Allowed

Krishna Dasharath Nitturkar v. the State of Karnataka

Karnataka HC10 Jan 2024CRL.A/100149/2015

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed an appeal filed by the appellant, Krishna Dasharath Nitturkar, convicted for offences under IPC and POCSO Act. The Court quashed the conviction, ordering the appellant's acquittal.

What did the court decide?

The impugned judgment and order of conviction and sentence were set aside. The appellant was acquitted of the offences. The bail bond, if any, was cancelled.

Krishna Dasharath Nitturkar Vs the State of… — Writ and Judicial Review | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC-D:684 CRL.A No. 100149 of 2015

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

¶4

DATED THIS THE 10^TH DAY OF JANUARY, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY CRIMINAL APPEAL NO. 100149 OF 2015 (C)

¶7

BETWEEN:

¶8

KRISHNA DASHARATH NITTURKAR AGE: 27 YEARS, OCC: COOLIE, R/O. NANDIHALLI ROAD, DESUR, TQ AND DIST: BELAGAVI

¶9

…APPELLANT

¶10

(BY SRI LAXMAN T. MANTAGANI, ADVOCATE)

¶11

AND:

¶12

THE STATE OF KARNATAKA BY BELAGAVI RURAL POLICE STATION, R/BY SPP HIGH COURT OF PREMISES, DHARWAD.

¶13

…RESPONDENT

¶14

(BY SRI RANGASWAMY R., HCGP)

¶15

Digitally VIJAYALAXMIM BHAT signed byVIJAYALAXMIM BHAT

¶16

THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C. SEEKING TO CALL FOR RECORDS AND SET ASIDE THE JUDGMENT OF CONVICTION OF SENTENCE DATED 03.08.2015 PASSED BY COURT OF THE III ADDL. SESSIONS JUDGE, BELAGAVI IN S.C.NO.292/2013 OFFENCES PUNISHABLE UNDER SECTION 363, 366, 366A, 376 OF IPC AND SEC 4 OF POCSO ACT 2012 AND ALLOW THE ABOVE CRIMINAL APPEAL.

¶17

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶18

2 - NC: 2024:KHC-D:684 CRL.A No. 100149 of 2015

¶19

JUDGMENT

¶20

This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed with a prayer to set aside the Judgment and order of conviction and sentence passed by the Court of III Additional Session Judge, Belagavi dated 03.08.2015 in SC No.292/2013.

¶21

Heard the learned counsel for the parties.

¶22

Facts leading to filing of this appeal as revealed

¶23

from the records narrated briefly are, on 26.06.2013, at about 4.00 pm, the appellant herein allegedly kidnapped the daughter of the complainant CW2, who was aged about 17 years 10 months. The appellant after making false assurance of marrying minor victim girl had kept her in his custody and had sexual intercourse with her, in a hotel room for the period from 28.06.2013 to 05.07.2013. Based on the complaint of the victim’s mother, FIR in Crime No.182/2013 was registered and during the course of investigation the appellant was arrested. Investigation in the case was completed and charge sheet was filed for the offences punishable under Section 363, 366, 366A and 376 of IPC and Section 4 of POCSO Act, 2012. The charge

¶24

3 - NC: 2024:KHC-D:684 CRL.A No. 100149 of 2015

¶25

framed by the trial Court was read over and explained to the appellant, who pleaded not guilty and claimed to be tried. The matter was therefore posted for recording the evidence of the parties.

¶26

Before the Trial Court, the prosecution to prove its case had examined 18 witnesses as P.W.1 to P.W.18 and got marked 19 documents as Ex.P.1 to Ex.P.19. The prosecution also got marked 11 material objects as M.O-1 to M.O-11. After completion of recording of prosecution evidence, the statement of accused under Section 313 of Cr.P.C. was recorded. However, the appellant did not choose to lead any defence evidence nor he had got marked any documents in support of his defence. The Trial Court after hearing the arguments addressed by both sides, vide the impugned Judgment and order, convicted the appellant for the offences punishable under Sections 363, 366, 376(2)(n) of IPC and Sections 4 and 6 of POCSO Act 2012 and had sentenced him to undergo imprisonment for 10 years for the offence punishable under Section 6 of the POCSO Act. For the offences punishable under Section 376(2)(n) of IPC and for the offence punishable under Section 4 of POCSO Act, the appellant was sentenced to

¶27

NC: 2024:KHC-D:684 CRL.A No. 100149 of 2015

¶28

¶29

undergo simple imprisonment of 7 years, for the offences punishable under Sections 363 and 366 of IPC he was sentenced to undergo simple imprisonment for a period of 3 years. All sentences were directed to run concurrently.

¶30

Being aggrieved by the said Judgment and order on

¶31

sentence passed by the Trial Court, the appellant has preferred this appeal before this Court.

¶32

Learned counsel for the appellant having reiterated the grounds urged in the memorandum of appeal, submits that the trial Court has erred in convicting the appellant though the victim and other independent material witnesses have not supported the case of the prosecution. He submits that the victim girl has clearly stated that she had filed a false complaint at the instance of CW11 who is her uncle. The prosecution has not examined CW11 before the trial Court. He also submits that during the pendency of the case before the trial Court, the appellant and the victim had got married and they have two children. The parties have also filed an application under Section 320 of Cr.P.C. before this Court with a prayer to compound the offences. Accordingly, he prays to allow the appeal.

¶33

5 - NC: 2024:KHC-D:684 CRL.A No. 100149 of 2015

¶34

Per Contra , the learned HCGP has opposed the prayer made in the appeal memo. He submits that the victim was a minor as on the date of the appellant committing sexual assault on her. PW1 to 3 had clearly supported the case of the prosecution. It is only after the witnesses were recalled after a considerable period of time, PW1 and PW2 have deposed against the case of the prosecution. The said witnesses were under compulsion. The offences for which the appellant has been convicted are not compoundable and therefore, application filed by the parties to compound the offences needs to be rejected. The age of the victim has been proved by producing her school certificate. Accordingly, he prays to dismiss the appeal.

¶35

Before the Trial Court, the prosecution to prove its case had examined 18 witnesses as P.W.1 to P.W.18. PW1 is the complainant and the mother of the victim. PW2 is the victim. Though PW1 had initially supported the case of the prosecution, in her cross examination, she has stated that her daughter had married the appellant and the said marriage was also registered in the office of the Sub-Registrar. She has stated that she is not aware of the fact that the appellant had

¶36

6 - NC: 2024:KHC-D:684 CRL.A No. 100149 of 2015

¶37

taken her daughter with him prior to lodging the complaint. She has also stated that her daughter had studied up to 12^th standard and since she had failed in a subject she had discontinued her studies.

¶38

PW2 who is the victim girl has also stated that she had studied up to II PUC. During the course of her examination-in-chief she has stated that the appellant had proposed to marry her and he had stated he was in love with her. This was informed by her to her mother who had advised her not to go along with the appellant. She has further stated that the appellant had taken her along with him and stayed together for four days in hotel room. In her cross examination, she has admitted that after the death of her father, her mother and herself were taken care of by her uncle Sadananda. Prior to filing of the complaint, PW1 had approached the parents of the appellant with a proposal of her marriage with the appellant. She has admitted that she was willing to marry the appellant. She has further admitted that her uncle Sadananda was not willing to perform her marriage with the appellant and therefore, at his instance, the police complaint was lodged. She has further stated that during the course of examination-in-

¶39

7 - NC: 2024:KHC-D:684 CRL.A No. 100149 of 2015

¶40

chief, she had deposed as per the instruction of her uncle Sadananda. She has further stated that her marriage with the appellant was registered in the office of Sub Registrar, Belgaum in the month of June 2014 and eversince then, she has been living with him and she was pregnant at the time of deposing. Though the prosecution has argued that PW1 and PW2 were under compulsion and therefore, they had deposed against the case of prosecution, during the course of their cross examination such a suggestion was not made to the witnesses during the course of further chief examination of these witnesses by the public prosecutor.

¶41

PW3 is the son of PW1 and brother of PW2. He also has admitted that his sister has married the appellant. PW9Hanmanth is the uncle of PW2 and PW3. He is their father’s elder brother. He has completely turned hostile to the case of the prosecution. During the course of his cross examination, the prosecution has not elicited any material against the appellant. PW15 who is another independent witness has also turned hostile to the case of the prosecution. PW4 and PW5 who are the panch witnesses to the spot Mahazar Ex.P4 also have turned hostile to the case of prosecution. PW6 and PW7

¶42

8 - NC: 2024:KHC-D:684 CRL.A No. 100149 of 2015

¶43

who are the panch witnesses to the seizure mahazar of the clothes also had turned hostile. PW8 who is the panch witness to the seizure mahazar of the clothes as per Ex.P7 has also turned hostile to the case of the prosecution. PW10 is the police constable who has carried FIR. PW11 who is the police constable who got the appellant examined before the Medical officer and PW12 is the head constable who carried 14 articles to the forensic science laboratory. PW13 is the Police Sub Inspector who registered the complaint, drawn the mahazar and had recorded the statement of witnesses during the course of investigation. He had handed over the further investigation to PW18. PW14 is the medical officer who has examined the victim on 06.07.2022. PW17 is the High School Head Master who has deposed that he had issued Ex.P16 –school record on which the prosecution has placed reliance to prove the age of the victim. PW18 is the investigation officer he has spoken about he conducting further investigation and filing the charge sheet.

¶44

The medical reports that are available on record would go to show that the age of the victim was above 18 years. The radiologist report states that the victim was aged

¶45

9 - NC: 2024:KHC-D:684 CRL.A No. 100149 of 2015

¶46

about 20 years. As per the school record, the victim was aged about 17 years 10 months. It has come on record that the victim had completed her II PUC and was staying at home since she had failed in one subject. Therefore, a serious doubt arises with regard to the age of the victim girl.

¶47

The medical records also do not conclusively proved that the appellant had forcible sexual intercourse with the victim girl. The material on record would go to show that the victim girl had no injury on her body when she was medically examined immediately after filing of the complaint. The Forensic Science Laboratory report at Ex.P.17 would reveal that the presence of blood stain was not detected on articles No.1 to 14 nor the presence of seminal stains was detected in the said articles. The presence of spermatozoa was also not detected in the vaginal and cervical smear of the victim.

¶48

The victim/P.W.2 has admitted during the course of cross-examination that her uncle Sadanand was against the proposal of performing of her marriage with the appellant. She has also admitted that her mother was willing to perform her marriage with the appellant and prior to filing of the complaint, her mother had approached the parents of appellant with the

¶49

10 - NC: 2024:KHC-D:684 CRL.A No. 100149 of 2015

¶50

proposal of her marriage. She has stated that since her uncle Sadanand, who was taking care of her family after her father had died was not in favour of performing of her marriage with the appellant, therefore a complaint was lodged against the appellant. Considering the admissions made by the victim/P.W.2 during the course of cross-examination, a serious doubt arises with regard to allegations made against the appellant. It has come on record that during pendency of the trial, the appellant and the victim have got married and their marriage was also registered before the office of Sub-Registrar. The Trial Court has proceeded to convict the appellant particularly taking into consideration that the victim was aged about 17 years 10 months as on the date of alleged incident in the complaint. On the basis of material available on record, this Court has found that there is a serious discrepancy with regard to the age of the victim. Under the circumstances, in the background of statement made by the victim during the course of her cross-examination, I am of the opinion that the trial Court was not justified in convicting the appellant for the offences for which he was charged. From the overall appreciation of the material on record, it is seen that the

¶51

11 - NC: 2024:KHC-D:684 CRL.A No. 100149 of 2015

¶52

prosecution has failed to establish its charges against the appellant beyond reasonable doubt. Under the circumstances, the impugned Judgment and order of conviction and sentence passed by the Trial Court is liable to the set aside. Accordingly, the following :

¶53

ORDER

¶54

(i) Appeal is allowed.

¶55

(ii) The impugned Judgment and order of conviction and sentence passed by the III Additional Sessions Judge, Belagavi in Sessions case No.292/2013 on 03.08.2015 is set aside.

¶56

(iii) The appellant is acquitted of the offences for which he was convicted.

¶57

(iv) The bail bond of appellant, if any shall stand cancelled.

¶58

Sd/JUDGE

¶59

VMB/CKK

Krishna Dasharath Nitturkar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Krishna Dasharath Nitturkar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Maruti S/O Tippanna Kattimani Vs Smt. Premakka W/O. Maruti Kattimani

H. Lakshmana S/O Adeppa Vs the State of Karnataka

Smt. Gayatri Bheemappa Vs v Bheemappa

K. Mylesh Alias Mallesh S/O. Sanna Marappa Vs State of Karnataka

Basanagouda Channappagouda Guadasalmani Vs Veeresh Shanmukhappa Kundagol

Shri Manju Alias Manjunath S/O Yallapa Konnuri Vs State of Karnataka