Chetan @ Chethan Kumar G.M Vs State of Karnataka

THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 13.12.2019 PASSED BY THE II ADDITIONAL SESSIONS JUDGE, KOLAR IN S.C.NO.61/2017 - CONVICTING THE APPELLANT/ACCUSED NO.1 TO 5 FOR THE OFFENCE P/U/S 363 AND 376 OF IPC AND SECTION 4 OF POCSO ACT.

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

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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The appellant has preferred this appeal against the judgment of conviction and order on sentence passed by the II Addl. Sessions Judge, Kolar in S.C No. 61/2017 dated 13.12.2019.

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For the sake of convenience, the parties herein are referred to as per their status before the trial Court.

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Brief facts leading to this appeal are that the Circle Inspector of Police, Kolar Circle, Kolar submitted the charge sheet for the offence punishable under Section 363, 376 of IPC and Section 4 of POCSO Act. It is alleged by the prosecution that, the accused and appellant/victim were in love with each other. On 23.07.2016 at about 04.00 p.m. at Narasapura circle of Vemagal village, the accused induced and procured CW2 victim girl, aged about 17 years and kidnapped her on the two wheeler bearing No.KA53/A1471 belonging to CW16-Manjappa with an

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intention to marry her. After procuring and Kidnapping

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CW2-victim girl, the accused took her to Devanahalli through Hosakote, at about 8.00 p.m., and has tied thali to CW2/victim near Anjaneyaswamy temple and again

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took her in a two wheeler to the garden house of CW10 Mariyappa at Achakadirenahalli village of Sidlaghatta Taluk and stayed there from 23.07.2016 to 03.08.2016. During that stay, committed rape on CW2. Thus the accused has committed the alleged offences.

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After filing the charge sheet, case was registered in a S.C. No. 61/2017. Accused was released on

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bail. Having heard the arguments on charges, trial Court has framed the charges for the alleged commission of offences. Same was read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution

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has examined 23 witnesses as PW1 to PW23. 34

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documents were marked as Exhibit P1 to Exhibit P34. 9

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material objects were marked as MOs.1 to 9. On closure of prosecution side evidence, statements of the accused under Section 313 of Code of Criminal Procedure were recorded. The accused have totally denied the evidence of prosecution witness. He has adduced defence evidence as DW1 to DW4. 6 documents were marked as Exhibits D1 to D6.

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6. Having heard the arguments on both sides, the

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trial Court has convicted the accused for the offence punishable under Section 363, 376 Indian Penal Code and Section 4 of POCSO Act and passed the sentence.

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Being aggrieved by this judgment of conviction and order on sentence, the appellant has preferred this appeal.

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The learned counsel for the appellant would submit that the judgment of conviction and order on sentence passed by the trial Court is contrary to law,

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evidence and probabilities of the case. The trial Court has

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not properly appreciated the evidence on record in accordance with law and facts.

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The victim girl examined as PW1. She has not supported to the case of the prosecution even in her statement under Section 164 of Cr.P.C. She has not whispered anything against the accused.

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The complainant - M. Gangappa examined as PW2. He has deposed that the victim girl had completed 18 years.

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The PW15- Dr.Shanthi.S, has clearly deposed

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that she did not notice any injuries on the body of the victim girl.

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The age shown in the Exhibit P8 to Ex.P14 are contrary to the Exhibit D1. Absolutely there is no evidence to prove the guilt of the accused. However trial Court has

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convicted the accused which is not sustainable under law.

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On all these grounds, it is sought for allowing this appeal.

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As against this, learned Additional SPP

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Smt.Asma Kauser would support the judgment passed by the trial Court.

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Having heard the arguments on both sides, the following points would arise for consideration.

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Whether the judgment of conviction and

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order on sentence passed by the trial Court is perverse, capricious, illegal and not sustainable under law?

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What order?

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Regarding Point No.1:

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I have examined the material placed before this

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Court. It is the case of the prosecution that the Circle Inspector of Police, Kolar Circle, Kolar has submitted the

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charge sheet for the offence punishable under Section 363, 376 of IPC and Section 4 of POCSO Act. It is alleged by the prosecution that, the accused and applicant/victim

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were in love with each other. On 23.07.2016 at about

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04.00 p.m. at Narasapura circle of Vemagal village, the accused induced and procured CW2 victim girl, aged about 17 years and kidnapped her on the two wheeler bearing No.KA53/A1471 belong to CW16-Manjappa with an intention to marry her. After procuring and kidnapping CW2-victim girl, the accused took her to Devanahalli through Hosakote, at about 8.00 p.m., and has tied thali to CW2/victim near Anjaneyaswamy temple and again took her on the two wheeler to the garden house of CW10 Mariyappa at Achakadirenahalli village of Sidlaghatta Taluk and stayed there from 23.07.2016 to 03.08.2016. During that stay, committed rape on CW2. Thus the accused has committed the alleged offences.

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To prove the guilt of the accused, prosecution has examined 23 witnesses as PW1 to PW23.

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The material witness, PW1 victim girl has not supported the case of the prosecution. This witness is

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treated as partly hostile witness and cross-examined by the Special Public Prosecutor. During the course of crossexamination, the prosecution has not elicited any favourable answers from this witness to substantiate the case of the prosecution. In the statement under Section 164 of Code of Criminal Procedure, which is marked as Exhibit P3, also the victim has not whispered anything against the accused. The Investigating Officer has not explained anything as to on what basis he has filed the charge sheet against the accused, though the victim girl has not supported the case of the prosecution while recording the statement under Section 164 of Code of Criminal Procedure.

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PW2-Gangappa is the complainant. He has not deposed anything against this accused. He is the hearsay witness, which will not come to the aid of the prosecution.

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PW3-Murali is the complainant. PW3 is also one of the hearsay witnesses.

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PW4-Muninarayanappa has not supported the

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case of the prosecution.

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PW5-Nagamma is the mother of the victim, she is also the hearsay witness. But during her crossexamination she has clearly stated that, she has not given any statement to the police. Further she has clearly stated that she has not stated before the police that the accused has committed rape on her daughter.

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PW6-Ramesha and PW7-Rajesha have not supported the case of prosecution.

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PW8-Venkatesh, Head Constable is also a

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hearsay witness.

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PW9-Basavaraj has not deposed anything against the accused.

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PW10-Srinivas, PW11-Singegowda and PW12 Munikrishnappa are said to be attestors to mahazar

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(Ex.P2). They have not supported the case of the prosecution.

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PW13 Munikrishnappa.N, Principal, Govt. Junior Collage, Vemagal, has deposed regarding the issuance of Exhibits P8 to P14.

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PW14- Tirumalesh said to be the attestor to Exhibit P15-seizure mahazar, has not supported the case of the prosecution.

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PW15 Dr.Shanti.S has deposed regarding the examination of the victim girl and also issuance of the Exhibit P16 to 18.

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PW16 Amaresh.N, police constable has deposed that production of the accused before the Medical Officer for his examination and also deposed as to the production of the accused before the Court with remand application.

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PW17 N.Rangalakshmi, PSI, PW18 Rajanna.H, PW19 Lakshminarayana, PW20 A.B.Sudhakar, Police

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Inspector have deposed as to their respective

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investigation.

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PW21 Dr. Byappa Reddy, Radiologist has deposed in his evidence that as to the issuance of Certificate Exhibit P31.

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PW22, Putta Obala Reddy, Police Inspector has also deposed as to his part of investigation.

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PW23, Dr. Kumar.H has deposed in his evidence that as to the examination of the Chetan Kumar-accused and also issuance of Certificate Exhibit P23.

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A careful examination of the entire evidence placed before this Court, it is crystal clear that the material witness, victim girl has not supported the case of the prosecution and the case of the prosecution is also not supported with the medical evidence. Without any cogent, convincing, corroborative evidence, the trial Court has convicted the accused which is not sustainable under law. The trial Court has not properly appreciated the evidence

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