State appeal against acquittal in POCSO case dismissed. The victim girl and her mother turned hostile in cross-examination, medical evidence showed no recent sexual intercourse, and other prosecution witnesses did not support the case. The court found no reason to disturb the acquittal.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF AUGUST, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 1632 OF 2016 (A)
BETWEEN:
THE STATE BY THE JAGALURU POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING,
BENGALURU-560 001
…APPELLANT
(BY SRI. H.S. SHANKAR, HCGP)
AND:
Digitally signed by VEENA KUMARI B Location: High Court of Karnataka
…RESPONDENTS
(BY SRI. N.S. SAMPANGIRAMAIAH, AMICUS CURIE FOR R1; APPEAL AGAINST R2 STANDS ABATED V/O DT.30.06.2022)
THIS APPEAL IS FILED UNDER SECTION 378 (1) and (3) OF CODE OF CRIMINAL PROCEDURE, PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 02.05.2016 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE, DAVANAGERE IN S.C.NO.88/2015 THEREBY ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S 366 AND 323 AND SE.4 OF POCSO ACT.
THIS APPEAL IS COMING ON FOR HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCE THIS DAY, DR. H.B.PRABHAKARA SASTRY, J., DELIVERED THE FOLLOWING:
JUDGMENT
The present appellant as the State/complainant had
initiated a criminal proceedings against the respondent No.1 arraigning him as accused for the offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860
(hereinafter for brevity referred to as ‘IPC’) and under Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter for brevity referred to as ‘the POCSO Act’), in the Court of II Additional District & Sessions Judge, and Special Judge, Davanagere (hereinafter for brevity referred to as ‘the Sessions Judge’s Court’). After the trial, the accused was acquitted of all the alleged offences. Seeking setting aside of the impugned judgment dated 02.05.2016, the State has preferred the present appeal under Sections 378(1) & (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as ‘Cr.P.C.).
under the false promise that he would marry her, on his motorcycle bearing registration No. KA-16-Y-315 and took her to a temporary shed bearing No.37 of L&T Company construction site in the land at Sy.No.79/1 of Timlapura Village, Tumakuru Taluk. The accused committed a penetrative sexual assault on her forcibly against her will and without her consent. Thereafter, on 10.02.2015, in the evening at about 6:30 p.m., he brought her back to Donnehalli Hosur Village and asked her to go back to her house. When victim girl refused to go back to her house, he also assaulted her by slapping her on her cheek and left the place. Thus the accused has committed the offences punishable under Sections 366, 323, 376 IPC and Section 4 of POCSO Act.
held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined fifteen witnesses as P.W.1 to P.W.15 and got marked twenty three documents from Exs.P.1 to P.23 and no material objects were marked. Statement of the accused under Section 313 of Cr.P.C. was recorded. From the accused side, neither any witness was examined nor any document was produced as exhibit.
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learned High Court Government Pleader. Respondent No.1 was being represented by his learned counsel, however, since the said learned counsel did not appear and address his arguments even after granting him a reasonable opportunity the Court proceeded to appoint learned counsel Sri. N.S. Sampangiramaiah, as Amicus Curie for respondent No.1.
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girl from her house situated at Donnehalli Hosur Village, Jagalur Taluk within the limits of complainant Police Station and without knowledge and consent of her parents and has taken her on a motorcycle bearing registration No. KA-16-Y-315 to a temporary shed bearing No.37 of L&T Construction site in a land bearing Sy.No.79/1 of Timlapura Village, Tumakuru taluk and thereby has committed the offence punishable under Section 366 of IPC.
2) Whether the prosecution has proved beyond reasonable doubt that on the date time and place mentioned above, the accused at shed No.37 of L & T construction site in land at Sy.No.79/1 of Timlapura Village, Tumakuru Taluk has committed penetrative sexual assault on victim girl against her will and without her consent and knowingly that she was minor in her age and thereby committed an
offence punishable under Section 4 of POCSO Act?
3) Whether the prosecution has proved beyond reasonable doubt that on the date 10.02.2015 at about 6.30 p.m. the accused brought the victim girl to Donnehalli Hosur village, Jagalur Taluk and on her refusal to apart from him, voluntarily assaulted on her cheek and thereby committed an offence punishable under Section 323 of IPC?
Learned High Court Government Pleader (for brevity hereinafter referred to as 'HCGP') appearing for the appellant addressed his very brief argument which was recorded in the order sheet of 02.08.2023 in verbatim which is reproduced here below:
"Heard the arguments of learned High Court Government Pleader for the appellant who, in his brief arguments, emphasises only the following points, which have been recorded in verbatim:
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Stating the above, learned High Court Government Pleader cited the judgment of the Hon'ble Apex Court in Rajesh Yadav and another vs. State of U.P. in Crl.A.Nos.339340/2014, dated 04.02.2022, and submitted that the Hon'ble Apex Court has given directions to the Trial Court that examination-in-chief and cross-examination are to be held on the very same day.
Stating that he is assisting the Court, he brought to the notice of the Court that the medical report at Ex.P.16 shows that there are no evidence of recent sexual intercourse upon
the girl. With this, he prayed to allow the appeal…"
argument submitted that the prosecution case is bereft of any support in all the material facts of the case. He submitted that even though PW-1 the alleged victim girl and PW-2 the mother of PW-1 were shown to have supported the prosecution case initially, however, have turned hostile in their crossexamination and have totally abandoned/denied the case of the prosecution. Even though, the accused has not denied the minority of the age of the victim girl as on the date of the incident, however, the medical evidence also does not support the case of the prosecution. In the said circumstances, the learned Sessions Judge has rightly acquitted the accused from the alleged offences which does not warrant any interference
at the hands of this Court.
led in the matter, it is to be borne in mind that the present appeal is filed by the State challenging the judgment of acquittal of the accused of the alleged offences punishable under Sections 366, 323 and 376 of IPC and under Section 4
of the POCSO Act. Since as per criminal law, the accused are presumed to be innocent until their guilt is proved and further the accused, in the instant case, has already been benefited by
the impugned judgment of acquittal in his favour, this Court, as a Court of appeal upon the impugned judgment of acquittal, must be very careful and cautious in analysing and appreciating the evidence led in the matter.
(a) Our Hon’ble Apex Court, in its judgment in the case of CHANDRAPPA AND OTHERS Vs. STATE OF KARNATAKA,
reported in (2007) 4 Supreme Court Cases 415 , while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
“ 42(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.
42(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.”
(b) In the case of Sudershan Kumar Vs. State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa’s case (supra), the Hon’ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in
such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of JAFARUDHEEN AND OTHERS Vs. STATE OF KERALA, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon’ble Apex Court was pleased to observe as below:
“25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, 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 analysed. 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.”
The above principle laid down by it in its previous case was reaffirmed by the Hon’ble Apex Court, in the case of RAVI
SHARMA VS. STATE (GOVERNMENT OF NCT OF DELHI) AND ANOTHER reported in (2022) 8 Supreme Court Cases 536.
It is keeping in mind the above principles laid down by the Hon’ble Apex Court, we proceed to analyse the evidence placed in this matter.
daughter Smt. Huligemma was given in marriage to the present accused Venkatesh who hail from Bedara Shivanakere of Chitradurga District. After identifying the accused in the Court, the witness has stated that, after his marriage, whenever accused visited to his wife's house, he was also visiting this witness's (house) on the pretext of seeking water to drink and on all those occasions, taking the advantage of absence of her inmates of the house, used to ask her to love him. The witness has further stated that she was politely refusing to love him since he was already married to Huligemma her neighbour.
That being the case, on the date of incident in the afternoon, the accused came to her house, at which time, except her none else were there in her house. After entering her house, he once again pestered her to love him and marry him. He assured her that he would take care of her properly and enticing her, took her away from her house by making her to sit on a motorcycle and took her to a building construction site near Tumakuru, where, nearly twenty sheds
were erected in the site for labourers in a construction site. Taking her to one of the sheds where the relatives of accused i.e., Manjula and Ramesh were staying, accused secured a room there. The witness further stated that in the said room on the said day accused forcibly and despite her protest committed sexual intercourse upon her promising that he would marry her. On the next day morning after getting a phone call from his wife Huligemma and getting an assurance from her that if he takes this witness back she would get marry her as second wife of her husband, he took her back on his motorcycle to Donnehalli Hosur Village cross and asked her (this witness) to go back to her home. Since the witness objected for leaving her alone in the said place, accused slapped on her cheeks and told her to go back to her house on her own. The witness has further stated that after revealing about the incident to her parents, her parents gathered their relatives and discussed there after a complaint to the Police in this regard was lodged nearly by the delay of two days. Stating so, the witness has identified the alleged complaint
said to have been given to the Police at Ex.P.1 and her signature at Ex.P.1(a).
complaint, the Police took her to the hospital and got done the medical examination and also got produced her before the learned JMFC at Jagaluru, who recorded her statement. She has also stated that the Police had visited her house to whom, she shown the place of her kidnapping, where the Police drew a scene of offence panchanama in the presence of panchas, which she identified as Ex.P.2 and her signature at Ex. P.2(a). She further stated that asking her to show the place where she was sexually assaulted, the Police had taken her to Tumakuru, where she shown the place where the accused had committed sexual assault upon her. In the said place also the Police drew a scene of offence panchanama, which was identified by her as Ex.P.3 and her signature at Ex. P.3(a). She has also identified two colour photographs at Exs.P.4 and P.5 stating that they were taken by the Police while drawing the scene of offence
panchanama at Ex.P.3. She also stated that her date of birth is 04.06.1999.
This witness was cross-examined with some delay of two months. In her cross-examination she has given a total go-by to all the statements made by her in her examination-in-chief except her alleged date of birth and admitted suggestions made to her from the accused side, suggesting to her that all her statements about alleged kidnap, alleged sexual assault and alleged assault are all false. She admitted as true that no alleged incident has ever taken place. On the contrary she stated that at the instance and pressure of her maternal uncle by name – Tippeswamy and her father she not only gave the complaint as per Ex.P.1 to the Police but also her statement before the Magistrate accusing he accused of committing the alleged offences against her. Since the witness has turned hostile in the cross-examination, considering the request made
by the prosecution she was treated as hostile and prosecution was permitted to cross-examine her. However in the crossexamination the prosecution could not get any support from
the witness though an attempt was made that she was won over by the accused the witness has denied the same however she admitted a suggestion as true that the matter was compromised with the accused.
discussed the matter with other relatives thus, with the delay of two days the complaint was lodged with the Police. She also stated that after registering the complaint the Police had taken the victim girl to a doctor and medically got examined her and her statement was even recorded by a Judge at Jagalur.
which she was subjected to after treating her as hostile also could not yield any support to prosecution. Thus, both PW-1 and PW-2 who were the material witnesses to the case of prosecution though initially supported the case of the prosecution however gave a good-bye in the crossexamination and fully supported the contention taken up by the defence.
at the L&T construction site at Timlapura, Tumakuru district, though has stated that a construction activity was going on at the relevant point of time and the labourers were provided with sheds to reside however, he expressed his ignorance about the alleged relative of the accused by name Manjula and her husband residing in one among the sheds there, particularly, at shed No.37. He also stated that he has not given any statement to the Police stating that accused has brought one girl along with him and stayed in one of the shed on the date of alleged incident. Since he was expected to speak about the accused taking the victim girl to the shed No.37 in the said construction side but the witness did not support the prosecution on those lines, at the request of the prosecution the witness was permitted to be treated as hostile and to cross-examine, however, prosecution could not get any support from the witness even after subjecting him to crossexamination. On the other hand, in his cross-examination from
the accused side witness admitted as true that he does not know about the case under consideration as well the incident.
PW-7 (CW-14) Jayanna the Head Master of Government Higher Primary School, Mushturu has stated that the victim girl was studying in their school and as per the school record her Date of Birth was 04.06.1999 in which regard has issued a date of birth certificate as per Ex.P.12 as per the request of the Investigating Officer. The said evidence of PW-7 corroborates the evidence of PW-1 who also stated that her date of birth is 04.06.1999 though her said statement has been denied from the accused. Thus, it go to show as per PW1 and PW-7, the victim girl was minor in her age of 16 years old as on the date of alleged incident.
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examining the accused on 22.02.2015 at the request of complainant-Police, to ascertain as to whether accused was capable of having sexual intercourse. The witness has stated that after examining the accused medically he opined that there was nothing to suggest that accused was incapable to commit any sexual act. The witness has identified his report said to have been given in that direction at Ex.P.14. He has also stated that before giving his final opinion as Ex.P.14 he has considered the opinion of FSL which had examined the article sent to it by the complainant-Police.
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shown as inmate of the shed at L&T building construction site at Timlapura in Tumakuru District where the accused was alleged to have taken the alleged kidnapped victim girl and stayed there for a day. However this witness though stated that herself and her husband were working at L&T construction site in the year 2015 but denied her acquaintance with the accused and accused bringing the victim girl to their shed at
any point of time. She also stated that she has not given any statement before the Police in that regard. Even after treating her as hostile prosecution could not get any support from her.
examination. During the said examination, she did not notice any external injuries upon the girl. She stated that her medical examination revealed that girl was physically well-built and was capable of involving in sexual activities. However, she collected certain articles from her while doing her medical examination and through Police, sent the same for their chemical examination to the Forensic Science Laboratory. She also got the alleged victim girl medically examined by Dentist, Ophthalmologist and Radiologist and perused their report. By the report she came to know that the age of the victim girl must be one year more or less 16 years. She specifically stated that her medical examination of the victim girl reveal that the girl was not subjected to any sexual intercourse recently. Accordingly, she issued her report as per Ex.P.16.
stated that at the request of the Police he agreed to be a pancha for a seizure panchanama of Motorcycle about which it was stated to him as the one used by the accused for kidnapping the victim girl. Accordingly, by seizing the said motorcycle a
panchanama as per Ex.P.17 has been prepared, for which, he has subscribed his signature. The witness has identified the said Panchanama, as well a photograph at Ex.P.18 stating that the said photograph depicts the picture of the motorcycle seized under panchanama at Ex.P.17.
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the instruction of her Circle Police Inspector on 18.02.2015, she recorded the statement of the victim girl. On 22.02.2015 joined by the panchas Sri. Venkatesh and Musthurappa, she visited the land bearing Sy.No.74 in, Timlapura 1st Ward, Tumkuru and at the spot shown by the victim girl where the shed for labourers of L&T Construction site were there, she drew a scene of offence panchanama of the act of sexual assault as per Ex.P.3 in the presence of panchas. She has identified two photographs at Exs.P.4 and P.5 stating that they were taken at the time of drawing panchanama. She also stated that at the same time, she drew a sketch of spot, which she has identified as Ex.P.19. The witness stated that on the same day, she recorded statement of PW-10 -Manjula and one Chandrashekara who were present in the spot.
In her cross-examination from the accused side denial suggestions were made which this witness has not admitted as true.
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Investigating Officer has stated that he has been working as a Circle Police Inspector since June 2014 in Jagaluru. After taking further investigation in this matter from PW-14 on 15.02.2014, he recorded the statements of Sathyappa, Gangamma, Lalitamma and Kumaraswamy and Krishnappa. On 18.02.2015 he directed the PSI at Jagaluru to record statement of the victim girl. Upon his directions, the said Police Sub Inspector Smt. Prabhavathi had visited the place of offence in Tumakuru as shown by the victim girl and drew a scene of offence panchanama. The witness stated that on 22.02.2015 the accused was traced and produced before him and after enquiring him and complying the arrest formalities, he got the accused medically examined and produced before the Court. The witness further stated that on the same day he seized motorcycle used by the accused in the commission of the crime by drawing a seizure panchanama in the presence of panchas as per Ex.P.4 and he has identified photographs of motorcycle at Ex.P.18.
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course of the investigation, he has recorded statement of several other witnesses and also further statements of some witnesses. He stated that from the Head Master of the School where the victim girl had studied, he collected the Date of Birth Certificate of the victim girl as per Ex.P.12. He stated that he has sent the seized articles for their chemical examination to the FSL and later collected their report. He stated about he collecting RTC extract of the property where the alleged offence of sexual assault is said to have been committed. After collecting the medical reports from the Doctor as Exs.P.21 and P.22, he filed the charge sheet against the accused for the alleged offences.
The denial suggestions made to him in his crossexamination were not admitted as true by this witness.
evidence of PW-7 Head Master, coupled with Ex.P.12 date of Birth Certificate, also shows the date of birth of the victim girl as 04.06.1999. The medical opinion given by the PW-11 Dr. Aruna Kumari B. also shows that the girl was appearing to be minor in her age. Thus, it stands established that victim girl was minor in her age as on the date of alleged offence. As such, if at all she had been taken by the accused without the knowledge and consent of her parents from their lawful custody, the act of the accused would have been an act of kidnapping. However PW-2 the mother of the victim girl initially stated that after her return from coolie work on the alleged date of incident i.e., 19.02.2013, the victim girl was found missing from her home, however, her statement that the said daughter was taken by the accused, was purely a hearsay. Incidentally, even the said statement based upon the information stated to have been given by the victim girl also subsequently denied by the very same witness in her cross-examination.
girl though initially supported the case of prosecution that accused took her on a motorcycle bearing registration No. KA-16-Y-315 from Donnehalli Hosur village to Timlapura of Tumkur district by enticing her that he would marry her, however, in her cross-examination she has given a complete go-by to her original version. Thus, PW-1 and PW-2 who were the material witnesses to support the case of the prosecution with respect to all the offences alleged against the accused who earlier in examination-in-chief have supported the case of the prosecution, have given a complete go-by in their crossexamination.
By relying on a judgment of Hon'ble Apex Court in Rajesh Yadav Vs. State of Uttar Pradesh Crl. A. No.339-
340/2014 dated 04.02.2022 the learned HCGP submitted that the Hon'ble Apex Court has given a direction that in such cases involving sexual harassment, examination-in-chief and the cross-examination of the witnesses has to be held on the same day. However, despite the Court specifically asking the learned HCGP as to what is the relevancy of the said observation since in the instant case the recording of the evidence has already been completed by the trial Court long back, the learned HCGP reiterated that the examination-inchief and the cross-examination should have been recorded on the same day.
the same day has also made an observation with respect to appreciation and the analysis of the evidence of hostile witnesses, in a criminal trial. The Hon'ble Apex Court was pleased to observe that not only the specific part in which witness turned hostile but the circumstances under which it happened can also be considered, particularly in a situation where the chief-examination is completed and there are found circumstances indicating the reasons behind subsequent statement, which could be deciphered by the Court. It further observed that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat them as hostile and cross-examine.
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none else than PW-1, has also turned hostile and not supported the case of the prosecution during her crossexamination from the accused side. No doubt there is a gap of nearly two to three months in their respective crossexaminations conducted by the accused from the date of their examination-in-chief. Incidentally, in the cross-examination of PW-1, the prosecution could also able to bring on record through the admissions made by PW-1 that the family of the victim had compromised the matter with the accused. PW-1 has stated that she being advised by her family members that the accused is married and having two children, as such his life should not be spoiled and has agreed to compromise the matter. However, in the very same cross-examination the said witness has repeatedly stated that her act of lodging the complaint with the Police as per Ex.P.1 and giving her statement before the Magistrate under Section 164 of Cr.P.C. which statement was marked at Ex.P.23 were all at the instigation and the pressure by her maternal uncle by name Tippeswamy and her father. Thus, the reason given by
her for alleged to have given a complaint at Ex.P.1 and her statement before the Magistrate as per ExP.23 were solely due to the alleged pressure and instigation done by Tippeswamy and her father.
statement made by PW-1. Thus when the prosecution could have been able to place some more evidence before the Court, which were required to substantiate its case, however, it failed to produce the same in the form of evidence of Sri. Satyappa (CW-4) and Sri. Tippeswamy.
On the other hand, the victim girl as PW-1 in her crossexamination from the prosecution has categorically stated that her evidence given on the earlier occasion in the matter was as tutored by her said maternal uncle. She further has admitted a suggestion as true in her cross-examination from the defence side that there was a dispute between her family and family of the wife of the accused and they were quarreling quite often. It is due to the said rivalry her parents had put her on the front side and making use of her the present complaint was filed. When she has categorically stated that she was made use of in the matter as a complainant because of the family rivalry and it was done at the instance of her parents, it was very much
incumbent upon the prosecution to examine the father of the victim girl i.e., Sri. Satyappa (CW-4). Despite getting this statement in the cross-examination of PW-1 and knowing that the girl has accused her father of instigating her to lodge a false complaint and to give false evidence it is the prosecution which for the reasons best known to it has given up examining CW-4 - Satyappa the father of the victim girl and did not secure permission to summon Sri. Tippeswamy the alleged Maternal Uncle of the girl.
In such a circumstance, when the prosecution had sufficient opportunity to prove the falsification of the statement of PW-1 the victim girl and PW-2 her mother, made in their cross examination, it did not take any steps in that regard except making some denial suggestions in their crossexamination from the prosecution side. Merely because PW-1 and PW-2 have shown to have supported the case of the prosecution in examination-in-chief that cannot be isolated and taken as a conclusive proof of the charge made against the accused. As such, even after applying the principle
laid down by the Hon'ble Apex Court in Rajesh Yadav case (supra) it is not safe to solely rely upon evidence of PW-1 and to hold the accused as guilty of committing the alleged offences.
However, as observed above, both these witnesses have turned hostile to prosecution and did not support the prosecution even on a part of the alleged incident. As such, the act of the kidnapping which was solely based upon the evidence of PW-1 and PWs-3 and 4,
since could get any support the prosecution could not able to establish the same. In the said background, merely because PW-12 is shown to have stated that he was the pancha for the alleged seizure of the motorcycle, under the panchanama at Ex.P.17 and identifying the motorcycle at Ex.P.18 as the one seized in his presence, the same would not prove the case of the alleged kidnapping. Thus, even though PW-1 was proved to be a minor as on the date of the alleged incident, but, the alleged incident of taking her from her house at Donnehalli Hosur village to Tumkuru could not be established by the prosecution. In that regard the evidence of PW-10 also has deserted the case of the prosecution. The said witness also has given a go-by to the case of the prosecution and did not even say that the accused had brought PW-1 to her shed on the alleged date. Thus, as rightly observed by the Sessions Judge's Court the prosecution could not able to prove that accused has committed the alleged act of kidnapping punishable under Section 366 of IPC against the victim girl.
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Even in this aspect also the evidence of PW-10 would have been of material importance since it is stated that it was she joined by her husband had allowed the accused and girl to stay in a room in their shed. However, as observed above, the said witness who was another material witness also since has abandoned the case of prosecution, it is hard to believe that
accused had taken the girl and made her to stay in the said shed belonging to PW-10.
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though says that accused was capable of having sexual intercourse and so also the evidence of PW-11 -Dr. Aruna Kumari B. that girl was capable of having sexual intercourse however the very same evidence of PW-11 who has medically examined the victim girl and given her report as per Ex.P.16 would go to show that she has not noticed any external injuries upon the girl and after local examination she noticed that hymen was intact. After getting several incidental examination also done upon the alleged victim girl and also going through the FSL report at Ex.P.13 which laboratory had examined the articles sent to it by the very same Doctor which inter-alia includied nail clippings, public hair, veginal swab, veginal smear and other materials of both accused and alleged victim girl has noticed the absence of seminal stains and spermetazoa and given her final opinion categorically observing that there was no evidence of recent sexual intercourse upon the girl. Thus, in the absence of any physical or physiological symptoms or evidence about PW-1 having
any sexual intercourse with the accused or being subjected to any sexual assault by the accused merely because of the fact that the alleged victim girl has accused the accused of the alleged sexual assault in her examination-in-chief who admittedly turned hostile and has taken U-turn in her crossexamination, it is not safe to rely upon the selected portion of her evidence in examination-in-chief and to hold that the prosecution has proved the alleged guilt of sexual assault by the accused upon the said victim girl. More over, it also cannot be ignored of the fact that accused has already been acquitted by the Sessions Judge's Court from the alleged offences and continuous to be an innocent, as such, he enjoys the benefit of double assumption of his innocence, both before the trial Court and before this Court. However, since the prosecution has not examined the material witnesses which it ought to have examined, like, CW-4 Satyappa and one Sri. Tippeswamy - maternal uncle of girl and could not able to show the reason of alleged hostility of PWs-1 and 2 towards the prosecution, except an alleged compromise between them, it is not safe to rely upon
the selected supporting portion of evidence of PWs-1 and 2.
Even the alleged compromise about the mater between the accused and the family of the victim girl also cannot be taken as a proof of occurrence of alleged incident by the accused. It is for the reasons that nowhere the victim girl has stated that accused after confessing that he has committed an act, however, requested for a compromise, as such, compromise was entered into with them. She has only stated that she was briefed of the fact that accused as a married person has two children, as such, his marital life should not be spoiled and this made her to agree to compromise. The said statement of the PW-1 witness cannot be read either as accused has admitted his guilt in her presence at the time of alleged compromise or that she was convinced that accused has committed the alleged act. On the other hand, compromise was because the accused was a married person
and his marital life should not be spoiled but not on the aspect that alleged incident has taken place still she has forgiven the accused in the guise of compromise. This
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is because had PW-1 been sure that the accused has committed the alleged act still she agreed for compromise, she would not have stated in the cross-examination that alleged incident has not occurred and that she was made to give a false complaint and a false statement under Section 164 of Cr.P.C. at the instance and instigation of her Maternal Uncle and father. Therefore, merely because PW-1 has used the word that the matter has been compromise it cannot be taken that her evidence about the occurrence of the incident given in her examination-in-chief can be isolated and taken as proof in support of the prosecution. As such, also it has to be held that it is not safe to base the conviction only relying upon that portion of evidence of PWs-1 and 2 which has supported the case of the prosecution. As such, we do not find any reason to interfere in the impugned judgment wherein the learned Sessions Judge's Court has acquitted the accused of the alleged offences.
Accordingly, we proceed to pass the following order.
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ORDER
The Criminal Appeal filed by appellant/State stands dismissed as devoid of merits.
The Court, while acknowledging the services rendered by
the learned Amicus Curiae for respondent No.1Sri.Sampangiramaiah, recommends honorarium of a sum of not less than `4,000/- payable to him by the Registry.
Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court immediately for their needful in the matter.
Sd/JUDGE
Sd/JUDGE
BVK List No.: 1 Sl No.: 12
2 issues framed by the court
Whether the prosecution proved kidnapping, penetrative sexual assault and assault under Sections 366, 376 IPC and Section 4 POCSO Act when key witnesses turned hostile and medical evidence showed no r
Whether the High Court should interfere with an acquittal when the trial court's view was a possible one on the evidence?
Colour shows how this judgement treated each authority
Chandrappa and Others vs. State of KarnatakaReferred¶72
(2007) 4 Supreme Court Cases 415
Sudershan Kumar vs. State of Himachal PradeshReferred¶76
(2014) 15 Supreme Court Cases 666
Jafarudheen and Others vs. State of KeralaReferred¶79
(2022) 8 Supreme Court Cases 440
Ravi Sharma vs. State (Government of NCT of Delhi) and AnotherReferred¶81
(2022) 8 Supreme Court Cases 536
Rajesh Yadav vs. State of Uttar PradeshReferred¶154
Crl. A. No. 339-340/2014 dated 04.02.2022
4 provisions across 3 enactments
State by Jagaluru Police Station
Venkatesha
Sathyappa
H.B.Prabhakara Sastry
Anil B Katti
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
