State of Karnataka Vs Gadigeppagouda S/O Mallanagouda Pati

¶1

1 -

¶2

NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶3

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16^TH DAY OF JANUARY 2025 PRESENT

¶4

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

¶5

AND

¶6

THE HON'BLE MR. JUSTICE UMESH M ADIGA CRIMINAL APPEAL NO. 100204 OF 2020

¶7

BETWEEN:

¶8

STATE OF KARNATAKA THE CIRCLE POLICE INSPECTOR, DHAWAD RURAL POLICE STATION, DHARWAD, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

¶9

…APPELLANT

¶10

(BY SRI. M.B. GUNDAWADE, ADDL. SPP)

¶11

AND:

¶12

Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench

¶13

GADIGEPPAGOUDA S/O MALLANAGOUDA PATI AGE. 21 YEARS, OCC. AGRICULTURE, R/O. GANGIWAL, TQ. HUBBALLI, DIST. DISTRICT-580020.

¶14

…RESPONDENT

¶15

(BY SRI. GOURISHANKAR H. MOT, ADV)

¶16

THIS CRIMINAL APPEAL IS FILED U/S 378(1) AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30/10/2019 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, DHARWAD IN SPL. S.C. NO.45/2017 AND TO SET ASIDE THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 31/10/2019 PASSED BY THE II ADDL. DISTRICT AND SESSIONS JUDGE AND SPL. JUDGE, DHARWAD, IN SPL. S.C.NO.45/2017 & CONVICT THE RESPONDENTS / ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 366 AND 376 OF IPC, SECTION 4 OF POCSO ACT AND SECTION 3(2)(v) OF SC AND ST (PREVENTION OF ATROCITIES) ACT.

¶17

2 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶18

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶19

CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA

¶20

ORAL JUDGMENT

¶21

(PER: THE HON'BLE MR. JUSTICE UMESH M ADIGA)

¶22

This is a State’s appeal against the judgment of acquittal dated 31.10.2019 passed by the learned II Additional District and Sessions Judge and Special Judge designated under POCSO Act (for short trial Court), Dharwad in Spl.S.C. No.45/2017, acquitting the accused of the offences punishable under Sections 366 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’, for short), Section 4 of the Protection of Children from Sexual offences Act,2012 (hereinafter referred to as ‘the POCSO Act’, for short) and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘SC & ST Act’, for short).

¶23

3 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶24

Brief facts of the case are that on 05.09.2017

¶25

around 7:00 pm, CW.11(PW.7)-Smt. Rajeshwari

¶26

telephoned the complainant and informed that the victim girl went to tailoring class at about 10:00 am but she did not return home. Thereafter, the complainant (PW.2)-Sri. Prabhu, his wife-PW.3-Smt. Renuka, sister, mother,

¶27

brother and one Basayya Kalayya Hiremath went to Prabhu Nagar, Honnapur and searched for the victim but they could not trace her. On 06.09.2017, they returned to their village at 7:30 p.m. and found the victim girl at their house. On enquiry, the victim informed that on 05.09.2017 around 10:00am she went to Alnavar to attend tailoring class. Around 11:00 a.m. the accused telephoned her and informed her to wait at Alnavar bus stand for him. At around 12:30 noon the accused came to Alnavar bus stand and kidnapped her on his motorcycle and took her to different places. On 06.09.2017 in the early morning around 1:30 am(midnight), he took her forcibly to a godown situated at Gangivala village and forcibly had sexual intercourse with her and dropped her

¶28

4 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶29

at her house around 5:00 p.m. PW.2 after hearing the said information from PW.1 lodged a complaint with Hubli Rural Police Station as per Ex.P-7. On that basis, Crime No.207/2017 came to be registered against the accused for the aforesaid offences. The matter was investigated by the concerned police and on completion of the investigation, charge-sheet was filed before the trial Court for the offences punishable under Sections 366 and 376 of IPC, Section 4 of POCSO Act and Section 3(2)(v) of SC & ST Act & it was registered in Spl.S.C. No.45/2017.

¶30

On hearing both the sides, the trial Court framed charges and the accused pleaded not guilty. The prosecution to prove its case, examined PWs.1 to PW-15 and got marked Exs.P-1 to P-23 and M.Os.1 to 18. On completion of the recording of evidence of the prosecution, the learned trial Judge examined the accused under Section 313 of the Code of Criminal Procedure and his answers were recorded. The accused did not lead defence

¶31

5 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶32

evidence. However, during the course of cross-

¶33

examination, he got marked documents as Exs.D-1 to D-3.

¶34

The learned trial Judge, after hearing both the parties and appreciating the evidence on record, by the impugned judgment dated 31.10.2019, acquitted the accused of the charges punishable under Sections 366 and 376 of IPC, Section 4 of POCSO Act and Section 3(2)(v) of SC & ST Act. The same is challenged by the prosecution on the grounds mentioned in the appeal memorandum.

¶35

We have heard the arguments of the learned Additional State Public prosecutor as well the learned counsel for the respondent/accused.

¶36

The learned Additional State Public Prosecutor contends that the trial Court has not properly appreciated the evidence on record. PW-1 is the victim. She has narrated the facts of the case. Her evidence is corroborated by other witnesses i.e., PW.8 and PW.11. PW.11 is the Doctor who examined the victim and issued the medical certificate. During her cross-examination,

¶37

6 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶38

nothing was brought out by the accused to disbelieve her evidence. The learned trial Judge considering certain discrepancies in the evidence, has erroneously acquitted the accused holding that the prosecution has failed to prove the guilt of the accused. The said findings are erroneous. He further contends that the victim is a minor and her school records are produced which depicts her date of birth as per Exs.P-21 and 23. According to Section 94 of the Juvenile Justice Act, the said documents are sufficient to prove the age of the victim. He, further, contends that it is not in dispute that the victim belongs to scheduled caste. All these evidence sufficiently prove the case of the prosecution. On these grounds, the learned Additional SPP prays to reverse the judgment of acquittal and convict the accused for the above said offences.

¶39

Learned counsel for the accused/respondent vehemently contends that, according to the case of the prosecution, PW.1 has completed SSLC. However, her SSLC marks card is not produced by the prosecution. To

¶40

7 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶41

prove the said documents, relevant witnesses, who made entries in the school records, were not examined. Therefore, the fact that victim was a minor, as on the date of the alleged incident, is not proved. The evidence of the prosecution witnesses were discussed in detail by the learned trial Judge and with valid reasons, the learned trial Judge acquitted the accused. The conduct of the victim clearly shows that she is a tutored witness and just to avoid repayment of loan amount obtained by the uncle of the victim from father of accused, a false case was filed against the accused. The accused has produced the receipt for having paid money to the uncle of the victim as per Ex.D-2. The evidence of PW.1 do not inspire confidence in the mind of a prudent person to believe her case. Except PW.1, there are no other eyewitnesses to the incident and even there is no circumstantial evidence to show that on the alleged date of incident, the victim came to Alanvar and accompanied the accused on the motorcycle as a pillion rider and went to different places as alleged by PW.1.

¶42

8 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶43

It is further contended that as per the victim’s

¶44

evidence, she was kidnapped from bus stand and taken to different places on motorcycle and she did not resist or raised her voice for help. Silently she accompanied him and nowhere she complained about the accused. She has stated that she was taken to temple wherein she was left alone, and there also she did not complain to the persons who were in the temple, against the accused. All these conduct clearly shows that the evidence of the victim is not reliable. Since other witnesses are hearsay witnesses, their evidence is not of much importance. He further submits that the oral evidence of PW.1 is not corroborated by medical evidence. PW.11-Doctor in her evidence as well as in the medical certificate issued by her, has stated that there were no evidence of recent sexual assault on the victim girl. Therefore, mere tear or rupture of hymen is not a ground to presume that she underwent forceful sexual intercourse. In the cross-examination of PW.11, she has admitted that, in case of sports person, chances of

¶45

rupture of hymen is possible. PW.2 in his cross-

¶46

9 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶47

examination admitted that the victim girl is a sports person and had participated in sports in her School. Therefore, the defence of the accused is supported by medical evidence. Considering these facts, the learned Special Judge acquitted the accused which does not call for any interference. He further submits that to interfere

¶48

with the finding of acquittal, there must be strong circumstances and materials to show that the findings of the learned trial Judge is perverse. The grounds urged do not show that the findings of the learned Special Judge is perverse. Therefore, he prayed to dismiss the appeal.

¶49

determination:

¶50

“ Whether the learned Special Judge erred in acquitting the accused for the alleged offences and interference by this court is required?”

¶51

We answer the said point in the negative for the

¶52

following reasons.

¶53

10 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶54

The material and star witness in this case is

¶55

PW.1. In her examination-in-chief, she has narrated the facts of the case. According to her examination in chief, the accused is a resident of her village and she knows the accused. He belongs to Lingayat community and accused had knowledge of her caste. She used to go to Alanvar to learn tailoring. On 01.09.2017, the accused came to Alanvar bus stand and gave a mobile to her and told her that whenever he makes a call, she should receive it. On 05.09.2017, at 10.00 a.m. when she was in the Alnavar bus stand, the accused telephoned her and told her to wait for him at Alnavar bus stand. Therefore, she was waiting for him at the bus stand. Around at 12:30 noon, the accused came to the bus stand and asked her to come along with him on his motorcycle. She refused to go along with him. The accused threatened her by saying that “if she does not accompany him, he would trouble the members of her family.” Due to said threat she agreed to go with him. Accused took her on his motorcycle to different places which were not known to her. On

¶56

11 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶57

06.09.2017 around 1:30 am (midnight), the accused took her to a godown and in-spite of her resistance, he raped her. Thereafter, he took her to Durgadevi temple at Hosagabbur and asked her to wait at temple till he returns. Around 9:00am, the accused returned to the said temple and took her to Gayathri temple and thereafter again took her to the godown and around 6:00 pm he dropped her to her house. On the same day at around 7:30 pm her parents returned home and she informed this fact to her parents. On that basis, her parents lodged a complaint. She was also taken to the Court wherein she has given statement before the learned Magistrate. Through her, the prosecution got marked documents & material objects.

¶58

In a detailed cross-examination of PW.1, she has stated that, she has not asked for help from the public or raised hue & cry at any place from Alnavar bus stand till she was dropped to her house. She did not explain the reasons for not informing anybody or seeking help from

¶59

12 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶60

anybody when the accused kidnapped her and took her on his motorcycle to different places. Looking to her evidence, she had sufficient opportunities to seeks help from public, Police or member of her family at Alnavar bus stand and two temples where she was alone and waiting for accused. These reasons creates serious doubt on her evidence and do not inspire confidence on her evidence. It is also worth to note that her house was situated near the place of incident, i.e., near the godown wherein the accused was said to have committed the offence of rape.

¶61

It is the defence of the accused that uncle of PW.1 had obtained loan from the father of the accused. When the father of the accused demanded for repayment of the said amount, PW.2 & his family members, to evade payment, foisted a false case on him to harass the father of the accused and force him to waive the debt. PW.1 pleaded ignorance about obtaining of loan by her uncle from the father of the accused whereas PW.2 as well as

¶62

13 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶63

PW.4 admitted the said fact. The said admission as well

¶64

as Ex.D-2 probablise the defence of the accused.

¶65

The oral evidence of PW.1 is not corroborated by medical evidence. The incident took place on 05.09.2017 and on the next day, i.e., on 06.09.2017, the accused dropped the victim to her house around 6:00 pm. This fact was narrated by PW.1 to her parents and thereafter according to the evidence of PWs.1 to 3, they lodged a complaint. FSL report shows that, there was no seminal stains on the clothes of either the accused or PW.1. The prosecution examined PW.11-Doctor, who collected the clothes as well as other material objects. In Ex.P-13, PW.11 opined that “there is no evidence of forceful vaginal intercourse which neither refutes nor confirms the forceful sexual assault/intercourse.” Therefore, the medical evidence also does not support the case of the prosecution. In the cross-examination of PW.11, she has stated that she cannot assign the reasons for rupture of hymen. She further stated that if a girl

¶66

14 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶67

participates in sports activity or cycling, there are chances of rupture of hymen. PW.2 in his cross-examination admitted that the Government has given free cycle to PW.1 and she also participated in the sports activities in her school. The evidence of PW.11 and PW.2 referred to above indicates that there are chances of rupture of hymen of PW.1 due to said reasons & might not be due to alleged sexual assault.

¶68

Other witnesses are not material witnesses to the incident as they are hearsay witnesses and official witnesses. Therefore, their evidence is not of much importance.

¶69

The learned Special Judge considered these facts in detail and given the benefit of doubt, acquitted the accused of the above said charges. The said findings are not perverse, arbitrary or calls for interference by this Court.

¶70

15 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶71

It is settled principle of law that when an

¶72

accused is acquitted, he gets double presumption of his innocence. Firstly, the accused presumed to be innocent till guilt is proved and his innocence is confirmed by the judgment of acquittal by the Court.

¶73

As rightly submitted by the learned counsel for the respondents, the grounds of appeal are not tenable to interfere with the well reasoned order of the learned trial Judge.

¶74

In similar facts and circumstances of case, a coordinate Bench of this Court in the case of Mahadevu @ Pappi Vs. State of Karnataka by Pandavapura Police Station¹ (wherein one of the member of this Bench was also a member, who authored the judgment) relying on the judgments of the Hon’ble Apex Court, it is held that, while accepting the evidence of a minor/child witness, adequate corroboration must be there. In the present case also, PW.1 is aged 17 years and her evidence do not

¶75

1 ILR 2020 KAR 4569

¶76

16 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶77

repose confidence to the minds of this Court. The defence of the accused is that, to avoid repayment of loan by the uncle of PW.1, a false case was registered against the accused. Hence, uncorroborated testimony of PW.1 cannot be accepted to convict the accused for such heinous crime.

¶78

In view of all these circumstances, without corroboration of evidence of PW.1, it is not safe to rely on the evidence of PW.1 to reverse the well reasoned judgment of the learned trial Judge.

¶79

For the aforesaid reasons, we pass the

¶80

following:

¶81

ORDER

¶82

The appeal is dismissed. The judgment and order of acquittal dated 31.10.2019 passed by the learned II Additional District and Sessions and Special Judge, Dharwad in Spl.S.C. No.45/2017, is confirmed

¶83

- 17 - NC: 2025:KHC-D:758-DB CRL.A No. 100204 of 2020

¶84

Registry is directed to send back the TCR to the trial

¶85

Court.

¶86

Sd/(ASHOK S. KINAGI) JUDGE

¶87

Sd/(UMESH M ADIGA) JUDGE

¶88

CT: BSB