of PW.2. She belongs to Malekudiya Caste and her Date of Birth is 17.04.1999. She has further deposed that accused belongs to Gowda community and he was knowing to which community she belongs. On 27.02.2015, in the morning hours, she had English examination and after finishing her examination, she came to the house of her grandfather. After having her lunch, she was studying for Kannada examination and at that time, she was alone in her house. Her grandfather had gone out to perform pooja. At about 2.45 p.m., the accused came near the courtyard of the house and asked for drinking water. The victim gave the drinking water and after providing the water, she came and sat on the chair for the purpose of reading. The said book was torn to some extent and the accused came and had put gum to the said book and at that time, PW.2 - the grand father came and spoke with the accused and by saying that he will wash his hands and legs, he went near cattle shed. At that time, the accused came near the window, assaulted the victim on the shoulder and misbehaved with her by putting his hand on her chest. Due to fear, she went towards her grandfather and at that time, accused came outside the house and pretended as if he did not know anything and went away. The said incident has taken place in the verdanda. She has further deposed that PW.4 came to the house at about 4.00 p.m. and she went to the Police Station and filed the complaint as per Ex.P1. She has also identified the spot Mahazar as per Ex.P.2 and statement recorded under Section 164 of Cr.P.C as per Ex.P4. During the cross-examination, she has deposed that she has not stated as per Ex.D1. She has not stated in her complaint that her grandfather spoke to the accused and thereafter, went towards cattle shed. She has not made any hue and cry on the date of alleged incident. She has further deposed that when she went towards PW.2, accused also followed her but he did not talk with her grandfather. She has further deposed that before she gave the complaint, one Vittal has narrated about the incident to the police. She has further deposed that on that day from 4.30 p.m. to 7 p.m., they have discussed about the complaint.
10. PW.2 is the grandfather. He has also deposed that he knew the accused and his house is at a distance of 1 K.m and prior to three years, at about 2.30 p.m., PW.1 came outside from the house making hue and cry and at that time, he was washing his hands and legs in the bathroom and she told that the accused inside the house hugged her and that he told to inform the same to her brother. During the course of cross- examination, he has deposed that he asked the accused what he has done to PW.1 and why she is weeping. The accused told that he has not done anything and when he asked to tell the truth, again accused said he has not done anything. He further deposed that he has not seen the incident with his eyes and he has talked to the accused. The place of incident is not known to him. Except that nothing has been elicited from his evidence.
11. PW.4 is the brother of the victim and he is the hearsay and his evidence is not going to throw any light in the case of prosecution. PW.3 is the relative of the victim and he is also speaking about what has been said by PW.1 to him. PW.5 is the Head Constable, who registered the case on the basis of complaint given by PW.1 and issued FIR as per Ex.P8. PW.6 is the Women Police Constable. She carried First Information Report to the Jurisdictional Court. PW.7 is the ASI, who has partly investigated the case by drawing spot mahazar. PW.8 is the Investigating Officer, who investigated the case and filed the charge sheet as against the accused.
12. On close reading of the evidence of PW.1 and Ex.P.1, the complaint and also the statement recorded under Section 164 of Cr.P.C. before the Magistrate, it is seen that there are so many contradictions and omissions in her evidence. She has deposed that when she was preparing for her examination at that time the accused asked for drinking water. She provided him with the drinking water and after drinking water, she went and sat in the chair and was reading the book. At that time, the accused put the gum to the torn pages of the book, which she was reading and accused came near the window and assaulted her on the shoulder and misbehaved with her by putting his hand to her chest.
13. If the complaint-Ex.P1 is seen, the accused pretended as if he was helping by putting the gum and that at that time her grandfather came and he talked and thereafter, he went to wash his hands and legs and thereafter, he misbehaved with her. In the complaint, she has deposed that by making hue and cry, she went there. In her evidence she has stated that because of the fear she went towards her grandfather and she has not deposed that she made a hue and cry. Even during the course of cross examination, the omissions and contradictions have been got marked in Exs.D1 to D4.
At one stretch, in the complaint, she has pleaded that she made a hue and cry and in the evidence, she has stated that she did not make any hue and cry. As could be seen from the evidence of PW.2, the grandfather has deposed that he questioned the accused and the accused told he has not done anything and again when he asked to tell the truth, the accused told he has not done anything. But, as could be seen from the evidence of PW.1, nowhere she has stated that after the incident the accused came and at that time, PW.2 questioned and he denied the same. Insofar as the evidence of PW.3 and PW.4 are concerned, they are the hearsay evidence and their evidence is not going to throw any light in the case of the prosecution.
14. Though it is contended by the learned High Court Government Pleader that the evidence of PW.1 itself is sufficient to constitute the offence, this Court is conscious of the fact that the evidence of the victim alone is sufficient if it is cogent and acceptable and only on the basis of the statement of the victim, the Court can convict the accused. If the evidence led does not corroborates and if there are so many contradictions and omissions in the evidence, then under such circumstances, the said evidence is not acceptable in law.
15. I have carefully and cautiously gone through the presumption of Section 29 of the POCSO Act. Initial burden is always there on the prosecution to prove the offence. Thereafter, the Court has to draw the presumption under Section 29 of the POCSO Act and then the burden will rest on the accused to rebut the said presumption. Even the evidence of PW.1 goes to show that one Vittal has narrated the incident to the Police but for the reasons best known to the Police, the said witness has not been cited as a witness nor has been examined before the trial Court. In law he is the first informant to the Police. When all these materials are looked into, there are no corroborations with regard to the evidence of PW.1.
16. Be that as it may, though the prosecution has charged the accused for the offences punishable under Section 3(1)(xi) of the SC & ST (POA) Act, 1989, except saying that she belongs to Malekudiya caste, that apart, she has not stated anything to the effect that the intention to commit the offence under the said Act was there to the accused and in that light he has done the said Act. Even the prosecution has not clearly established that accused knowing fully well that she belongs to Scheduled Caste and with an intention to insult and degrade her, has done the said Act.
17. In the absence of said materials, it cannot be held that the accused has committed the offence under the SC & ST (POA) Act. Looking from any angle, the prosecution has not proved any guilt of the accused beyond all reasonable doubt. It is well established that in order to convict the accused, the prosecution has to clearly establish all the factual matrix and said evidence must repose confidence of the Court that the accused has committed the alleged offence. It is brought on record by the defence that PW.4 has undertaken the house construction and accused was called to work and help him and accused refused the said fact and as a result of the same, a false complaint was registered. Though such suggestion was denied by PW.4, the fact remains that PW.1 statement on the said incident is not trust worthy and reliable.
18. Be that as it may, even in her evidence, she has deposed that she ran with a hue and cry towards her grandfather and if anybody makes a hue and cry in the house, then it is going to be heard by the neighbors. For the reasons best known to the prosecution, none of the neighbors have been examined and brought on record and neighbors have not come immediately when she made hue and cry, in the complaint she has stated that she made hue and cry after the act of the accused, in the absence of the said materials, case of the prosecution creates a doubt that the accused went inside the house and under the pretence of putting gum to the book he misbehaved and put his hand on her chest.
19. I have carefully and cautiously gone through the judgment of the trial Court. The trial Court after considering the evidence and materials placed on record, has rightly come to a right conclusion and there is no perversity or illegality in passing the impugned order. Appeal is devoid of merits. The same is liable to be dismissed and accordingly, it is dismissed.
No order as to costs.
Mds/-
Sd/- JUDGE