IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.367/2019 BETWEEN:
Thimmaiah S/o chattiyappa Aged about 24 years R/o. No.330/331 Hundi Beedi, Hinakal, Mysuru.
(By Sri H. Sunil Kumar, Advocate) AND:
... Appellant The State by by Vijayanagara Police Station, Mysuru, Represented by the State Public Prosecutor High Court Building Bengaluru-560 001.
... Respondent (By Sri Vijaykumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to set aside the judgment and order of sentence dated 14/16.01.2019 passed by the VI Additional District and Special Judge, Mysuru in S.C.No.342/2016 – Convicting the appellant/accused for the offences punishable under Section 376(2)(i) of IPC and Section 5(m) r/w 6 of POCSO Act.
This Criminal Appeal coming on for hearing 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 challenging the legality and correctness of the judgment of conviction and order of sentence passed by the Court of VI Additional District and Special Judge, Mysuru in S.C. No.342/2016 dated 14.01.2019.
2. I have heard the learned counsel for the appellant and the learned Additional Special Public Prosecutor for respondent – State.
3. The case of the prosecution in brief is that the accused is running a tutorial and the victim is a student, who is aged about 4 years and was studying LKG at Narayana Ananda School. Accused and his mother were conducting tuitions to the children. It is further alleged that on 10.08.2016 at about 4.30 p.m., victim girl had been to the tuition to the house of the accused. At about 5.30 p.m., accused sent other children out of the house and made the victim to stay back thereafter, took her to a room and made her to sleep on a Divan Cot. He disrobed the victim and committed sexual assault on her by licking and pressing her private part. She sustained pain in her genital. Immediately, she came out of the house by crying and the same was informed to her friend - Tanuja and also to her mother – CW.1. CW.1 - the mother took her to private Doctor and got examined. Thereafter, on next day, in consultation with her husband, went and filed the complaint. On the basis of the complaint, a case was registered in Crime No.255/2016. After investigation, the charge sheet has been filed as against the accused.
4. Learned Special judge took cognizance and secured the presence of the accused and also after hearing the accused, charge was prepared, read over and explained to the accused. Accused pleaded not guilty and he claimed to be tried as such, the trial was fixed.
5. In order to prove the case of the prosecution, it has examined 8 witnesses and got marked 11 documents. No material objects have been got marked. Thereafter, the statement of the accused was recorded. Accused denied all the incriminating material and he has not led any evidence nor got marked any documents.
6. After hearing the learned Public Prosecutor and the learned counsel for the accused, the trial Court came to the conclusion that there is material as against the accused and as such, it convicted the accused.
7. The main grounds urged by the learned counsel for the appellant/accused are that the impugned judgment of conviction and order of sentence is not sustainable in law. The said judgment is erroneous and not based upon the material evidence on record. It is his further submission that PW.1 is the victim, who is a child witness. In her cross- examination, she has clearly admitted that she has deposed before the Court as tutored. It is his further submission that her evidence is not corroborated with the evidence of PW.6, who is another girl, who was there along with the victim. It is his further submission that the Doctor, who came to be examined in the first instance has only deposed that there was some reddishness over the private part of the victim and when the victim was taken to another Doctor, there the mother has not allowed the Doctors to examine the victim. As such, the basic evidence has been suppressed by the prosecution. It is his further submission that there is no corroboration in the evidence of prosecution and the mother. She says that she went and conflicted with the accused and there was some galata, but in the complaint, no such contentions have been taken. Even though there are so many contradictions, but without considering the said facts, the Court below has convicted the accused. It is his further submission that there was some financial transaction between the accused and the complainant’s mother. In order to take the vengeance, a false complaint has been filed. There is no corroborative evidence produced so as to come to the conclusion that the accused has committed the offence. It is his further submission that the evidence of PW.1 must be reliable one and the demeanour must be like any other competent witness and the said evidence must be unworthy of credence, under such circumstance, the same can be accepted and relied upon. In order to substantiate his contention, he relied upon the decision of the Delhi High Court in the case of State (Govt. of NCT of Delhi) Vs. Mullah Muzib. It is his further submission that the evidence of the victim must be capable of inspiring confidence in the mind of the Court. If the version of the victim is unsupported by any medical records or surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the Court shall not act on the solitary evidence of the prosecutrix or the victim. In order to substantiate the said contention, he relied upon the decision of the Hon’ble Apex Court in the case of Sadashiv Ramrao Hadbe Vs. State of Maharashtra and Another reported in (2006) 10 SCC 92. It is his further submission that the Court shall decide the matter before it without being influenced by the parties and the Court cannot be a silent spectator and it has to work out how to meet the ends of justice. The evidence has to be independently adjudicated by the judge and thereafter pass an appropriate order. In order to substantiate his contention, he relied upon the decision of the Hon’ble Apex Court in the case of Zahira Habibullah Sheikh (5) and Another Vs. State of Gujarat and Others reported in (2006) 3 SCC 374. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment and acquit the accused.
8. Per contra, learned Additional Special Public Prosecutor vehemently argued and submitted that the evidence of PW.1 - the victim was shakey but in its entirety if it is looked into, she has consistently stated that the accused has committed the alleged crime and she has identified the accused. It is his further submission that the said evidence is corroborated with the evidence of PW.3 – the Doctor, who immediately examined the victim. In her evidence, she has clearly stated that when she examined, swelling was there with reddishness and even the evidence of PW.2 – the mother of the victim, she has categorically stated that the victim came and informed about the alleged incident committed by the accused. By going through all the material, it clearly goes to show that when the victim had been to the class, accused took her inside the house and disrobed the victim and by licking and pressing her private part, he has committed a sexual assault on the victim girl. It is his further submission that the trial Court after considering the material placed on record has come to the right conclusion and has rightly convicted the accused. There are no good grounds made out by the accused so as to interfere with the judgment of the trial Court. On these grounds, he prayed to dismiss the appeal.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records.
10. The first and foremost contention, which has been taken up by the learned counsel for the appellant/accused is that the evidence of victim is not trust worthy and she is not competent and also she appears to be a tutored witness. It is well settled proposition of law that the evidence of child witness is not required to be rejected per se but the Court as a rule of prudence considers such evidence with close scrutiny only on being convinced about the quality thereof and reliability can record conviction based thereon. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Golla Yelugu Govindu v. State of Andhra Pradesh reported in AIR 2008 SC 1842. In the case of Dattu Ramrao Sakhare Vs. State of Maharashtra reported in (1997) 5 SCC 341 it has been observed that when the entire prosecution case rests upon the evidence of the child witness, it is necessary to find out as to whether the evidence of the victim is corroborated from other evidence on record and the child witness if found competent to depose to the facts and reliable one, such evidence could be the basis of the conviction. It has been further observed in the said decision that the evidence of child witness must be reliable one and her demeanour must be like any other competent witness and there is no likelihood of being tutored.
11. Keeping in view the ratio laid down in the above decision, if the evidence of PW.1 – the victim, if it is looked into, the Court below has recorded the evidence of victim, who was aged about five years and four months and in her evidence in the question and answer form, she stated that she used to go to the tuition class immediately after coming from the school and when a question has been put, what has happened in the tuition house and what has been done by him, the witness has stated that nothing has happened in the tuition house. During the course of cross- examination, the witness has stated that she has been tutored to tell by giving a chocolate that accused has licked. This witness has also stated that when she has been taken to the Court for the first time, the police gave a chocolate and told her that she has to depose as stated by them. By going through the evidence of this victim itself clearly goes to show that the said victim has been tutored by the police as well as some other persons. It is well settled proposition of law by the Apex Court in various decisions that the children are suggestible and sometimes given to living in a world of make believe. They are egocentric, and slowly learn the duty of speaking the truth. Keeping in view that evidence of victim, the adequate corroboration appears to be necessary in this behalf.
12. PW.2 is the mother of the victim. Though she has deposed that when the victim came from the tuition at about 6.30 p.m., and told that the tuition brother has removed her clothes, pressed her private part and licked her private part and nobody was there in the tuition house including the Aunty, she has deposed that immediately she went to the house of the accused and asked about his mother and his mother was not there and again, she went in the night and she informed the same to her mother. During the course of cross-examination, she has deposed that in the complaint, she knows something but she did not know fully what has been written and when it has been suggested that there was some financial transaction and a galata has taken place in between the mother of the accused and herself. The said suggestion has been denied and this witness is not an eye-witness but only a hearsay witness. Only on the say of PW.1, she came to know that the accused has committed the alleged offence.
13. PW.3 is the Doctor, who examined the victim. She has deposed that about 7.00 or 7.30 p.m., the victim was brought and she was complaining that there was some burning sensation and pain in her private part and she examined and having swelling with reddishness colour. During the course of cross- examination, she has deposed that if there is urinary infection, at that time there is possibility of pain and burning sensation except that nothing has been elicited.
14. PW.4 is the mother of the accused. She has also deposed with regard to the galata which has taken place in respect of the financial transaction.
15. PW.5 is another Doctor, before whom the victim has been produced. She has deposed that the mother of the victim did not allowed her to examine the victim by removing her clothes and as such, she has not examined and she has issued the certificate as per Ex.P5.
16. PW.6 is another girl, who is accompanying with the victim to the tuition class. She has identified the accused as a tuition class teacher. In her evidence, she has deposed that while she was going to tuition when she was in 3rd Standard she had noticed the victim was going home weeping on one particular day. On that day, she has left the tuition early and was playing in front of the house at that time, she found the victim girl going home crying. While she was leaving the tuition center, the victim was till in the tuition center. During the course of cross-examination, she has deposed that when she was going back to the house, nobody was there in the tuition and she has not seen the victim coming by weeping and nobody was there along with her except that nothing has been elicited from the mouth of this witness.
17. PW.7 is the police inspector. She has recorded the statement of the victim as per Ex.P8. Nothing has been elicited from the mouth of this witness so as to discard her evidence.
18. PW.8 is the CPI, who conducted the investigation and filed the charge sheet as against the accused.
19. On close reading of the entire evidence and material, after the incident, it is the PW.6 who has seen the victim coming by weeping from the tuition class but during the course of cross-examination, this witness has deposed that while coming from the tuition class no body stayed back in the tuition house when that being the case, under such circumstance, PW.6 seeing the victim girl coming weeping is not believable and acceptable. Even by going through the evidence of PW.1 – the victim girl, there is no consistency in the evidence of the victim. When the evidence of the victim is not trust-worthy and reliable, then under such circumstance, the same cannot be acceptable in law.
20. I am conscious of the fact that the evidence of the victim alone is sufficient to convict the accused.
If the version given by the victim is trust-worthy and reliable, even without corroboration on the solitary evidence of the prosecutrix, the Court can convict. But the Courts shall be extremely careful in accepting sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Sadashiv Ramrao Hadbe (quoted supra) at paragraph No.9 it has been observed as under:
“9.It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.”
21. Keeping in view the ratio laid down in the above decisions if the evidence of prosecutrix is taken into consideration, her evidence is not reposing any confidence. She has deposed that only as she has been tutored to tell that accused has licked accordingly, she has deposed before the Court. It is unsafe to rely on the evidence of the tutored witness. I am conscious of the fact that the testimony of child witness is not required to be rejected per se but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality and reliability can record conviction. This proposition of law has been laid down in the case of Golla Yelugu Govindu (quoted supra) wherein at paragraph No.11, it has been observed as under.
22. In that light the evidence of the victim, on close scrutiny, it is not considered to be trust-worthy to rely and convict the accused and even the evidence of PWs.3 and 5 also does not corroborates the version, which has been taken in this behalf.
23. When the material placed before the Court is shakey and unreliable, under such circumstance, the accused is entitled to be given the benefit of doubt.
24. Taking into consideration the above said facts and circumstances, I am of the considered opinion that the trial Court without looking into the evidence and material placed on record has come to a wrong conclusion and has wrongly convicted the accused.
25. The discovery and vindication and establishment of truth are the main purposes certainly of the existence of courts of justice and the Court should act upon the evidence which has been produced. In the case of Jahira Habibulla Sheikh (5) and Another (quoted supra) wherein at paragraph Nos.31 and 35 it has been observed as under:
“31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as “one of the ablest judgements of one of the ablest judges who ever sat in this Court”, Vice-Chancellor Knight Bruce said [Ed.: Pearse v. Pearse, (1846) 1 De G&SM 12 : 16 LJ Ch 153 : 63 ER 950 : 18 Digest (Repl.) 91, 748] (ER p. 957):
“The discovery and vindication and establishment of truth are main purposes certainly of the existence of courts of justice; still, for the obtaining of these objects, which, however, valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination …. Truth, like all other good things, may be loved unwisely—may be pursued too keenly—may cost too much.”
The Vice-Chancellor went on to refer to paying “too great a price … for truth”. This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: “The evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards.”
35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affects the whole community as a community and is harmful to society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice— often referred to as the duty to vindicate and uphold the “majesty of the law”. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.”
26. Keeping in view the above said proposition of law, if the entire evidence is looked into, the evidence which has been produced does not repose the confidence and something has been suppressed in this behalf. Even it has been suggested during the course of cross-examination of PW.2, some financial transaction existed and in this behalf a galata took place and the said suggestion has been denied.
27. On going through the evidence, when the evidence of victim is not cogent, trust-worthy and tutored one, then other evidence is not going to help the case of the prosecution. Evidence produced is not cogent enough to prove the alleged incident on the victim. Thus the prosecution has failed to convincingly establish the guilt of the accused beyond the shadow of all reasonable doubt.
28. Taking into consideration of the above said facts and circumstances, I am of the considered opinion that the appellant has made out a case to interfere with the judgment of the trial Court. In that light, appeal is allowed and the judgment of conviction and order of sentence passed by the Court of VI Additional District and Special Judge, Mysuru in S.C.No.342/2016 dated 14.01.2019 is set aside and the accused is acquitted of the charges leveled against him.
The trial Court is directed to refund the fine amount, if he has deposited, on proper identification and acknowledgement. His bail bond and surety bond stood cancelled.
Sd/- JUDGE VBS