In a criminal appeal challenging a judgment of acquittal, the High Court upheld the trial court's decision due to discrepancies in prosecution witness evidence and insufficient medical corroboration regarding the alleged rape and trespass.
The criminal appeal filed under Section 378 Cr.P.C. is rejected; the judgment of acquittal is confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF NOVEMBER, 2022
PRESENT
THE HON’BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON’BLE MR. JUSTICE C.M.JOSHI
CRIMINAL APPEAL NO. 1090 OF 2016
BETWEEN:
State of Karnataka By Mandya East Police Rep. by State Public Prosecutor High Court Building Bengaluru – 571401.
...Appellant
(By Sri. Abhijith K S - HCGP)
AND:
Permanent Address: Kiragasuru Village B.G. Pura Hobli Malavalli Taluk-571430.
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...Respondents
(By Sri. K.J. Gopi – Advocate for R-1; R-2 served and unrepresented)
This Criminal Appeal filed under Sec.378(1) and (3) of Criminal Procedure Code, praying to a) grant leave to appeal against the judgment and order of acquittal dated 31.10.2015 passed by the learned I-Addl. District and Special Judge, Mandya in Spl. Case No.49/2014 acquitting accused/respondent of the offence punishable under Sections 376 and 450 of IPC r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012; b) set aside the aforesaid judgment and order of acquittal dated 31.10.2015 passed by the learned I-Addl. District and Special Judge, Mandya in Spl. Case No.49/2014 acquitting accused/respondent of the offence punishable under Sections 376 and 450 of IPC r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012; c) convict and sentence the respondents for offence punishable under Sections 376
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and 450 of IPC r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012.
This criminal appeal coming on for dictating judgment this day, K Somashekar .J ., delivered the following:
J U D G M E N T
In this appeal the appellant/State is challenging the judgment of acquittal rendered by the trial Court in Spl.C.No.49/2014 dated 31.10.2015 acquitting the accused for the offences punishable under Sections 376 and 450 of IPC and Section 6 of the POCSO Act, 2012. In this appeal seeking to set-aside the judgment of acquittal by considering the grounds urged in this appeal and convict the accused for the offences which are leveled against him.
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respondent No.2 – Smt.Savitha, but remained absent.
Perused the judgment of acquittal in Spl.C.No.49/2014.
It is transpired in the case of the prosecution that
Smt.Savitha, w/o Ramesh had filed a complaint before the jurisdictional police at Mandya East Police and based upon that complaint, criminal law was set into motion for the offence under Section 376 of IPC and Section 6 of the POCSO Act, 2012. It is further alleged in the complaint that accused with an intention of committing sexual intercourse with victim who is the daughter of CW.1, entered into the house of Nagamma, in which CW.1 and her family are residing on rent. The accused knowing that there was no other person except the victim, asked her, where her parents had gone and after coming to know that her parents had gone outside, the accused all of a sudden caught hold the victim firmly and kissed on her cheek. When the victim tried
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to cry for help, the accused closed her mouth and forcibly removed her dress and had forcible sexual intercourse with the victim. These are the allegations made by the complainant in the complaint against the accused, based upon which the case in Crime No.36/2014 came to be registered for the aforesaid offences.
jurisdictional police whereby the investigating officer took up the case for investigation and thorough investigation was done. During the investigation, the IO recorded the statement of witnesses and so also, drew the mahazar in the presence of the panch witnesses and also secured the material documents as required under Section 173(2) of Cr.P.C. and thereafter, laid the charge sheet before the Court having jurisdiction. Subsequently, the case was committed to the court of Sessions by passing an order under Section 209 of
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Cr.P.C. Subsequent to committing the case by the committal court, the case in Spl.C.No.49/2014 was registered. The accused was secured and the trial Court heard learned Public Prosecutor for State and defense counsel for the accused relating to framing of charge. On finding prima-facie materials against the accused in the charge sheet laid by the IO, and heard on charges on both sides. The charges were read over to the accused in language known to him. But the accused did not pleaded guilty, but claimed to be tried. Accordingly, the plea of accused was recorded separately.
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come forward to adduce any defence evidence as contemplated under Section 233 Cr.P.C. However, the accused was not inclined to lead any defence evidence. Accordingly it was recorded.
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Psychiatrist who was subjected to examination of victim. PW.13 – K.Thomas is the Director of Mentally retarded school whereby subjected to examination of PW.2 being the victim. PW.14 – Chayakumari is the FSL Officer who issued FSL report at Ex.P7 and subjected to analyse the material objects secured by the investigating officer and forwarded for chemical examination. PW.16 – Nagegowda is the IO in part and PW.17 – Harishbabu is also IO in part. But PW.18 being the IO had completed the investigation and laid the charge sheet against the accused. But the criminal law was set into motion on receipt of complaint at Ex.P1 and recorded the FIR at PW.15. However, in the totality of the evidence on record which finds place on the part of the prosecution, and evidence of the victim and also the medical evidence which facilitated by the prosecution even makes it improbable the case alleged by the prosecution against the accused as contended by defence counsel. Moreover, PW.2 being the victim has
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clearly stated in her evidence that she did not know what is the intercourse and facts deposed in her evidence are stated by her as told by her mother who is the author of the complaint and based upon her complaint, criminal law was set into motion. But the evidence forthcoming from PW.1 that after the incident she called the accused over phone and the accused came to her house and denied commission of rape, which creates doubt in the mind of Court regarding the alleged incident as come to her knowledge. If at all the accused committed rape on the victim, he should not have come to the house of PW.1 when he was called by PW.1 over phone immediately after the alleged incident. The totality of evidence on record clearly creates doubt in the mind of the Court regarding the alleged incident. Therefore, it was held that the prosecution has to prove the case charged against the accused beyond all reasonable doubts are doubtful. If there is any doubt forthcoming on record, certainly the accused is entitled
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to benefit of such doubt. Accordingly, the trial Court held that the prosecution has failed to prove the case against accused beyond all reasonable doubt and rendered the impugned judgment acquitting the accused for the offences under Section 376 and 450 of IPC r/w Section 6 of the POCSO Act, 2012. It is this judgment which has been challenged under this appeal by urging various grounds.
has contended that the trial court has not properly appreciated the evidence of PWs.1, 2 and 3 being the material witnesses to the case of the prosecution. Further, it is contended that the trial Court ought to have considered the fact that as per Section 134 of Evidence act, no particular number of witnesses are required to prove any fact. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. The Court has to look
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for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness as per the Judgment of the Hon’ble Supreme Court reported in AIR 2003 SC 854 in the case of Lallu Manjhi vs. State of Jharkhand.
to have properly analysed the evidence of PWs.4, 5 and 6 in proper perspective. The trial Court has failed to consider the fact that while incriminating material evidence has been read over to the accused while examining him under Section 313 of Cr.P.C. but he has not offered proper explanation to the same. Therefore, learned HCGP emphatically contends that, it requires re-appreciation of evidence and so also, revisiting the impugned judgment rendered by the trial Court, if not, there shall be some miscarriage of justice. On all these premises, learned HCGP for State seeks intervention of impugned judgment and consequently, to set-aside the
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judgment of acquittal and to convict the accused for the offence punishable under Section 376 and 450 of IPC r/w Section 6 of POCSO Act, 2012.
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coming to her house regarding the said loan transaction. Therefore, the hearsay version of PW.1 regarding the alleged incident does not stand for consideration. It is contended that there is discrepancy in the evidence of PW.1 regarding seizure of clothes of victim by the police. The victim in her crossexamination has stated that she does not know who obtained her signature to the document at Ex.P3 – spot mahazar and she does not know what is written in the said mahazar. Further, it is contended that Ex.P1 is the written complaint given by PW.1 to the police on 8.3.2015 on the date of alleged incident itself. But PW.3 in his evidence regarding the alleged incident that as contrary as such Ex.P1 is not in accordance with the case of prosecution. The case is registered against the accused since he demanded for repayment of loan from PW.1. It is contended that unless there is corroborative medical evidence, the offence of rape cannot be taken as proved beyond all reasonable doubt. PW.4 – Bhagya,
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PW.5 – Subbalakshmi and PW.6 – Yashodamma who
are the neighbouring witnesses did not withstood their version of statements and hence, they were treated hostile. Further, the evidence of PW.7 and PW.8 is in no way helpful to the case of the prosecution. PW.3 is the father of the victim but the evidence of PWs.1 to 3 runs contrary to the evidence of PWs.4 to 6. The rest of the witnesses are only official witnesses such as PW.9 – Dr.Deepthi, PW.10 – Dr.Ashwin Narayan and PW.11 – Dr.Bhagyavathi, PW.13 – K.Thomas, Director of Mentally retarded school, PW.14 – Chayakumari is the FSL officer who issued Ex.P7 and PWs.16, 17 and 18 are the IOs who conducted the investigation. PW.17 who is the IO in part has clearly stated that he did not follow the provision of Sectoin 53-A of Cr.P.C. and as per the evidence of PW.14 who is Scientific Officer of RFSL, Mysore, it is clear that no DNA profile of seminal stain was done to ascertain whether the seminal stain found on the clothes of victim is that of the accused.
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The evidence on the part of the prosecution evidence has been shaky and no evidence has been forthcoming on the part of the prosecution to prove the guilt against the accused. Accordingly, the trial Court on appreciation of oral and documentary evidence on record has rightly come to the conclusion that there is discrepancy in the evidence of prosecution witnesses and the medical evidence does not corroborate the evidence of victim to prove that there was rape committed on her. Therefore, the trial Court has held that the accused is not found guilty of the offence charged against him and accordingly, acquitted the accused for the charges leveled against him. There are no justifiable reasons to interfere with the impugned judgment of acquittal, as there is no perversity, absurdity or any illegality committed by the trial Court relating to rendering the impugned judgment. Therefore, it is contended that the appeal preferred by the state deserves to be rejected being devoid of merits.
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learned HCGP for State and so also, learned counsel Sri K.J.Gopi for respondent / accused it is relevant to refer the evidence of PW.1 – Savitha who is the author of the complaint and also mother of victim PW.2 based upon her complaint the criminal law was set into motion. She was subjected to examination and also stood for cross-examination relating to the alleged offences against the accused. She has specifically stated in her evidence that after knowing of the alleged incident, she called the accused over phone and then the accused came and stated that he did not do anything. Further, she has stated that on the same day she gave complaint to the police as per Ex.P1. After registering the case the police took the victim along with her to the hospital and victim was subjected to medical examination. The medical report of the victim is marked at Ex.P2 and the signature of PW.1 in Ex.P2 is marked at Ex.P2(a). The PW.1 has also stated that the police came to the spot
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and drew mahazar and took the clothes of victim. PWs.4, 5 and 6 are material witnesses on the part of prosecution and also neighbourers, but they did not withstood the version of their statements and they have turned around and they were subjected to crossexamination and even incisive cross-examination has been done by the prosecution, but nothing worthwhile has been fortified in the evidence of PW.1 and 2 relating to the incident. PW.1 in her cross-examination has admitted that she knows the accused since 6 to 8 years and she was in the habit of taking loan from the accused. The accused was coming to her house regarding the said loan transaction. The relevant portion of her evidence has been extracted at para-11 of the impugned judgment. The trial Court held unless there is evidence of victim regarding the alleged rape and also medical evidence, the hearsay version of PW.1 regarding the alleged incident does not stand for consideration. Moreover, as alleged by counsel for
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accused, there are discrepancy in the evidence of PW.1 regarding seizure of clothes of victim by the police. PW.1 in her evidence has stated that there are no clothes at the spot of incident except the clothes of PW.2.
examination has stated that she does not know who obtained her signature to the mahazar at Ex.P3 and she
does not know the contents of the said mahazar. Therefore, it is clear that she has given her evidence as stated by her mother – PW.1. The victim is said to be mentally retarded person.
has examined the accused and given report as per Ex.P9 regarding the potentiality of accused performing the act like sexual intercourse. The accused was subjected to medical examination on the alleged date of incident and PW.10 has given report that the accused is
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capable of performing the act like sexual intercourse. He has stated that except physical examination of accused he has not done any examination. But at a cursory glance of evidence of PW.10 and Ex.P9 are taken into consideration to come to the conclusion that the accused is capable of performing act like sexual intercourse, but it does not prove that the accused committed the offence charged against him, unless the prosecution proves beyond all reasonable doubt that the accused has committed the offence of rape on the victim on the date of alleged incident, it can not be held that, the prosecution has proved the suit.
MIMS who examined the victim and gave report as per Ex.P11 stating that the victim is having IQ 44% moderate mental retardation. But she has not been cross-examined by the defense counsel. But even if the report is accepted that the victim is mentally retarded
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girl, but her statement was recorded by the police without the aid of any expert and it is pertinent to note that the victim gave evidence before the trial Court without the aid of any expert. PW.17 being the IO has not taken any steps to record the statement of victim in such a manner of recording the statement of mentally retarded girl. He has not taken any step to record the statement of PW.2/victim with the aid of expert considering that the victim is mentally retarded girl. Therefore, the evidence of PW.17 clearly shows that there is no corroborative medical evidence to prove that accused committed rape on the victim and the doubt arises regarding the alleged incident itself.
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case. PW.18 – Balu H.N. the then PSI took further investigation of the case from PW.16 and since the investigation was over, he filed charge sheet. Except filing of charge sheet, nothing was done by him regarding the investigation.
founds that there are discrepancy in their evidence regarding the alleged incident and there is absolutely no independent corroborative evidence forthcoming from the prosecution to prove that the victim was subjected to sexual intercourse by the accused. However, it requires in the case of offence of rape, expectation of corroborative evidence does not arise. But in the case on hand, even the medical evidence on record also does not prove beyond all reasonable doubt that the alleged incident to make out the case charged against the accused for the offence punishable under Section 376 of IPC and Section 6 of the POCSO Act.
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charged against accused, it is relevant to state that when there is no evidence to prove that the accused has committed any rape on the victim, the allegation of prosecution against the accused that he trespassed into the house of PW.1 to PW.3 with an intention to commit rape does not arise. Even at a cursory glance of evidence of PW.1 and PW.2, it is clear that the accused used to come to the house of PW.1 to PW.3 for collecting loan amount availed by PW.1 from him, which was due as on the date of alleged incident. The said fact is admitted by PW.1 and PW.3 in their evidence in the cross-examination. But there is no evidence to show that there was any intention in the accused to commit any offence when he came to the house of the victim. Therefore, the prosecution has miserably failed to make out the case against the accused for the offence under Section 450 of IPC.
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support the case of prosecution in making out any case against the accused for the offence under Section 376 of IPC and Section 6 of POCSO Act.
that he did not follow the provision of Section 53-A of the Cr.P.C. The materials on record also show that no DNA profiling was done in respect of seminal stains found on the clothes of victim and also on the underwear of accused. Further, in the medical evidence and also in the evidence of PW.14, the Scientific Officer
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of RFSL, Mysore, it is clear that no DNA profiling of seminal stain was done to ascertain whether the seminal stain found on the clothes of victim is that of the accused. The evidence of victim coupled with medical evidence on record makes improbable the case of the prosecution against the accused. Moreover, the victim has clearly stated that she did not know what is intercourse and the facts stated by her in her evidence are stated by her as told by her mother. PW.1 has stated that after the incident she called the accused over phone and the accused came to her house and denied the commission of rape which creates doubt in the mind of Court regarding the alleged incident. If at all the accused committed rape on the victim, he should not have come to the house of PW.1 when he was called by PW.1 over phone immediately after the incident. Moreover, in the cross-examination of PW.1 to PW.3, it is clear that the accused admitted that he went to the house of PW.1 only to demand repayment of loan
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availed by PW.1 from him. Further, the evidence of PW.7 and PW.8 is no way helpful to the case of prosecution. However, in the totality of evidence on record creates doubt in the mind of the Court regarding the alleged incident and such evidence does not inspire confidence of the Court to record conviction against the accused for the offence under Sections 376 and 450 of IPC and Section 6 of the POCSO Act, 2012. When there is discrepancy in the evidence of prosecution witnesses and the medical evidence does not corroborate the evidence of victim to prove that there was rape committed on the victim, the trial court rightly held that it is unwarranted to record conviction against the accused for the offences charged against him.
reported in 2014 (2) Crimes 207 (SC) in the case of offence of rape, it is held that “in the criminal trial, in case of fault investigation, benefit must go to the
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accused. Conviction cannot be passed on probabilities.” Moreover, in the case on hand the totality of evidence and the cumulative effect of materials on record make the incident, as alleged by the prosecution, improbable. Even on the close scrutiny of evidence of PWs.1 to 3 and so also, evidence of PW.15 who recorded the FIR as per Ex.P15 and evidence of PW.16, PW.17 and PW.18 being the Investigating Officers does not make out any case against the accused for the offences charged against him. Their evidence runs contrary to the evidence of PWs.4, 5 and 6 who are the neighbourers of the house of the victim and further contrary to the evidence of PWs.1 to 3 being the complainant and mother of victim, victim and so also the father of victim respectively. Their evidence runs contrary to each other. Therefore, when there is discrepancy in the evidence of prosecution witnesses and the medical evidence does not corroborate the evidence of victim to prove that there was rape committed on the victim by the accused.
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However, the prosecution has to prove the charges leveled against the accused beyond all reasonable doubt and if there is any doubt forthcoming on record, the accused is entitled to benefit of such doubt.
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leveled against him. The trial Court has assigned justifiable and also sound reasons keeping in view the evidence of PWs.1 to 3 being the material witnesses, and also the evidence of PWs.16, 17 and 18 inclusive of the medical evidence. But the evidence did not inspire confidence of the Court to record conviction against the accused for the offence under Sections 376 and 450 of IPC and Section 6 of the POCSO Act. Therefore, rightly held that the accused is found not guilty of offence charged against him and the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and consequently, rendered the acquittal judgment, which does not call for interference. Therefore, in terms of the aforesaid reasons and findings, we are of the opinion that the appeal filed by the State is found to be devoid of merits and deserves to be rejected. Accordingly, we proceed to pass the following:
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ORDER
The appeal preferred by the appellant / State under Section 378(1) and (3) of Cr.P.C. is hereby rejected. Consequently, the judgment of acquittal rendered by the trial Court in Spl.C.No.49/2014 dated 31.10.2015 is hereby confirmed.
Sd/JUDGE
Sd/JUDGE
DKB
3 issues framed by the court
Whether the High Court ought to interfere with the trial court's judgment of acquittal due to discrepancies in prosecution evidence and lack of medical corroboration.
Whether the benefit of doubt entails acquittal when the medical evidence fails to corroborate the victim's statement proving rape.
Whether the prosecution has proved its case beyond reasonable doubt under Sections 376 IPC and 6 POCSO Act.
Colour shows how this judgement treated each authority
Lallu Manjhi vs. State of JharkhandReferred¶51
AIR 2003 SC 854 · Who else cites this
Parminder @ Ladka Pola vs. State of DelhiReferred¶92
2014(1) Crimes 176 (SC)
Prakash vs. State of KarnatakaReferred¶102
2014 (2) Crimes 207 (SC)
3 provisions across 3 enactments
State of Karnataka By Mandya East Police Rep. by State Public Prosecutor
Bhojaiah @ Bhojappa S/o Late Mayigowda
Smt. Savitha W/o. Ramesh
K Somashekar
C.M.Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
