Dismissed

State of Karnataka v. Manju S/O Sannaningappa Shiggavi

Karnataka HC20 Dec 2021CRL.A/100086/2019

Case brief

AI extract

What is this about?

State Criminal Appeal challenging acquittal in rape case. Trial Court acquitted due to unreliable prosecutrix evidence and hostile testimony. High Court upheld acquittal, finding prosecutrix turned hostile and version inconsistent with mother's complaint, distinguishing relied precedents citing lack of independent corroboration.

What did the court decide?

Criminal Appeal dismissed upholding acquittal of the accused for offences under Sections 363, 376 IPC and POCSO.

State of Karnataka Vs Manju S/O Sannaningappa… — Criminal Trial and Appeal | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 20^TH DAY OF DECEMBER, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

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AND

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THE HON’BLE MS.JUSTICE J.M. KHAZI

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CRIMINAL APPEAL NO.100086/2019

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BETWEEN

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STATE OF KARNATAKA, REP. BY THE SUB-INSPECTOR OF POLICE, SAVANUR POLICE STATION, DIST: HAVERI. THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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...APPELLANT

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(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)

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AND

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MANJU S/O SANNANINGAPPA SHIGGAVI, AGE: 24 YEARS, OCC: GOUNDI, R/O: ALLIPURA, TALUK: SAVANUR, DIST: HAVERI.

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…RESPONDENT

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(BY SRI.SHIVASAI M. PATIL, ADV.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1) AND (3) OF CR.P.C. PRAYING TO SET ASIDE AND GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 25.08.2018 PASSED IN SPL. S.C. NO.34/2015 BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE, HAVERI, AND TO CONVICT THE ACCUSED FOR OFFENCES PUNISHABLE UNDER SECTIONS 363

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AND 376 OF IPC AND UNDER SECTIONS 4 AND 6 OF POCSO ACT, 2012.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.12.2021, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, J.M.KHAZI J., DELIVERED THE FOLLOWING:

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JUDGMENT

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In this appeal filed under Sections 378(1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.” for short), the State has challenged the acquittal of accused for the offences punishable under Sections 363, 376 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC” for short), Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act” for short).

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For the sake of convenience, the parties are referred to by their rank before the Trial Court.

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A charge sheet came to filed against the accused in Special Sessions Case No.34/2015 on the file of Principal District and Sessions Judge and Special Judge at Haveri, alleging that on 10.02.2015 at 12 in the midnight, at Allipura Village, while prosecutrix aged 16 years was

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going out of her house without informing anyone, accused knowing fully well that she is a minor, kidnapped her to the land of one Shamshunnisa Kittur in Re. Sy. No.19 and near a defunct well, he committed rape on her and thereby committed the offences punishable under Sections 363, 376 of IPC and Sections 4 and 6 of the POCSO Act.

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Accused pleaded not guilty to the charges levelled against him and claimed trial.

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In support of the prosecution case, 14 witnesses are examined as PWs.1 to 14, Exs.P1 to 17 and MOs.1 to 4 are marked.

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During the course of his statement under Section 313 of Cr.P.C., accused has denied the incriminating evidence. He has not chosen to lead evidence on his behalf.

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After hearing arguments of both sides, vide the impugned judgment and order, accused came to be acquitted.

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During the course of arguments, the learned Additional State Public Prosecutor submits that the impugned judgment and order of acquittal is contrary to law, facts and evidence on record and as such, it is liable to be set aside.

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As on the date of incident, the prosecutrix was aged 15 years 10 months i.e., not completed the age of 18 years. She has specifically spoken to about the sexual assault on her against her consent and will. The Trial Court has rejected her evidence on the ground that she has turned hostile in the cross-examination. Relying upon the decisions of the Hon’ble Supreme Court reported in (2015) 3 SCC 220 in the case of Vinod Kumar Vs. State of Punjab and (2017) 1 SCC 529 in the case of Ramesh and others Vs. State of Haryana, the learned Additional State Public Prosecutor would submit that based on her testimony in the examination-in-chief, the Trial Court ought to have convicted the accused. Without any application of mind and mechanically the impugned judgment and order came to be passed.

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The learned Additional State Public Prosecutor further submits that the evidence of Medical Officer supports the charges levelled against the accused. The Trial Court has rejected the evidence of this witness on the ground that the FSL report is negative, as seminal stains were not detected in MOs.1 to 4. Admittedly, the incident took place on 10.02.2015 and the prosecutrix was examined on 13.02.2015 and therefore, the observation of the Trial Court regarding the absence of seminal stains is not tenable and prays to allow the appeal.

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On the other hand, learned counsel representing the accused supported the impugned judgment and order of acquittal.

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Neither the complaint nor the statement of the prosecutrix under Section 164 of Cr.P.C. reveals ingredients of the offences alleged against the accused. Her evidence on the examination-in-chief is contrary to her statement under Section 164 of Cr.P.C. Again during her cross-examination, she has given a clear go-bye to her version in the examination-in-chief. The evidence of the

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prosecutrix is not reliable. No conviction could be based on such evidence and rightly the Trial Court has rejected the case of the prosecution and acquitted the accused and prays to dismiss the appeal also.

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Heard the arguments of both sides and perused the records.

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It is the case of the prosecution that at the relevant point of time, prosecutrix was aged 15 years 10 months. It is alleged that on 10.02.2015 at 12 in the midnight, when the prosecutrix went out of the house, accused, who is related to her and who was sleeping outside his house, took her to the nearby land and committed rape on her. The defence of accused is one of total denial. He has contended that in the midnight when the prosecutrix came out of the house and on enquiry, she told that she is frustrated by repeated harassment by her mother and wants to commit suicide, he and his family members took her to their house and on the next day, when they wanted to convene a panchayat, the mother of prosecutrix lodged a false complaint.

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PW.4 Abdulbasha Bennuru is the Headmaster of Higher Primary School, Allipura of Savanur Taluk, where the prosecutrix studied. At the instance of the Investigating Officer, he has issued the certificate at Ex.P8 certifying that the date of birth of the prosecutrix is 01.04.1999. The evidence of this witness is not disputed by the defence. Consequently, the prosecution has proved that as on 10.02.2015, the prosecutrix has not completed the age of 16 years.

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On 25.07.2017 with the consent of the defence counsel, the medical examination report of the accused is marked as Ex.P14, according to which, accused is capable of performing sexual intercourse.

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PW.7 Dr.Padmavathi Pattar has examined the prosecutrix on 13.02.2015 at 00:15 hours and given medical report at Ex.P10. Ex.P11 is the FSL report which states that the presence of seminal stains were not detected in the pubic hair, vaginal swab, cervical swab and undergarment of the prosecutrix. Considering the FSL report, she has given final opinion at Ex.P12 that sexual

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assault might have occurred one or two days earlier to her examination.

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PW.1 Kamalavva W/o. Maruti Bellary is the PW.1. She is the mother of the prosecutrix. Her complaint coupled with her testimony indicates that she is having 4 daughters including the prosecutrix. Since 10 years from the date of her giving evidence, her husband is residing separately at Gadag and he has contacted second marriage and therefore, the PW.1 along with her children and mother, is living at Savanur. In the complaint, it is stated that on 10.02.2015 at 10:00 p.m. after having dinner all of them went to sleep, but on the next morning, she found that the prosecutrix is not in the house and therefore, she made enquiry with her relatives and also search for her. On the next day, prosecutrix returned home and on enquiry, she revealed that since PW.1 abuses and assaulted her frequently, on the previous night i.e., at 12 in the midnight, she has left the house. In the complaint, it is further stated that however PW.1 suspects that accused might have taken her and therefore she is filing the complaint.

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As per the complaint averments, the prosecutrix left the house on 10.02.2015 in the midnight and she returned home in the evening of 11.02.2015 and complaint came to be filed on 12.02.2015. In other words, as per the complaint, by the time complaint came to be lodged, the prosecutrix has already returned home.

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However, before the Court, PW.1 has deposed that she gave the complaint two days after the prosecutrix left the home i.e., when she gave the compliant, the prosecutrix has not yet returned. The prosecutrix was brought back by the uncle of the accused and people of her area and on enquiry, the prosecutrix disclosed that accused has raped her and in this regard, she has given further statement. However, as per the complaint, it came to be lodged after prosecutrix has returned, but there is no reference to the accused having committed rape on her. There is material inconsistence in the contents of the complaint as well as her testimony before the Court.

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PW.2 Anjanadevi W/o. Sankappa

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Mannawaddara is the sister of the PW.1 and the aunt of

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the prosecutrix. She is the resident of Hubballi. PW.5 Shekhappa S/o. Hanumanthappa Bevinahalli is the neighbour of the prosecutrix. The testimony of PWs.2 and 5 regarding the alleged rape committed by the accused on the prosecutrix is hear say. They have stated that they came to know about the said incident.

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The prosecutrix is examined as PW.8. Before examining her oral testimony, it is necessary to refer to her statement under Section 164 of Cr.P.C. given before the judicial Magistrate which is at Ex.P13. It is recorded on 16.02.2015. In Ex.P13, the prosecutrix has stated that her mother i.e., PW.1 used to abuse her if she speaks to others smilingly and alleges that she is having relationship with those persons and inspite of prosecutrix doing all the household work, PW.1 used to abuse her and therefore being frustrated, she wanted to commit suicide and she went outside the house. At that time, accused, who is her brother’s son prevented her from going to commit suicide and brought her back to the house. However, her mother refused to take her in saying that she had gone with accused and therefore, she should go with him and closed

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the door. Therefore, the family members of the accused gave her shelter and they wanted to convene a panchayat on the next day. However, by that time, her mother had already given the complaint. In Ex.P13, she has stated that her father is at Gadag and she wants to go with her father and she does not want to go back to her mother.

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However, during the course of her evidence before the Court, the prosecutrix has stated that she and accused were in love with each other and her mother was not in favour of she speaking to the accused. Therefore, accused was pestering her to speak to him whenever she used to go out. Speaking with regard to the incident dated 10.02.2015, prosecutrix has stated that after her mother reprimanded her, she wanted to commit suicide and therefore in between 10:30 p.m. to 12:00 midnight, she went outside the house and at that time, accused was sleeping on the platform (PÀmÉÖ) outside his house came and spoke to her. He prevented her from committing suicide and took her to the land of one Kittur and committed rape on her. On the next day, when she returned home, she informed her mother about the incident, but her mother

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did not allow her to enter the house and asked her to go with the accused. In this regard, PW.1 has given the complaint.

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The testimony of prosecutrix before the Court is totally contrary to her statement given under Section 164 of Cr.P.C. in as much as the version of her mother. So far as her statement under Section 164 of Cr.P.C. is concerned, it is contrary to the prosecution case. Since it is a statement given before the judicial Magistrate, the prosecution could not dispute it and consequently there is no cross-examination of the prosecutrix by the prosecution with regard to the contents of Ex.P13. The prosecutrix is cross-examined by the defence, wherein she has given a clear go-bye to her testimony in the examination-in-chief and admitted that on the night of the incident, when she was going to commit suicide, her relatives and villagers advised her and brought her back on the next day and by that time her mother had already lodged the complaint, she has admitted that accused never committed rape on her. After she gave a clear go-bye to her version in the examination-in-chief, the prosecutrix is treated as hostile

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by the prosecution. During her cross-examination by the prosecution, the prosecutrix has stated that at the instance of her father, they have compromised. However, she has denied that on the night of the incident, accused committed rape on her. The examination-in-chief of the prosecutrix coupled with the evidence of her mother i.e., PW.1, makes it evident that they have not stuck to a definite version. Even the statement of the prosecutrix before the Magistrate is contrary to the case set up by the prosecution.

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The testimony of PWs.1 and the prosecutrix so far as the allegations that accused committed rape on the prosecutrix is not reliable. It is not safe to rely upon such evidence. Consequently, in spite of evidence of PW.4 Abdulbasha Guddesab Bennuru, the Head Master of the School where the prosecutrix was studying that her date of birth is 01.04.1999 and at the time of incident, she was aged 16 years and the medical evidence spoken to by PW.11 that the hymen and fourchette of the prosecutrix were absent, we hold that the testimony of PWs.1 and the prosecutrix with regard to the complicity of the accused is

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not reliable. So far as the decision of the Hon’ble Apex Court in Vinod Kumar’s case, referred to supra, in the present case, prosecutrix herself has turned hostile. Her testimony is not reliable. Her testimony regarding the accused committing rape on her is not supported by any other witness. Since the evidence of the prosecutrix is mutually destructive, no portion of her evidence could be salvaged to bring home guilt to the accused. Consequently, this decision is not applicable to the case on hand.

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So far as Ramesh’s case is concerned, it refers to the tendency of neighbouring, independent as well as related witnesses turning hostile. Had PW.1 and other neighbouring witnesses supported the prosecution case, it coupled with the medical evidence regarding missing of hymen and fourchette could have been of some help to improve the case of the prosecution. In the absence of evidence of any independent witnesses, inasmuch as, the prosecutrix herself turning hostile, the above decision cannot be pressed into service to hold that prosecution has proved the allegations against the accused beyond reasonable doubt.

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Taking into consideration the oral and documentary evidence placed on record, the Trial Court has come to a correct conclusion that the charges levelled against the accused are not proved beyond reasonable doubt and acquitted him. We find no reasons to interfere with the decision of the Trial Court. Consequently, the appeal filed by the State fails and accordingly it is dismissed.

Sd/-

JUDGE

Sd/JUDGE

Rsh / PJ

State of Karnataka v. Manju S/O Sannaningappa Shiggavi

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State of Karnataka v. Manju S/O Sannaningappa Shiggavi

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