Dismissed

State of Karnataka v. Basavaraju

Karnataka HC12 Dec 2022CRL.A/1810/2016

Case brief

AI extract

What is this about?

State appeal against acquittal of four accused in a case alleging abduction and rape of a girl, with offences under the IPC and the POCSO Act. The court found the victim's statements inconsistent with the complaint and other evidence, medical and forensic reports unhelpful to the prosecution, and held the acquittal did not warrant interference; the appeal was rejected and the acquittal confirmed.

What the court decided

AI extract

State of Karnataka Vs Basavaraju — Child Sexual Offences (POCSO) | Karnataka HC (2022)

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CRL.A No. 1810 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF DECEMBER, 2022

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PRESENT

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THE HON'BLE MR JUSTICE K.SOMASHEKAR

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AND

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THE HON'BLE MR JUSTICE C M JOSHI

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CRIMINAL APPEAL NO. 1810 OF 2016

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BETWEEN:

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Digitally signed by D K BHASKAR Location: High Court of Karnataka

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STATE OF KARNATAKA BY BHARAMASAGARA P S REP BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 01.

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(BY SRI. ABHIJITH K.S. - HCGP)

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…APPELLANT

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AND:

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BASAVARAJU

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S/O THIPPESWAMY AGED ABOUT 29 YEARS LAKSHMISAGAR VILLAGE CHITRADURGA TALUK CHITRADURGA DIST - 577501.

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JAGGA @ JAGADEESHA S/O HANUMANTHAPPA AGED ABOUT 21 YEARS RESIDENT OF LAKSHMISAGAR VILLAGE CHITRADURGA TALUK

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CHITRADURGA DIST – 577501.

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VEERESH @ EERESH S/O OBANNA AGED ABOUT 20 YEARS RESIDENT OF LAKSHMISAGAR VILLAGE CHITRADURGA TALUK CHITRADURGA DIST – 577501.

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MURTHAPPA S/O LATE THIPPANNA AGED ABOUT 56 YEARS R/O LAKSHMISAGAR VILLAGE CHITRADURGA TALUK CHITRADURGA DIST – 577501.

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…RESPONDENTS

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(BY SRI. B M SIDDAPPA FOR R1 .,ADVOCATE FOR R-1; SRI. N. SRINIVASA - ADVOCATE FOR R-2 & R-3; R-4 SERVED UNREPRESENTED)

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THIS CRL.A. FILED U/S.378(1) AND (3) CR.P.C BY THE S.P.P. FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO: A) GRANT LEAVE TO APPEAL AGAINST THE ORDER OF ACQUITTAL PASSED BY THE II ADDL. DIST. AND S.J., CHITRADURGA IN SPL.C.(POCSO).NO.11/2015 DATED 28.04.2016 FOR THE OFFENCES U/S 340, 363, 376, 506 OF IPC AND SEC.4, 12 OF POCSO ACT; B) SET-ASIDE OF JUDGMENT OF ACQUITTAL PASSED BY THE II ADDL. DIST. AND S.J., CHITRADURGA IN SPL.C.(POCSO).NO.11/2015 DATED

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28.04.2016 FOR THE OFFENCES U/S 340, 363, 376, 506 OF IPC AND SEC.4, 12 OF POCSO ACT; AND C) CONVICT THE ACCUSED / RESPONDENT FOR THE OFFENCE UNDER SECTIONS 340, 363, 376, 506 OF IPC AND SECTIONS 4 AND 12 OF THE POCSO ACT.

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THIS CRIMINAL APPEAL, COMING ON FOR ‘DICTATING JUDGMENT’, THIS DAY, K. SOMASHEKAR, J., DELIVERED THE FOLLOWING:

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JUDGMENT

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In this appeal challenging the judgment of acquittal rendered by the II Addl.District and Sessions Judge, Chitradurga in Spl.Case (POCSO) No.11/2015 dated 28.04.2016 acquitting the accused for the offences punishable under Sections 340, 363, 376, 506 of IPC besides Sections 4 and 12 of POCSO Act, 2012. In this appeal seeking intervention by consideration of the grounds urged therein and reversal of the acquittal judgment rendered by the trial Court and to convict the accused for the offences for which leveled against them.

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Heard learned HCGP for State and learned counsel Sri B.M.Siddappa for respondent No.1 and learned counsel Sri N.Srinivasa for respondent Nos.2 and 3. Though respondent No.4 is served, but remained unrepresented. Perused the judgment of acquittal rendered by the trial Court.

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The factual matrix of the appeal is as under:

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It is transpired in the case of the prosecution that on 26.02.2015 at around 7 p.m. when the victim girl went to field to attend her nature call near Lake of Lakshmisagara village and while returning home, accused No.1 forcibly took her to the land bearing Sy.No.60 belonging to his mother Deviramma. He made the victim girl captive in the land whole night and threatened her saying that she will face dire consequences and committed rape on the victim.

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It is further alleged that on 27.02.2015 accused No.1 took her in an auto rickshaw to NH-4 from the scene of crime and from there he took her in a TATA Ace vehicle bearing Regn.No.KA-16-B-5077 belonging to accused No.2

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along with accused No.3. Accused Nos.1 to 3 went in the said vehicle from Vijapura through Kurubarahatti and came to Malappanahatti. They left the victim there and went away by extending life threat to her saying that if she discloses the incident to anyone, she would face dire consequences. After the accused persons left the victim girl in the said place, she went to her aunt’s house nearby the vicinity and informed about the said incident and in turn her aunt informed to her father. Before she could be traced at her aunt’s house, the father of victim lodged a complaint before the police stating that his daughter is missing since 26.02.2015 at around 7 p.m from his home. The police accompanied with him to bring the victim girl to her native place alleging that she was traced at her aunt’s house. The police authorities have recorded the statement of victim girl on 28.02.2015 and the investigating officer took up the case for investigation and thoroughly investigation was done based upon the complaint at Ex.P9 and so also, the FIR said to have been recorded by the police in respect of the offences which lugged against the

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accused persons. Subsequent to thorough investigation done by the investigating agency, charge sheet came to be laid against the accused persons before the Court having jurisdiction to deal with the matter.

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Subsequent to laying of the charge sheet by the investigating authority, the accused persons were secured to facing of trial. Thereafter complied the stipulated condition as per Section 207 of Cr.P.C. relating to furnishing charge sheet materials to the accused. Subsequently, the charges were framed against the accused based upon the charge sheet materials and found that there are some prima-facie materials against the accused relating to the offences under Indian Penal Code, 1860 and so also, offence under the provisions of POCSO Act. The accused did not pleaded guilty but claimed to be tried. Accordingly, the plea of the accused was recorded separately. Subsequently, the prosecution let in evidence by subjecting to examination in all PWs.1 to 26 and got marked several documents as per Exs.P1 to P28 and

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so also, got marked M.O.1 to 11 which included in PF No.55/2015.

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Subsequent to closure of evidence on the part of the prosecution, the accused persons were subjected to examination as contemplated under Section 313 of Cr.P.C. regarding the incriminating evidence appeared against the accused. But the accused declined the truth of the evidence of prosecution adduced so far. Accordingly, it was recorded. Subsequently, the accused were called upon to enter into defense evidence if any, as contemplated under Section 233 of Cr.P.C. but the accused did not come forward to produce any defense evidence on their part. Accordingly, it was recorded. Subsequent to closure of the entire evidence on the part of the prosecution and so also, on the part of the defense side, the trial Court heard arguments advanced by the special public prosecutor for State and the defense counsel for the accused.

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PW.21 is the victim girl and in her presence the spot

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panchanama was conducted by the investigating officer and also in the presence of the panch witnesses. She has stated in her evidence that on 26.02.2015 at around 7.00 p.m. while she had been to attend nature call and while returning to her house, accused No.1 – Basavaraja forcibly took her to the garden land and nearby the lemon trees he asked her to remove her clothes but she refused to do so and also requested not to demoralize. Despite of that the accused – Basavaraja removed her clothes by extending life threat committed forcible sexual intercourse on her. The same has been stated in her evidence. But subsequent to committing the incident upon her she was made to captive in the land belonging to his mother – Deviramma. On the next day in the morning hours secured one Jagadeesh and took that victim girl in Tata Ace vehicle towards NH-4 and left her nearby that village and she went to her aunt’s house – PW.6 who is none other than the sister of her father. The person namely Jagga @ Jagadeesha sat in the right side and

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Basavaraja sat in the left side and person namely Veerasha

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sat behind in the Tata Ace. Then they proceeded from Vijapura to Kurubarahalli along with the victim girl. They stopped the Tata Ace vehicle at Kurubarahatti for a while and asked her whether there are any family members and she said no family members or relatives are there and requested them to take her to her village. Despite of it, accused – Basavaraja took her towards Kurubarahatti near Chitradurga and stopped the Tata Ace vehicle near the Anjaneya Temple near Malappanahatti. In that village, her aunt namely Halamma was residing and then gave information to her father over the telephone stating that she is staying in her aunt’s house and also asked her father not to make any search of her. Thereafter her father came with police to Malappanahatti and the police along with her uncle namely Umesha went to Bharamasagara Police Station. But Basavaraja, Jagga and Veeresh went towards Chitradurga. The police recorded her statement and took her to Chitradurga Government Hospital for medical examination.

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Then her cloths i.e., Top, jeans pant, Bermuda and pads were secured and got marked. In the night she was in the hospital along with woman constable and also her mother was there and thereafter they proceeded to their village. On 11.02.2015 the police to draw the mahazar took her to Lakshmisagar. But she asked the police to come at the garden land of accused No.1 Basavaraja. But the police did not come there but took her to the garden land of Hanumanthappa. The police asked her to show some place and she said that no incident has taken place in that place. But police asked to identify one place and despite of her refusal police took the photographs as per Ex.P3 and P4 and drew the mahazar as per Ex.P1 and made her to subscribe signature. Thereafter on 19.03.2015, one Lakshman Naika who is the IO in part had come for the drawing Mahazar at Lakshmisagar, the police took the photographs as per Exs.P6 and P7 in the garden land of Basavaraja. There the victim girl narrated that the incident happened nearby the lemon tree. Ex.P5 is the spot mahazar drawn in the garden

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land of Basavaraja. On 02.03.2015 the police produced her before the concerned Judicial Magistrate wherein she narrated the incident in the form of statement and the same has been recorded as per Ex.P22. Ex.P23 is her further statement where she has subscribed her signature. But M.O.1 to 3 are the material objects collected and identified by the victim girl. She has given supplementary statement before the police. But for what reason she has given the supplementary statement has not been stated by her.

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Thereafter she was subjected to cross-examination at length and the same could be seen in her evidence itself. She has denied the suggestion that she left the school due to rape committed by the accused and also denied the suggestion that herself and accused – Jagadeesha were loving each other. She also denied that said Jagadeesha was following her in the Tata Ace vehicle while she was going to school.

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PW.20 – Sakamma is the mother of victim girl and she being the circumstantial witness has stated in her

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evidence that she do not know the date of birth of her daughter. That on the fateful day her daughter who had been to attend nature call did not return to house. Therefore, they made search of her missing daughter but she could not be traced. On the next day when her husband Murthappa had been to Bharamasagara Police station to lodge complaint, at around 1.00 p.m. her daughter had called said Murthappa over telephone stating that she is in Malappanahatti. The same was informed by her husband to the police and in turn the police had been to Malappanahatti and took her daughter to the police station. On the same day at around 7.00 p.m., she along with her son-in-law went to the police. PW.21 was stating that Basavaraja forcibly took her inspite of her screaming and made to captivity in the garden land belonging to his mother and spoiled her career and also made some attempt to outrage her modesty. On the next day in the morning hours the accused persons alleged to have left PW.21 at Vijapura in Tata Ace vehicle.

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These are all the evidence has been given on the part of the prosecution.

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PW.5 – Umesha is the son-in-law of PW.4 and is a circumstantial witness. But his evidence runs contrary to the other material witnesses on the part of the prosecution. PW.6 – Halamma is also circumstantial witness and aunt of CW.2 who was subjected to examination on the part of the prosecution. But her evidence runs contrary to the contents made in the complaint and even the statement of PW.21 victim girl. PW.7 – Beerajjara Hanumanthappa is also circumstantial witness who has been subjected to examination on the part of the prosecution. He came to know about missing of daughter of Murthappa and they went in search of her at Malappanahatti, Chitradurga, Kurubarahatti. But she could not be traced. Therefore, he asked Murthappa to lodge missing complaint and accordingly, missing complaint was lodged before the police. But PW.21 has specifically stated in her evidence even though she was subjected to cross-examination at length

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that neither Jagga or Basavaraja who are arraigned as accused did not had any physical contact with her. The said statement of PW.21 is marked as Ex.D1. Her statement runs contrary to the evidence of PW.4 – Murthappa and PW.5 – Umesha and PW.20 – Sakamma. These are all the evidence that has been considered by the trial Court inclusive of evidence of PW.8 who is also one of the circumstantial witness relating to the incident narrated in the statement made by PW.21 that on the fateful day in the evening at around 7.00 p.m. while she proceeded to attend her nature call that accused namely Basavaraja forcibly took her to his garden land belonging to his mother – Deviramma. But nothing worthwhile has been elicited on the part of the prosecution even though PW.5 to 8 have been subjected to examination on the part of the prosecution.

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PW.1 – Mahantesha and PW.2 – Mrutyunjaya were secured as panch witnesses on the part of the prosecution relating to the spot mahazar. Whereas in their evidence they have stated that about 3 to 4 months back as called by the

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police they went to the land of Hanumanthappa at around 12.00 to 1.00 p.m. The police asked them to subscribe their signatures at Ex.P2 – spot mahazar. They have specifically stated in the evidence that they do not know the contents made in Ex.P2 and their evidence runs contrary to the evidence of PW.21-victim girl and PW.20 – mother of victim girl and PW.4 – Murthappa who is none other than the father of victim girl.

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PW.3 – Rajappa was secured to act as panch witness and he has stated that for about 8 months back, when he was proceeding near Lakshmisagar lake, the police had called him along with Chikkanna, Murthappa and PW.21 victim girl near the garden of Tippeswamy and asked them to subscribe signature on Ex.P5 – spot panachanama. But in the cross-examination he has stated that he do not know the contents of Ex.P5. Therefore, the prosecution was not able to establish the case relating to the mahazar. Accordingly, the trial Court made an observation and arrived at conclusion.

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PW.25 – Dr.Satyanarayana in his evidence has stated that on 28.02.2015 the victim girl was produced by PC 1309 relating to ascertaining her age. Accordingly, subjected her to examination and issued report at Ex.P.27. Even as per the radiological report as per Ex.P28, the age of the victim girl was ascertained at 18 to 20 years.

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PW.22 – Dr.Nagaraja was subjected to examination on the part of the prosecution and he has stated that on 10.03.2015 P.C.619 and the IO of Bharamasagara Police Station had produced accused – Basavaraja for examination and he has issued report as per Ex.P24 stating that Basavaraja, S/o Tippeswamy there is nothing to suggest that, the person is incapable of doing sexual intercourse.

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PW.14 – Dr.Linge Gowda is the Doctor who has stated that on 30.03.2015, in respect of Crime No.75/2015 of Bharamasagara Police Station in all 09 sealed objects were produced for examination. They were chudidar top, jeans pant, panty, pubic hairs, vaginal swab, vaginal smear,

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underwear, pubic hairs and bandage cloths. These are all the materials which secured by the IO during the course of investigation and subjected to chemical analysis and no seminal stain was detected on M.O.1 to 5 and 7 to 9. Accordingly, issued report as Ex.P15.

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PW.26 being the Lady Doctor was subjected to examination on the part of the prosecution. She has stated that the victim girl was produced before her by WPC 1309 for examination with the history of abduction and sexual intercourse. As per her statement dated 26.02.2015 the victim was alleged to have been abducted and committed sexual assault upon her. Since on her examination it was alleged that there was hymen rupture, her cloths and other material objects were sent to chemical examination to the FSL authority through PC 1309. On 29.03.2015 the FSL report was received as per Ex.P15 and as per the report no seminal stains was detected on item Nos.1, 2, 3, 4, 5. Even on item No.6 no spermatozoa was detected. On the basis of the said report, Ex.P26 was issued by PW.26 stating that no

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external injuries were seen over external genitalia. According to the clinical and RFSL report, she opined that, there is no evidence of recent sexual intercourse. These are all the medical evidence on the part of the prosecution and closely analysed by the trial Court for arrival of proper conclusion relating to appreciation of the evidence.

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PW.23 being the PSI has stated in his evidence that on 27.02.2015 he received the file from HC No.322 for further investigation and made some endeavour by deputing PC 686 and PC 1309 for search of missing girl and also the person causing for her abduction. He sent the victim girl along with ASI – Poornachandra and WPC 1309 to the District Hospital, Chitradurga. After securing the accused persons, PC 686 and PC 627 inclusive of WPC 1309 produced the accused persons before the Court after their medical examination. But on the aforesaid date the Tata Ace vehicle bearing Regn.No.KA-16-B-5077 said to have been seized in the presence of panch witnesses in

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Bharamasagara police station and the same was subjected in PF No.31/2015.

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PW.19 – Lakshman Naika is the IO in part and he has stated in his evidence that on 19.03.2015 he recorded the supplementary statements of PW.21 - victim girl, her mother PW.20-Sakamma, her father PW.4-Murthappa, PW.5-Umesha, PW.7-Beerajjara Hanumanthappa, PW.15Chikkanna and PW.8-Shekharappa. On the same day spot panchanama as per Ex.P5 was drawn and photos were taken as per Exs.P6 and 7. Subsequently, on 26.03.2015 the material objects relating to the victim girl and also the accused was secured from the Doctor and the same has been seized by drawing mahazar as per Ex.P13. The material objects were sent to FSL authority of Davanagere wherein subjected to PF No.55/2015 and marked as M.Os.1 to 9.

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PW.24 – Nagaraj is one of the IO wherein he has stated that he took over the case file for further investigation

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and on 19.05.2015 recorded the statements of CHC-322 Kariyanna, CPC-884, CPC 927. On the same day received the FSL report from District Hospital, Chitradurga as per Ex.P24.

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Whereas the trial Court appreciated the evidence of PWs.1 to 26 and mainly the evidence of PW.4 – Murthappa who is none other than the father of victim and PW.20 – Sakamma who is none other than the mother of victim, but they are the circumstantial witnesses. PW.21 is the victim girl who is alleged to have been abducted by accused – Basavaraja and confined in the garden land belonging to his mother – Deviramma.

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PW.9 being the Head Master was subjected to examination on the part of the prosecution relating to school records of PW.21 – victim girl. But PW.14 – Dr.Lingegowda issued FSL report as per Ex.P15. PW.22 – Nagaraj is Doctor who examined accused No.1 and issued report as per Ex.P.24. PW.25 – Dr.Satyanarayana issued Ex.P27 by

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examining PW.21 being the victim girl in respect of ascertaining her age. These documents have been facilitated by the prosecution relating to establish the case against the accused persons. But PWs.16 to 19 and 23 and 24 they the investigating officers who investigated the case. PW.4 – Murthappa and PW.20 – Sakamma are the parents of PW.21 victim girl who alleged that she was subjected to abduction by accused – Basavaraja and made her confinement in the garden land of his mother – Deviramma throughout the night and had some sexual assault upon her. But accused No.1 – Basavaraja alleged to have extended life threat with dire consequences to PW.21 and had some sexual intercourse upon her. Even PW.21 was subjected to examination and based upon the radiological report that her age was between 18 to 20 years. Therefore, there was no ingredients of POCSO Act relating to aggravated sexual assault upon her, but PW.21 has not stated in her evidence that accused No.1 – Basavaraja took her forcibly to the garden land on 26.02.2015 at around 7 p.m. while she had

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been to the field to attend the nature call. When she was returning after attending nature call that accused – Basavaraja abducted her from that place took her towards garden land belong to his mother Deviramma. Since PW.21 did not returned to the house even in the night hours, then her family members made some endeavour to search the missing girl but the same went in vain and therefore, they filed a missing complaint before the Bharamasagara Police Station. On 27.02.2015 PW.4 – Murthappa had given missing complaint as per Ex.P9 in respect of missing of her daughter who is the victim. On the same day, PW.4 came to know from his wife at around 12 p.m. over telephone that PW.21 was staying in the house of her relative at Malappanahatti. Immediately the same information was given to the police. The police along with PW.4 – Murthappa had been to Malappanahatti village and saw PW.21 was there and from there they took her to the police station and made some enquiry about the incident. These are all the evidence that is coming forth on the part of the prosecution.

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But the entire evidence of the prosecution is revolving upon the evidence of PW.21 – victim and so also her parents being PW.4 and PW.20. But on close scrutiny of the evidence, the trial Court observed that PW.21 in her evidence specifically stated that during the night in the garden land belonging to the mother of accused No.1 –Basavaraja, there was neither Jagadeesha nor Basavaraja and they did not had any physical contact with her. That on 27.02.2015 at around 4.00 a.m. in the wee hours the person namely Jagadeesha and Basavarja took her from there towards Vijapura and left her there. Thereafter Jagadeesha was with her and Basavaraja went. On that day at around 11.00 a.m. Jagadeesha asked her to come to Chitradurga. Then Basavaraja and Eeresha brought Tata Ace vehicle and took her towards Chitradurga. Therefore, she asked them to leave her to her village. But they left the victim girl at Malappanahatti where her aunt’s house was there. Even Jagadeesha induced the victim girl even prior to the incident and she was in good terms with him and there was some

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filial and also some sort of love affairs and he was forcing her to marry him. These are all the evidence coming forth on the part of the prosecution and the same has been appreciated by the trial Court. Ex.P22 is the statement of PW.21 recorded under Section 164(5) of Cr.P.C. But accused – Basavaraja is aged about 26 years. On the fateful day he asked the victim girl to accompany him but when she did not cooperate, then he took her to the garden land wherein alleged to have had some sexual intercourse upon her. Even MO.1 to 6 were subjected to examination by the FSL authority and report was received as per Ex.P15. As per the said report, no seminal stain was detected on item Nos. 1 to 5 and no spermatozoa was detected on item No.6. Based upon the said report, it was opined that there was no symptoms of recent sexual intercourse and accordingly, issued report as per Ex.P26. These are all the medical evidence and also the evidence on the part of FSL authority. On close scrutiny of these evidence inclusive of evidence of PW.1, the trial Court observed that nothing worthwhile has

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been elicited by the prosecution. But on close scrutiny of evidence of PW.7 who is the circumstantial witness and the evidence of PW.4 – Murthappa who had given complaint as per Ex.P9 and the spot mahazar at Ex.P10 which got it marked on the part of the prosecution that evidence runs contrary to each other and further contradictory to the evidence of PW.8 – Shekarappa and the evidence of PWs.5 to 8. These are all the evidence adduced on the part of the prosecution which runs contrary and even the evidence of PWs.1, 2, 12 and 13 who are panch witnesses relating to spot mahazar. But these witnesses did not supported the case of the prosecution to any extent insofar as the fulcrum of the contents of the mahazar. The same has been appreciated by the trial Court for arrival of conclusion and rendering the acquittal judgment.

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The prosecution also placed reliance of decision reported in AIR 1996 SC 1393, 2011 Crl.L.J.2297, 1992

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Crl.L.J.2325, 1995 SCC (Crl.) 977, 1996(3) Crimes (SC), 1997 SCC (Crl.) 1187 and 1992 SCC (Crl.) 383 but the trial

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Court observed that the same will not help in proving the case of the prosecution beyond reasonable doubt. The prosecution has failed to establish the guilt of the accused and even the age of PW.21 victim girl relating to the offence under the POCSO Act, 2012. Therefore, the trial Court rendered the acquittal judgment relating to the offences which lugged against the accused. It is this judgment which is challenged under this appeal by urging various grounds.

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Whereas learned HCGP for State has taken us through the evidence of PW.21 victim girl. She was found in her aunt’s house at Malappanahatti on the following day. But her father PW.4 had lodged missing complaint and the police went to the place whereby PW.21 was found in her aunt’s house. However, the entire circumstances disclose that the victim girl might have been taken by somebody. Therefore, the ingredient of abduction was proved. But the trial Court has not appreciated the surrounding circumstances connected to the case relating to involvement of accused No.1 who abducted PW.21 and had some sexual

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intercourse in the garden land belonging to his mother – Deviramma. Even the victim girl being an unmarried and minor girl had signs of sexual intercourse, and it amounts to clear rape upon her. The same can be seen in her evidence. Whereas the defence on the part of the accused has not placed any materials before the trial Court as to how these three accused were named in the statement of the victim and why they were falsely implicated. The evidence of PW.21 has been corroborated by the evidence of PW.16, PW.7 and PW.15 who are the independent witnesses who states about her missing from the village. But their evidence has not been appreciated by the trial Court in a proper perspective manner. Therefore, in this appeal it requires for reappreciation of the evidence and so also, revisiting the impugned judgment of acquittal rendered by the trial Court relating to each count of the offences that accused – Basavaraja alleged to have extended some sort of life threat and having some sexual assault on her in the garden land belonging to his mother – Deviramma. But on the next day

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that accused persons took the victim girl from the scene of crime and left at Malappanahatti and went from there. Therefore, the evidence of PW.21 reveals that the prosecution has proved the case against the accused persons and the victim has got statutory presumption which has not been considered by the trial Court and overlooked the same and acquitted the accused which is erroneous and the same is liable to be set-aside. Therefore, the impugned judgment of acquittal rendered by the trial Court requires intervention by re-appreciation of the evidence and seeks for reversal of the acquittal judgment and to convict the accused for the offences under Sections 340, 363, 376, 506 of IPC and Sections 4 and 12 of the POCSO Act.

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On the contrary, learned counsel for respondent No.1 namely Sri B.M.Siddappa has taken us through the evidence of PW.21. The entire case has been revolving around her evidence and further revolving around the evidence of PWs.4, 20 and 6 being the father, mother and aunt of PW.21. PW.1 – Mahantesh, PW.2 – Mrutyunjaya and

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PW.3 – Rajappa have been secured as panch witnesses by the investigating agency relating to Ex.P1 – spot mahazar and another spot mahazar at Ex.P5, but their evidence did not support the case of the prosecution to any extent and so also, the fulcrum of the facts in the aforesaid mahazar. PW.8 – Shekharappa and PW.12 – Vishwanath are the panch witnesses in respect of Ex.P13 – seizure mahazar. But these witnesses did not support the case of the prosecution. The counsel mainly has taken us through evidence of PW.22 – Dr.Nagaraja whereby subjected to examination of accused No.1 and issued certificate as per Ex.P24 who stated that there is nothing to suggest that, the person is incapableof doing sexual intercourse. But the evidence of PW.22 and evidence of PW.25 – Dr.Satyanarayana whereby issued the report by subjected to examination of PW.21 relating to ascertaining her age. PW.26 – Dr.G.C.Chaitra examined PW.21 and issued report as per Ex.P26. Even the medical evidence is not supporting the case of the prosecution even though the heinous offence

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relating to abduction of victim girl and made her captivate in the garden land of Deviramma who is none other than the mother of the accused No.1 – Basavaraja. Mere because there was some filial and also some passionate in between the victim girl and Jagadeesh, it cannot be said that the accused have committed the alleged offence. There was some love affairs in between Jagadeesha and victim girl. But on a close scrutiny of evidence of those witnesses inclusive of evidence of PW.12 – Vishwanatha and PW.14 - Murugendrappa relating to Ex.P13 – seizure mahazar and also the evidence of PW.14 – Dr.Linge Gowda who issued Ex.P15 - FSL report, but the trial Court had appreciated the entire evidence in entirety and even in totality of the circumstances that the prosecution has failed to establish the guilt against the accused with beyond all reasonable doubt for securing the conviction. PW.21 has been thoroughly examined and even her statement recorded under Section 164(5) of Cr.P.C. nothing worthwhile has been elicited to prove the case of the prosecution. The trial Court

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has rightly come to the conclusion that the prosecution has miserably failed to establish the guilt against the accused with beyond all reasonable doubt. Therefore, in this appeal it does not arise for call for interference of the impugned judgment of acquittal and sought for dismissal of appeal being devoid of merits.

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Learned counsel Sri N.Srinivasa for respondent Nos.2 and 3 who is in conformity with the arguments advanced by the counsel for respondent No.1 submits that though the allegation in complaint at Ex.P9 relating to accused Nos.2 and 3 that they have made use of Tata Ace vehicle in order to abduct the victim girl and made the victim girl to alight nearby Malappanahatti near NH-4 but there is no role of accused Nos.2 and 3 in the alleged incident. Even these accused persons were not involved in the incident as narrated even in the statement made by PW.21 victim girl during the investigation and even she has given statement as hit under Section 164(5) of Cr.P.C. wherein she has given a goby to the version of her

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statement. The same is marked at Ex.D1. Consequently, her evidence diluted the evidence of other witnesses and so also, the medical evidence. But the role of these accused has been appreciated by the trial Court and rendering the acquittal judgment by appreciating the evidence and so also, on close scrutiny of evidence of PW.4 – Murthappa and PW.6 Halamma who is none other than the aunt of PW.21. The trial Court has appreciated their evidence in a proper perspective manner and therefore, in this appeal it does not arise for call for interference of this Court relating to the role of accused Nos.2 and 3. On all these premises, learned counsel for respondent Nos.2 and 3 emphatically sought for dismissal of appeal being devoid of merits.

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It is in this context of the contention as made by learned HCGP for State and so also, the counsel for respondents by referring to the evidence of PW.4 – Murthappa who is none other than the author of complaint at Ex.P9 and so also, the evidence of PW.20 – Sakamma who is the mother of PW.21 even subjected to examination

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wherein she stayed in the house of PW6 being her aunt and

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more so, she has given information to her parents as they had made missing complaint before the Bharamasagara Police Station and the crime came to be registered and criminal law was set into motion only on the information given by PW.21 and that too be her father PW.4 who had been to the house of PW.6 – Halamma from there PW.21 was taken directly to Bharamasagara Police Station along with PW.5 – Umesha who is none other than the son-in-law of PW.4 – Murthappa and then the criminal law was set into motion and then the investigating officer conducted thorough investigation and even drew the spot mahazar as per Ex.P1 and another spot mahazar at Ex.P5. But Section 3 of the Indian Evidence Act relating to the concept of proved, disproved and not proved relating to the facts. But Section 134 of Indian Evidence Act relating to number of witnesses but mere because several witnesses have been subjected to examination it cannot be said that the prosecution has proved the guilt against the accused with

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beyond all reasonable doubt. But it is the quality of evidence and not quantity of witnesses. In the criminal justice delivery system, the cardinal principles according to Section 134 of Indian Evidence Act is that no particular number of witnesses shall in any case be required for the proof of any fact. The merit of the statement is important and having some pivotal role. It is well settled principles of law that reliance can be based on the solitary statement of a witness if the court comes to the conclusion that the said statement is the true and correct version of the case of the prosecution. In respect of these two concepts are concerned, the Hon’ble Supreme Court has rendered the judgments in the case of Raja v. State - (1997) 2 Crimes 175 (Del) and State of Uttar Pradesh v. Kishanpal - 2008 (8) JT 650 . Even the concept of requirement as to number of witnesses, the Hon’ble Supreme Court has rendered the judgment in Lallu Manjhi v. State of Jharkhand (AIR 2003 SC 854) . The law of evidence does not require any particular number of witnesses to be examined in proof of a

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given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony of a single witness, the court may classify the oral testimony into three categories, namely (i) wholly reliable (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. But insofar as Section 3 i.e., the concept of proved, disproved and not proved, it is the domain vested with the prosecution and equally vested with defence counsel also. But the prosecution has to establish the guilt of the accused with beyond all reasonable doubt by facilitating the worthwhile evidence, if not, the trial Court having no other go by appreciating the evidence which facilitated by the prosecution has rendered the acquittal judgment.

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In the instant case, several witnesses have been subjected to examination and several documents have been got it marked even though heinous offences relating to abduction of victim by the accused persons and also

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captivity in the garden land belonging to Deviramma who is no other than the mother of accused No.1 – Bsavaraja. But on the basis of statement of victim alone, the criminal law was set into motion and the investigation was conducted by the investigating agency and laid the charge sheet against the accused. Mere because submitting the charge sheet before the Court having jurisdiction, it cannot be said that the prosecution has proved the guilt against the accused. In the instant case, PW.21 has given statement as hit under Section 164 of Cr.P.C. and also under the relevant provision of Cr.P.C. during the course of investigation. Though that statement has been recorded but nothing worthwhile has been elicited by the prosecution to prove the guilt against the accused.

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The victim girl has been subjected to examination by the Radiologist relating to ascertain her age and in the report her age was mentioned as 18 to 20 years. Even nothing has been elicited to prove the offence under Section 4 of the POCSO Act, 2012 relating to penetrative sexual

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assault. These are all the evidence that has been appreciated by the trial Court and rendering the acquittal judgment. Therefore, even the primary presumption it has to be noticed

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by the trial Court by subjecting to examination of witnesses. Even the acquittal judgment has been challenged under this appeal by seeking intervention even the double presumption it has arise. The Hon’ble Supreme Court in the case of Lalit

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Kumar Sharma And Ors. vs Superintendent And Remembrancer reported in AIR 1989 SC 2134 has held that “it is now well settled that the power of an appellate Court to review evidence in appeals against acquittal is as extensive as its powers in appeals against convictions, but that power is with a note of caution that the appellate Court should be slow in interfering with the orders of acquittal unless there are compelling reasons to do so.”

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In the criminal justice delivery system positive, corroborative and consistent evidence has to be facilitated for securing the conviction. In the instant case, such kind of evidence has not been facilitated by the prosecution and

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consequently, the trial Court has rendered the acquittal judgment. PW.21 who is the victim girl who has given statement which is recorded by the investigating agency during the course of the investigation is hit under Section 161 of Cr.P.C. and even hit under Section 164 of Cr.P.C. She has given statement thrice but her statements are not consistent with each other and also the complaint at Ex.P9. However, having gone through the entirety of the evidence and even the totality of the evidence it reveals that the prosecution has miserably failed to prove the guilt against the accused and consequently, the trial Court rightly rendered the impugned judgment acquitted the accused for the charges leveled against them. Therefore, for the aforesaid reasons and findings, we are of the opinion that the appeal preferred by the State deserves to be rejected being devoid of merits. Accordingly, we proceed to pass the following:

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ORDER

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The criminal appeal filed 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.(POCSO) No.11/2015 dated 28.04.2016 is hereby confirmed.

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Sd/JUDGE

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Sd/JUDGE

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DKB

State of Karnataka v. Basavaraju

Case brief

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State of Karnataka v. Basavaraju

Case brief

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