Dismissed

State of Karnataka v. Hanumesha

Karnataka HC10 Nov 2022CRL.A/613/2017

Case brief

AI extract

What is this about?

High Court bench dismissed the State's criminal appeal under Section 378 Cr.P.C. against a trial court's acquittal in a POCSO sexual assault case. Upholding the acquittal, the court emphasized the trial court's advantage in viewing witnesses and noted tutoring, delay in FIR, and negative medical evidence as justification for not reversing the verdict.

What did the court decide?

Appeal dismissed; judgment and order of acquittal by the Trial Court confirmed.

State of Karnataka Vs Hanumesha — Constitutional and Fundamental Rights | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^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.613 OF 2017

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BETWEEN:

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State of Karnataka, By Honnali Police, Represented By State Public Prosecutor, High Court Building, Bangalore - 560 001. ...Appellant

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(By Sri Abhijith K S, HCGP)

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AND:

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Hanumesha, S/o Sakryanaika,

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25 Years, R/o Kammaragatte Thanda,

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Honnali Taluk,Davanagere - 577 217

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Manjula, W/o Hanumesha Naika,

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Aged about 36 years,

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R/o Kammaragatte Thanda,

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Honnali Taluk, Davanagere - 577 217

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...Respondents

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(By Sri.S.G.Rajendra Reddy, Advocate for R1; R2 - Served & unrepresented)

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This Criminal Appeal is filed under Sec.378(1) & (3) of Criminal Procedure Code, praying to grant leave to appeal against the judgment and order dated 31.12.2016 passed by the II Additional District and Sessions Judge and Special Judge, Davanagere in S.C.No.23/2015- Acquitting the respondent/accused for the offence punishable under Sections 376(2) (i) of IPC and Section 6 of POCSO Act and to set aside the aforesaid judgment insofar as acquitting the respondent No.1/accused, convict and sentence the accused for the said offences and etc.

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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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Aggrieved by the judgment and order of acquittal dated 31-12-2016 passed by the learned II Additional District and Sessions Judge and Special Judge, Davanagere in S.C.No.23/2015, the State has come up in this appeal.

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The parties would be referred to as per their ranks before the Trial Court for the sake of convenience.

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The accused was chargesheeted for the offence punishable under Sections 376(2) (i) of IPC and Section 6 of POCSO Act, 2012, in connection with Honnali P.S. in Crime No.329/2014. It was alleged against the accused

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that a month earlier to 02-11-2014 at about 2.00 p.m. when the minor daughter of the complainant PW1 i.e., the victim -PW9 had been to the house of the accused situated at Kammaragatte Thanda, the accused had committed an aggravated penetrative sexual assault on the minor daughter of the complainant against her will without her consent. Therefore, it is alleged that the accused has committed the offence punishable under Sections 376(2) (i) of IPC and Section 6 of POCSO Act and chargesheet was laid against the accused.

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After registering the case, the accused was arrested by the Investigating Officer on 3-11-2014 and he was remanded to judicial custody. The Investigating Officer visited the spot, conducted the Spot Mahazar as per Ex.P2 and then conducted Seizure Mahazar as per Ex.P8 and subjected PW9 to medical examination and then after recording the statements of the witnesses as well as securing the necessary documents, after completion of the

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investigation, laid the chargehseet against the accused for the aforesaid offences.

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The Special Court took cognizance of the offences on the basis of the materials placed before it and as such, the charge for the offence punishable under Sections 376(2) (i) of IPC and Section 6 of POCSO Act, were framed, read over to the accused. Accused pleaded not guilty and as such, the matter entered into the trial.

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In order to prove the charges levelled against the accused, the prosecution has examined as many as 18 witnesses as PWs 1 to 18 and Exs.P1 to P15 and also MO 1 to 4 were marked and received in the evidence.

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Thereafter, the statement of the accused under

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Section 313 of Cr.P.C., was recorded by the Trial Court by putting across the incriminating evidence available against him. The accused denied the incriminating circumstances put across to him and has submitted that he had no defence evidence.

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After hearing the arguments by the prosecution as well as by the counsel for the defence, the Trial Court has found that charges levelled against the accused are not proved and as such, proceeded to acquit the accused by passing the impugned judgment. It is the said judgment which is assailed by the State before this Court.

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The Trial court records have been secured.

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We have heard the arguments by Sri Abhijith K.S., learned HCGP for appellant/State and the learned counsel Sri S.G.Rajendra Reddy for accused/respondent No.1. Though notice was issued to PW1, the mother of the victim, she did not appear.

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The learned HCGP appearing for the State has contended that the prosecution has examined the material witnesses and though there is sufficient material on record, the Trial Court has not properly appreciated the evidence in proper spirit and therefore, he has taken us through the evidence of the prosecution witness.

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PW1-Manjula, happens to be the complainant. PW2-Sureshnaik is the panch witness for Exs.P2 and 3. PW3-Ganganaik is the uncle of victim PW9. PW4G.Vittalnaik is a neighbor of the house of the complainant. PW5-Hanumeshnaik, happens to be the husband of PW1 and father of the victim. PW6-Manohar is a relative of the victim. PW7-Rudresh, happens to be another neighbor of PW1 and PW9, who has turned hostile to the prosecution. PW8-Savitha, happens to be the sister of PW1 and it was at her instance that PW9 was taken to the hospital where it was detected that there was a sexual assault on PW9. The PW9 is the victim who has been examined in-camera and she being aged about 7 years at the time of recording of evidence, she has not been administered Oath. PW10-Dr. Mamatha V. Patil, is the Doctor who had examined the victim and reported that there may be sexual assault. PW11-Nagaraja Sarathi, happens to be the PDO who has furnished the records of the house property where the accused was staying, which is at Ex.P7. PW12-Kumari Nirmala, is the sister of PW1-complainant and at whose

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instance PW9 was taken to the hospital at Channagiri. PW13-Rudranaik, is the panch witness for Ex.P8. PW14Dr.Nagamani Agarwal and PW15-Dr. Shakuntala are the Medical Officers, who had treated PW9 earlier to the examination by PW10. They had only provided medicine without really examining the victim. PW16-Kavithabai, happens to be the Woman Police Constable, who recorded the statement of the victim in Lambani language. PW17R.G. Ashwini Kumar, happens to be the PSI who was the SHO and who registered the FIR and later he arrested the accused and thereafter, handed over the investigation to CPI. The Investigating Officer -CPI Nagaraja Madalli is examined by the prosecution as PW18 and he completed the investigation and then filed the chaargesheet against the accused.

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The evidence of PW1-complainant, PW9- victim, PW12-sister of PW1 and the evidence of medical officers gain importance in this case.

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The evidence of PW1 and her sister PW12, disclose that when PW9 complained that she was having difficulty in passing the urine, PW1 had taken her to Dr. Shakuntala i.e. PW15 and she had prescribed some medicine without examining the victim. After taking medicine for 3 to 4 days, it was not cured and therefore, PW12 took PW9-victim to Davanagere, where PW9 stayed for about 8 days. Even thereafter, PW9 was facing difficulty in passing urine and therefore, she was taken to Bapuji Hospital, Channagiri. Doctor at Bapuji Hospital after examining PW9 had informed that there was a sexual assault on PW9. Then on enquiring the PW9 and while she was brought to the house of PW1, it was disclosed by her that the accused had committed sexual assault on PW9. Accordingly, when PW9 reiterated the said say about the assault by the accused, the matter was informed to the husband of PW1 i.e. PW5 and later, they went to Honnali Police Station and lodged the complaint as per Ex.P1. It is the case of the prosecution that thereafter, the investigating officer had visited the spot shown by PW9

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and the mahazar was drawn as per Ex.P2 and some photographs etc., were also taken at that time and then PW9 was taken to the court where her statement was recorded under Section 164 of Cr.P.C. It is relevant to note that the said statement is in the form of CD. But no certificate as required under Section 65B of the Evidence Act was produced before the Trial Court.

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The learned HCGP has taken us through the evidence of PW9 victim. Before the Trial Court she had stated in her examination- in- chief that she had been assaulted by the accused sexually and if she discloses the same to her parents, she would be killed. She had pains in her private parts after the said incident and thereafter, when she complained of the pain, her Aunt -Savitha had taken her to Bapuji Hospital, Channagiri and there she was treated. She also stated that she had disclosed the incident to her aunt and the parents. In the cross- examination, PW9 admitted that whenever she had come to the Court her Uncle by name Veeresh had accompanied her and he used to teach her. She has categorically stated that her

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uncle Veeresh had tutored her as to what is to be told before the Court.

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The deposition of PW10-Dr. Mamatha V. Patil shows that the victim was produced before her by the Investigating officer and her parents; and she was subjected to medical examination and she found 'Mild erythema with whitish discharge was present on labia majora.' After examining PW9, she categorically gave a report stating that in the recent past there was no sexual assault on PW9. Her report is at Ex.P6.

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The deposition of PW14-Dr. Nagamani Agarwal discloses that she was a Medical officer at JJM Medical College and Hospital and she used to visit Bapuji Hospital at Channagiri. She states that on 17-10-2014 she has examined PW9 for the complaint of urinary tract infection and she had prescribed medicine symptomatically, without physically examining the private parts of PW9.

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PW15-Dr. Shakuntala, is the Medical Officer who was running Prabhu Clinic at Honnalli. She states that

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during October 2014, PW9 was brought by her father and it was complained that child is having trouble in passing urine and by clinical examination she prescribed certain medicine without examining the private parts.

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Learned HCGP in his submissions contended that the judgment and order of acquittal passed by the Trial Court is contrary to the evidence and material on record and therefore, the same is liable to be set aside. He submitted that the Trial Court has failed to properly appreciate the evidence of the material witnesses and had failed to appreciate the evidence of victim girl, who is examined as PW9. He submits that the evidence though clearly establishes the heinous act committed by the accused, the Trial Court has ignored those aspects available in the evidence. He further submitted that the evidence of PW9 further discloses that accused had threatened her with dire consequences and discloses about the treatment given by the Doctors. He submits that the evidence of PW1-complainant and the mother of the victim is also in consonance with the evidence of PW9 and it

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corroborates the FIR. Therefore, he submits that the corroborative evidence of PW1 has not been properly appreciated by the Trial Court. It is submitted that PW3, father of the victim girl has also supported the prosecution case and the evidence on record show that victim was aged about 4 to 5 years and the accused threatened her with dire consequences after committing heinous offence. It is submitted that the evidence of the Doctor who treated the victim girl was to be appreciated in the proper perspective and it supports the case of the prosecution. He submits that the prosecution has sufficiently proved the case laid by it in the chargesheet and the Trial Court is not justified in rejecting the case of the prosecution about the accused committing an aggravated penetrative sexual assault. He further submits that the entire approach of the Trial Court is not legal and proper and the same has resulted in miscarriage of justice. Therefore, he has sought for setting aside the aforesaid judgment of acquittal and prayed that the accused be convicted for the offences alleged in the chargesheet.

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Per contra , learned counsel appearing for

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accused/respondent No.1 has submitted that the evidence of PW9 clearly indicate that there was tutoring by one of the uncle of PW9 i.e. Veeresh who was a Teacher. Therefore, he submits that the deposition of PW9 cannot be relied and it cannot inspire the confidence of the court to place any reliance. It is submitted that PW9 being aged about 4 to 5 years, is evidently susceptible for any tutoring and therefore, much importance cannot be attached to the said evidence. PW9 had not disclosed the alleged assault

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by the accused to her parents initially and it appears that only when PW9 was taken to the house of the sister of PW1 she had disclosed and what transpired there cannot be of any value. He further submits that the medical evidence available on record clearly establishes that there was no such sexual assault on PW9 and merely on surmises and conjunctures, the accused cannot be convicted. He pointedly says that the evidence of PW10 Dr. Mamatha V. Patil, shows that there was no indication of recent sexual assault. Under these circumstances, what

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is required on the part of the prosecution is to prove the guilt beyond reasonable doubt and such evidence is not forthcoming in the prosecution case. He further submits that the urinary track infection cannot be ruled out as disclosed in the cross- examination of the Medical officer and therefore, in the absence of any forensic evidence, it cannot be concluded that the prosecution has proved its case. He further submits that in Ex.P6 except noticing the infection in her vaginal part, there was no rupture of hymen of the victim and the dermatologist also opined that there was mild erythema with whitish discharge was present there was no indication of any secondary infection. Therefore, it is submitted that merely on the unreliable evidence of PW9 and the evidence of PW1, PW5, PW8 and PW12 it cannot be concluded that there was a sexual assault of serious nature on PW9. Therefore, he contends that the conclusion reached by the Trial Court is justifiable and therefore, there is no need of any interference by this Court in the judgment passed by the Trial Court.

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It is settled principles of law that when the judgment of acquittal has been passed by the Trial Court which had the advantage of seeing demeanor of the witnesses and also seeing the witnesses deposing before it in person, the presumption of innocence of the accused stands fortified. There are catena of decisions which lay down the parameters on which the Appellate Court sitting on the criminal side has to look into.

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In a recent decision, in the case of Ravi Sharma Vs. State (Government of NCT of Delhi) and another¹ , the above principles have been reiterated. It is relevant to note that earlier pronouncements of the Apex Court concerning the manner in which the Appellate Court has to consider the criminal appeal has been chronicled succinctly. Referring to the decision in the case of Jafarudheen Vs. State of Kerala² it was held at para

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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

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1 (2022) 8 SCC 536

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2 (2022) 8 SCC 440

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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 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 Apex Court has also reiterated its earlier observations in the case of Mohan @ Srinivas @Seena @

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Tailor Seena Vs. State of Karnataka³ and at paras

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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,

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3 2021 SCC Online SC 1233

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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 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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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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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 over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to

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maintain a degree of caution before making any remark.

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Further, the Apex Court has also observed by referring to the decision in the case of N. Vijayakumar Vs. State of Tamilnadu⁴ , 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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4 (2021) 3 SCC 687

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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 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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As an out come of the above pronouncements, it is evident that though the Appellate Court has full power to review, re-appreciate, re-consider the evidence upon which the order of acquittal is founded and that the Code of Criminal Procedure puts no limitation in appreciating the evidence available, but it is to be borne in mind that if two views are possible, the one which is available to the benefit of the accused has to be adopted and accepted by the court. It is also settled principles of law that, when the Trial Court has come out with a verdict of acquittal, the Appellate Court should be cautious in overturning such a verdict. This is because firstly, accused is held to be innocent unless the contrary is proved. Secondly because, he has an acquittal verdict in his favour and therefore, when we examine the available evidence on record in the light of the above pronouncements and the principles laid down, it is evident that the medical evidence available goes against the prosecution coupled with the crossexamination of PW9, which discloses that tutoring cannot

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be ruled out and there is admission that there was tutoring. Thirdly, the complaint has been filed nearly after a month after the alleged incident. It is settled principle that the delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. Fourthly, because it is not proved even after the medical examination that there was any sexual assault on the PW9.These aspects have been considered by the Trial Court in para 26 and 27 of the impugned judgment. The Trial Court has also observed that the presumption available under Section 29 of POSCO Act comes into play only when the basic requirement and basic evidence regarding sexual assault is placed on record. When these aspects have been considered by the Trial Court in the fullest sense and it has come out with a verdict of an acquittal, we do not find any reason to hold

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that such an analysis by the Trial Court is either absurd or irrelevant. The appreciation of the evidence by the Trial Court gains much importance in view of the fact that it had an advantage of seeing the demeanor of the witnesses, particularly, the victim and her parents.

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Further, it is relevant to note that, in the case of Sambasivan Vs. State of Kerala⁵ , the High Court had reversed the order of acquittal and when the matter went to the Apex Court, the Apex Court held that "when the judgment of the trial court did not suffer from any perversity, it was not fair on the part of the High Court to interfere with the same and reverse the judgment of acquittal." Similar view is also expressed in the case of K. Ramakrishnan Unnithan Vs. State of Kerala⁶ Therefore, the Appellate Court cannot interfere with the judgment of acquittal passed by the Trial Court without there being any material to show that such reasoning is either perverse or arbitrary. Under these circumstances,

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5 (1998) 5 SCC 412

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6 (1999) 3 SCC 309.

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the appeal is bereft of any merits and hence, we proceed to pass the following:

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ORDER

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The appeal preferred by the appellant/State under Section 378(1) and (2) of Cr.P.C., is hereby dismissed. Consequently, the judgment and order of acquittal passed by the Trial Court in SC No.23/2015 on 31-12-2016 is hereby confirmed.

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Sd/JUDGE

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Sd/JUDGE

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tsn*

State of Karnataka v. Hanumesha

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Hanumesha

Case brief

What is this about?

What did the court decide?

What the court decided

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