Dismissed

State of Karnataka v. Shri Mubarak @ Salman

Karnataka HC30 Nov 2022CRL.A/1990/2016

Case brief

AI extract

What is this about?

In a criminal appeal against acquittal for POCSO and IPC offences, the High Court found the trial court's decision justifiable. The court held that discrepancies in witness testimony, lack of medical proof of assault, and hostile witnesses did not raise enough doubt to warrant interfering with the acquittal.

What did the court decide?

The criminal appeal was rejected and the judgment of acquittal dated 31.08.2016 was confirmed.

State of Karnataka Vs Shri Mubarak @ Salman — Child Sexual Offences (POCSO) | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF NOVEMBER, 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.1990/2016

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BETWEEN:

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STATE OF KARNATAKA BY BANASHANKARI POLICE REP. BY SPP HIGH COURT BUILDING BANGALORE – 560001.

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...APPELLANT

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(BY SHRI ABHIJITH K.S., HCGP)

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AND:

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SHRI MUBARAK @ SALMAN S/O. SYED MOHAMMAD AGED ABOUT 23 YEARS R/A. NO.296 BESIDE MARIYAMMA TEMPLE NEHRU COLONY, YARAB NAGAR BANASHANKARI II STAGE BENGALURU – 560 070.

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AMZAD PASHA S/O. ABDUL LATHIF R/A. NO.382

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NEAR MARIYAMMA TEMPLE

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MEHRUNISSA HOUSE NEHRU COLONY, YARAB NAGAR BENGALURU – 560 070.

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…RESPONDENTS

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(BY SHRI A.S.KULKARNI, ADVOCATE FOR R1 V/C/O DT. 23.09.2022, SERVICE OF NOTICE ON R2 HELD SUFFICIENT.

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 31.08.2016 PASSED BY THE LEARNED LIII ADDL. C.C. AND S.J., BANGALORE IN SPL.C.C. NO.64/2014 ACQUITTING THE RESPONDENT NO.1/ACCUSED NO.1 FOR THE OFFENCES P/U/S 366 AND 376 OF IPC AND SEC. 5(1)(m) R/W. 6 OF POCSO ACT.

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THIS CRIMINAL APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, C.M.JOSHI J., DELIVERED THE FOLLOWING:-

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J U D G M E N T

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The State has filed this appeal being aggrieved by the judgment of acquittal in SPL.C.C.NO.64/2014 dated 31.08.2016 passed by the learned LIII Additional City Civil and Sessions Judge, Bangalore.

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The brief facts leading to this case are as below:-

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The complainant - PW.1 - Amjad Pasha, who happens to

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be the father of the victim, filed a complaint as per Ex.P1

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before the jurisdictional police stating that he is the resident of Nehru Colony and he was working as an autorickshaw driver and the victim was his daughter and she was studying in an Urdu School. He stated in the complaint that on 21.12.2013 at about 3.00 p.m., he was informed by his wife - PW.2 that his daughter i.e., PW.3, who was aged about 5 years, had complained that she has difficulty is passing urine and later PW.1 as well as PW.2 together enquired PW.3 and it was disclosed to them that on the previous day, at about 4.00 p.m., a neighbour i.e., accused herein, under the guise of getting chocolate for the child, had taken her and had sexually assaulted her by putting his fingers into the private parts of PW.3 and it has caused her hurt and therefore, she had difficulty in passing the urine. Therefore action was sought against the neighbour Mubarak @ Salman, who is the accused herein. The said complaint, which is as per Ex.P1, was registered in Crime No.447/2013 for the offences punishable under sections 4 and 8 of the POCSO Act and sections 354, 376(1) of IPC and the criminal law was set into motion.

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The investigation was taken up by PW.12 –

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Krishna.T.T. and he sent PW.3 for the medical examination and since it was a heinous offence, the further investigation was handed over to PW.6 - H.S.Jagadeesh who was the Police Inspector. PW.6 - H.S.Jagadish took up further investigation and visited the spot on 22.12.2013 and conducted spot mahazar as per Ex.P3 and then recorded the statement of the wife of the complainant i.e., PW.2 and also statement of the victim PW.3 and secured the samples collected by the Medical Officer and then arrested the accused with the help of his staff and also recorded the voluntary statement of the accused. The accused was subjected to medical examination and then in the presence of the accused, another mahazar was drawn as per Ex.P4 in the presence of the panchas and thereafter the accused was produced before the Court. The medical records were secured by him and thereafter completed the investigation and filed the charge sheet before the Special Court.

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The Special Court took cognizance of the offences and secured the accused. Finding sufficient materials against

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the accused in the charge sheet papers, it proceeded to frame charge for the offences punishable under sections 366, 376 of IPC and section 5(l)(m) read with section 6 of the POCSO Act.

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The accused claimed to be tried and therefore, the case entered into trial. The prosecution in order to prove the guilt of the accused, examined 12 witnesses as PW.1 to PW.12 and got marked Exhibits P1 to P7 and M.O.1. After closure of the prosecution evidence, the statement of the accused under section 313 of Cr.P.C. was recorded by the Court wherein the accused has denied the incriminating circumstances put across to him.

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The trial Court heard the arguments addressed by learned Public Prosecutor and the learned counsel appearing for the accused and proceeded to pass the impugned judgment acquitting the accused. It is the said judgment of acquittal which has been questioned before this Court by the State.

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The State has contended before this Court that the Court below has not properly appreciated the evidence of the victim PW.3 and she has identified the accused in the Court

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and she has also narrated the act of the accused, who took the

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girl to his house and put his fingers in the private parts of the victim and the Doctor who examined her has also vouched to the fact that she is aged about 5 years and there are indications that the private parts were hurt and therefore, the appreciation of evidence by the trial Court is erroneous. It is further contended that PW.8 - Dr.Vasanth Kumar.K., who was the Senior Physician in Bowring Hospital, examined the victim and has also given the report about the age as per Ex.P6. It is contended that the accused had taken the victim to his house situated on the first floor of his house as deposed by PW.1 and PW.2 and therefore, the identification of the accused by PW.1 to PW.3 is sufficient enough to implicate the accused for the offences alleged against him. It is further contended that the prosecution had proved the guilt against the accused for the offences punishable under section 366 of IPC, but the trial Court has not properly considered the evidence of the witnesses and acquitted the accused which is unjustifiable. It is contended that the fact that the victim is aged about 5 years is amply proved by the prosecution and the report of the

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Medical Officer coupled with the testimony of the victim is sufficient enough to implicate the accused for the offence under section 376 and section 5(l)(m) read with section 6 of the POCSO Act and the same was not considered by the trial Court in proper perspective while passing the impugned judgment. It is further contended that the accused had kidnapped the minor victim for the purpose of committing sexual assault on her from the lawful custody of the parents i.e., PW.1 and PW.2 and thereby, has committed the offence under section 366 of IPC. Therefore, alleging that the impugned judgment is erroneous, the State has preferred this appeal.

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On admitting the appeal, notice was issued to the accused and he has appeared through his counsel. The trial Court records were secured by this Court. The complainant was also issued notice and despite proper service of notice, he has not appeared in the matter.

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We have heard the arguments of learned HCGP Shri Abhijith.K.S. for the appellant/State and also learned

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counsel Shri A.S.Kulakarni for accused / respondent No.1. We

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have perused the trial Court records also in detail.

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Learned HCGP has argued that no justifiable

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reasons are forthcoming in the impugned judgment in respect of not believing the testimony of PW.3 - victim. The deposition of PW.3 has been recorded in question and answer format and she has clearly stated the act committed by the accused and therefore, the trial Court should have believed the deposition of PW.3. He further contends that the evidence of PW.1 and PW.2 clearly indicated that they have stated about the disclosure by PW.3 that the accused had committed the alleged offences. He submits that when PW.3 had been taken or enticed away without the knowledge of PW.2, it amounts to abduction or kidnapping within the definition of section 366 of IPC and therefore, the trial Court has erred in appreciating the evidence of PW.1 to PW.3. He further contended that PW.1 though came

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home after hearing about the incident from PW.2, has stated about the complaint by PW.3 – victim about her difficulty in passing the urine and therefore his evidence, being in due

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course of the acts, has to be accepted. Further similar arguments were also advanced so far as the credibility of PW.2 who happens to be the mother of PW.3. Further he has taken us through the evidence of PW.9 Medical Officer –Dr.Chaitra Narayana and stated that she examined PW.3 and issued report as per Ex.P5. It is submitted that there is “erythematous introitus” and this refers to the assault by the accused. It is contended that the evidence of PW.9 coupled with her report at Ex.P5 and also the evidence of PW.3 would sufficiently prove the offence committed by the accused and therefore, the evidence of the other witnesses regarding investigation, mahazar etc., being supportive in favour of the prosecution version, the prosecution has proved the guilt of the accused. He further contends that the age of the victim is not in dispute and therefore, the evidence in respect of proof of age recedes to oblivion. Therefore, terming the impugned judgment as erroneous, he has sought for intervention of this Court to convict the accused for the offences alleged.

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Per contra, learned counsel appearing for the

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accused has submitted that there are material contradictions in the depositions of PW.1, PW.2 and other witnesses and these material contradictions have been sufficiently discussed by the trial Court while coming to the conclusion that the prosecution has failed to prove the guilt of the accused. It is submitted that the version of PW.1 and PW.2 are totally different and even the evidence of PW.1 shows that he was treated partially hostile by the prosecution and therefore, no interference is needed in the hands of this Court. It is further submitted that the evidence of PW.9 – Dr.Chaitra Narayana shows that redness or “erythemetous introitus” may be caused by infection and therefore, it does not conclusively establish that it may be inflicted by inserting the fingers. He further contended that the deposition of PW.3 has rightly been disbelieved by the trial Court on the ground that she admitted that she had been tutored. Therefore, unless there is believable evidence which inspires the confidence of the Court to believe the words of PW.1 to PW.3, the contentions of the prosecution cannot be accepted. It is submitted that the evidence of PW.9 is also of

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pivotal importance in the matter and when there are other possibilities existed in respect of the injuries complained by PW.3, it is not proper to base the case on the evidence of PW.3 alone. Further it is contended that there is enmity between PW.1, PW.2 and the accused on account of the fact that they were neighbours and PW.1 and PW.2 were interested in evicting the accused from the said premises and use the said premises for themselves. Therefore, it is contended that the conclusions reached by the trial Court are fully justifiable and no interference is needed in the matter.

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Before entering into the discrepancies considered by

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the trial Court regarding believability or otherwise of the prosecution witnesses, it is necessary to note that the accused is presumed to be innocent unless there is sufficient material to show that he has committed an offence. This presumption of innocence gets an impetus from the acquittal judgment of the trial Court. In other words, the trial Court had the advantage of seeing the witnesses who have deposed before it and see the demeanor of the witnesses to come to the

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conclusion as to whether their evidence is credible or not, more particularly, in the present case, it is relevant to note that the deposition of PW.1 to PW.3 was recorded by none else than the

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same presiding officer who has authored the judgment. Therefore, the fact that the trial Court had advantage of seeing the demeanor of the witnesses and thereafter it has come to the conclusion that their evidence is not believable cannot be overturned simply because another view is possible. This proposition of law has been reiterated in a catena of decisions by the Hon’ble Apex Court and a chronicle of all those decisions is found in the decision of Ravi Sharma v. State

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(Government of NCT, Delhi) and Another¹ . Referring to the decision in the case of Jafarudheen v. State of Kerala² it was held, at para 8, as below:

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"8. Before venturing into the merits of the case, we would like to reiterate the scope of Section 378 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) while deciding an appeal by the High Court, as the position of law is rather settled. We would like to quote the

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1 (2022) 8 SCC 536 2 (2022) 8 SCC 440

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relevant portion of a recent judgment of this Court in Jafarudheen and Others v. State of Kerala (2022 SCC Online SC 495) as follows:

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"25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters".

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Further the Hon’ble Apex Court has also reiterated its earlier

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observations in the case of Mohan @ Srinivas @ Seena @ Tailor Seena v. State of Karnataka reported in 2021 SCC

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Online SC 1233 and at paras 20, 21, 22 of the said decision, it was held as below:

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“20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to

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state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.

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21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity, nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.

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22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation

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over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.

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Further, the Hon’ble Apex Court has also observed by referring to the decision in the case of N. Vijayakumar v. State of Tamilnadu reported in (2021) 3 SCC 687 , wherein, it was observed, at para 20, as below:

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“20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a “possible view”, having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, [(2007) 4 SCC 415] has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432)

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“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

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(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere

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with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

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Therefore, this double presumption which is available in favour of the accused cannot be interfered with merely because another view is possible. The Appellate Court cannot interfere in a particular view adopted by the trial Court in respect of the

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testimony of the witnesses, which is based on the demeanor of the witnesses simply because another view as contended by the State is also possible. Keeping in view these principles, the evidence on record has to be re-appreciated by this Court.

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According to the prosecution, PW.3 was enticed away by the accused offering chocolate while she was playing in front of the house. The accused was residing in the same vicinity and the evidence of PW.1 to PW.3 is important when viewed that the accused was a neighbour. The offering of chocolate by the accused was within the knowledge of PW.2. The fact that the accused had taken PW.3 with him was known

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to PW.2. Therefore, the evidence needs to be scrutinized with caution. It is pertinent to note that PW.3 had not complained of the incident on the date of the incident itself. On the other hand, she had complained of the difficulty in passing urine on the next day and this aspect has also been considered by the trial Court. It is also pertinent to note that PW.1 and PW.2 say that when PW.3 had complained of the acts committed by the accused, they had taken PW.3 to the house of the accused and

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this aspect which is spoken in their evidence is nothing but a clear improvement and exaggeration. Either the complaint at Ex.P1 or the prosecution version, as it unfolds from the prosecution papers, do not show this aspect. Therefore, it is not the case of PW.1 and PW.2 that soon after PW.3 complained of the act committed by the accused, they had approached the police, instead they had taken PW.3 to the house of the accused where PW.3 had identified the accused and thereafter they had approached the police station for filing the complaint. These aspects show that Ex.P1 and the prosecution version is bereft of the spontaneity and that the coloured version being introduced cannot be overruled. It is contended that the delayed filing of the complaint and not soon after PW.3 allegedly complained of the illegal acts committed by the accused tells a tale that extraneous aspects, exaggerations and manipulations might have entered into the complaint.

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13. A perusal of the evidence of PW.1 discloses that he

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is hearsay witness and he came to know about the incident only after PW.2 informed him. He states in his examination-in-

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chief that he does not know for what purpose he signed the complaint and he does not know the contents of it. But on the next date of further examination, he was cross-examined by the learned Public Prosecutor and there he admitted of filing the complaint. This also renders his testimony to be of doubtful nature.

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Coming to the deposition of PW.2, it shows that PW.3 was weeping on the date of the incident and the PW.2 did not know why she was weeping and on the next day, PW.3 disclosed that the accused had put his fingers in her private parts and therefore, she called PW.1 and they went to the house of the accused and there PW.3 had identified the accused. In fact her evidence do not show that she had been to the house of the accused, but it was only PW.1 who had been to the house of the accused, but the evidence of PW.1 is otherwise. In the cross-examination it is suggested that false case has been filed in order to evict accused from the house and same has been denied by her. She has admitted the fact of PW.3 being taken to the house of the accused was not

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disclosed before the police. In other words, the delayed filing of the complaint was preceded by a visit of PW.1 to the house of accused. This aspect is of importance to assess the credibility of PW.1 and PW.2.

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Coming to the deposition of PW.3 - the victim, it is relevant to note that she is aged about 5 years and the trial Court has recorded her statement in question and answer format. The cross-examination of PW.3 discloses that she was tutored by PW.2. When she was questioned that she is deposing false at the instance of PW.2, she remained silent and she did not answer the question. This aspect has also been considered by the trial Court in its judgment.

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Coming to the evidence of PW.9 and the report given by her at Ex.P5, it is to be noted that in her opinion, the evidence of signs of recent sexual assault were absent. The local examination disclosed that external genitalia appear to be normal and no bruise or bleeding. Therefore, it is evident that the medical report does not conclusively establish that there was any external sexual assault on PW.3. This aspect has also

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been considered by the trial Court in detail in para 29. Thus we find no reason to differ with the conclusions reached by the trial Court insofar as para 29 is concerned.

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The cross-examination of PW.9 also shows that

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redness may be caused by infections and this possibility definitely adds to the admission by PW.3 that she was tutored. Under these circumstances, when we examine the fact that PW.1, only supported the prosecution version while he was being cross-examined, after treating him hostile and that PW.1 and PW.2 together say that before they went to the police station, they had been to the house of the accused where PW.3 had identified the accused and there was sufficient time for exaggerations, manipulations and external influences being entered into in filing the complaint, when the medical evidence is inconclusive and does not conclusively establish the alleged sexual assault by the accused, we are of the opinion that the conclusion reached by the trial Court is justifiable. Further the fact that PW.1 and PW.2 had the intention of evicting the accused from his house and the hostility of PW.1 creates a doubt about the veracity of the complaint being filed.

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The other evidence available on record is only formal in nature and admittedly there was nothing recovered at the instance of the accused, though voluntary statement was recorded by the Investigating Officer and thereafter no recovery which attracts the provision of section 27 of Evidence Act, the voluntary statement is of no relevance. Therefore, the mahazar which was conducted at the instance of the accused and that place was already known to PW.1 and PW.2 and also the Investigating Officer, the said mahazar is of no relevance. As noted earlier, the evidence of PW.8 who assessed the age of PW.3 is also of no importance since PW.3 being aged about 5 years she was well below the threshold of attaining majority and therefore, the said fact is not in dispute.

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Under these circumstances, the trial Court having come to the conclusion that the oral testimony of PW.1 to PW.3 is not reliable and it is full of contradictions and improvements has rendered an acquittal judgment. The said conclusions appear to be justifiable and we do not find any reason to interfere in the same.

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20. For the aforesaid reasons and findings, we come

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to the conclusion that the appeal is bereft of any merit and therefore, we proceed to pass the following:

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ORDER

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(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 SPL.C.C. No.64/2014 dated 31.08.2016 is hereby confirmed.

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