Dismissed

State of Karnataka v. Ganesh @ Ganapati

Karnataka HC18 Aug 2020CRL.A/100098/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the criminal appeal filed by the State. The court held that the Special Court's acquittal of the respondents for rape and abduction was not perverse or irregular, as the prosecution failed to prove the elements of the offences beyond reasonable doubt.

What did the court decide?

The criminal appeal was dismissed. The judgment of the Special Court acquitting the respondents was affirmed.

State of Karnataka Vs Ganesh @ Ganapati — Writ and Judicial Review | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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Dated this the 18^th day of August 2020

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Present

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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and

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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Criminal Appeal No.100098 of 2016

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Between

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State of Karnataka Represented by the Police Sub-Inspector, Kudachi Police Station, Belagavi, through the Addl. State Public Prosecutor, Advocate General Office, High Court of Karnataka, Dharwad Bench. ...Appellant

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(By Sri. V.M.Banakar, Addl. SPP)

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And

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Ganesh @ Ganapati S/o Laxman Sannakinavar, Age: 24 Years, Occ: Coolie,

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Anand Sathyappa Sannakinavar Age: 32 Years, Occ: Agriculture,

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Both are residents of Hidkal, Taluk: Raibag, Dist: Belagavi. ...Respondents

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(By Sri. M.B. Gundawade, Advocate for R1 & R2)

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This Criminal Appeal is filed under Section 378 (1) and (3) of Cr.P.C., seeking to set aside the judgment dated 30/11/2015 passed by the Special Court (POCSO) & (SC & ST, Atrocities Court) and III Addl. District and Sessions Court, Belagavi In S.C. No.222/2013 by allowing this criminal appeal and convict the respondent/accused in accordance with law for the offences punishable under Sections 366, 376, 420, 506 R/W Section 34 Of IPC and Section 4 of the POCSO Act 2012.

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This Criminal Appeal coming on for Hearing this day, B.M. SHYAM PRASAD., J, delivered the following:

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JUDGMENT

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The State is in appeal calling in question the judgment dated 30^th November 2015 in S.C. No.222 of 2013 on the file of the Special Court (Protection of Children from Sexual Harassment and Prohibition of Atrocities against SC/ST persons) and the III Additional District and Sessions Judge, Belagavi (for short, ‘the Special Court ’) whereby, the respondents are acquitted of the offences punishable under Sections 366 376, 417 and 506 read with Section 34 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual

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Offences Act, 2012 (for short, ‘ the POCSO Act’) .

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The prosecution’s case is based on the first information filed by the victim, and the substance of the allegation is:

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2.1 As of 02.03.2013, the victim was studying in I P.U.C. in Modern Independent Pre-University College, Harugeri. The first respondent and three others accosted her when she was returning home by walk after finishing her examination. This was on HarugeriTeredala Road. The first respondent insisted upon the victim to accompany him on his motorcycle saying that she knew that he and his family members had already initiated talks for matrimonial alliance between them. When she refused, the first respondent and his friends threatened her stating that if she did not accompany them, they would do away with the life of her parents. The first respondent thus abducted the victim.

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2.2 The first respondent took her to Raibag and she was detained on a hillock, and later, the first

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respondent took her to “ Shahu Maharaj Rajwade ” situate behind RVR College, a secluded place. The first respondent sexually assaulted her around 7’O clock in the evening, and the first respondent again sexually assaulted late in the evening at around 11’O Clock. The first respondent was trying to placate her saying that they would anyway eventually be married to each other.

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2.3 The first respondent on the next day, i.e. on 03.03.2013, took her to Santubai Temple, Raibag, and to Chinchali Mayappa Temple and Aranya Siddeshwara Temple in Yelbaratti. He took a vow to marry her before the deities in these temples. The first respondent later accompanied her to Harugeri Bus stand and from there she reached her home alone.

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2.4 On reaching home, she related the incident to her parents, who were anxious about missing overnight, and they reached out to the first respondent and asked him to marry the victim. But, the first respondent refused. The victim and her family members

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approached the jurisdictional police. The second respondent, the first respondent’s brother, called up the victim’s elder brother and warned the victim and her family members against taking up the complaint with the senior officers.

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The jurisdictional police on receipt of the aforementioned first information from the victim registered FIR in Crime No.52 of 2013 for offences punishable under Sections 143, 147, 366A, 376, 506 read with Section 149 of IPC. The jurisdictional police filed charge-sheet against the respondents after investigation for offences punishable under Section 366, 376, 420, 506 read with section 34 of IPC and Section 4, 6 and 17 of the POCSO Act. The first respondent was in judicial custody, and the second respondent was on anticipatory bail. The learned magistrate committed the case for trial by the Principal District Judge, Belagavi. The first respondent was also enlarged on bail.

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4. The Principal District and Sessions Judge,

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Belagavi, upon hearing the learned counsel for the respondents and the learned Public Prosecutor, framed charges against the respondents for the offences punishable under the aforesaid provisions. The respondents, when the charge was read over and explained to them, did not plead guilty and claim to be tried.

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The trial, though commenced before the Principal District and Sessions Judge, Belagavi, is completed before the Special Court after the case was

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made over to it file by the Principal District and Sessions Judge, Belagavi. The prosecution examined 17 witnesses in support of its case against the respondents. The victim, her father, Sri. Arjun Ramappa Ganiger, and her relative Sri Mahadev Tayappa Ganiger, have been examined as P.W.1, P.W.2, and P.W.5 respectively. The respondents’ sister, Smt. Durgavva Shankar Ganiger, their father, Sri Laxmana

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Pundalik Sannakkinavar, and their brother, Sri Kumar Arjun Ganiger, have been examined as P.W.6, P.W.7 and P.W.11.

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The prosecution to establish the victim’s age and that she was studing in PUC as of the date of the alleged incident, has examined Sri Bhimappa Krishnappa Annanavar, the Head Master, Government Higher Primary School, Yebaratti and Sri. K C Devadas, a retired lecturer of Modern Independent Pre-University College, Harugeri, as P.W.8 and P.W.9. The Prosecution has examined Dr. Adinath Annappa Kudachi and Dr. Ramesh Holeyappa Rangannavar as P.W.14 and P.W.15. The doctors have examined the victim and the first respondent respectively upon the police producing them for physical examination.

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The prosecution has examined certain panch witnesses and also certain police personnel. The panchas witness (PW 3 and PW 4) are examined to

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establish drawing up of spot mahazars of the place of abduction and the place of sexual assault and the drawing up of seizure mahazar/s under which certain objects and specimen have been recovered. The police personnel examined are those who have either registered the first information or carried the material objects for forensic examination or completed the other formalities of the investigation: and the Investigating Officers have been examined as P.W.16 and P.W.17.

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The prosecution has marked Exhibit P.1 to P.21. These exhibits include the First Information, photographs of the places from where the first respondent abducted the victim and where the victim was sexually assaulted, spot mahazars, phsycologists report, FSL report, medical report, First Information Report, RTC, call records, the Certificates issued by the Government Kannada Higher Primary School and PreUniversity College and the statements of the witness who have turned hostile. The prosecution has also marked

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material object M.O.1 to M.O.10 which are the victim’s clothes, vaginal/cervical smears and other specimen taken from the victim during the investigation.

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The respondents have not led any evidence but have confronted to the victim an agreement dated 30.05. 2012 styled as ‘ Marriage Engagement Deed’ in her cross-examination, and because the victim has admitted this document, the same is marked as Exhibit D1. Additionally, the first respondent has filed his written statement under section 313 of Cr.P.C.

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The first respondent has stated that he and his family members had been to the victim’s residence for initiating matrimonial alliance between him and the victim. However, on coming to know that the victim’s marriage was finalised with one of his relatives, Sri Shankar Ramappa Sannakkiannavar and there was an agreement between them as per Ex. D1, he and his family members were not willing for finalisation of the

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marriage. He has also stated that after his mother’s demise on 07.01.2013 because there was no female member in the family, he married one of his sister’s daughter on 18.02. 2013 i.e., about 15 days prior to the alleged incident. He is innocent of the offences alleged against him.

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The Special Court has opined that, from the medical report, the testimony of the doctors, the testimony of the staff of educational institutions where the victim studied and the certificates issued by such institutions, it cannot be concluded that the victim was aged below 18 years as of the date of the incident. The Special Court has also opined that the ocular evidence relied upon by the prosecution to establish that the first respondent abducted the victim on her way home from college and the second respondent called up the victim’s elder brother and threatened him cannot be believed.

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Further, the Special Court has opined that

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the prosecution’s case that the victim was sexually assaulted by the first respondent is also not established either by the ocular testimony or by the medical records. Lastly, the Special Court has, after considering the contents of Ex.D.1, and the first respondent’s statement under section 313 of Cr.P.C., has opined that the respondents may be falsely implicated in the case.

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The learned Additional State Public

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Prosecutor argued in support of the appeal contending that the prosecution has placed on record Ex.P.9 and P.10 – certificates issued by the educational institutions

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where the victim studied which establish that the victim was born on 10.05.1996. The victim’s oral testimony is that she was studying, as of the date of the incident, in I P.U.C, and her oral testimony in this regard is corroborated by the testimony of P.W.9, a lecturer of Modern Independent Pre-University College, Harugeri. This evidence read conjunctively establish that the

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victim, as of the date of the incident viz ., 02.03.2013

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was a minor. The Special Court’s finding that the prosecution has not established that the victim was aged below 18 years, disregarding this evidence, is perverse and contrary to law.

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The learned Additional State Public

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Prosecutor also argued that the prosecutrix – victim’s testimony is consistent with the prosecution’s case that the first respondent and his friends abducted her and the first respondent sexually assaulted her on the date of the occurrence not once but twice. The medical evidence also corroborates the prosecutrix’s testimony that the victim was sexually assaulted. In the light of this consistent evidence, the special Court should not have discarded the evidence on the ground that she had

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not mentioned in her complaint about Ex. P 1, an agreement executed between her family members and Sri. Shankar Ramappa Sannakkinavar. But, the Special Court has disregarded prosecutrix - victim’s

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evidence in a manner applying the principle of falus in Uno, falus in omnibus , a principle which does not occupy the status of the rule of law in Indian courts.

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The learned Additional State Public Prosecutor lastly argued that the Special Court should have seen that once the prosecution successfully established that the victim, a minor as of the date of the incident, was abducted and sexually assaulted, the respondents would be guilty of the offences under Section 366, 376 and also Section 4 of the POCSO Act.

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The learned counsel for the respondents, on the other hand, argued that the Special Court has rightly appreciated the evidence on record, and its conclusion that the prosecution has falsely implicated the respondents is unimpeachable. The learned counsel empahsized that the prosecutrix – victim, her father and her brother have admitted unequivocally that they are signatories to Ex.D.1, an agreement relied upon by the

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respondents. The victim’s brother, Sri Kumar Arjun Ganiger (P.W.11) has admitted that Ex.D.1 came about after there were talks between his family members and Sri. Shankar Ramappa Sannakkinavar. The victim’s family members did not inform either the first respondent or his family members when the marriage talks were initiated. These witnesses have also admitted that the first respondent had married his cousin about eight days prior to the alleged date of the incident.

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The learned counsel also emphasised that

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the Special Court has also rightly appreciated the evidence about the abduction in the light of the admitted fact that the victim, right through the alleged time of abduction i.e., from the noon of 02.03.2013 till 03.03.2013 she had her mobile with her and that the victim had traveled on a two wheeler with the first respondent and had been with him to public places.

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These circumstances, as rightly considered by the

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Special Court, belie the accusation of abduction.

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In the light of the rival submissions and the settled law as regards interference in an appeal against acquittal, the following question is framed for the Court’s consideration:

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Whether the Special Court’s finding that the prosecution has failed to establish that the first respondent abducted the victim on 02.03.2013 and he twice committed the offence of rape on her in the evening of 02.03.2013 with the second respondent later threatening her family members is either perverse or irregular.

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The first segment of the prosecution’s case is

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that the first respondent, along with his three friends, accosted the victim while she was on her way home after completing her examination. The prosecution’s specific case is that the first respondent and his three other friends had come on two-wheelers to abduct the

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victim, and she was forced to accompany the first respondent. However, the victim is silent about who those three friends of the first respondent are; and in fact, the prosecution is entirely silent about this. The victim also says she cannot even remember the details of those motorcycles on which the first respondent and his friends had come to abduct her. These circumstances create a very doubt about the first respondent abducting the victim.

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Further, though victim has deposed that

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that the first respondent took her to a secluded place and committed rape on her in such secluded place once around 7’O clock in the evening and later again around 11’O clock; she has also deposed that the first respondent took her to different religious places and took a vow in these places to marry her. She has further stated that the first respondent later dropped her at Harugeri Bus stand. Significantly, the victim has also deposed that she had with her mobile and she had the

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numbers of her parents and friends on such mobile. The victim has not explained why she could not alert others despite being in public place and having access to her parents and people of acquaintance, especially before the first respondent allegedly raped her. These circumstances further reinforce doubt about the prosecution’s case that the victim was abducted or that she was under duress: rather these circumstances indicate that the victim was not under any duress. Thus, the first segment of the prosecution’s case is rendered very doubtful.

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The prosecution’s case is that the victim was born on 10.05.1996 and that she was below 17 years as of the date of the incident, 02.03.2013. The prosecution relies upon the evidence that the victim was studying in I P.U.C. as of the date of the incident and the certificates issued by the educational institutions to establish that the victim was aged below 17 years. The Head Master of the Government Kannada Higher

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Primary School, who has deposed that the victim has studied from I Standard to VIII Standard in this school, has stated that the Birth certificate ( as per Ex.P.9 ) is issued on an application submitted by the victim’s brother and that he has issued such certificate after perusing the admission register pertaining to the I Standard of the relevant Academic Year. But, he admits that even if the child is not 5 years and 10 months as of the date of the admission, a child is admitted adding two years to the age at the request of the parents. He also says he cannot say on what basis the victim’s date of birth is entered in the admission register.

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The doctor Sri Adinath Annappa Kudachi (P.W.14), in the Report – Ex. P. 23 – which is furnished after the physical examination of the victim - Ex.P.23, has opined that the victim could be aged between 15 to 20 years, and the doctor in his evidence has reiterated this testimony. Though it is stated that the victim was studying I P.U.C. in Modern Independent Pre-University

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College, Harugeri, which would pre-suppose that she would have completed her SSLC, the SSLC marks card is not produced. This failure would be material in the light of the testimony as discussed above.

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The Hon’ble Supreme Court in Jarnail Singh Vs. State of Haryana¹ , has reiterated that the age of the victim should be determined even for the purposes of POCSO Act applying Rule 12 of the Juveline Justice (Care and Protection of Children ) Rules, 2007 wherein, it is stipulated that age of a juvenile shall be decided by obtaining the matriculation or equivalent certificate, if available; and in the absence thereof, by obtaining the date of birth certificate from the school first attended by the juvenile. In the present case there is no explanation as to why the SSLC Marks Card issued by the SSLC Board could not be placed on record. Even otherwise, for the reasons discussed above, this Court is also of the considered opinion that

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1 (2013) 7 SCC 263

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the testimony of the Head Master of the School or the Certificate would not be sufficient to establish that the victim was aged below 18 years as of the date of the incident. The Special Court’s finding in this regard cannot be called either perverse or irregular.

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The doctor - Sri Adinath Annappa Kudachi (PW-14) - has stated that when the victim was brought to the BIMS Hospital, Belagavi, he referred her for examination by a lady doctor and based on the report by a lady doctor, he has opined that the victim’s hymen was not in tact and that there were no vaginal tear or injury. The doctor has also spoken about the FSL Report submitted after the microscopic study of cervical and vaginal smears for spermatozoa. The FSL Report is that these smears were negative for spermatozoa. This evidence is significant in assessing the evidence as regards the accusation of rape.

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The victim has stated that she suffered

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bleeding injuries when the first respondent sexually assaulted and committed penetrative offence. She has, in fact, stated that her clothes were blood stained and she visited different places such as temples and a hotel with the first respondent wearing such blood-stained clothes. But, the doctor’s evidence is that there was no tear or other injury in her vagina or genitalia. The clothes allegedly worn by the victim were blood-stained but none of the panch witnesses have supported the prosecution case about seizure of such blood-stained

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clothes and the Investigating Officer has also not spoken about the clothes being subjected to any forensic examination. The Panch witnesses have turned hostile, and they do not support any part of the prosecution’s case. Their evidence is that they were called upon to sign certain documents and therefore they signed such papers otherwise they do not know the contents of the document. These material

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circumstances will have to be considered in assessing whether the prosecution has been able to establish, beyond reasonable doubt, that the first respondent committed rape of the victim.

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The respondents’ sister, (PW 6) has stated

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about she accompanying the first respondent to the victim’s house to seek her hand in marriage for the first respondent. Their father (PW -7) has stated that they had seen about 5-6 girls to finalise the first respondent’s marriage, but he does not know about his daughter and the first respondent visiting the victim’s house to seek her hand in marriage to the first respondent. Crucially, the victim as well as her brother (PW.11), while admitting that the first respondent and the sister had called on them/their family to seek the victim’s hand in marriage, have spoken about the prior agreement with a certain Sri Shankar Ramappa Sannakkinavar, and this person,

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Sri Shankar Ramappa Sannakkinavar, agreeing in

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writing not to disturb the victim until she was a major.

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The victim’s father (PW 2) has also admitted that neither the first respondent nor his sister (P.W. 6) was informed about this agreement with Sri Shankar Ramappa Sannakkinavar when they had come home to seek the victim’s hand in marriage to the first respondent. There is no dispute that the first respondent had married his cousin a few days prior to the alleged date of occurrence.

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The Special Court, while appreciating the prosecution’s evidence to conclude on its probative value, has considered these circumstances. The contention that the Special Court has considered the evidence applying the principle of falus in uno, falus in omnibus will have to be considered in the light of the

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settled law. The settled law is that while this principle does not occupy the status of rule of law and is merely a rule of caution, the courts must assess the extent to which the testimonies of witnesses can be relied upon. A Court must make every attempt to separate falsehood from truth, and only in exceptional circumstances, when it is entirely impossible to separate the grain from chaff, for the same are so inextricably intertwined, that the entire evidence of such a witness must be discarded. A useful reference in this regard could be made to the decision of the Hon’ble cab Sessions Court in Yogendra

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v. State of Rajasthan² .

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The accusation, given the facts and circumstances of the case, will also have to be examined in the background of the admitted antecedent circumstances such as the agreement between the victim’s family and Sri Shankar Ramappa Sannakkinavar for their marriage, the first respondent

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2 (2013) 12 Supreme Court Cases 399

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under sister calling upon the victim’s family to seek the victim’s hand in marriage to the first respondent and the first respondent marrying his cousin thereafter but before the date of occurrence. The special court has accordingly examined the evidence, and its appreciation is only to separate the grain from the chaff and disbelieving the evidence on record. This Court is of the considered view that the Special Court has not appreciated the evidence on record applying the principle of falus in uno, falus in omnibus.

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This Court, for the reasons discussed is also of the considered opinion that the accusation against the respondents that the first respondent abducted the victim with the aid of his friends, committed rape on her, accompanied her to different places - including temples to take of a vow to marry her, the first respondent spurned the victim when her parents reached out to him to marry the victim after they came to know about the incident and the second respondent

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threatened the victim’s family, is not established beyond reasonable doubt.

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For the foregoing, this Court is of the considered view that Special Court’s judgment does not suffer from any perversity or irregularity. The appeal lacks merits, and is accordingly dismissed.

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Sd/JUDGE

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Sd/JUDGE

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Kms

State of Karnataka v. Ganesh @ Ganapati

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Ganesh @ Ganapati

Case brief

What is this about?

What did the court decide?

What the court decided

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