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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 24TH DAY OF JULY 2018

BEFORE

THE HON’BLE MR. JUSTICE K. SOMASHEKAR

CRIMINAL APPEAL NO. 100090/2017 BETWEEN: SRI. SOMAPPA @ SWAMY, S/O YAMANAPPA HARIJAN, AGE: 36 YEARS, OCC.: COOLIE, R/O: IRAKALAGADA, TAL & DIST: KOPPAL.

- APPELLANT (BY SRI SRINAND A PACHHAPURE, ADVOCATE) AND: STATE OF KARNATAKA THROUGH KOPPAL RURAL POLICE STATION, NOW REP. BY SPP, HIGH COURT OF KARNATAKA, DHARWAD BENCH, AT DHARWAD.

- RESPONDENT (BY SRI RAJA RAGHAVENDA NAIK, GOVT. PLEADER)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)

OF CR.P.C. AGAINST THE JUDGMENT OF CONVICTION DATED 14.02.2017 AND ORDER OF SENTENCE DATED 15.02.2017 PASSED BY THE DISTRICT AND SESSIONS/ SPECIAL JUDGE, KOPPAL, IN SPL. POCSO (S.C.) NO. 35/2015 FOR THE OFFENCE PUNISHABLE U/S 376 OF IPC AND U/S 5(1) R/W SEC. 6 OF POCSO ACT & ETC.

THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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JUDGMENT

This appeal is directed against the judgment of

conviction and order of sentence passed by the Court below in

Spl. POCSO (S.C.) No. 35/2015 dated 14.02.2017/

15.02.2017 wherein the accused is convicted for the offences

punishable u/S 376 of IPC and u/S 5(1) r/w Sec. 6 of POCSO

Act, 2012, and sentenced to undergo rigorous imprisonment

for ten years and to pay a fine of Rs.5,000/- for the offence

punishable u/S 6 of POCSO Act, 2012 r/w Sec. 376 of IPC

with default clause.

2. Brief factual matrix of the case are as under:

That the victim girl is a minor aged about 16 years; he

induced her that he will marry her and saying so had sexual

intercourse with her in a garden land belonging to Mahantesh

Pattanshetty of Irakalgada; on 02.08.2015 kidnapped her,

took her to Kunchur village near Ranebennur, kept her in a

room near the house of one Somappa Babujan and had

sexual intercourse with her. On the filing of the complaint by

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the complainant, case in Crime No. 196/2015 as per Ex.P.14

came to be registered by the Police against the accused for the

offences punishable u/S 363, 376 of IPC besides Sec. 6 of

POCSO Act, 2012. PW13 –Pramod, H.C. No. 135 of Koppal

Rural Police Station received the complaint as per Ex.P.8.

After investigation charge sheet has been laid by the

Investigating Officer against the accused for the aforesaid

offences as where the trial Court has framed the charge sheet

against the accused, the accused did not plead guilty but

claimed to be tried. The prosecution in order to prove the

guilt against the accused examined witnesses as per PWs.1 to

16 and got marked documents as per Exs.P.1 to P.18. On

appreciation of the entire materials placed by the prosecution

analytically held conviction against the accused for the

offence punishable u/S 376 of IPC r/w Sec. 6 of POCSO Act,

2012. It is this judgment which is challenged in this appeal.

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3. I have heard arguments of the learned counsel for the

appellant and the learned Govt. Pleader for the State and

perused the records of the case.

4. Whereas the learned counsel for the appellant who has

taken me through the evidence of P.W.1, who is the Civil

Judge & JMFC, Koppal, who has stated in her evidence that,

on 26.08.2015 she recorded the statement of the victim u/S

164 of Cr.P.C. upon the requisition submitted by the CPI,

Koppal. Victim was accompanied by a Woman Police

Constable from Koppal Rural Police Station. On enquiry with

the victim as to whether anybody has tutored or induced her,

she stated that nothing has been made and accordingly she

gave statement u/S 164 of Cr.P.C. as per Ex.P.1. The same is

forwarded to the concerned Court in a sealed cover. In the

cross-examination made on behalf of the accused she has

denied the suggestion that the age of the victim and the facts

of the case have not been voluntarily stated by the victim.

She has further denied the suggestion that the Police have

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threatened the victim to state the facts as per Ex.P.1 as

contemplated u/S 164 of Cr.P.C.

5. P.W.7 is the victim girl. She has stated that, one year

backshe had accompanied her mother to the garden land of

one Mahantesh in the limits of Jinnapur Tanda. Her mother

used to attend coolie work there where the accused also used

to come there for coolie work. She was sent to a nearby room

in the land to get water. When she had been to nearby the

room she found that the accused was there and he told that

he would marry her and saying so he made physical contact

with her. The accused had committed similar act thrice but

she did not intimate this fact to her mother. On another day

she had been to the garden land of Mahantesh. By that time

also the accused was there to attend the coolie work. He told

her that, in the evening he would come to her house and take

her to Ranebennur and get her married. At about 11 p.m.

when her father and mother were sleeping in the house she

came out of her house and later herself and the accused went

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to Irakalagad by walking and from there they went to Koppal

in a lorry. From there they boarded a car to proceed to

Ranebennur. They reached Ranebennur in the morning

nearby a village but she did not remember the name of the

village. He has taken her to a house wherein he introduced

her as his wife and asked to give coolie work to himself. That

person accepted his request and gave coolie work in his land

and also gave one room for their use. They have resided in

the said room for about 20 days and there also he had sexual

intercourse with her. After 20 days Koppal Police came there

and took both of them. Due to the physical contact by the

accused she became pregnant. In her cross-examination she

has stated that the garden land of Mahantesh said to be

situated at a distance of 4-5 kms from Jinnapur Thanda, she

was residing with her parents, sister and other two brothers,

her sister was married with a person of Ginigera village. As

she had denied to reside lonely in the house, she used to

accompany her mother for attending the Coolie work in the

garden land but she was not doing the coolie work.

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Mahantesh was giving coolie to her mother. She saw the

accused for the first time in the garden land. She has denied

the suggestions to the extent that she is deposing falsely.

6. P.W.4-Dr.Laxminarayan is the Doctor who has

subjected the accused to medical examination and issued

report as per Ex.P.4. There is nothing in the report to suggest

that the accused is incapable of performing sexual

intercourse.

7. P.W.5-Dr.Mehaboobi is the Doctor who has subjected

the victim girl to medical examination. P.W.5 deposed that

the victim girl was produced by WPC No. 12 of Koppal Rural

Police Station. After physical examination of the victim she

has issued certificate as per Ex.P.5. The Doctor has opined

that no external injuries are found on her person. As the

victim girl was pregnant nothing was collected. On

examination of the victim girl she has referred her for urinary

pregnancy test and obstetric scan for period of gestation.

Accordingly, she issued OPD chit as per Ex.p.6. Urinary

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pregnancy test report is issued as per Ex.P.7. In the cross-

examination she has deposed that, the victim was aged 16

years as stated by her mother, no external injuries were

found on her body, she was habituated for sexual intercourse;

she further deposed that she cannot say as to whether prior

to this pregnancy she had another pregnancy or she had

undergone for abortion. This evidence of the Doctor runs

contrary to the evidence of P.W.7-victim.

8. P.W.8-Shivappa is the father of the victim girl. He has

specifically stated in his evidence that his daughter-victim

had left the school while she was aged 6-7 years because of

small pox. The accused was acquainted with his daughter as

the accused used to go to the land of Mahantesh for attending

the coolie work. His daughter was not seen at 11 pm and

when he asked his wife-P.W.11 she also not found the victim.

Thereafter they have made search of their missing daughter.

A person by name Mukkanna -P.W.12, informed that their

daughter was seen holding a tumbler in her hand. They have

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searched for their daughter for almost four days and

thereafter they filed complaint as per Ex.P.8. Later they came

to know that her daughter was taken by the accused and

abducted for 20 days near Ranebennur. Thereafter they had

been to the Police station and saw the victim and upon

enquiry she revealed that the accused had forcible sexual

intercourse with her on the pretext of marrying her. He has

denied the suggestion that in order to suit the purpose a false

complaint is filed.

9. P.W.15-Chittaranjan is said to be the PSI of T.B. Dam

Police Station who received the complaint and proceeded with

the case for investigation, visited the scene of crime shown by

the complainant. Accordingly, he drawn the panchanama as

per Ex.P.2 and also drew map of scene of offence as per

Ex.P.16, recorded the statements of C.Ws.5 to 8. He deposed

that on 24.08.2015 the victim was produced by C.W.15-

Woman Police Constable, to the Government Hospital,

Koppal, sent the accused to the Government hospital for

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medical examination and thereafter he has handed over the

entire investigation to C.W.18-CPI. In the cross examination

he deposed that, Ex.P.2 is the panchanama drawn by him,

the said place is in Jinnapur tanda, he secured panchas -

C.Ws.2 and 3 being the panch witnesses but he did not give

any notice to them to secure the panch witnesses as per

Ex.P.2. He has denied the suggestion that Ex.P.2 is drawn by

him at the scene of crime itself. He has denied the suggestion

that he is deposing falsely.

10. P.W.16-P. Mohan Prasad is the Investigating Officer who

laid the charge sheet against the accused, wherein the victim

who has shown the scene of crime and accordingly in the

presence of C.Ws.2 and 3, he drew the spot mahazar as per

Ex.P.3 and also drew map of scene of crime as per Ex.P.18.

Subsequently, he recorded voluntarily statement of C.Ws.1

and 5 to 8. Ex.P.4 and P.5 are said to be the medical

certificates of the victim as well as the accused. In the cross-

examination he has specifically stated that on 25.08.2015 he

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visited Jinnapur Thanda but he cannot remember the

distance between Koppal and Jinnapur Thanda but the victim

who has shown the scene of crime and he had drawn the

sketch in the presence of panch witnesses and also drew map

of scene of crime as per Ex.P.8. He has denied the suggestion

that he has laid the charge sheet to suit the purpose to help

the complainant.

11. This is the evidence which is laid by the prosecution in

order to prove the guilt of the accused. But the evidence of

P.W.1 as contemplated the statement u/S 164 of Cr.P.C.

which runs contrary to the evidence of P.W.7 wherein she was

produced before P.W.1. Ex.P.4 is the medical certificate

pertaining to accused and Ex.P.5 is the medical certificates

pertaining to the victim girl. In Ex.P.5 there is no inflicting of

external injuries found on her as well as genital area.

Therefore the evidence of P.Ws.4 and 5 run contrary to the

evidence of P.Ws.7, 8 and 11.

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12. P.W.8 and 11 have been subjected to examination for

the prosecution and at length cross-examined, but nothing

worthwhile has been elicited in their evidence for the

prosecution in order to prove the guilt of the accused coupled

with the evidence of P.W.7 said to be the victim and also

voluntarily accompanying with the accused and also stayed

for a period of 20 days with the victim in Ranebennur. The

allegation made against the accused is that he has forcible

intercourse. There are no external injuries found on her

person as well as genital area having habitual activities done

by the victim. The same is reflected in the certificate.

13. The author of Ex.P.4 certificate has been subjected to

cross examination only relating to victim. But there is no

conclusion for the prosecution to prove Exs.P.4 and Ex.P.5.

The cross-examination of P.Ws.7, 8 and 11 relating to the

incident as narrated in the complaint at Ex.P.8 and also her

statement as Ex.P.1 said to be recorded by P.W.1, who is a

responsible judicial officer. The trial Court has misdirected

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itself and misread the evidence of P.Ws.7, 8 and 11 coupled

with Exs.P.15 and 16 relating to the averments made in the

complaint Ex.P.8 as well as the medical certificate as per

Ex.P.5 said to be issued by P.W.5 relating to the victim said to

be that the accused had forcible sexual intercourse and made

her to become pregnant.

14. Therefore, upon appreciation of the entire averments,

the trial Court has erroneously come to the conclusion that

the prosecution has proved the guilt of the accused u/S 376

of IPC and erroneously held conviction for the offence u/S 6

of POCSO Act r/w Sec. 376 of IPC. Therefore, the said

judgment requires to be re-appreciated with the entire

evidence on record wherein the prosecution did not place

cogent, corroborative and acceptable evidence to hold that the

accused had sexual intercourse with her and made her to

become pregnant as narrated in the complaint as well as the

theory projected by the prosecution.

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15. Learned Govt. Pleader for the State supporting the

impugned judgment of conviction held by the Court below for

the offence u/S 6 of the POCSO Act r/w Sec. 376 of IPC as

wherein the accused who abducted the victim and made to

live with him in a room for 20 days and during that period he

had forcible sexual intercourse with her. The same has been

established in the evidence of P.Ws.7, 8 and 11, they have

stated in consonance with the statement of victim as recorded

u/S 164 of Cr.P.C. and also evidence of P.W.1, being the

responsible judicial officer, who recorded the statement of the

victim u/S 164 of Cr.P.C. which is marked as Ex.P.1.

16. P.W.16 is the D.S.P, who laid the charge sheet, he

visited the spot shown by the victim and drawn the sketch as

per Ex.P.3. P.W.15 is the PSI has taken up investigation from

P.w.16 and conducted the spot mahazaras per Ex.P.2. the

trial Court has appreciated all these materials and rightly

come to the conclusion that the prosecution has proved guilt

against the accused u/S 6 of the POCSO Act r/w Sec. 376 of

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IPC. Therefore, learned Govt. Pleader submits that there is

no interference called for in this appeal and sought to dismiss

the appeal.

17. There is no dispute that P.W.7 is less than 18 years of

age. The prosecution has projected the theory that the

accused abducted the victim from the custody of her parents

from 02.08.2015 and the victim was taken to a village nearby

Ranebennur wherein she was made to live with him for 20

days and during that period he had forcible sexual

intercourse with her. P.W.5 is the Doctor who has subjected

the victim for physical examination and issued certificate as

per Ex.P.5 wherein she had reported that there are no

external injuries on the body and genital area. Ex.P.4 is the

medical certificate issued by P.W.4, a Doctor, who has

subjected the accused for physical examination and issued

certificate as per Ex.P.4. Taking into consideration the

evidence of P.W.8 and 11 it cannot be said that the

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prosecution has proved guilt of the accused beyond all

reasonable doubt.

18. The prosecution has projected its theory that on

02.08.2015 the accused with an intention to have marriage

with the victim girl, has abducted her and took her to

Kunchur village situate at Halagoli cross, Ranebennur and

made her to confine in a room situated near the house of one

Somappa Babujan and subsequently he got married with her

in Chowdamma temple. Later they lived for 20 days in the

garden land of one Mahantesh until they are taken by Koppal

Police.

19. The prosecution has not established the guilt against

the accused relating to abduction of victim on 02.08.2015

and also made her to live in a room. P.W.7-victim said to

have been accompanied with her mother-P.W.1 wherein she

was attending the coolie work in the garden land of

Mahantesh but the victim did not attend the coolie work.

Therefore, the victim was acquainted with the accused. But,

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P.W.8 has to be stated, the father of the victim who has

specifically stated in his cross examination that his another

daughter was given in marriage to one Suresh as he being his

brother in law and also stated to be the brother of P.W.11. As

that Suresh was also residing in their house as he was

residing in the same Thanda. P.W.7-the victim who had gone

to the house of grandparents as wherein her maternal uncle

namely Suresh is also well acquainted to her. This evidence

finds place for prosecution as wherein P.W.7, 8 and 11 said to

be examined by the prosecution in order to establish the guilt

of the accused that the accused said to be abducted the

victim and also had forcible sexual intercourse with her.

20. The ingredients relating to the offence u/S 6 of the

POCSO Act and also offence u/S 376 of IPC has not been

established by the prosecution by placing cogent and

corroborative evidence. The same has been seen in the

evidence of the aforesaid P.Ws.7, 8 and 11, their evidence

which contradicted the evidence of P.Ws.15 and 16 as

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wherein P.W.16 said to be the Investigating Officer who laid

the charge sheet against the accused by conducting spot

panchanama as per Ex.P.3 which bears the signature of

P.W.2 and P.W.3.

21. P.W.15 said to be conducted spot panchanama as per

Ex.P.2, which bears the signature of P.Ws.2 and 3. But the

evidence of P.W.7 runs contrary to the evidence of P.Ws.4 and

5, said to be the Doctors who have subjected the accused the

victim for medical examination. Ex.P.5 is the medical

certificate of the victim said to be issued by P.W.5. But their

evidence which contradicts the evidence of P.W.7 said to be a

vital witness for the prosecution to prove the guilt of the

accused, that the accused had forcible sexual intercourse

with the victim-P.W.7 and made her to abduction and kept

her in the room of one Somappa situated at Kunchur village

near Ranebennur.

22. At a cursory glance of the evidence of P.W.7 relating to

abducting her by the accused on 02.08.2015 at about 11 p.m.

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and so also she has given her statement as contemplated u/S

164 of Cr.P.C. which is recorded by P.W.1 said to be the Civil

Judge & JMFC, Koppal. But the same has been contradicted

to each other. Therefore, the evidence of P.Ws.7, 8 and 11 for

the prosecution appears to be camouflage in order to prove

the guilt of the accused.

23. In totality of the circumstances of the case relating to

the abduction of the victim by the accused on 02.08.2015 at

about 11 pm, the same has not been established by the

prosecution by placing cogent and reliable evidence.

Therefore, it appears to be clouds of doubt on the theory of

the prosecution.

24. It is submitted by the learned counsel for the appellant

that the accused is in custody for a period of nearly two years

and five months. However, the same is to be termed as

service of sentence and to meet the ends of justice. The

prosecution did not place cogent, corroborative and

consistent evidence to prove that the accused had abducted

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the victim and had sexual intercourse for 20 days. P.W.7-

victim, who is a minor, her evidence runs contrary to the

evidence P.W.1.

25. Though the trial Court has acquitted the accused for the

offence u/S 363 of IPC wherein the accused was said to have

abducted the victim and also made out to confine in a room of

the garden land of one Mahantesh but held that the

prosecution has proved guilt against the accused for the

offence u/S 376 of IPC, though P.Ws.7, 8 and 11 have not

stated in their evidence confirming with the statement said to

be recorded by P.W.1, being the responsible judicial officer as

per Ex.P.1 relating to the incident as narrated by the victim.

26. Sec. 6 of the POCSO Act is a punishment clause relating

to the sexual assault but the trial Court has come to the

conclusion that the prosecution has proved guilt of the

accused u/S 376 of IPC. Therefore, it is held that the

conviction u/S 6 of the POCSO Act r/w Sec. 376 of IPC for a

period of ten years and also sentenced to fine, which is

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incorporated in the operative portion of the judgment,

Therefore, the sentence which is held against the accused is

required to be interfered in this appeal.

27. On entire reappreciation of the evidence on record, i.e.,

the evidence of the victim, evidence of P.W.1, evidence of

P.Ws.4 and 5 – Doctors and the Police Officials coupled with

the documents, i.e., medical certificates vide Exs.P.4 and P.5,

mahazars, spot panchanama, etc. do not repose confidence in

the mind of the Court in order to prove the guilt of the

accused beyond reasonable doubt. Hence, I find that the

prosecution has failed to bring home the guilt of the accused

for the offences for which he is charged beyond reasonable

doubt. The evidence of the witnesses including the victim,

creates clouds of doubt in the mind of Court to record

conviction said to be confirmed. In view of the same, the

appeal deserves to be allowed and the order passed by the

learned Sessions Judge requires to be interfered. Hence, I

proceed to pass the following order.

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ORDER

Appeal filed by the appellant-accused Somappa @

Swami u/S 374(2) of Cr.P.C. is allowed. Consequently, the

judgment passed by the learned District & Sessions Judge,

Koppal, in Spl. POCSO (S.C.) No. 35/2015 dated 14.02.2017/

15.02.2017 convicting him for the offences punishable u/S

376 of IPC and u/S 5(1) r/w Sec. 6 of POCSO Act, and

sentencing for the offence punishable u/S 6 of the POCSO Act

r/w Sec. 376 of IPC is hereby set aside. He is set at liberty

forthwith, if not required in any other case.

Fine amount, if any, paid by the appellant-accused,

shall be refunded to him on proper identification.

Registry is directed to communicate the concerned jail

authorities, as where the accused is lodging, the operative

portion of the order, for compliance.

SD/- JUDGE

bvv