Dismissed

State of Karnataka v. Sri. Chandrappa

Karnataka HC24 Nov 2022CRL.A/354/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the State's criminal appeal against acquittal under Section 378 Cr.P.C. The Court upheld the Trial Court's finding that the prosecution failed to prove abduction, rape, or threat due to conflicting victim testimony, lack of corroborating witnesses, and medical evidence denying sexual contact.

What did the court decide?

The criminal appeal by the State is dismissed; the acquittal judgment is confirmed.

State of Karnataka Vs Sri. Chandrappa — Child Sexual Offences (POCSO) | Karnataka HC (2022)

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1 - CRL.A No. 354 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^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. 354 OF 2017

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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 GUBBI POLICE STATION, REP BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING,

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BENGALURU-560001.

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…APPELLANT

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

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AND:

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SRI. CHANDRAPPA S/O PATHAIAH, AGED ABOUT 25 YEARS, R/O KONEMADENAHALLI, KASABA HOBLI, GUBBI TALUK, TUMAKURU DISTRICT-572216

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GIRIJAMMA W/O HANUMANTHAIAH, AGED ABOUT 47 YEARS, R/AT, KONEMADENAHALLI, KASABA HOBLI, GUBBI TALUK, TUMAKURU DISTRICT.

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…RESPONDENTS

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(BY SRI. PATEL D. KAREGOWDA – ADVOCATE FOR R-1; R-2 SERVED AND UNREPRESENTED)

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CRL.A No. 354 of 2017

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THIS CRL.A. FILED U/S.378(1) AND (3) CR.P.C BY THE HCGP FOR THE STATE PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO: A) GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30.07.2016 PASSED IN SPL.C.NO.615/2014 ON THE FILE OF III-ADDL. DIST. AND S.J., TUMAKURU ACQUITTING THE RESPONDENT/ ACCUSED FOR THE OFFENCE P/U/S 342, 506 AND 376 OF IPC AND SEC. 4 OF POCSO ACT; B) SET ASIDE JUDGMENT AND ORDER OF ACQUITTAL DATED 30.07.2016 PASSED IN SPL.C.NO.615/2014 ON THE FILE OF III-ADDL. DIST. AND S.J., TUMAKURU ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 342, 506 AND 376 OF IPC AND SEC. 4 OF POCSO ACT; AND C) CONVICT AND SENTENCE THE ACCUSED/RESPONDENTS FOR THE OFFENCE P/U/S 342, 506 AND 376 OF IPC AND SEC.4 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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JUDGMENT

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Aggrieved by the judgment of acquittal in Spl.Case No.615/2014 by the learned III Addl. District & Sessions Judge, Tumkur, the State has come up in this appeal under Section 378 of the Cr.P.C.

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The brief facts leading to this appeal are as below and the parties would be referred to as per their ranks before the Trial Court, for the sake of convenience.

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The case of the prosecution as it unfurls from the charge-sheet papers is that, on 04.10.2014, during night, the accused had illegally abducted the daughter of the complainant who came out of the house for nature call. The accused by closing the mouth of the victim, had threatened her that if she shouted, he would kill her and took her to an isolated place, that is a pump house situated in the land of one Kuddus Mango Farm and committed rape on the victim girl and he left her in the morning at about 5.00 a.m. after tying the hands and legs of the victim, by promising her that he would come with a motor bike. Later when the parents of the victim were searching for her, they noticed that the victim girl was lying in the said pump house and rescued her from the pump house. Thereafter, the mother of the victim, that is PW-1, has lodged the complaint as on 05.10.2014 at about 6.30 p.m. before the police.

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On receiving the complaint, PW-10 / Manjunatha

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who was the PSI of Gubbi P.S. registered the same in Crime No.217/2014 and thereafter handed over the further

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investigation to the CPI that is PW-13. Thereafter, PW-13 visited the spot and conducted spot mahazar as per Exhibit P2 in the presence of PW-6 and then sent the victim for medical examination. He also arranged to secure the documents regarding the Date of Birth of the victim, recorded the statements of the witnesses, and then arranged to record the statement of the witness under Section 164 of the Cr.P.C. He also sent the articles seized by the Medical Officer at the time of the examination of the victim to the FSL for examination and by then, the accused was produced by his staff and was arrested on 26.10.2014 and he was also subjected to medical examination and then he was produced before the Court. PW-13, after securing the Record of Rights of the spot of the incident, visited the house of the victim and then seized the rope which was produced by the father of the victim under a mahazar as per Exhibit P6 and also conducted another mahazar in front of the house of the accused and after recording the statements of the witnesses, completed the investigation and filed the charge-sheet. In

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the meanwhile, he had also sent the cloths of the accused for examination to the FSL.

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The Trial Court had filed charge-sheet for offences punishable under Sections 342, 506, 376 of the IPC and Section 4 of the POCSO Act, 2012. The Trial Court took cognizance of the offences and framed charge for the aforesaid offences and read over the same to the accused. The accused claimed to be tried and therefore the case entered into trial. During trial, the prosecution has examined 15 witnesses as PW-1 to PW-15 and Exhibits P1 to P14 were marked in evidence. The statement of the accused under Section 313 Cr.P.C. was recorded by putting across the incriminating circumstances of the evidence to the accused and the accused has denied the same. He has not examined any witnesses in support of his case.

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After hearing the arguments by learned Public Prosecutor and the learned counsel appearing for the Defence, the Trial Court had framed points for consideration and answering those points in the negative, proceeded to

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acquit the accused from the offences charged against him. Aggrieved by the said judgment, the State has come up with this appeal before this Court.

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The Trial Court records have been secured and on issuance of notice, the accused has appeared before this Court through his counsel. On admitting the appeal, the arguments by learned HCGP appearing for the State and the arguments by learned counsel appearing for the accused Shri Patel D. Karegowda, were heard. Though notice was served to the complainant as required under Section 40 of the POCSO Act, she has not appeared despite proper service.

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The learned HCGP in his submissions, contended that the judgment and order passed by the Trial Court acquitting the accused for the offences punishable under Sections 342, 506, 376 of the IPC and Section 4 of the POCSO Act, is contrary to the evidence and material on record and the same is not in accordance with law. It is submitted that the Trial Court has not properly appreciated the admitted fact as regards the Birth Certificate of the

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victim girl issued by PW-14 / S. Ramaiah as per Exhibit P11, which reflects that the date of birth of the victim is 02.03.2000. The Trial Court coming to the conclusion that the age of the victim is more than 18 years as on the date of the incident, is erroneous and against the available evidence. He further contended that the accused took the victim girl from the house of the victim when she came outside for nature call by using force and closing her mouth, took her to a Mango farm, kept her in the pump house where she was raped on the night of 04.10.2014. It is submitted that he tied the legs and hands of the victim girl and went away and therefore, the accused should have been convicted for the offences under Sections 376 and 342 of the IPC.

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It is further submitted that the evidence of the victim girl shows that the accused had forcible sexual intercourse with her under threat of life and therefore, the accused is also liable for offences under Section 506 of the IPC. He further submits that the evidence of the victim girl

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establishes that the accused took the victim by force and committed rape during night and the mother of the victim has supported the version of the prosecution and as such, the evidence of the victim, that is PW-3 gets corroboration from the evidence of her mother / PW-1. He further contends that the statement made by the victim / PW-3 before the Magistrate under Section 164 of the Cr.P.C. also comes to the aid of the prosecution. He further contends that the Trial Court has not properly appreciated the evidence on record and has wrongly come to the conclusion that the prosecution has failed to prove the guilt of the accused and as such, the impugned judgment needs to be interfered with.

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Per contra, learned counsel appearing for the accused has submitted that the prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt. He further contends that the evidence of PW-2 / victim has two versions and it is unclear as to when and where she was abducted by the accused. It is further

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contended that the place where the victim was kept is also not sufficiently proved by the prosecution as at one stretch she states that she had been raped under a mango tree, in another stretch, she states that she had been raped in the pump house in the mango farm of one Kuddus. He submits that the said Kuddus has not been examined and therefore, it is unclear as to whether there is any such pump house or not. It is also submitted that the Trial Court has properly assessed the age of the victim with reference to the age of her brother and therefore, in the absence of cogent evidence as to how the date of birth came to be recorded in the School records and at whose instance it was entered, the admitted version of the mother of PW-3, i.e., PW-1 and also the evidence of PW-4, i.e., brother of PW-3 has to be accepted and this evidence clearly indicates that she was aged about 18 years or more at the time of the incident and as such, the provisions of the POCSO Act are not applicable.

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He further contends that the clinching evidence in the form of medical certificate indicates that none of the

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clothes of the victim had any indication of the semen on them and in view of the fact that the victim was subjected to medical examination without any delay, if at all there was any rape, there was bound to be stains of semen on her body or clothes. In the absence of such evidence, the version of the prosecution is not sufficiently established and the medical evidence also does not indicate any rape or sexual intercourse on the alleged date of the incident.

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He also contends that the evidence of PW-4 is not convincing as at one stretch he states that PW-3 was not taken with him for a pooja at the Temple for the reason that she was menstruating and the evidence of the Medical Officer does not show such condition of the victim. It is further contended that the evidence of the Doctor has been properly considered and evaluated by the Trial Court and it has come to the conclusion that simply because semen stains were found on the clothes of the accused, it cannot be concluded that there was a rape, unless the semen stains were also found on the clothes of the victim when she was

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subjected to medical examination. Therefore, he contends that the Trial Court has considered these aspects and has properly come to the conclusion of acquittal.

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It is also submitted that the possibility of a false implication has also been considered by the Trial Court and the election rivalry in the village has been brought out in the cross-examination of the prosecution witnesses, which indicates that one Kalaiah, Bhojaraja and Prakash were visiting the Court at the time of trial even though they were not shown as witnesses and material witnesses have admitted their presence in the Court.

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It is submitted that they were the cause for a false implication of the accused in the present case and since the accused belonged to downtrodden caste and he was not strong enough politically in the village, there was a rivalry between the said Bhojaraja and Prakash and therefore, using the victim as a pawn, they have concocted a false case against the accused. He further contends that the evidence of PW-1, PW-2, PW-3 and PW-4 is not believable as it is not

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supported by any medical evidence and interse their testimonies have contradictions and omissions. He also contends that another brother of the victim, that is PW-7 / Sachin, has turned hostile and the other witnesses are also their relatives namely PW-8, PW-9 and PW-11 also have turned hostile to the prosecution. Under these circumstances, he contends that the material discrepancies in the evidence of the prosecution have been properly assessed by the Trial Court and therefore, there is no need for interference in the acquittal judgment of the Trial Court.

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In the light of the above submissions by the learned HCGP and the learned counsel appearing for Respondent No.1 / accused, we have to examine the evidence on record to find out whether the conclusions reached by the Trial Court are perverse and illegal. It is to be noted that the accused has the benefit of innocence in the first instance and the judgment of acquittal by the Trial Court augments such a presumption of innocence available in favour of the accused. It is also settled principle of law

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that unless there are perversities, arbitrariness and illegalities shown in the judgment of the Trial Court, the Appellate Court cannot interfere in such finding of the Trial Court. This is because, the Trial Court has the advantage of seeing the demeanor of the witnesses and it has an opportunity of interacting with the witnesses who had appeared before it and had conducted the trial and as such, it has an advantage of assessing the trustworthiness of the victim than the Appellate Court, which is solely dependent upon the records of the case. Therefore, it would suffice to say that the Appellate Court needs to interfere only if a prima facie perversity or arbitrariness is established by the prosecution from the judgment of the Trial Court vis-à-vis the evidence on record.

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Firstly, a perusal of the records reveals that the accused, soon after the arrest, was subjected to medical examination and the report is at Exhibit P7 and it has been marked by consent of the defence. The under-garments of the accused were sent for FSL examination and it was found

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that there were seminal stains on the under-garments of the accused. That does not mean that the accused was wearing the same under-garment at the time of the incident. There is no continuity of the custody of these under-garments which he wore at the time of the incident till its seizure by the Medical Officer. Therefore, it is not known for what purpose the under-garment of the accused was sent for FSL examination.

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It is relevant to note that the under-garments of the victim / PW-3 were collected by the Medical Officer and it was sent for FSL examination. The report of the FSL at Exhibit P13 discloses that seminal stains were not found in any of the items sent for the examination, though the articles were the clothes of the victim, under garment of the victim, pubic hair of the victim, cervical swab, swab from posterior fornix and swab from vagina. If at all there was any sexual intercourse as alleged by PW-3 on the night of 04.10.2014, there were bound to be seminal stains in any of these items. It has also come in the evidence of PW-3 and

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also in the evidence of the Medical Officer / PW-12 who examined PW-3 / victim, that the victim had not taken her bath after the incident till examination by the Medical Officer. Therefore, this vital evidence indicates that there was no such sexual intercourse as alleged by PW-3.

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This takes us to the testimony of PW-3 in order to ascertain her credibility. The complaint at Ex.P1 shows that since the accused was following PW-3, he was advised not to do so and even then he used to tease her and therefore, PW3 was prevented from going to school. PW-3 in her complaint at Exhibit P1, states that she had acquaintance with the accused and the accused had promised that he would marry her. She has stated in her complaint that she had agreed for the same and therefore, they used to go to the Mango farm of Kuddus and there, they used to have sexual intercourse. She states that on 04.10.2014 also, they had sexual intercourse and on the next morning, she went home and they did not allow her to enter the house and thereafter, one Kalaiah informed that the accused had

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engaged with another girl and therefore, she went to the house of the accused and questioned him. Thereafter, the accused refused to marry her and therefore, she has filed the complaint. This version mentioned in the complaint has not been reiterated by her in the testimony. But in her testimony before this Court as PW-3, she has stated that she was abducted by the accused by holding her mouth and forcibly took her to the pump house of Kuddus and there he had raped her.

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This version is totally different from what is mentioned in Exhibit P1. Nowhere before the Trial Court she has stated that prior to the alleged date of the incident, that is 04.10.2014, they had any sexual intercourse. Therefore, the evidence of PW-3 / victim has been considered by the Trial Court in paragraph 36 of its judgment in a proper perspective. We do not find any perversity in the observations of the Trial Court in paragraph 36. Further, it is also relevant to note that the allegations in respect of threat to life as stated by her before

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the Court is at the time of abducting her to the pump house. In fact, Exhibit P1 does not mention anything about such abduction and it was only when she went to the house of the accused the next day morning and insisted for marriage, that she was threatened. Therefore, the place where the said threatening took place is entirely different from what is mentioned in the complaint and what is stated before the court.

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It is evident that there are no eye-witnesses to the incident which had allegedly taken place in the four corners of the pump house in the mango farm of one Kuddus. What transpires later, is of some importance. It is relevant to note that according to the prosecution version, the accused had tied PW-3 with a rope and had left the pump house. But in the complaint, a different version is available as observed supra. It is also to be noted that PW-3 states that her hands as well as legs were tied with a rope. Curiously, the rope has been seized from the house of PW-2. It is not known as to why PW-1 and PW-2 took the rope to their house. It is

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also relevant to note that only one rope has been seized by the Investigating Officer and it is not known as to what happened to the other rope used by the accused. It is pertinent to note that the seizure of the rope is not established by the prosecution, since the pancha of Exhibit P6, that is PW-8 has turned hostile to the prosecution. It is pertinent to note that PW-8 though turned hostile, in the cross-examination by the learned Public Prosecutor, he admitted that the rope was seized in his presence. In the cross-examination by the learned counsel for the accused, he has stated that he did not know where PW-2 had kept the rope in his house. He admits in the cross-examination that one Kalaiah, Bhojaraj and Prakash were present in the Court with PW-2. This gives an impetus to the contention of the defence that PW-1 to PW-4 are deposing at the influence and instance of those persons. Under these circumstances, the defence version has sufficiently probabilised its defence that the alleged incident is only a fictitious creation in order to force the accused to marry PW-3.

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The last aspect which needs to be considered is regarding the age of the victim. The Trial Court in paragraph 26 has observed that Exhibit P11, the certificate issued by the School authorities shows that she was born on 02.03.2000 and if such date is considered, as on the date of the incident, she was aged 13 years 8 months. It has also observed that the evidence of PW-1 shows that her son Manjunath / PW-4 is aged about 24 to 25 years and the victim was one or two years lesser than the age of PW-4. If that version is accepted, then the age of the victim can be inferred as 21 or 22 years. Further, the Trial Court has also considered the evidence of PW-4 who has stated that as on 18.11.2015 he was aged 21 years and even then if one or two years is deducted, then the age of PW-3 comes to around 18 or 19 years. Therefore, when there is evidence to show that PW-3 was aged more than 18 years as per the testimony of the parents and the brother, and when the school records show that she was aged 13 years, it was incumbent upon the prosecution to dispel the doubt created

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regarding the age of the victim. Such doubt could have been dispelled by the prosecution by examining the person who was responsible for entering the date of birth of PW-3 in the school records. In the case on hand, the proper person would be none less than the mother of PW-3 and therefore, the evidence of PW-1 gains importance over the evidence of PW-14 as per Exhibit P11. Under these circumstances, it is not possible to accept the argument of the learned HCGP that the Trial Court had erred in assessing and considering the age of the victim to be more than 18 years. There cannot be any perversity that may be attributed to the finding of the Trial Court in this regard.

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Under these circumstances, it is evident that the version of PW-3 that she was abducted from her house or in front of her house while she was going for a nature call, seems to be an improvement, subsequent to the filing of the complaint. The statement of PW-3 under Section 164 Cr.P.C. which is produced at Exhibit P12 shows another version. She states that on 04.10.2014 at about 8.00 p.m.,

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she had been to a toilet near K.G. Temple and the accused came there and abducted her. Therefore, the place where there was such abduction is something different from what is mentioned in the complaint at Exhibit P1. Further, she had also stated that the accused had gagged her in the pump house of Kuddus and in the early morning while she was weeping, accused had promised to marry her.

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If that was the nature of the relationship between the accused and PW-3, it is not known as to why there was a necessity of tying her hands and legs with a rope. If there was a promise for the marriage by consent of PW-3 and the accused, the question of tying her with a rope, does not arise. So, this logic stated by PW-3 before the Magistrate and which is reiterated by the prosecution, do not go well and do not stand for valid reason. Further, PW-3 also has stated before the Magistrate that her parents were searching for her in the entire night. But there is absolutely no material on record to show that any missing complaint was filed. She states that the fact that she was in the pump

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house, was noticed by her parents on the basis of the chappals which she had left outside. Therefore, the version of PW-3 appears to be something different from time to time. She further states in her statement under Section 164 of Cr.P.C., that there was a scuffle in front of the house of the accused when her parents insisted the accused to marry PW-3. What has been stated by PW-3 before the learned Magistrate has not been stated by her before the Trial Court. It is settled principle of law that a statement made under Section 164 of the Cr.P.C. can only be used for contradicting her testimony before the Court and it cannot become a substantial evidence. A statement recorded under Section 164 Cr.P.C. has to be weighed on the same footing as a statement under Section 161 of the Cr.P.C. and there cannot be any higher degree of standard of evidence that may be attributed to it. Therefore, Exhibit P12 contradicts the evidence of PW-3 which she has stated before the Trial Court in material aspects.

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Under these circumstances, no fault can be found

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with the conclusion reached by the Trial Court that the prosecution has failed to prove the charges leveled against the accused. As discussed supra, the contention of abduction has not been proved, as PW-3 has given three different versions. Further, that the threat to life which is for the offence punishable under Section 506 of the IPC also do not stand for any proof as the place of such threat is not established by the prosecution. Thirdly, the offence under Section 376 of IPC and Section 4 of the POCSO Act is not proved because the medical evidence shows otherwise and the Medical Certificate clearly establishes that there are no signs of any sexual intercourse. Also, the age of the victim is not satisfactorily established by the prosecution in order to draw any presumption under Section 29 of the POCSO Act. Under these circumstances, we find no reason to interfere with the conclusions reached by the Trial Court in acquitting

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the accused. The judgment of the Trial Court chronologically narrates the entire incident and the Trial

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Court has rightly come to the conclusion that the prosecution has failed to prove the guilt of the accused.

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Under these circumstances, the appeal deserves to be dismissed as being devoid of any merits. Hence, we proceed to pass the following:

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O R D E R

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The appeal preferred by the State under Section 378 Cr.P.C. is hereby dismissed. The judgment of acquittal dated 30.07.2016 in Spl.Case No.615/2014 passed by the learned III Addl. District & Sessions Judge, Tumkur, is hereby confirmed.

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Sd/JUDGE

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Sd/JUDGE

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State of Karnataka v. Sri. Chandrappa

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Sri. Chandrappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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