State appeal against acquittal of accused charged with attempt to rape and attempt to murder a minor girl under the IPC and POCSO Act. The victim's evidence was inconsistent with other witnesses and contradicted by the wound certificate; the complaint was delayed and the seizure of her clothes unproved. The High Court declined to interfere.
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 29TH DAY OF NOVEMBER, 2022
PRESENT
THE HON’BLE MR.JUSTICE K.SOMASHEKAR
AND
THE HON’BLE MR. JUSTICE C.M. JOSHI
CRIMINAL APPEAL No.1832/2016
BETWEEN :
STATE OF KARNATAKA
BY MYSURU SOUTH POLICE STATION, MYSURU REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-01. … APPELLANT
(BY SRI. ABHIJITH K.S., HCGP)
AND :
SON OF NINGEGOWDA, AGED ABOUT 32 YEARS, R/O. GANIGARA HUNDI, ILAWALA, MYSURU DISTRICT.
SON OF LATE RAJU, AGED ABOUT 24 YEARS, R/O. 3RD CROSS, AKKICHOUKA,
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DODDAVOKKALAGERI, MYSURU-570 001.
… RESPONDENTS
(BY SRI. KUMARA K.G., ADVOCATE FOR R1 SRI. RUPESH KUMAR, ADVOCATE FOR R2 SRI. VIKRAM RAMALINGAM.R, ADVOCATE FOR R3 (LEGAL AID)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C PRAYING TO BY THE S.P.P. FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO GRANT LEAVE TO APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL PASSED BY THE LEARNED VI ADDL. DIST. AND SPL. JUDGE, MYSORE IN S.C.NO.353/2014 DATED 10.05.2016 THEREBY ACQUITTING ACCUSED/RESPONDENTS OF THE OFFENCES P/U/S 366,376(2)(I)(N) R/W 511,307 R/W 34 OF IPC AND SEC.5(G) R/W 6,18,9(G) R/W 10 OF POCSO ACT, 2012 AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY K.SOMASHEKAR J, DELIVERED THE FOLLOWING;
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JUDGMENT
This appeal is directed against the judgment of acquittal rendered by the Court of the VI Additional District and Special Judge, Mysuru, in S.C.No.353/2014 dated 10.05.2016 acquitting the accused of the offences punishable under Sections 366, 376(2) (i) (n) read with Sections 511 and 307 read with Section 34 of Indian Penal Code 1860, besides Section 5(g) read with Sections 6 and 18 and Section 9 (g) read with Section 10 of POCSO Act, 2012. Whereas in this appeal, the appellant/State is seeking intervention of this Court to consider the grounds urged in the appeal and consequently, set aside the acquittal judgment rendered by the trial Court and to convict the respondents/accused for the aforesaid offences alleged against them.
the appellant/State and so also Shri Kumara K.G.,
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learned Counsel who is on record for respondent No.1 and Shri S.Rupesh Kumar, learned Counsel who is on record for respondent No.2. Respondent No.3 has been represented by Shri Vikram Ramalingam R., to represent the case of respondent No.3. Perused the impugned judgment of acquittal rendered by the trial Court in S.C.No.353/2014 dated 10.05.2016 consisting the evidence of PWs.1 to 7, the documents at Exs.P1 to 17 and the material objects at MOs.1 to 5.
under:-
It has transpired in the case of the prosecution that the victim who is a minor girl, was residing with her parents at Yadiyuru near Banashankari in Bengaluru City. On 16.07.2014 CW-1 being the minor, having quarreled with her mother, who has been arrayed as CW2, left the house deciding to go to her Uncle’s house situated at Mysuru, came to Mysuru from
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Bengaluru in a Train and reached Mysuru in the morning on 17.07.2014. Subsequently, she came by walk at Big Clock Tower of Mysore City, in order to go in a City bus, at that time, accused No.1 viz., Gangadhar, S/o Ningegowda who came along with his passenger in an autorickshaw bearing registration No.KA-09-A-8059, near CW1 being the victim, the aforesaid accused No.1 made an enquiry with her as to where she has to go. Therefore, CW1 who is the victim told him that she intended to go to Devaiahnahundi, but as she was not having any money to travel in autorickshaw, accused No.1 with an intention to commit some sort of sexual assault on her as she was alone, made some enticement to her and asked her to sit in his autorickshaw stating that he was also proceeding towards Devaiahnahundi and by saying so, accused No.2 who was also in the autorickshaw, accused Nos.1 and 2 both together got introduced themselves to CW-1 who is the victim and took her to city outskirt such as Balamuri and she was
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roaming with them in and around the city of Mysuru. Then in the evening at around 4.30 p.m. both the accused Nos.1 and 2 stopped their autorickshaw near Hosakatte of Lalithadripura Village situated near Chamundi Hills in Mysuru, and took CW-1 being the victim towards the northern side of Hosakatte and made attempt to commit sexual assault on her; that CW-1 being the victim tried to escape from their clutches but accused No.2 viz., Mahadeva, S/o late Raju, caught hold of her and assaulted on her below the left side eye and caused some injuries and the accused also made attempt to take away her life by tying her veil to her neck; that accused Nos.1 and 2 have committed the alleged offences as narrated in the complaint filed by the complainant and based upon her complaint, criminal law was set into motion by recording the F.I.R as per Ex.P9.
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conducted the investigation thoroughly and during investigation conducted the spot mahazar as per Ex.P2 and another mahazar at Ex.P3 in the presence of the panch witnesses, thereafter secured the wound certificate of the victim and so also, the age estimation certificate at Ex.P6, call details at Ex.P10, then another mahazar at Ex.P13 and so also drew the map of scene of crime as per Ex.P14 inclusive of FSL report at Ex.P16 as secured by the I.O. and so also recorded statement of victim under Section 164 of Cr.P.C. which is marked as Ex.P17. After completion of thorough investigation carried out by PW7, chargesheet has been laid before the Special Court for the offences under the POCSO Act, 2012, wherein cognizance has been taken by securing accused No.1 and 2 and case in S.C.No.353/2014 has been proceeded against accused Nos.1 and 2 for the offences leveled against them.
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enabling them to rebut incriminating evidence / statement against them, whereby the accused have denied the testimony of the prosecution witnesses adduced so far, and accordingly it was recorded. Subsequently, the accused were called upon to enter into defence evidence as contemplated under Section 233 of Cr.P.C., but the accused did not come forward to adduce any defence evidence as contemplated under the aforesaid provision of law.
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No.1 alone had taken her to some distant place to proceed with accused No.2 that he has to talk to PW1, and she has specifically stated that accused No.1 also had made an attempt to commit some sort of sexual assault on her and made her to remove her clothes, but PW1 further stated that in the said process while she was escaping from the clutches of accused No.1 she sustained some injuries through the thorny bushes, then she came near accused No.2 and stated the act of accused No.1 made upon her and that he was behaving in a variegated manner. PW1 has further stated in her evidence that when she came to the road and stopped the bike, upon which there were two people and narrating about the incident committed on her by accused No.1, but accused No.1 came and informed those persons who were riding the bike that she was a mad girl and speaking irrelevant. That her evidence in chief-examination has also been considered by the Trial Court inclusive of the contents at Ex.P1 made by her
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that accused Nos.1 and 2 together had made attempt to commit some sort of sexual assault upon her by removing her pant and also underwear but accused had bitten on her stomach part in the said process, with an intention to commit some sexual assault on her. While she was struggling by lying on the ground and during that course, she sustained some abrasion injuries. These are all the evidence adduced by her on the part of the prosecution, but PW1 being the victim and also being a material witness relating to the case of the prosecution she has given her evidence as to under what circumstances she left Bengaluru to go to Mysore to approach her Uncle’s house situated at Devaiahnahundi within the limits of Mysore, wherein she has narrated that accused Nos.1 and 2 made attempt to commit some sort of sexual assault upon her and also made attempt to assault her while she was escaping from their clutches. During the course of struggle between her and the accused persons, she had
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sustained some injuries. The I.O. who conducted mahazar in the presence of the panch witnesses in respect of the offences alleged to have been committed by the accused persons and also sworn by the victim who is examined as PW1, during the course of which, mahazar has been conducted and the I.O. has recovered the objects which are marked as M.Os.1 to 5. In the presence of the I.O. she has identified accused Nos.1 and 2 and so also identified the autorickshaw which belonged to accused No.1 wherein she has given her statement under Section 164 of Cr.P.C. But from the contents at Ex.P1 and also her evidence, it appears that there is no consistency between the evidence of PW1 and also the narration of the allegation made against the accused persons.
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escaping from their clutches, she had bitten the hand of accused No.1 and while escaping from their clutches, she sustained some injuries by thorny bushes, while she was running towards the roadside from the said place, then the accused persons made her to lie on the ground forcibly and also made attempt to commit some sort of sexual assault on her; that when she had come towards the road two persons who were on their motorcycle came there and when she narrated them about the attempt made by the accused persons upon her which is unbecoming as persons and variegated
manner, the bike riders made some enquiry with accused No.1 and asked the victim PW1 to wear pant but PW1 who has stated in her evidence that accused No.1 had informed the bike riders that PW1 is a mad girl and she was speaking some irrelevant, but accused No.2 made an attempt to take away her life by using her veil by tying it around her neck, then the accused persons forcibly made her to get inside their
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autorickshaw and while she was struggling by lying on the ground at that time, another woman who was riding a Scooty came on the road wherein the alleged incident between her and the accused persons had taken place. When PW1 victim requested the woman who was riding the Scooty to protect her from the clutches of the persons being arrayed as accused, the said woman did not care for her and went away, then both the accused sought pardon for having committed such kind of an incident upon her and asked her to enter into their autorickshaw, but PW1 who is the victim told them they were all scoundrels and saying so, she went towards the house situated near the alleged incident committed by the accused; that in the said house, one aunty was there and she provided some clothes to wear and then PW1 has narrated the alleged incident in which the accused persons made attempt to commit some sort of sexual assault on her.
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made by PW-1 victim under Section 164 Cr.P.C. at the time of incident and the contents made in the spot mahazar at Ex.P2, wherein PW1 being the victim has made a statement that accused No.1 had bitten her stomach and PW1 in her complaint at Ex.P1 also stated that at the time of the incident, her stomach was bitten by the aforesaid accused No.1. In Ex.P4 it is specifically mentioned that all injuries were superficial abrasions so it appears that injuries mentioned in Ex.P4 might have been sustained by PW1 while she was escaping from the clutches of the accused persons. In the statement of the accused recorded under Section 313 Cr.P.C., it is categorically stated that they have not committed any offences as alleged by the prosecution and also alleged by PW1, who is the victim, but she has filed a complaint by setting up a theory against accused persons when she was asked to pay autorickshaw fare. PW6 being a ASI, who has stood for cross-examination, is an I.O. in
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part, but entire case has been investigated by PW7 being an I.O. wherein he has conducted spot mahazar as at Ex.P2 in the presence of PW1 and also in the presence of PW6. The other mahazar was marked at Ex.P3 and so also two mahazars at Exs.P12 and P13. Ex.P3 mahazar is conducted by I.O. in the presence of PW1 victim girl and PW6 being the ASI. Insofar as the seizure mahazar at Ex.P12 and even another mahazar at Ex.P13 conducted by I.O., PW6 being the ASI had subscribed his signatures, but there is no independent signature relating to the mahazar drawn by I.O. even in the presence of the persons inclusive of PW6. These are all the evidence which find place on the part of the prosecution. Based on the complaint at Ex.P1 made by PW1, criminal law was set into motion. Admittedly, there is one day delay in lodging the complaint and in respect of the delay in heinous offences, there is no plausible and acceptable explanation put forth on the part of the prosecution.
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adduced in her evidence that about one year three months back that her daughter PW1 victim was accompanying her to attend household work at others house, while she was doing some household work inside the house with PW1 being the victim as well as her daughter, without giving any information to her own mother, she left from that place, subsequently, went in search of her missing daughter PW1, but it went in vain. Subsequently, in the evening hours she approached the Banashankari Police to file missing complaint by providing three photographs of her daughter, while she was proceeding to the Police Station with photo, she received a phone message from Mysuru that PW1 victim being her daughter, had reached Mysuru and she was found there. Therefore, PW2 went to Mysuru at 11.00 p.m. and informed her relative Nandeesh who is examined and cited as CW5 in the charge sheet, about the incident. He ascertained the
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phone message and came to Mysore Police Station in Mysore City and took PW2 Mamatha and PW1 victim girl to his house. These are all the evidence let in on the part of the prosecution.
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accused had gone to the house of PW4 viz., Raju, being her relative, where she has narrated the incident to him also and in turn, he has given information about the incident to her relatives by phone message, but after lapse of some time, PW1’s uncle came to the house of PW4 and then he came to know that relatives of PW1 victim took her to Mysuru South Police Station and lodged the complaint.
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and 2 i.e., jeans pant and underwear belonging to PW1 victim and has arrived at a conclusion, but the said material evidence has not been proved by the prosecution relating to seizure of those articles. Ex.P2 is the spot mahazar conducted by the I.O. in the presence of P.W.1 and P.W.6 being the ASI, the Trial Court looking into the facts and circumstances of the entire case of the prosecution and the entire evidence on record, keeping in view all those evidence, has arrived at a conclusion that the prosecution has miserably failed to prove the guilt against the accused to secure the conviction, consequently rendered the acquittal judgment of the offences for which the accused are held charged.
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evidence which has been facilitated by the prosecution and on this ground alone, it requires inference by this Court, if not intervened with the impugned judgment of acquittal, certainly there would be absolutely miscarriage of justice to the person being a complainant and also graveman of the incident narrated in her complaint.
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accused persons. It is contended that PW4 viz., Raju who is none other than the Uncle of PW1 has clearly stated in his evidence that immediately after the incident, the victim visited his residence and he helped the victim girl by giving some clothes and necessary things, but that evidence has not been appreciated by the Trial Court, and therefore, even on that ground alone, it requires interference of the judgment of acquittal and also it requires re-appreciation of the evidence. PW1 being the victim, has been subjected to examination by PW3 Doctor who is also subjected toe examination relating to the injuries inflicted on the person of PW1 and in all six external injuries were inflicted, accordingly, wound certificate was issued as per Ex.P4, but PW3’s evidence finds corroboration with the evidence of PW1 being the victim girl and so also evidence of PW4 Raju who has stated that she is his relative in terms of Uncle and had given some assistance to her, merely because there were some
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inconsistencies and their versions are found to be different, it cannot be a ground for throwing out the case of the prosecution simply because there are some discrepancies, but discrepancies bound to occur and more so, it requires appreciation of the evidence in a proper prospective, if not intervened with, certainly there will be some miscarriage of justice, wherein the accused persons made attempt to take away the life of the victim PW1 and also made attempt to commit some sort of sexual assault on her. Apart from that, the accused persons were roaming with PW1 being victim girl in their autorickshaw with an intention to cause some assault on her, accordingly PW1 has narrated in her complaint at Ex.P1 and so also she has stated in her evidence that PW1 being the victim, was a minor helpless girl who was in the clutches of accused persons, the accused persons have taken the benefit of she being a minor with an intention to commit some sort of heinous act upon her, but the scope and object
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of the offences under the POCSO Act, 2012 is to protect the minor victim in the society from the sexual offences.
That fact has not been considered by the Trial Court while rendering the judgment of acquittal by giving more credentiality to some sort of omission and contradiction and discrepancies, but the Trial Court while rendering the judgment of acquittal, has given much more credence to minor variations and contradictions that will definitely occur in each and every case, the minor contradictions and variations clearly indicate that the witnesses who deposed before the Court of law were neither tutored nor interested witnesses. However, in the instant case and also in a given facts and circumstances of the case specifically wherein PW1 being victim minor girl, the prosecution has established the case against both the accused persons with a cogent and clinching evidence, despite which, the trial Court had rendered acquittal judgment by holding that the evidence of PW1 being the minor and also evidence of
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PW3 being a Doctor and so also evidence of PW4 Raju, termed to be Uncle in relation, has given more credentiality that there are some omissions and contradictions. Therefore, learned HCGP seeks for reconsideration of the grounds urged in this appeal and reversal of the judgment of acquittal and to convict the accused of the offences under Sections 366, 376(2) (i) (n) read with Sections 511 and 307 read with Section 34 of Indian Penal Code 1860, besides Section 5(g) read with Sections 6 and 18 and Section 9 (g) read with Section 10 of POCSO Act, 2012 committed against the minor girl, who made attempt to commit rape or sexual assault on her and so also an made attempt to take away her life with a common intention and so also for the offences under Section 5(g) of POCSO Act, 2012 relating to an aggravated sexual assault on the victim inclusive of the offences under Sections 18 and 9 (g) read with Section 10 of the POCSO Act, 2012. The ingredients of the offences under the Indian Penal Code,
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1860 and so also ingredients of the offences under the POCSO Act, 2012 have been established by the prosecution by facilitating the evidence through PW1 victim girl and also evidence of PW3 Vijayalakshmi who is subjected to examine the victim girl and so also the evidence of PW7 being an I.O. who conducted the entire investigation and during investigation drew seizure mahazar as per Ex.P2 in the presence of PW1 being a victim girl and so also in the presence of PW6 ASI who is I.O and such other mahazar at Ex.P3 and so also seizure mahazar as per Ex.P12 and another mahazar as at Ex.P13, the age estimation certificate at Ex.P6 and wound certificate of the victim PW1 as per Ex.P4. These are all the evidence and material evidence let in on the part of the prosecution to prove the guilt against the accused, despite of it, the Trial Court had rendered acquittal judgment without appreciating the evidence in a proper perspective. Therefore, on that premise, the learned HCGP for the State seeks for reconsideration of
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the grounds as urged in the appeal and consequently, prays for reversal of the judgment of acquittal in S.C.No.353/2014 and to convict the accused of the offences for which they were held charged.
the learned HCGP for State, learned Counsel Sri K.G.Kumara for respondents No.1 and 2 being arrayed as accused, looking into certain part of the evidence of PW4 viz., Raju, it is very much clear that PW1 victim girl
had gone to the house of PW4 soon after the incident. She was not at all in a half naked condition but the prosecution case reflected and set up that when PW1 had gone to the house of PW4 as in terms of relation as Uncle, she was half naked and her pant and underwear were seized from the scene of crime as she was disrobed by the accused at the time of incident. Looking to these facts, it appears that no such incident of attempt to commit rape by the accused persons upon PW1 victim might have taken place as narrated in her complaint at
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Ex.P1. Even on a cursory glance of PW1’s statement at Ex.P17 recorded under Section 164 of Cr.P.C., she might have given a complaint against the accused persons when they startled or compelled her to give autorickshaw fare in which she had traveled for not less than 40 kms. and she was provided some meals and even provided some chappals by the accused persons during the travel. M.Os.1 and 2 i.e., jeans pant and underwear said to have been seized by the I.O. during the course of the investigation by conducting spot mahazar as per Ex.P2 and M.Os.1 and 2 alleged material objects were found at scene of crime at the instance of PW1 victim by the I.O. and mahazar at Ex.P2 has been drawn, but it is not proved by the prosecution by facilitating the worthwhile evidence. At a cursory glance of defence in the evidence of PW7-I.O. has not all collected the clothes said to have been given to PW1 victim girl in the house of PW4 and even that PW4’s Uncle has not at all been specifically cited as a
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chargesheeted witnesses in the charge sheet laid by the I.O. against the accused persons, which is clearly indicated therein.
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alleged offences. Looking into the entire evidence on record on the part of the prosecution and discussions made by referring to the evidence of those witnesses inclusive of the official witnesses, the Trial Court had formed its opinion that the prosecution has failed to prove its case against accused Nos.1 and 2 with all beyond reasonable doubt to secure the investigation. But the Trial Court had rendered the acquittal judgment by extending the benefit of doubt and even on close scrutiny of the evidence of PW1 who is the victim girl and so also the evidence of PW2 Mamatha being her mother and inclusive of PW4, PW1 might have given a complaint against the accused persons, since the accused had compelled her to give autorickshaw fare in which she had traveled for not less than 40 kms. These grounds were also urged by the learned Counsel for reconsideration of the evidence. The Trial Court on close scrutiny of the evidence and on analyzing the evidence has rightly come to the conclusion by
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assigning justifiable and sound reasons and has rendered acquittal judgment for the offences for which they were held charged. Therefore, there is no perversity, absurdity or even any infirmity and therefore, the appeal deserves to be rejected being devoid of merits by confirming the acquittal judgment rendered by the Trial Court.
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evidence on the part of the prosecution reveals that PW4 Raju had taken her to Mysore South Police Station but on the date of incident itself at night hours if really the incident had occurred as alleged by the prosecution and even on the theory as set up by the prosecution, the Police ought to have registered the complaint immediately on the date itself.
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fare as she was traveling around 40 kms. distance.
They may be self-inflicted injuries upon PW1 but admittedly, there is a delay in lodging the complaint relating to heinous offences but PW3 being a Doctor who stood for cross-examination relating to her examination-in-chief had categorically admitted that the age of the injuries have not been mentioned in the wound certificate at Ex.P4, but in the crossexamination, PW3 has specifically stated that if a person meddled with some thorns, it possibly could have caused injuries as indicated in Ex.P4. P.W.3 further in the cross-examination has specifically stated there were no bitten injuries upon PW1, and PW3 further stated in the cross-examination that tenderness would be experienced if a person comes into contact on the wound part and it would not be visible to the naked eye. But on a suggestion made to PW3 regarding pain in the tenderness wound, there is a chance of pretexting or acting of the pain and the same has been admitted
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by PW3, in Ex.P4 wound certificate, injury No.6 would
be possibly caused even by pulling and pushing or putting clothes around the neck. PW1 being the victim as per the statement under Section 164 of Cr.P.C. has stated that at the time of incident, accused No.1 had bitten on her stomach and during the incident, her stomach was bitten by the accused but as per the wound certificate Ex.P4 issued by PW3 there are no such bitten injuries upon her stomach.
certificate that all injuries are superficial abrasions in nature. So far as the injuries mentioned in Ex.P4 it is stated by PW3 that they might have been sustained by PW1 while she was escaping from the clutches of persons or it might have caused if she was stuck in the middle of thorny bushes. Ex.P2 is the spot mahazar conducted by PW7 in the presence of PW1 being the victim and so also in the presence of PW6 being ASI. On a cursory glance of the evidence of these witnesses
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relating to the fulcrum of the mahazar at Ex.P2, where accused persons made attempt to commit some sort of sexual assault upon her forcibly or even rape upon PW1 is not in a hilly area. PW1’s evidence even on close scrutiny would indicate that the driver of the autorickshaw Gangadhar had asked her to sit in the autorickshaw, since if the passersby had seen them talking on the roadside, they would be mistakenly taken into consideration, but even then she was not heeding to his words to sit in the autorickshaw, and the accused Gangadhar saying so, held her hands and made her to lie on the ground. But looking to the evidence of PW1 victim girl, who is a minor she proceeded from Bangalore Yadiyuru in Banashankari limit to Mysore even, accompanying with her mother PW2 for attending household work but without her knowledge PW1 had left her mother and boarded the train from Bangalore and reached Mysore on the next day and while she was proceeding by walk towards near the Big Clock tower in
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the Mysore City, on seeing PW1 proceeding alone, accused No.1 who was driving the autorickshaw along with a passenger, had noticed that girl who was going alone and made some enquiry with her as to where she had to go and asked her if she would get into the auto as a passenger, but she expressed her inability to travel in the autorickshaw and she told him that she has to go to Devaiahnahundi and at the that time, accused No.1 the driver of autorickshaw told her that they were also proceeding towards Devaiahnahundi and made her to sit in the autorickshaw and she along with accused Nos.1 and 2 were roaming and in the evening visited Balamuri and thereafter, made her to take fish meals and then the accused persons had taken her towards the Lalithadripura Village near Chamundi Hills area, wherein accused persons made some attempt to commit some sort of rape on her by unrobing her. PW1 being the victim girl has stated in her evidence that while she was in the process of escaping from the clutches of
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accused No.1, at that time, she had bitten the hand of accused No.1, but Ex.P7 medical certificate of accused No.1 reveals that there were no such bitten injuries on his hand and accused No.1 had been medically examined on 19.07.2014 i.e., two days after the alleged incident narrated in her complaint at Ex.P1 and so also in her statement under Section 164 of Cr.P.C as at Ex.P17.
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laid the chargesheet against the accused persons and conducted spot mahazar at Ex.P2, seizure mahazar at Ex.P12 and other two mahazars at Exs.P3 and 13 respectively, but seizure mahazar and mahazar which was conducted in the presence of PW6 being ASI who is an I.O. in part, another mahazar which was conducted in the presence of P.W.6 who is an I.O. in part being the rank of ASI and so also M.Os.1 and 2 i.e., jeans pant and underwear of PW1. The fulcrum of the facts at mahazar Ex.P2 conducted by PW7 has not been proved by the prosecution that these M.Os.1 and 2 have been seized at the instance of victim PW1 at the scene of crime. Even the evidence of PW1 being the victim and so also the fulcrum of the mahazar at Ex.P2 which runs contrary to the evidence of PW7 being I.O. and further contrary to the evidence of PW4, but P.W.4’s wife has not at all been subjected to examination during the course of investigation and even the I.O. has not ventured into recording her statement by citing her as a
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chargesheet witness. Looking into the evidence of PW4 Raju and the evidence of PW1 victim wherein PW1 had gone to the house of P.W.4 soon after the incident and the allegations that she was made naked and unrobed by the accused persons that is removal of her jeans pant and also the clothes with an intention to commit some sort of sexual assault on her and on a close scrutiny of the evidence of PW1 and so also on close scrutiny of evidence of PW4, PW1 was not in half naked condition but her pant and underwear were seized from the spot of offences, as she was disrobed by accused persons at the time of incident with an intention to commit some sort of rape upon her. Looking into all these facts, it appears that no such incident of attempt to commit rape was made by the accused persons upon PW1 being the victim minor girl, but PW1 might have given a complaint by narrating the incident alleged against the persons being arrayed as accused that when they compelled her to give autorickshaw fare in which
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she had traveled for not less than 40 kms., the alleged accused persons provided meals to the victim PW1, and even provided a pair of chappals to her and that the said incident has been narrated by her by filing a complaint as per Ex.P1 and even in filing the complaint, there is a delay of one day that too alleging heinous offences against the accused persons, whereas the Trial Court commanding evidence of P.Ws.1, 2 and 4 inclusive of evidence of PW.3 being a Doctor, even at a cursory glance of the entire evidence of those witnesses inclusive of the official witnesses such as P.Ws5, 6 and 7, the theory on the part of the prosecution does not repose confidence to the Court of law to secure the victim and also the accused and the accused deserve to be convicted for having made an attempt to commit rape upon PW1 being the victim girl and also made attempt to take away her life and so also in a aggravated sexual assault upon her as under Section 6 of the POCSO Act, 2012. However, accused No.1 being driver of
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autorickshaw, wherein PW1 victim who was traveling in the said autorickshaw along with accused No.2 for around 40 kms., there is no dispute about the fact that accused No.1 being driver of his autorickshaw, has stated and also explained in his incriminating statement as hit under Section 313 of the Criminal Procedure Code, which indicates plausible explanation made by the accused during the course of incriminating statement as recorded, but there is failure on the part of the prosecution to prove the guilt against the accused by facilitating worthwhile evidence for securing the conviction for the offences under the IPC against accused, and so also offences under the relevant provisions of POCSO Act, 2012, as stated supra and also for the offences under Section 6 of the POCSO Act in respect of aggravated sexual assault upon the minor girl, as punishment provision.
to 7 being police official witnesses and even on close
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scrutiny of evidence including PWs.1, 2, and 4, there are some omissions, contradictions and lot of
improvements found in the evidence of those material witnesses and therefore, looking to the given facts and circumstances of the case and even looking into the totality of the evidence of the prosecution, a prudent man can come to the conclusion that the prosecution has failed to prove the guilt against the accused by facilitating worthwhile evidence as in the instant case, where the Trial Court has addressed the evidence of those material witnesses and also assigned sound as well as the justifiable reasons for arriving at a conclusion that the prosecution has not established the guilt against the accused by facilitating cogent, corroborative and positive evidence to probablise that accused Nos.1 and 2 are said to have committed alleged offences and also made an attempt to commit rape upon the victim PW1 and also made attempt to take away her life by inflicting some injuries, as indicated in the
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wound certificate at Ex.P4 issued by PW3 being a Doctor who examined her.
ORDER
(i) The appeal filed by the appellant / State under Section 378(1) and (3) of Cr.P.C., is hereby rejected.
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(ii) Consequently, the judgment of acquittal rendered by the trial Court in S.C.No.353/2014 dated 10.05.2016 is hereby confirmed.
Sd/JUDGE.
Sd/JUDGE.
JT/-
2 issues framed by the court
Whether the trial court's acquittal of the accused for attempt to rape and attempt to murder a minor under the IPC and POCSO Act warranted reversal on re-appreciation of the evidence?
Whether the omissions, contradictions and the unexplained delay in lodging the complaint rendered the prosecution case doubtful?
7 provisions across 3 enactments
State of Karnataka by Mysuru South Police Station, Mysuru
Gangadhar
Mahadeva
Mamatha
K.Somashekar
C.M. Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
