Karnataka High Court
Ramesh S/O. Yallappa Bhovi vs The State Of Karnataka on 7 January, 2025
1 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 07TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO.100335 OF 2020
C/W
CRIMINAL APPEAL NO.100334 OF 2020
IN CRL.A NO 100335 OF 2020
BETWEEN
NAGARAJ
S/O BHARAMANNA BHOVI
AGED ABOUT 19 YEARS,
OCCUPATION: DRIVER,
R/O. MAJJIGERI,
MUNDGOD - 581 349,
DISTRICT : UTTAR KANNADA
...APPELLANT
(BY SRI. SADIK KANVI, ADVOCATE)
AND
THE STATE OF KARNATAKA
REPRESENTED BY MUNDGOD POLICE STATION
MUNDAGOD - 581 349,
DISTRICT UTTAR KANNADA,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
AG OFFICE, HIGH COURT BUILDING,
DHARWAD
...RESPONDENT
(BY SRI. ABHISHEK MALIPATIL, HCGP
VIDE ORDER DATED 16.01.2024,
NOTICE TO P.W.5 IS HELD SUFFICIENT)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO CALL FOR RECORDS IN SPL.CASE
NO.38/2014 AND TO SET ASIDE THE JUDGMENT DATED
12.10.2020 AND ORDER OF SENTENCE DATED 21.10.2020 IN
SPECIAL CASE NO.38/2014 PASSED BY THE ADDITIONAL
2 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
DISTRICT AND SESSIONS JUDGE, FTSC-1, U.K. KARWAR
SPECIAL COURT (FOR TRIAL OF CASES FILED UNDER POCSO)
ACT CONVICTING THE APPELLANT FOR OFFENCES UNDER
SECTIONS 366, 342, 376, 506 OF INDIAN PENAL CODE AND
SECTION 4 OF PROTECTION OF CHILDREN FROM SEXUAL
OFFENCES ACT, 2012 AND SENTENCING TO UNDERGO SIMPLE
IMPRISONMENT FOR A PERIOD OF 10 YEARS AND TO PAY FINE
OF RS.10,000/- FOR THE OFFENCE UNDER SECTION 376 AND
SECTION 4 OF POCSO ACT IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO SIMPLE IMPRISONMENT FOR 6 MONTHS, SENTENCED
TO UNDERGO SIMPLE IMPRISONMENT FOR 4 YEARS FOR
OFFENCE UNDER SECTION 366 OF IPC, SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR MONTHS FOR OFFENCE
UNDER SECTION 342 OF IPC, SENTENCED TO UNDERGO SIMPLE
IMPRISONMENT FOR 6 MONTHS FOR OFFENCE UNDER SECTION
506 OF IPC AND ACQUIT THE APPELLANT / ACCUSED NO.1 BY
ALLOWING THIS APPEAL TO MEET THE ENDS OF JUSTICE. ANY
OTHER AND FURTHER RELIEFS AS THIS HONORABLE COURT
DEEMS JUST AND FIT IN THE ENDS OF JUSTICE INSOFAR AS
APPELLANT CONCERNED.
IN CRL.A NO 100334 OF 2020
BETWEEN
1 . RAMESH
S/O. YALLAPPA BHOVI
AGED ABOUT 24 YEARS,
OCCUPATION - GOUNDIWORK,
2 . MANJUNATH
S/O. HANUMANTHAPPA BHOVI
AGED ABOUT 25 YEARS,
OCCUPATION - DRIVER,
BOTH ARE R/O. MAJJIGERI - 581 349,
TQ. MUNDGOD,
DIST. UTTAR KANNADA.
...APPELLANTS
(BY SRI. VIJAY S. CHINIWAR, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH MUNDGOD POLICE STATION,
DISTRICT - UTTAR KANNADA,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
3 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
HIGH COURT KARNATAKA,
BENCH AT DHARWAD.
...RESPONDENT
(BY SRI. ABHISHEK MALIPATIL, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO CALL FOR THE RECORDS OF THE CASE
IN SPECIAL CASE NO.38/2014 ON THE FILE ADDITIONAL
DISTRICT AND SESSIONS JUDGE FTSC - 1, U.K. KARWAR
(SPECIAL COURT FOR TRIAL OF CASES FILED UNDER POCSO)
ACT AND TO PASS A JUDGMENT OF ACQUITTAL BY SETTING
ASIDE THE JUDGMENT OF CONVICTION DATED 12/10/2020 AND
ORDER OF SENTENCE PASSED ON 21/10/2020 BY LEARNED
ADDITIONAL DISTRICT AND SESSIONS JUDGE FTSC- 1, U.K.
KARWAR (SPECIAL COURT FOR TRIAL OF CASES FILED UNDER
POCSO) ACT IN SPECIAL CASE NO.38/2014 FOR THE OFFENCES
PUNISHABLE UNDER SECTION 4 READ WITH SECTION 17 OF
POCSO ACT AND UNDER SECTIONS 366-A, 342, 506 READ WITH
SECTION 34 OF IPC AND SENTENCING HIM TO UNDERGO
SIMPLE IMPRISONMENT FOR 7 YEARS AND PAY FINE OF
RS.5,000/- EACH FOR THE OFFENCES PUNISHABLE UNDER
SECTION 4 READ WITH SECTION 17 OF POCSO ACT, IN
DEFAULT OF PAYMENT OF FINE, THE ACCUSED NO.2 AND
3/APPELLANTS SHALL UNDERGO SIMPLE INPRISONMENT FOR 3
MONTHS. ACCUSED NO.2 AND 3 /APPELLANTS ARE SENTENCED
TO UNDERGO SIMPLE IMPRISONMENT FOR 5 YEARS FOR THE
OFFENCE UNDER SECTION 366A, READ WITH SECTION 34 OF
IPC. ACCUSED NO.2 AND 3 / APPELLANTS ARE SENTENCED TO
UNDER GO IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE
UNDER SECTION 342 OF IPC. ACCUSED NO.2 AND 3 TO
UNDERGO IMPRISONMENT FOR 6 MONTHS FOR THE OFFENCE
UNDER SECTION 506 OF IPC., FROM THE CHARGES LEVELED
AGAINST IN SO FAR AS APPELLANTS / ACCUSED NO.2 AND 3 IS
CONCERNED, TO PASS ANY OTHER ORDER THAT THIS HON'BLE
COURT DEEMS FIT IN THE INTEREST OF JUSTICE.
THESE APPEALS HAVING BEEN HEARD AND RESERVED ON
04.12.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
4 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
CORAM: THE HON'BLE MS. JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: THE HON’BLE MS. JUSTICE J.M.KHAZI)
Since these appeals are arising out of the same
judgment and order, they are clubbed together and
disposed of by a common judgment.
2. While Crl.A.No.100334/2020 is filed by accused
Nos.2 & 3 and Crl.A.No.100335/2020 is filed by accused
No.1.
3. For the sake of convenience, parties are referred
to by their ranks before the trial Court.
4. A charge sheet came to be filed against accused
Nos.1 to 3, alleging that, at the relevant point of time, the
prosecutrix was aged 16 years. On 07.08.2014 at 10.20
a.m, while the prosecutrix was proceeding from Majjigere to
Mundgodu by walk, near Ishappana Tank, accused Nos.1 to
3 kidnapped her and took her into the forest area and tied
her to the tree up to 3.00 pm. Accused No.1 persuaded her
to love him and when she did not agree, he gave threat by
putting a knife to her neck. He recorded the conversation
5 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
between him and the prosecutrix on his cell phone.
Thereafter, accused No.1 committed rape on the
prosecutrix, while accused Nos.2 & 3 stood guard and they
also gave threats not to disclose the said act to anyone and
thereby accused Nos.1 to 3 have committed the offences
punishable under Sections 342, 363, 366, 366-A, 376-D,
506 r/w Section 34 of IPC and Sections 4 and 6 of POCSO
Act 2012.
5. In respect of the incident, complaint is given by
the prosecutrix. She has stated that she has studied 8th
standard in Bachanike and 9th and 10th standards at Pre-
University Government College, Mundgod. Every day, she
used to come to college in Government bus from Majjigere
to Mundgod. While she was studying in 8th standard accused
No.1, who is a resident of the same village, used to trouble
her by saying that she should love him, but she
reprimanded him. Since then he was not troubling her.
6. However, on 07.08.2014, while she was walking
on her way to college at 10.30 a.m near Ishappan tank, all
the accused persons approached her, accused No.2
Ramesh, snatched her umbrella and accused No.3
6 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
Manjunath snatched her school bag. Accused No.1 caught
hold of her mouth with his right hand and caught hold of
both her hands with his left hand and pushed her into the
forest and tied her to a eucalyptus tree with an ivy(ಬ ).
When she tried to free herself, they tied her hands also with
the same ivy(ಬ ). When she tried to shout, accused No.1
gagged her mouth with towel/ kerchief.
7. Accused No.1 said that she should love him and
listen to him. When she shook her head, accused No.1
removed the towel/kerchief and directed her to speak. He
forced her to say whatever he wanted and recorded the said
conversation on his cell phone. He held a knife to her neck
and told her not to disclose these facts to anyone and
thinking that he may leave her, she repeated whatever he
wanted. However, saying that if she is left alone, she should
not be available and she should learn a lesson, accused
No.1 removed the ties, forced her to lay on the ground and
committed rape on her by lifting her skirt, removing her
panty and inserted his penis into her vagina. Even though
she resisted, accused No.1 committed penetrative sexual
7 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
intercourse for 10 minutes. When he was raping her,
accused Nos.2 and 3 were guarding.
8. After that she put her clothes on and again
accused No.1 gave threat not to disclose this fact to
anyone. Again, accused No.1 tied her to the tree. In the
meanwhile, accused No.1 received a call from someone and
while he was attending the said call, using the said
opportunity, she ran away. Accused Nos.2 and 3 were
trying to catch her, but accused No.1 told them to leave her
as they can find her later. She went home and locked
herself inside her room. Her grandmother made her open
the door and enquired as to what happened. She narrated
the incident to her. Her grandmother gave her a bath. They
informed her uncle CW-13 Manjunath Karuvinakoppa over
phone. At 6.00 pm, when her father returned home, she
and the mother of the prosecutrix were informed about the
incident and hence the complaint.
9. Based on the complaint, the concerned police
have registered the case in Cr.No.196/2014 (though in the
complaint, endorsement with regard to registering the case
in Cr.No.196/2014 is not for coming) and transmitted the
8 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
FIR to the Court. The grandmother of prosecutrix (PW-6)
has produced the clothes of the prosecutrix which she wear
at the time of the incident and the investigating officer has
seized the same through Mahazar. He has sent the
prosecutrix to the hospital for medical examination. On the
same day, accused Nos. 1 to 3 were produced before the
investigating officer and he has arrested them and recorded
the voluntary statement of accused No.1 and has sent
accused Nos.1 to 3 to the hospital for medical examination
and after the medical examination, he collected their
clothes. The investigating officer has proceeded to the spot
and drawn spot Mahazar as pointed out by the prosecutrix
and recovered the Ivy with which the prosecutrix was
allegedly tied to the tree.
10. Based on the voluntary statement of accused
No.1, a knife, handkerchief and cell phone belonging to
accused No.1 were seized through Mahazar. The
investigating officer has also recorded the voice sample of
the accused No.1. He has also collected the voice sample of
the prosecutrix as per mahazar at Ex.P.5. He transferred
the voice sample to his laptop and copied it on CDs. He has
also transferred the voice of accused No.1 and the
9 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
prosecutrix recorded on the cell phone of accused No.1 on
the laptop and copied it on a CD. He has collected the
samples from the medical officer. The investigating officer
has sent all the samples to FSL for examination by the
experts. He has also collected the cumulative record of
prosecutrix from her school. After concluding the
investigation, the investigating officer has filed charge sheet
to the Court, awaiting the chemical report.
11. Accused have pleaded not guilty to the charges
levelled against them and claimed trial.
12. In order to prove the allegation against the
accused persons, the prosecution has relied upon the
testimony of PWs-1 to 13, Exs.P1 to 34, and MOs 1 to 55.
13. During the course of their statements under
Section 313 of Cr.P.C, the accused have denied the
incriminating evidence led by the prosecution.
14. Accused have not led any defence evidence.
15. The trial Court accepted the case of the
prosecution and convicted accused No.1 for the offences
10 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
punishable under Sections 366, 342, 376, 506 of IPC and
Sections 4 of POCSO Act.
16. Accused Nos.2 and 3 are convicted for offences
punishable under sections 366-A, 342, 506 r/w Section 506
of IPC and section 4 r/w Section 17 of POCSO Act.
17. The trial Court has sentenced accused Nos.1 to 3
as detailed in the order.
18. Being aggrieved by the impugned judgment and
order, accused No.1 has filed the appeal, contending that
the same is not based on the evidence placed on record and
is perverse and as such it is not sustainable. The trial Court
has ignored the inconsistencies in the prosecution case and
the admissions given by the witnesses are contrary to it.
The trial Court has also not taken into consideration the
defence set up by the accused. The medical evidence is
inconsistent with the prosecution case, the opinion of the
medical officer is contrary to the injuries sustained by the
prosecutrix. The present complaint is an outcome of love
affair between the prosecutrix and accused No.1 and in
order to punish accused No.1, a false complaint is filed. The
delay itself indicate that after much discussion, a false
11 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
complaint is filed. The trial Court has failed to appreciate
the oral and documentary evidence on record in right
perspective, and as such the impugned judgment is
perverse and seeks for setting aside the same.
19. In support of his arguments, learned counsel,
accused No.1 has relied upon the following decisions.
(i) P. Yuvaprakash Vs State Rep by Inspector
of Police. (P. Yuvaprakash)1
(ii) Madan Mohan Singh And Ors Vs. Rajni Kant
and Anr. (Madan Mohan Singh And Ors) 2
(iii) The State Karnataka Vs Manjunath
Shankrappa Vaddarkal. (Manjunath Shankrappa
Vaddarkal ) 3
(iv) The State Karnataka Vs Anjini S/o Vaddara
Ramesh. (Anjini S/o Vaddara Ramesh) 4
(v) Babajan Modinsab Hati Vs The State
Karnataka. (Babajan Modinsab Hati)5
(vi) The State Karnataka Vs Santosh S/o
Basappa Talawar. (Santosh S/o Basappa
Talawar) 6
(vii) Basavaraj alias Basavantrao Vs The State
Karnataka. (Basavaraj alias Basavantrao)7
(Sri G S Venkatesh)8
1
2023 SCC OnLine SC 846
2
AIR 2010 SUPREME COURT 2933
3
Criminal Appeal No.100248/ 2019
4
Criminal Appeal No.100028/ 2019
5
Criminal Appeal No.100074/ 2019
6
Criminal Appeal No.100061/ 2018
7
Criminal Appeal No.200020/ 2019
12 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
(ix) Hazrat Deen Vs State of UP and anr.(Hazrat
Deen )9
(x) Public Prosecutor Vs. K. Jalayya. (K.
Jalayya)10
(xi) Sashi Kumar Vs State of HP. (Sashi
Kumar)11
(xii) Prahlad Vs State of Rajasthan. (Prahlad)12
(xiii) Nagaraj Urf Nagappa Vs The state of
Karnataka. (Nagaraj Urf Nagappa)13
20. Accused Nos.2 and 3 have challenged the
judgment and order stating that the entire allegations are
against accused No.1. Even though it is alleged that
accused Nos.2 and 3 snatched the bag and umbrella
belonging to the prosecutrix, the same are not recovered.
Therefore, the said allegations are not established. Only to
make the allegations against accused No.1 feasible, accused
Nos.2 and 3 are implicated, as though they helped accused
No.1. It is a simple case of love affair between prosecutrix
and accused No.1 and it is blown out of proportion and pray
to allow the appeal and acquit them.
8
Criminal Appeal No.845/2017
9
2022 LiveLaw (SC) 134.
10
AIR 1954 MADRAS 303
11
2023 CRI. L. J. 4301
12
AIR 2018 SC (SUPP) 2586
13
Criminal Appeal No.100031/ 2020
13 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
21. On the other hand, learned High Court government
pleader has supported the impugned judgment and order
and Pray to dismiss the appeals.
22. Heard arguments of both sides and perused the
record.
23. Thus it is the definite case of the prosecution
that at the time of incident prosecutrix was aged about 16
years and was studying in 9th standard. In the complaint,
the prosecutrix has stated that while she was studying in
8th standard accused No.1 was following her and insisting
her to love him, but after she reprimanded him, he stopped
following her. However, during the course of evidence, she
has given a total go by to this and stated that she knew
accused Nos.1 to 3 as they were also residents of
Majjigere. However, during the course of the cross
examination of PW-1, the accused persons have taken a
defence that the prosecutrix and accused No.1 were in love
and as accused Nos.2 and 3 were helping them, they have
been falsely implicated at the instant of her father. The
accused persons have also taken up a defence that there
was political rivalry between the father of prosecutrix and
14 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
father of accused No.1 and it is also for a reason to falsely
implication them.
24. In the light of the specific case of the
prosecution that at the time of incident prosecutrix was
below the age of 18 years and as such the provisions of
POCSO act are attracted, the initial and heavy burden is on
it to prove that the prosecutrix was a minor when the
incident took place.
25. PW-5 Hema and PW-6 Neelamma are the mother
and grandmother of the prosecutrix. Though the father and
uncle of the prosecutrix are cited as witnesses, they are not
examined. Of course they and PW-5 and 6 are not
witnesses to the incident. They came to know about the
incident through prosecutrix and instrumental in filing
complaint against the accused persons. In the light of the
specific defence taken by the accused persons, their
examination would have thrown light and supported the
prosecution case and also clarified the defense taken by the
accused persons.
26. During the course of evidence, the prosecutrix who
is examined as PW-1, has given her date of birth as
15 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
06.02.1999. In the complaint, the prosecution has stated
that she studied 8th standard Bachanike and she studied
9th and 10th standard at Government pre-university
College Mundgod.
27. In order to prove the age of the prosecutrix, the
prosecution has relied upon the testimony of PW-11 Kalyan
Shetty who was working as Deputy Principal in Government
Pre-University College, Mundgod. He has deposed that on
09.08.2014, the investigating officer requested him to
provide the date of birth certificate of the prosecutrix. He
verified the register number and issued the cumulative
record of the prosecutrix as per Ex-24. In the school
register, the date of birth of prosecutrix is noted as
06.02.1999. However, at the time of his evidence PW-11
has not brought the register No., based on which he has
deposed about the date of birth of the prosecutrix. During
his cross examination, he has deposed that on the basis of
transfer certificate issued by the school where the
prosecutor studied 7th standard, the date of birth of the
prosecutrix is entered in the register.
16 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
28. As noted earlier, the prosecutrix has not taken
admission to the Government Pre-university College at
Mundgod for 8th standard. After completing 7th standard,
she got admitted to 8th standard at Bachanike. For 9th
standard, she took admission at the Government Pre-
University College Mundgod. Therefore, necessarily at the
time of admission, she might have brought the transfer
certificate from the school at Bachanike and whatever
information that is entered into the register must be from
the school at Bachanike. Therefore, the testimony of PW-11
that the information in the register is entered on the basis
of transfer certificate received from the school where
prosecuting studied 7th standard is incorrect and the
witness brought the register with him, he could have come
to know about this fact.
29. Moreover as admitted by PW-11, Ex.P-24 is not
a document in the prescribed format to prove the date of
birth. It is a cumulative record. It is nothing but progress
report of the student, and it would be sent to the parent for
their knowing the progress of the student after the entry of
9th standard. When it is handed over to the student, it is
not supposed to come back to the school. It is supposed to
17 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
be kept with the parents. In fact, as deposed by PW-11,
Ex-P-24 bears the signature of the mother of the
prosecutrix. It indicates that after the requisite information
is filled, it was sent to the parent and supposed to be with
them. Neither PW-11 nor the investigating officer have
clarified as to how the cumulative record came back to the
school, and why PW-11 has given it to the investigating
officer, when he is supposed to issue a certificate in the
prescribed format maintained with the school/College,
specifying the date of birth of the student and the fact that
the said information is forthcoming from the register
maintained in the school/College.
30. It is also relevant to note that PW-7 Dr
G.B.Laxmi Devi is the medical officer, who examined the
prosecutrix and issued the medical report as Ex.P-14.
During the course of her evidence, she has specifically
stated that at the time of her examination, her birth
certificate was produced for her perusal, and in the said
document, her date of birth was mentioned as 06.02.1999.
It is not made clear, whether the said certificate was
produced by the prosecutrix or her guardian who
accompanied her to the hospital. It is also not clear
18 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
whether the birth certificate referred to by PW-7 is Ex-P-24
or it was a birth certificate issued by the Registrar of the
births and death. If it is same as Ex.P-24, then it might not
have been issued by PW-11 Kalyan Shetty. If it is not Ex.P-
24, then it must be some other birth certificate collected
from the concerned authority.
31. If the information of her birth is registered with
the concerned authority, then the investigating officer had
no impediment to collect a certified copy from the said
authority. It would have been a more authentic document.
According to PW-11 Kalyan Shetty he has issued Ex.P-24
on 09.08.2014. PW-12 Hussain Khan, who is the
investigating officer has also deposed that he has collected
Ex.P-24 on 09.0.8.2014. However, he has stated that he
collected the said document from Majjigere School.
Admittedly Ex.P-24 is not issued by the Majjigere school
authority. On the other hand, it is issued by the
Government Pre University College, Mundgod. It is not
clear whether the investigating officer has also collected a
certificate from Majjigere school or by slip of tongue he
stated that Ex.P-24 is received from Majjigere school. The
prosecution case is shrouded with mystery, so far as the
19 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
issue of birth certificate of the prosecutrix is concerned.
When the birth certificate in question is not issued in the
prescribed format and according to PW-11, it is not clear
whether the said information was received from the
transfer certificate issued by the school where the
prosecutrix studied 7th standard, while in fact, she was
admitted to Government Pre-University College Mundgod
for 9th standard and necessarily she might have produced
the transfer certificate issued by the school, where she
studied 8th standard. Moreover, when the original register
is not produced, the prosecution has failed to prove that
the date of birth of prosecutrix is 06.02.1999 and that as
on the date of the incident, she was 16 years of age.
32. Accused have taken a Defence that the prosecutrix
was in love with accused No.1 and accused Nos.2 and 3
only facilitated and help them. In fact, some photographs
of a accused No.1 and prosecutrix are available in the trial
Court record. However, they are not marked. In the light of
the fact that the prosecutrix has denied the suggestions
made by the defence and the accused have not led any
defence evidence, they have failed to prove the same.
20 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
33. Now coming to the actual incident, according to
the prosecutrix on 07.08.2014, while she was proceeding
to school, accused Nos.1 to 3 suddenly intercepted her.
Accused Nos.2 and 3 took away her umbrella and school
bag and accused No.1 covered her mouth with his right
hand and caught hold of her, both hands with his left hand
and pushed her into the forest. She was tied to a tree with
the help of ivy(ಬ ). At the point of knife, accused No.1
forced her to love him, and though she repeated what he
said and accused No.1 recorded the conversation in his cell
phone, he committed rape on her saying that otherwise she
would not learn a lesson. Accused Nos.2 and 3 guarded
them when accused No.1 raped her. Again, she was tied to
the tree and when the attention of accused n.1 was
diverted by a phone call, she managed to run away.
34. During her cross examination, the prosecutrix
has deposed that all along she resisted the assault by
accused No.1 and scratched his face with her nails, but she
do not know whether he sustain any injuries. She has
specifically stated that the accused No.1 removed her
underwear and committed rape by inserting his penis into
21 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
her vagina. Accused No.1 committed rape on her for a
period of 10 minutes. However, the medical examination
report of the prosecutrix is not consistent with the alleged
assault on her.
35. As already noted, Ex.P-14 is the medical
examination report of the prosecutrix. According to this,
the prosecutrix, the complained of pain in the neck and
shoulders, aberration over inner aspect of upper arm, inner
aspect of thighs and lower limb. However, no injuries were
found on her back and back portion of her legs. If the
accused No.1 raped the prosecutrix in the forest for a
period of 10 minutes and all along she resisted the same,
the injury sustained by her would have been far more
severe and would have covered the back portion of her
body. So far as the injuries to her genitals, she has
sustained only an aberration measuring 1/2 x 1/2 cm on
the lower posterior fourchette with tenderness. Other than
this, she has not sustained any other injuries. In fact,
during her cross examination, PW-7 has stated that if there
is any tear in the Hyman the doctor would note the same in
the report, and in the present case, she has only noted the
aberration on the lower part of the Hymen.
22 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
36. It is pertinent to note that according to the
prosecutrix, after coming to know about the incident, her
grandmother i.e., PW-6 gave her a bath and on the next
day, also she took a bath before going to the police to file
the complaint. However, when the prosecutrix was
produced before the medical officer for her medical
examination, on her own her guardian has produced her
clothes, which she was wearing at the time of incident
before the medical officer. The prosecutrix as well as the
guardian have also taken the birth certificate of the
prosecutrix and showed it to the medical officer.
37. If really the prosecutrix and her guardian were
aware of the significance of preserving the clothes and also
convincing the medical officer that the prosecutrix is a
minor, they would also have been aware of the fact that in
sexual assault cases, medical examination at the earliest is
important and also it is not advisable for the prosecutrix to
take a bath before the medical examination.
38. If not, the direction to produce the cloth of the
prosecutrix and also birth certificate was by the
investigating officer or the father of the prosecutrix who
23 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
wanted to set score with accused No.1 due to some political
difference or that he wanted the relationship between
accused No.1 and the prosecutrix to end. At least the
prosecution or the investigating officer ought to have come
up with an explanation for the same. In the light of the fact
that the injury sustained by the prosecutrix are not
consistent with the allegations made against accused No.1,
it creates doubt as to the velocity the case of the
prosecution and the severity of the allegations made
against accused No.1.
39. There is delay in filing the complaint. Even
though the incident had taken place on 07.08.2014 and by
5.00 pm, PW-6 Nilavva the grandmother of prosecutrix
came to know about it, the complaint is filed on the next
day around 12:30 pm. In the complaint as well as in the
evidence of the prosecutrix, the reason for the delay is not
forth coming. The prosecution has not explained the delay.
However, during the course of her statement under Section
164 Cr.P.C, given before the Judicial Magistrate, the
prosecutrix has stated that after coming to know about the
incident, her uncle went to the house of accused No.1, and
informed his mother about the same and at that time,
24 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
father of accused No.1 was not present in the house. After
he returned home, both of them came to the house of
prosecutrix and when the parents of the prosecutrix
informed them that a complaint would be filed, they went
out of the house, saying that they are at liberty to do so.
This fact is not deposed by the prosecutrix and her mother
and grandmother.
40. Another piece of evidence relied by the
prosecution is that the accused No.1 has recorded the
conversation between him and the prosecutrix in the forest
when she was tied to the tree. PW-2 Basavaraj is the
witness to the said recording, which was copied on the
computer and converted into CD. He has deposed that the
said conversation was extended to 1 hour 42 minutes, and
the investigating officer has transliterated the said
conversation in the Mahazar. However the prosecutrix has
deposited that the conversation which the accused No.1
forced her to make admitting her love to him and recorded
on his cell phone extend to 2-3 minutes. Even though the
investigating officer has recorded in writing the
conversation which he had with the prosecutrix at Ex.P.-5
and accused No.1, as Ex.P-10 for the purpose of collecting
25 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
their voice sample, he could have done the same with
regard to the conversation in the cell phone of accused
No.1 which he had allegedly recorded by forcing the
prosecutrix to admit his love. It would have given a fair
chance to the accused to demonstrate what actually
transpired and whether there was any, love affair between
the prosecutrix and accused No.1. In fact, as per Ex.P-10
accused No.1 was knowing the prosecutrix since one and
half years.
41. Moreover, the FSL reports also creates doubt as
to the veracity of the prosecution case. As per Ex.P-15, FSL
report, blood stains were found on the shirt, skirt,
petticoat, and underwear of the prosecutrix, but it was not
sufficient for serology exam. Since prosecutrix has reached
puberty, it is natural for her clothes to contain blood
strains. Ex.P-15 also state that seminal stains were found
on the T-shirt, shorts, buniyan, and jeans pant of accused
No.1 which is quite natural. However, no seminal strains
were found on the clothes of the prosecutrix. Similarly,
presence of saliva was found on the T-shirt of accused
No.1, which is natural, but no saliva was found on the
clothes of the prosecutrix.
26 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
42. Similarly, the FSL report with regard to the hair
of the prosecutrix and also the accused No.1 is not
favouring the prosecution.
43. According to the investigating officer, he has
collected the CDR of the accused No.1 to show that at the
time of incident, he was present within the tower location
of Majjigere. Having regard to the fact that prosecutrix and
all the accused persons are residents of the same village, it
is quite natural that he would come under the tower
location of Majjigere. Learned counsel for accused No.1
submitted that prosecutrix was using cell number
9632132072 and she was in contact with the accused No.1
on 5th and 6th August. However, the prosecutrix has denied
the said suggestion. The investigation officer has not
conducted any investigation on this aspect to present a fair
picture of the prosecution case.
44. Moreover so far as accused Nos.2 and 3 are
concerned the allegations against them are that at the first
instance they snatched the umbrella and school bag of the
prosecutrix and when accused No.1 forced the prosecutrix
to speak and record the same on his cell phone and also
27 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
raped her, they stood guard. Except the interested
testimony of the prosecutrix, there is no evidence against
accused Nos. 2 and 3. The least the investigating officer
could have done was to recover the umbrella and school
bag of the prosecutrix at the instance of accused Nos.2 and
3. Having regard to the severity of the allegations made
and the punishment which is prescribed for the alleged
offences and also the punishment imposed by the trial
court, the standard of evidence required to be adduced
would have been of far more higher stand than what is
adduced by the prosecution. The prosecution case is
inherently not reliable. The investigating officer has not
conducted the investigation impartially. The trial court also,
without examining the entire evidence in right perspective
has fell into error in convicting the accused persons and
sentencing them for 3 months to 10 years. The findings of
the trial court is perverse as such liable to be interfered
with and accordingly the following;
ORDER
(i) Crl.A.No.100335/2020 filed by accused
No.1, Crl.A.No.100334/2020 filed by
accused Nos.2 and 3 are allowed.
28 Crl.A.No.100335/2020
c/w Crl.A.No.100334/2020
(ii) The impugned judgment and order dated
12.10.2020 in Spl.C.No.38/2014 is set
aside.
(iii) Consequently, accused Nos.1 to 3 are
acquitted of all the charges.
(iv) Accused No.1 shall be set at free forthwith,
if his presence is not required in any other
case.
(v) Send intimation to the jailer immediately.
(vi) The bail bonds of accused Nos. 2 and 3
stand cancelled.
(vii) Send a copy of this order to the trial Court
forthwith.
Sd/-
(J.M.KHAZI)
JUDGE
ASN