The High Court rejected the State's criminal appeal seeking to set aside an acquittal in a POCSO case. The court held that evidence of material witnesses did not support the prosecution version and found no perversity, absurdity, or illegality in the Trial Court's decision.
Criminal appeal rejected; acquittal 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 28TH DAY OF OCTOBER, 2022
PRESENT
THE HON’BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON’BLE MR. JUSTICE C.M.JOSHI
CRIMINAL APPEAL NO. 1528 OF 2016
BETWEEN:
The State of Karnataka Through C.P.I., Kutta Circle Srimangala Police Station Madikeri
Rep. by State Public Prosecutor High Court Building Bengaluru – 560 001.
...Appellant
(By Sri. Abhijit K.S - HCGP)
AND:
Permanent R/o Marapala Chennangolli
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Gonikoppa Virajpet Taluk Kodagu District – 571218.
(By Sri. N. Jagadish Baliga – Advocate for R-1; R-2 served)
This Criminal Appeal filed under Sec.378(1) and (3) of Criminal Procedure Code, by the Advocate for the appellant praying to: (i) grant leave to appeal against the judgment and order dated 01.03.2016 passed by the Prl. Sessions and Special Judge, Kodagu – Madikeri in Spl. Case (POCSO) No.50/2015, thereby, acquitting the accused/respondents for the offences punishable under Sections 450, 376(2)(i) and (n) of IPC and Sec. 4 of POCSO Act, 2012; (ii) set aside the judgment and order dated 01.03.2016 passed by the Prl. Sessions and Special Judge, Kodagu – Madikeri in Spl. Case (POCSO) No.50/2015, thereby, acquitting the accused/ respondents for the offences punishable under Section 450, 376(2)(i) and (n) of IPC and Sec. 4 of POCSO Act, 2012; and convict and sentence the accused / respondent for the offences punishable under Sections 450, 376(2)(i) and (n) of IPC and Sec. 4 of POCSO Act, 2012, by allowing the appeal in accordance with law.
This criminal appeal coming on for hearing through video conference this day, K Somashekar .J ., delivered the following:
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J U D G M E N T
This is one of the classic appeals preferred by the State challenging the judgment of acquittal rendered by the trial Court in Spl.C.(POCSO) No.50/2015 dated 01.03.2016 for the offences under Sections 450, 376(2) (i) and (n) of Indian Penal Code, 1860 and Section 4 of POCSO Act, 2012. In this appeal, the appellant – State is seeking for intervention of the impugned judgment of acquittal and seeking to set-aside the same. Consequent upon setting aside the impugned judgment, to convict the accused for the charges leveled against him.
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It is transpired in the case of prosecution that on
26.06.2015 at around 1.30 p.m. in Hudikeri village, the accused trespassed into the house of CW.1 and committed rape on CW.2 – victim who is a minor against her will and without consent. On filing of the complaint by the complainant, criminal law was set into motion and accordingly, the case in Cr.No.72/2015 came to be registered for the offences reflected in the FIR said to have been recorded by the Srimangala Police Station. Subsequent to registration of the crime against
the accused, the investigating officer took up the case for investigation and thoroughly investigated the case by complying the provisions of Section 173(2) of Cr.P.C. and laid the charge sheet against the accused before the Court having jurisdiction and Spl.C.No.50/2015 came to be assigned. Thereafter, heard on charge of learned public prosecutor for State and also defence counsel. The charges were read over to the accused in the
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language known to him whereby the accused did not plead guilty but claimed to be tried. Accordingly, the plea of the accused was recorded separately.
the prosecution and so also on the part of the defence side, the trial Court heard the arguments advanced by learned Public Prosecutor and so also the defence counsel and acquitted the accused of the charges leveled against him by rendering the judgment of
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acquittal. It is this judgment which is challenged by the
State by urging various grounds.
the evidence of the mother of victim i.e., PW.1 who is the complainant and whereby the criminal law was set into motion on the basis of complaint at Ex.P1 and FIR was recorded and the I.O took up the case for investigation and thoroughly done the investigation and during the investigation the statement of victim as under Section 164 of Cr.P.C. was recorded as per Ex.P4. It is contended that the trial Court failed to appreciate the fact that the victim girl was a minor on the date of the incident and there was no dispute with regard to this aspect. But the trial Court has ignored this fact and acquitted the accused without giving sufficient opportunity to the prosecution to examine other relevant witnesses and to produce medical evidence.
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is clear that victim was subjected to sexual assault. The trial Court has ignored the prima-facie evidence and has acquitted the accused without permitting to examine other witnesses, which has resulted in a miscarriage of justice. Further, the appreciation of evidence by the trial Court is not in a proper perspective. On all these grounds, learned HCGP seeks for intervention by considering of grounds as urged and consequently, to set-aside the judgment of acquittal by the trial Court in Spl.C.(POCSO) No.50/2015 dated 01.03.2016 and convict the accused for the offences leveled against him by allowing this appeal.
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statement under Section 164 of Cr.P.C which was recorded by the Judicial Magistrate First Class at Ex.P4. Ex.P3 is the further statement of PW.1 – Pushpa who is none other than the mother of the victim and Ex.P7 is the statement of PW.3 who is the brother of the victim. But both of them have given a go-by to the versions of their statements. The Trial Court has gone through the versions of PWs.1, 2 and 3 namely the deposition of the statement recorded and the evidence let in by the prosecution. Ex.P13 is the DNA report, Ex.P14 is FSL report, Ex.P9 is the Birth Certificate of victim, Ex.P10 is the Birth Certificate of the accused and Ex.P12 is Medical Certificate of victim. However, there is no worthwhile evidence facilitated by the prosecution to prove the guilt against the accused. The trial Court though has given credentiality to the theory of the prosecution but in view of the fact that the material witnesses to the case of the prosecution having given a go-by to the versions of their statements, the
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Trial Court has consequently rendered an acquittal judgment relating to the offences under the IPC, 1860 and also for offences under the POCSO Act, 2012. On all these premises learned counsel for respondent No.1 submits that the judgment rendered by the Trial Court does not arise to call for any interference and consequently seeking dismissal of this appeal as being devoid of merits.
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of theory of the prosecution. But PW.2 –Kavya who is the victim has stated in her evidence in respect of material aspects of the case relating to the incident that occurred on 26.06.2015 at around 1.30 p.m. that herself and one Smt.Muthamma were talking. At that time the accused came requesting for mobile charger. She told him to charge his mobile in that house itself. At that time, PW.3 – Shivaraj came and saw and went and told to his mother something. Except that nothing has happened. This is the evidence let in by the prosecution by subjecting to examination PW.2 – victim girl. PW.2 has not withstood the version of the theory of the prosecution even though offences under Sections 450 and 375 (2)(i) and (n) of IPC and offences under Section 4 of POCSO Act, 2012 were also lugged against the accused. PW.3 – Shivaraj has given evidence on part of the prosecution whereby specifically stated that on 26.06.2015 at around 1.30 p.m. when he went to the house, his sister, mother and accused were there and
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he did not know why accused came to the house and he told the same to CW.1. Except that he did not tell anything to CW.1. But on a close scrutiny of evidence of PWs.1 to 3, it is found that recalling of the evidence and revisiting of impugned judgment of acquittal rendered by the trial Court, does not arise. In this regard, it is relevant to refer the judgment of Lalit Kumar Sharma Vs. Superintendent and Remembrancer of Legal Affairs, Government of West Bengal (1989) Cr LJ 2297, AIR 1989 SC 2134 the Hon’ble Supreme Court of India has extensively addressed :
“The power of an Appellate Court to review evidence in appeal against acquittal is an extensive as its powers in appeal against convictions but Appellate Court should be slow in interfering with the order of acquittal”.
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judgment, it cannot arise for intervention. Hence, we find that there is no perversity, absurdity or illegality in the acquittal judgment rendered by the Trial Court.
ORDER
The appeal preferred by the State under Sections 378(1) and (3) of Cr.P.C is hereby rejected. Consequently, the judgment of acquittal rendered by the trial Court in Spl.Case.(POCSO) No.50/2015 dated 01.03.2016 is hereby confirmed.
Sd/JUDGE
Sd/JUDGE
DKB/RJ
2 issues framed by the court
Whether the High Court should interfere with the acquittal judgment rendered by the Trial Court in a POCSO case where material witnesses failed to support the prosecution version.
Whether the acquittal was based on perversity, absurdity or illegality warranting appellate intervention.
Colour shows how this judgement treated each authority
Lalit Kumar Sharma Vs. Superintendent and Remembrancer of Legal Affairs, Government of West BengalFollowed¶9
(1989) Cr LJ 2297, AIR 1989 SC 2134 · Who else cites this
The State of Karnataka Through C.P.I., Kutta Circle Srimangala Police Station Madikeri Rep. by State Public Prosecutor High Court Building Bengaluru
Sri. Chandru P.K @ Chandru
Smt. Pushpa W/o. Appaiah
K. Somashekar
C. M. Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
