Criminal appeal against acquittal dismissed due to inconsistent victim testimony and lack of forensic evidence, finding no merit for admission despite POCSO presumption.
Criminal Appeal dismissed as devoid of merit even for admission.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:45333-DB CRL.A No. 1073 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA CRIMINAL APPEAL NO. 1073 OF 2023 (A)
BETWEEN:
…APPELLANT
(BY SRI. MOHANKUMAR D., ADVOCATE)
AND:
Digitally signed by D HEMA Location: HIGH COURT OF KARNATAKA
…RESPONDENTS
(BY SRI. P. THEJESH, HCGP FOR R1 SRI. MANJUNATH M.R., ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF ACQUITTAL DATED 06.01.2023 PASSED BY THE LEARNED ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-II, BENGALURU RURAL DISTRICT, BENGALURU, IN SPL.C.NO.262/2022 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376, 417 OF IPC AND SECTION 6 OF POCSO ACT CONSEQUENTLY, THE APPELLANT MAY BE CONVICTED FOR THE CHARGES FRAMED.
THIS CRIMINAL APPEAL, COMING ON FOR ADMISSION, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY, Dr.H.B.PRABHAKARA SASTRY, J., MADE THE FOLLOWING:
ORDER ON ADMISSION
present physically nor through video conferencing. No reasons are overcoming for non-appearance of the appellant. Learned High Court Government Pleader for respondent No.1 and learned counsel for respondent No.2 are physically present.
remained absent, as such, the matter was called in two rounds, when only learned counsel for respondent Nos.1
and 2 alone were present. In the second round, on 11.12.2023, this Court made the following observation:
“Called again in the afternoon.
The learned counsel for the appellant again has remained absent.
The learned High Court Government Pleader for Respondent No.1 and learned counsel for Respondent No.2 alone are present.
Reiterating the observation made on 04.12.2023, as final last chance, a short accommodation is granted.
List this matter on 13.12.2023”.
appellant has neither appeared either physically or through video conference nor shown any reason for his non-appearance. Hence, taking that the appellant is not prosecuting the matter, we proceed further in the matter to consider whether the appeal deserves to be admitted.
4. Perused the memorandum of the appeal and
the impugned judgment.
has contended that the victim girl and her parents turned hostile to prosecution and did not support the case of the prosecution, considering the future marital life of the victim girl and the promise made by the accused to marry the victim girl. Accordingly, the accused got acquitted from the alleged offences. However, the accused has cheated the victim girl by refusing to marry her. It is also stated in the memorandum of appeal that accused and one Ramanna and one Manjamma had threatened the victim and her parents not to depose anything against the accused. The victim girl was cheated by the accused on the pretext of false marriage. It is also contended that there is a presumption under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (for brevity POCSO Act, 2012) in favour of the victim. With these grounds, the appellant has prayed to set aside the order
of acquittal impugned in the appeal. However, the appellant has shown in his prayer the following words: “appellant may be convicted for the charge framed in the interest of justice and equity”. Probably, we may have to read that the appellant has prayed for the conviction of the accused but not to herself.
and 417 of Indian Penal Code and under Section 6 of POCSO Act, 2012.
secured the Session Judges Court record and in detail, we have gone through the evidence led in the matter. From the prosecution side, only five (5) witnesses were examined. Among whom, the victim was examined as PW.1 and her parents as PWs.2 and 3 respectively. One doctor as PW.4 and the Investigating Officer as PW.5.
her and has not taken her to any place nor even had subjected her to any sexual assault or rape. She categorically stated that accused had no sexual intercourse with her and alleging that the accused has committed sexual assault upon her. She has not lodged any complaint with the police. Though she identified her signature as Ex.P1(a) in the complaint, which was marked as Ex.P1, however, she categorically stated in the examination-in-chief itself that she does not know the contents of the said complaint.
Apart from the above, the alleged victim as PW.1
has further proceeded to say that no seen of offence panchanama or any other sort of panchanama was drawn in her presence. She disowned the seen of offence panchanama at Ex.P2 and seizure panchanama at Ex.P3. She categorically stated that no compact disc(CD) was seized by the police in her presence. To the height of this, the victim has also stated that she was not taken to any doctor for medical examination and no doctor has
medically examined her and collected any articles from her. Though the victim stated that she was produced before the Judicial Magistrate, First Class, at Nelamangala, however, she has given her statement before the Magistrate as tutored to her by the Police. The said statement was marked at Ex.C1. Even after treating her hostile and cross examining her, the prosecution could not get an iota of support from the said witness.
daughter to any place and never subjected her to any sexual assault and they also stated that their daughter never complained of the accused committing any sexual assault upon her. Even PW.2 and PW.3 as parents of the alleged victim girl also stated that PW.1, their daughter, was never taken to the doctor and she was not got medically examined. Even after treating both these witnesses as hostile, the prosecution could not get any support from them in the cross-examination. Thus, including the alleged victim girl, all the three material witnesses, did not support the case of the prosecution even to a smallest extent.
scalp hair, Nail Clippings, Vulval Swab,
Vaginal Swab etc., however, she opined that the possibility of sexual intercourse and assault cannot be ruled out. The said witness has not stated about the existence of any signs of recent sexual assault upon the alleged victim. She has only opined about the alleged possibility.
Investigating Officer in this matter, though has given the detailed account of his alleged investigation conducted in this matter and also got produced the Forensic Science Laboratory report at Ex.P7, the said Forensic Science Laboratory report, which says, it has subjected the articles collected by the doctor at the time of alleged examination of the victim to chemical examination also has opined the nondetection of the seminal stains and non-detection of spermatozoa on the relevant articles and also non-detection of the skin tissues in the Nail clippings said to be of the victim. Thus, even the medical evidence and Forensic Science Laboratory opinion also does not specifically mention about the alleged victim being subjected to any
sexual intercourse more particularly from the accused. Mere possibility of the victim girl accustomed to an act of sexual intercourse would not by itself make one to interpret that it was accused and the accused alone, who has committed the alleged sexual act.
non-supportive evidence from the prosecution witness on any material aspect, which were required to prove the alleged guilt against the accused, the presumption under Section 29 of the POCSO Act, 2012 alone would not come to the rescue of the prosecution and expect the accused to prove his innocence in the matter. When the alleged acquaintance of the accused and the alleged incident itself is categorically denied not only by the parents of the victim but also by victim herself, Section 29 of the POCSO Act, 2012 cannot be pressed into service in the said facts and circumstances of the case.
Accordingly, we proceed to pass the following:
ORDER
The appeal stands dismissed as devoid of merit
even for admission.
Sd/JUDGE
Sd/JUDGE
AG
List No.: 1 Sl No.: 10
1 issue framed by the court
A criminal appeal challenging an order of acquittal on grounds of victim hostility and false promise of marriage.
Chaithanya B.
State of Karnataka
Tejas Kumar
H.B. Prabhakara Sastry
Umesh M. Adiga
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
