IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B. A. PATIL CRIMINAL APPEAL No.121 OF 2019 BETWEEN:
The State by Police Sub Inspector, Uppinangady Police Station, Mangalore, Rept. By State Public Prosecutor, High Court Building, Bengaluru -01 ... Appellant (By Sri.Vijayakumar Majage, Addl.S.P.P.,) AND:
Suresh H.L.
S/o. Lakshman Naik, Aged 44 years, Residing at Aaleji House, Uruvaly Village, Belthangady Taluk, Mangaluru District -574214.
... Respondent (By Smt. Neerja Karanth, for Sri. K. Srihari, Advocate) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C. praying to grant leave to file an appeal against the Judgment and Order of acquittal dated 23.04.2018 passed by the II Additional District and Sessions (Special) Judge, D.K. Mangaluru in Spl.C.No.44/2015 acquitting the respondent/accused for the offence punishable under Sections 342, 354(A) and 506 of IPC and Section 8 and 12 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 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.44/2015 dated 23.04.2018.
2. I have heard the learned Additional SPP for the State and I have also heard Smt. Neerja Karanth for Sri. K. Srihari, learned counsel for the respondent- accused.
3. Though this case is listed for admission, with the consent of both learned counsel appearing for parties, same is taken up for final disposal.
4. The factual matrix of the case are that on 27.09.2014, a complaint was registered by the father of victim alleging that on 26.09.2014 as victim came to the school and respondent accused who is working in the school had already come to school and he was standing there near Katta outside the school. Seeing victim he called her and told her to keep her school bag in the class room and come to administrative office to clean the office room. Accordingly, victim girl went along with her classmate PW-4 and at that time accused by seeing PW4, respondent told the victim alone to come and PW4 was instructed to go back. Accordingly, she went back to her classroom. When the victim entered the administrative office, accused closed the door and latched it from inside and further, he put his hand on the person of the victim girl, also put his hand into the Chudidar and asked her, what she has kept in the Chudidar pocket. He put his hand all over her body sexually assaulted her. Though the victim resisted, the accused sexually assaulted and thereafter accused opened the door and he threatened the victim girl not to inform the matter to anybody else otherwise she will not be spared.
5. Immediately, after opening the door, victim girl ran away and she informed the same to her class teacher –PW5 and also informed the matter to PW4-her classmate. As on that day, there were exams PW5 told the victim to attend the exams first. Accordingly, she attended the exams. Thereafter she went back to her house, she informed the same to her mother and her mother in turn intimated the same fact to the father of the victim and as a result of the same they discussed with the Head Master, thereafter a complaint has been registered. On the basis of the complaint a case has been registered in Crime No.194/2014. After investigation charge sheet has been filed. The Special Court took the cognizance and secured the presence of the accused and after supplying the copies, it heard the accused and Special P.P. recorded the charges. Accused pleaded not guilty, he claims to be tried and as such the trial was fixed.
6. In order to prove the case of the prosecution, prosecution got examined 7 witnesses and got marked 5 documents. Thereafter, the accused was examined under Section 313 of Cr.P.C. and accused has not led any evidence and nor marked any documents. After hearing the learned Public Prosecutor and learned counsel for the accused, trial Court acquitted the accused. Challenging the legality and correctness of the same, the State is before this Court.
7. It is the submission of the learned Special Public Prosecutor that the order passed by the Court below is contrary to law and evidence placed on record. He further submitted that evidence of PW1-victim has not been properly appreciated. In her evidence she has categorically stated that accused called her inside the administrative office and she was sexually assaulted. The said evidence itself is sufficient to constitute the offence and on the basis of the same accused ought to have been convicted. It is his further submission that that victim informed the incident to PW4 – her classmate, and thereafter victim also informed the PW5- her class teacher. In turn the class teacher informed it to Head Master. All these evidences corroborate with each other. There are no good grounds to discard the evidence of all these witnesses.
8. It is his further submission that there is consistency in case of prosecution evidence. Without properly appreciating the said fact, trial Court has erroneously come to a wrong conclusion and wrongly acquitted the accused. It is his further submission that witnesses who have been produced before the Court have supported the case of the prosecution including pancha witnesses. Under such circumstances, trial Court ought to have come to a right conclusion and ought to have convicted the accused. On these grounds, he prayed to allow the appeal and set aside the order of acquittal and convict the accused.
9. Per contra, learned counsel appearing on behalf of accused vehemently argued and submitted that the incident took place on 26.09.2019, complaint was filed on 27.09.2019, there was delay of more than 24 hours in filing the complaint. It is her further submission that the evidence of the prosecution goes to show that the twin brother of the victim used to come along with the victim to the school and for the reasons best known to the prosecution why the twin brother of victim has not been examined, whether on the date of alleged incident he accompanied the victim or not?
10. It is her further submission that the alleged incident has taken place inside the Administrative Office. By the side of the said office there are staff room and other class rooms and victim herself has admitted the fact that in the event if the accused committed sexual assault she would have made hue and cry and the same would have been heard by the other class room students and the teachers in the staff room. But she did not make hue and cry, hence, the conduct of the victim herself is unnatural and unacceptable. It is her further submission that immediately after the incident she coolly attended the examination and completed the same and cleared it. If a woman is sexually assaulted or harassed she will be disturbed and she cannot so peaceful to attend the examination.
In that light, the conduct of the victim plays an important role in contesting the case.
11. When the victim informed the incident to PW-5- class teacher, in her evidence PW5 has clearly said that accused belongs to SC and ST category, if the accused is eliminated from the seniority list, she will become the Principal of the said school and the accused belongs to SC and ST category. The Head Master or any other person did not intimate the alleged incident to the police till 24 hours. If the alleged incident could have taken place, as contended, and the victim had informed the class teacher, in turn class teacher had informed the said fact to the Head Master, then, immediately, the Head Master ought to have taken the steps for filing the complaint. All these materials, if they have taken into consideration, it goes to show that a false case has been registered against the accused.
12. It is her further submission that no independent witnesses have been examined though there were many witnesses available. The trial Court after considering the evidence and material placed on record has rightly come to the right conclusion and rightly acquitted the accused. There are no good grounds to interfere with the judgment of the trial Court. On all these grounds, she prays to dismiss the appeal.
13. I have carefully and cautiously given my thoughtful consideration to the submissions made by the learned counsel appearing for the parties and perused the records including trial Court records.
14. In order to bring home the guilt of the accused, prosecution got examined 7 witnesses. PW1 is the victim who is aged about 15 years as on the date of the alleged incident. In her evidence she deposed that on the alleged date of incident, when she came to the school accused was standing and called her and he told her to keep the school bag inside the classroom and come for cleaning the Administrative room. She went and kept the school bag and came along with PW4. Looking at PW4 accused told that victim that she should not have come with PW4 and she should come alone inside. When she went inside he pulled her and he put his hand on the person of the victim girl and also into the Chudidar pocket and asked her what is there in the pocket and he also touched her private part and chest. As a result of the same she got afraid. Accused opened the door and while going out he threatened her as she should not inform the same to anybody else and he will not spare her.
15. She further deposed that the said fact has been intimated to PW5 and PW4. Thereafter on that as per the advise of the PW5 she has attended the exams and thereafter she has gone to the house and informed the same to the mother. In turn the mother informed the same to the father –PW2 and they went and filed the complaint on 27.09.2014. She further deposed that mahazar was drawn as per Ex.P1, subsequently statement of the victim also recorded under Section 164 of Cr.P.C.
16. During the course of cross examination she deposed that her twin brother used to come to school along with her everyday and used to go back. It is further elicited that the school classrooms and administrative office will be locked and will be opened after the concerned clerk comes. She further deposed usually the class room and administrative rooms are opened at about 9.30 a.m. She further deposed that by the time she reached school already it was 9.10 a.m. students were there and by the side of the said school there are residential houses, if anybody makes hue and cry the same will be heard in the said houses. Further on the date of alleged incident she came with her twin brother, Bharath, when accused called her to Administrative office the said Bharath did not accompany her. If an incident, which was narrated above, if it takes place, if the victim makes hue and cry, it is going to be heard in the staff room and class room and also deposed that she do not know whether PW4 was there at that time. It is further elicited that when she came to the class room her behaviour is not unnatural and nobody has asked about it.
17. She further deposed that on the alleged date when PW-5-class teacher-Shakuntala came to school victim could not see her and by the time Shakuntala teacher came, other teachers could have come and she did not inform the same to other teachers. She further deposed that Shakuntala teacher has not come at the time of alleged incident, she came subsequently and other suggestions have been denied.
18. PW-2 is the father of the victim, he deposed with regard to the information given by his wife and subsequently going and filing the complaint in terms of Ex.P3. During the course of cross examination he admitted that his children Bhavya and Barath were going together and on the date of alleged incident both have gone together to the school, except that nothing has been elicited. PW-3 is the Head Master, he deposed that on 26.09.2014 at about 11:30 a.m. when he was in the chambers, the class teacher PW-5 came and informed about the sexual assault committed by the accused and asked to give the complaint. He has further deposed that at about 4.00 or 4.30 p.m. the mother of the victim called over the phone and asked and he informed to file a complaint. He has further deposed that he issued complaint as per Ex.P4. During the course of cross examination he deposed that PW5 no other person came and informed about the alleged incident. He further admitted that on 07.07.2013 the accused-Suresh had filed a criminal case before the Uppinangady Police Station regarding caste based assault and at that time PW-3 has given an undertaking that he will not ill treat and harass Suresh except that nothing has been elicited.
19. PW-4 is the friend of victim. She is also studying in the same class. She is a hearsay witness. She narrated the version of PW-1 and during the course of cross examination nothing has been elicited. PW-5 is the class teacher, she deposed that the victim came and informed about the alleged incident and she in turn went and informed the same to PW-3. During the course of cross examination she has shown her ignorance to the fact that if the Head Master retires on the basis of the superannuation then the accused is going to get the place of the Head Master and she has admitted that if the seniority of the accused is eliminated then she will become senior in seniority list and other suggestions have been denied. PW-6 is the spot mahazar pancha to Ex.P1. She also supported the case of the prosecution. PW-7-Police Inspector who inspected the accused and filed charge sheet as against him.
20. On close reading of the evidence of PW-1 – victim and other evidence, the said evidence is not reposing the confidence of the Court so as to come to the conclusion that alleged incident has taken place. It is brought on record by the accused that her twin brother Bharat used to come to the school together on everyday but why that he has not accompanied when the accused called her to come and clean the administrative office, has not been properly explained and even the prosecution has also not got examined the said evidence. As could be seen from the evidence of PW1, that she has not made any hue and cry immediately when accused is said to have been sexually assaulted her by calling her inside the administrative room. She further deposed that if she makes a hue and cry the same will be heard by the persons sitting in the staff room, the neighbours in the house and by the students in classrooms. Even that she has deposed that usually the classrooms and administrative office are going to be opened at 9.30 a.m. and the key of the staff room and classrooms will be with the clerk but what was the reason on that day the said key has been given to the victim or to the student which has not been properly explained.
21. The conduct of the victim also goes to show immediately after the incident she attended the exams and succeeded in the said exam. She has not made any hue and cry when the alleged incident has taken place. It is also been elicited in the evidence that when she came to the classroom she was normal and nobody asked anything.
22. If all the factual matrix and conduct of the victim are taken into consideration, and the evidence of PW5 indicates that earlier a case has been registered as against PW3-Head Master on 07.07.2013, for ill- treatment and harassment to the accused based upon the caste and the said case has been compromised. PW3 has given an undertaking that he will not ill-treat and the said fact is also admitted by the said witness. PW-5 to whom victim has informed the fact is clearly admitted that if the Head Master –PW3 retires then the accused is going to get the post of Head Master and thereafter PW5 who is going to get the said post.
23. On close reading of all these material indicates that if a case is registered against the accused then promotion will not be given to him and PW5 is going to become the Head Mistress of the said school. In that light, if the factual matrixes are taken into consideration as accused belongs to SC and ST reservation category, in order to eliminate him from the said seniority list a false complaint has been registered.
24. Be that as it may. The alleged incident took place on 26.09.2014 and the complaint has been registered on 27.09.2014. There is a delay in filing the complaint and also the alleged incident has been informed to the class teacher and class teacher in turn informed the Head Master –PW3. For the reasons best known to them, no initiatives have been taken to file a complaint. When the victim was attending the exams they have not made any efforts to intimate the same to the parents of the victim. when such a serious incident has taken place, in the school premises and the conduct of PW3-Head Master and PW5-class teacher ought to be very serious. Immediately they could have informed the said fact either to the police or to the parents of the victim till victim goes to the house. But they did not informed it either to the police or to the parents. During the course of cross examination the above fact was deposed as no intimation was given to them, later the victim informed the incident to her mother. Thereafter the mother of the victim contacted the Head Master. At that time Head Master directs them to file a complaint. All these materials if they have been perused in detail, by going in depth of the evidence, it indicates that the accused has been fabricated and concocted only with an intention to eliminate the accused from the seniority list as he belongs to SC and ST category and he will become Head Master immediately after retirement of PW-3. If he is eliminated by registering a case against him then PW5 is going to get the post of the Head Master.
25. Even the conduct of the victim is also very strange. No woman will keep quiet if such a sexual assault alleged to be happened in administrative building. In that light also, the evidences which have been produced are not reposing any confidence of the Court so as to believe that alleged incident has taken place as contended by the victim in the complaint. The trial Court after considering all the materials placed on record has come to a correct conclusion and has rightly acquitted the accused. There are no good grounds so as to interfere with the judgment of the trial Court. The judgment of the trial court deserves to be confirmed and the trial Court has passed a judgment with reasoned order. There is no perversity or illegality in composition of the said order. The same deserves to be confirmed.
Hence, the appeal is devoid of merits and is liable to be dismissed. Accordingly, it is dismissed.
SD/- JUDGE BVK