Rape under POCSO Act quashed

IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH

DATED THIS THE 9TH DAY OF JULY, 2021

PRESENT

THE HON’BLE MR. JUSTICE R.DEVDAS

AND

THE HON’BLE MS. JUSTICE J.M.KHAZI

CRIMINAL APPEAL NO.100095/2017

Between:

Miss Kalavathi D/o. Yelappa Kardiguddi,
Aged about 19 years, Occ: Student,
R/o: Pularkoppa, Bailhongal Tq.,Belagavi Dist.…Appellant
(By Sri. Shivaraj C. Bellakki, Adv.)

And:

1. Madivalappa S/o. Fakirappa Karadiguddi,
Age 23 years, R/o. Phularkoppa,
Tq. Bailhongal, Dist. Belagavi.

2. Suresh S/o. Irappa Talwar,
Age: 26 years, R/o. Bassapur
Tq. Kittur, Dist. Belagavi.

3. Kamalavva W/o. Fakirappa Karadiguddi,
Age: 42 years, R/o. Phularkoppa,
Tq. Bailhongal, Dist. Belagavi.

4. Bhimavva @ Baby W/o Muhammed Mulla,
Age: 47 years, R/o. Lokolli now at Avarolli.
Tq. Kanapur, Dist. Belagavi.

5. Namdev S/o. Mallappa Kambale,
Age: 27 years, R/o. Kudhremani.
Tq. Dist. Belagavi.

6. The State
By Public Prosecutor,
High Court, Dharwad.…Respondents
(By Sri.A.B.Koni, Adv. for R1 to R3,
Sri.Santosh Malagoudar, Adv. for R5,
Sri.V.M.Banakar, Addl. S.P.P. for R6,R4 served)

This Criminal Appeal is filed under section 372 of Cr.P.C., praying to call for the entire records in S.C.No.159 of 2013 and allow the Criminal Appeal by setting aside the judgment of acquittal passed by the 3RD Addl. District and Sessions Judge (Special Court for prevention and protection of children from sexual offences) Belagavi in S.C.No.159 of 2013 dated 21.12.2015 and pass order of convicting the accused Nos.1 to 5 for the offences punishable under Sections 366, 368, 376(H), 343 of IPC read with section 149 and 4 of POCSO Act.

This Criminal Appeal having been heard and reserved for judgment on 29.06.2021, coming on for pronouncement of judgment this day, J.M.Khazi J., delivered the following:

JUDGMENT

Being aggrieved by the judgment and order dated 21.12.2015 in S.C. No.159/2013 on the file of 3rd Additional District and Sessions Judge and Special Court for Protection of Children from Sexual Offences, by which the Trial Court acquited all the accused persons for the offences punishable under Sections 366, 368, 376, 109 of the Indian Penal Code, 1860 (“IPC” for short) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act” for short), the appellant, who is the victim before the Trial Court has filed this appeal under Section 372 of the Code of Criminal Procedure, 1973 (“Cr.P.C.” for short).

 

2. For the sake of convenience, the respondents are referred to as accused Nos.1 to 5 and appellant, who is the victim is referred to as prosecutrix.

 

3. The allegations against the accused persons are that at the relevant point of time, the prosecutrix was aged 17 years 7 months. On 02.02.2013 at about 04:30 p.m., the prosecutrix alongwith her friend CW.11 Netravati, after attending the computer exam, were proceedings towards Bus  Stop to go to Phularkoppa and at that time, accused Nos.1 and 2 approached the prosecutrix and on the pretext of dropping her to the village, kidnapped the prosecutrix on motorbike bearing No.KA-24/Q-1889 and took her to Avarolli Village and confined her in the house of accused No.4 from 02.02.2013 to 05.02.2013. It is further case of the prosecution that during this period, accused Nos.1 and 4 prevented the prosecutrix from escaping from the house and from 02.02.2013 to 04.02.2013 during the night, accused No.1 forcibly had sexual intercourse with the prosecutrix.

4. It is further alleged that while accused Nos.1 and 3 confined the prosecutrix in the house of accused No.4, accused No.3, the mother of accused No.1 called him over the phone and advised him to take the prosecutrix somewhere far away and that she will take care of everything and on the instigation of accused No.2, on 05.02.2013 accused Nos.1 and 5 forcibly took the prosecutrix to Kudala of Maharashtra and confined her in the rented house of the accused No.5 till 09.02.2013 and in this house also accused No.4 prevented the prosecutrix from leaving the house and thereby all the accused persons have committed the above said offences.

5. Charge is framed against accused Nos.1 to 5 for the offences punishable under Sections 366, 368, 376, 109 of IPC read with Section 4 of POCSO Act. Since they have denied the allegations and claimed to be tried, in support of the prosecution case, 15 witnesses are examined as PWs.1 to 15 and Exs.P-1 to 25 are marked. During the course of their statement, the accused persons have denied the incriminating material referred to them.

 

6. Accused No.1 has stepped into witness box by examining himself as D.W.1. No documents are marked on behalf of the accused persons.

 

7. After hearing the arguments on both sides, the Trial Judge was pleased to acquit the accused persons of all the charges holding that the prosecution has failed to establish the charges against the accused beyond reasonable doubt.

8. During the course of arguments, the learned counsel representing the appellant i.e., prosecutrix submitted that the Trial Court has failed to consider the evidence of PWs.1 to 15, who have supported the prosecution case and has wrongly assumed the age of the victim as above 18 years.

He submitted that in the presence of SSLC marks card of the prosecutrix, her age is to be accepted as 17 years 7 months as on the date of the incident and therefore, the Trial Court was in error in holding that the prosecutrix was more than 18 years of age. The learned counsel representing the prosecutrix further submitted that in the light of the evidence of PW.12 i.e., the friend of the prosecutrix, it is established that accused No.2 helped accused No.1 in kidnapping the prosecutrix. The Trial Court has failed to appreciate the fact that prosecutrix and accused No.1 are cousins and therefore she has not raised any alarm while being kidnapped on the motorbike. He would submit that the allegations made against the accused are substantiated by the evidence of the prosecutrix on oath, who has in unequivocal terms deposed that while confining her in the house of accused No.4, accused No.1 committed rape on her. Her evidence further established the fact that on 05.05.2013 from Avarolli, the prosecutrix was taken to Kudala of Maharashtra and kept in the house of accused No.5, where accused No.4 prevented her from escaping and oral as well as documentary evidence placed on record prove these facts.

9. The learned counsel further submitted that the evidence of the Medical Officer prove the fact that the prosecutrix was subjected to forcible sexual intercourse and without appreciating the oral and documentary evidence placed on record, the Trial Court has wrongly come to the conclusion that the charges are not proved and prays to allow the appeal.

 

10. On the other hand, the learned counsel

representing the accused persons have supported the

impugned judgment and submitted that after examining the entire oral and documentary evidence, thread bear, the Trial Court has rightly held that the charges levelled against the accused are not proved and on account of civil dispute regarding the landed property, accused No.1 has been falsely implicated and accused Nos.2 to 5 are also implicated to support the case of the prosecution and prays to dismiss the appeal.

 

11. We have heard the learned counsel representing the prosecutrix as well as the accused persons and perused the record.

12. It is the definite case of the prosecution that on 02.02.2013 at about 04:30 p.m., under the pretext of dropping her to Village Phularkoppa, accused No.1 with the help of accused No.2 kidnapped the prosecutrix knowing well that she was a minor aged 17 years 7 months, with the intention of committing rape on her and took her to Avarolli and confined her in the house of accused No.4 and from 02.02.2013 to 04.02.2013 accused No.1 raped on her. The further allegations against the accused No.1 is that on the instigation of his mother i.e., accused No.2, accused No.1 with the help of accused Nos.4 and 5, took the prosecutrix to Kudala of Maharashtra and confined her in the house of accused No.5 from 05.02.2013 to 09.02.2013 and during the stay of the prosecutrix at Kudala also, accused No.4 guarded her from escaping. The charges levelled against accused No.2 is that she being the mother of accused No.1, instigated him to take the prosecutrix far away from her parents. The allegations against accused No.5 is that he has allowed accused No.1 to confine the prosecutrix in his house.

13. Of course, the accused persons have denied the allegations made by the accused persons in toto. They have  set up a defence that the grandfather of accused No.1 is having 1 acre of land in Marikatti Village and the father of prosecutrix has offered to purchase it for `30,000/- and on the basis of oral understanding, he had paid `30,000/- and for 3 years he cultivated the said land. The accused No.1 has set up a definite defence that he was not interested in parting with the said land and therefore with the help of accused No.2 he managed to get `30,000/- and return the same to the father of the prosecutrix, but he was not ready to part with the said land and on account of this dispute, the relationship between the family of the prosecutrix and that of accused No.1 became strained.

 

14. It is further contended by the accused persons that prosecutrix is a very intelligent student and she scored 81% in SSLC and she was interested in prosecuting her further studies. The accused persons have alleged that since the father of the prosecutrix arranged to perform the marriage of prosecutrix, she left the house without informing her parents and went to her friend Mala, who was studying in Dharwad by staying in the hostel and misusing this situation, the father of the prosecutrix has chosen to file a false  complaint against accused No.1 and the other accused are also tagged to make out a case against accused No.1.

15. In fact, the accused persons have taken up a specific defence that after the prosecutrix return to the village, she was not at all inclined to file any false complaint against accused persons and for this reason, the Investigating Officer was also not ready to register the case, but pressuring him through the Superintendent of Police, the father of the prosecutrix has managed to register the case against the accused persons. In the light of the specific defence taken by the accused persons, heavy burden is on the prosecution to establish that not only accused No.1 with the help of accused No.2 kidnapped the prosecutrix and confined her at Avarolli as well as at Kudala of Maharashtra, but also while her stay at Avarolli, he committed rape on her.

 

16. Since the accused persons have denied that as on the date of the alleged incident, the prosecutrix was still a minor, it is for the prosecution to prove that as on that date she was aged 17 years 7 months. To establish this fact, the prosecution has relied upon the SSLC marks card of the  prosecutrix at Exs.P-7 and 8. Ex.P-7 is the original marks card, whereas Ex.P-8 is the attested copy. As per this document, the date of birth of the prosecutrix is 20.07.1995 which makes her age 17 years 7 months as on the date of the incident in question. Both the prosecutrix i.e., PW.2 as well as her father PW.1 are cross-examined at length suggesting that as on the date of the alleged incident, the prosecutrix has completed 18 years and as such, she was a major and that while admitting her to the school, her age was reduced. Of course they have denied such suggestion.

 

17. To establish that the prosecutrix was a major as on the date of the alleged incident, the accused persons have relied upon missing complaint at Ex.P-1, wherein her age is shown as 18 years. The accused persons have also relied upon Ex.P25, the Medical Examination Report of the prosecutrix, wherein her approximate age is given as 18 to 19 years. Admittedly the complainant i.e., the father of the prosecutrix is an illiterate person and while filing missing compliant, he has tentatively given the age of the prosecutrix as 18 years and therefore, it cannot be considered as the basis for determining her age. Even while conducting medical  examination of the prosecutrix, the Medical Officer has based the age of the prosecutrix on the Radiology Report as well as the Dental Report and given her dental age as 17 to 19 years and approximate skeleton age as 18 to 19 years. Admittedly, the Ossification Test is not conducted. In the presence of the SSLC marks card, the determination of the age of the prosecutrix by indirect method cannot be resorted to and SSLC marks card shall be the basis of her date of birth. In respect of this contention, the learned counsel representing the appellant – prosecutrix has relied upon the decision of the Hon’ble Supreme Court in the matter of Mahadeo S/o.Kerba Maske Vs. State of Maharashtra and another reported in 2013 14 SCC 637. In this decision, the Hon’ble Supreme Court making reference to the statutory provisions contained in the Juvenile Justice (Care and Protection) Rules, 2007, wherein under Rule 12, the procedure to be followed in determining age of the juvenile have been set out, held that in every case concerning a child or juvenile in conflict with the law, the age determination enquiry shall be conducted by the Court or the Board or, as the case may be, by the committee seeking evidence by obtaining:

a(i) the matriculation or equivalent certificates, if available and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school); first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or municipality authority or panchayat.

18. Therefore as held by the Hon’ble Supreme Court, preference has to be given to a matriculation or equivalent certificate if available and only in the absence of the same, the other mode of determination of the date of birth is to be resorted to. In the present case admittedly, the matriculation certificate of the prosecutrix is available and according to the same, as on the date of the alleged incident, the prosecutrix was aged 17 years 7 months and as such, she was a minor.

19. Thus, after holding that as on the date of the alleged incident, the prosecutrix was aged 17 years 7 months and a minor, now it is to be examined whether the prosecution has proved that on 02.02.2013, accused No.1 with the help of accused No.2 kidnapped prosecutrix and took her first to  Avarolli and confined her their till 04.02.2013 and during this period, he committed rape on her and on 05.02.2013 from Avarolli, he with the help of accused Nos.4 and 5 took the prosecutrix to Kudala of Maharashtra and confined her in the house of accused No.5.

 

20. The prosecutrix was allegedly kidnapped on 03.02.2013. Her father after searching for her and after enquiring with her friend i.e., CW.11 Netravati has filed complaint as per Ex.P1. In Ex.P-1, the complainant has stated that from CW.11 Netravati, he came to know that while the prosecutrix and Netravati were at Sangolli Rayanna Cricle, accused No.1 approached them and on seeing accused No.1, the prosecutrix asked Netravati to go and that she will come later. In this complaint, there is no reference to the presence of accused No.2. The contents of this complaint at Ex.P-1 indicates that on seeing accused No.1, it is the prosecutrix who told her friend to go ahead and that she will come later. The complaint does not state that it is accused No.1, who directed CW.11 Netravati to go ahead and that the prosecutrix will come later. This observation is made because in the subsequent complaint, the version is given otherwise. Thus, at  the earliest available opportunity, there is no allegations against accused No.2 that he was present alongwith accused No.1. Moreover, in Ex.P-1 there is also no allegations that the complainant is suspecting the involvement of accused No.1 in missing of his daughter. He is not making any allegations against accused No.1. In the said complaint, he is not attributing any motive to the family of accused No.1 i.e., he is not alleging that there is any ill will between his family and that of accused No.1.

 

21. It is the definite case of the prosecution that on 09.02.2013, the prosecutrix was rescued from Kudala by the Police and after she was brought back, she was kept at Shri Sharada Mata Swadhara Kendra, Mahila Punarvasati Kendra, run by United Samaja Kalyana Samsthe situated at Shahu Nagar, Belagavi (“Rehabilitation Centre” for brief). After meeting the prosecutrix, complainant i.e., her father has given a further complaint at Ex.P-2 alleging that on 02.02.2013, accused No.2 was also present alongwith accused No.1 and he helped accused No.1 to kidnap the prosecutrix by carrying her on a two wheeler driven by accused No.1 and they made the prosecutrix to sit in the middle and after the prosecutrix,  accused No.2 sat and thereby they prevented the prosecutrix from escaping. In Ex.P-2, the complainant has also made allegations that through telephonic communication, accused No.3 i.e., the mother of accused No.1 abetted accused No.1 to take the prosecutrix from Avarolli to any other far away place away from her parents and on that basis, she is implicated. In the further complaint at Ex.P-2, the complainant has also made allegations that at Avarolli, accused No.4 helped accused No.1 to confine the prosecutrix in her house and prevented her from escaping. So also, there is allegation that while taking the prosecutrix from Avarolli to Kudala, accused Nos.4 and 5 helped accused No.1 and at Kudala, the prosecutrix was confined in the house of accused No.5 and there also accused No.4 guarded her and prevented from escaping. All these allegations are forthcoming for the first time in Ex.P-2 and all these allegations are hearsay so far as complainant is concerned. He is making these allegations only on the basis of the alleged information provided to him by the prosecutrix.

 

22. It is pertinent to note that immediately after the prosecutrix was rescued and brought back to the Police  Station, the Investigating Officer has not chosen to get her medically examined at the earliest available opportunity. Immediately after the prosecutrix returned from Kudala, her statement is not recorded by the Investigating Officer. It has come in the evidence of the prosecutrix that from Kudala, she was brought to Bailhongal and from Bailhongal she was taken to Belagavi and kept in the Rehabilitation Centre. She has admitted that from Bailhongal while going to Belagavi, they are required to pass through their village and she has stated that even though she told the Police that she want to meet her parents, they refused saying that first her medical examinations is required to be done and thereafter she can meet her parents and they have already sent words to her parents. Even where it is accepted that the medical examination of the prosecutrix was required to be done and therefore she was initially kept in the Rehabilitation Centre, there was no impediment for the Investigating Officer to record her statement. Instead of so doing, he has taken the complaint from her father and based on it, registered the case against the accused persons. As already noted, the contents of the complaint at Ex.P-2 are based on the hearsay information  which the complainant has allegedly received from his daughter and it is inadmissible. The accused persons have taken up a definite contention that the prosecutrix was not at all kidnapped by accused No.1 and on the other hand, she had gone to Dharwad and stayed in a hostel with her friend Mala and therefore when she returned on her own, she was not ready to falsely implicate the accused persons and as such, she refused to go to her house and therefore she was kept in the Rehabilitation Centre. In fact, the Investigating Officer, who is examined as PW.14 i.e., Ramesh Basappa Gokak has specifically deposed that after the medical examination of the prosecutrix, since she refused to go with her parents, she was sent to Rehabilitation Centre.

 

23. This conduct of the prosecutrix supports the defence that she was not ready to go to her parents and she was also not ready to give statement against the accused persons and as such, her father has managed to file a complaint saying that he received the information through her daughter and based on it he is filing the complaint.

24. It is also relevant to note that even after the father of the prosecutrix i.e., complainant has lodged the complaint as per Ex.P-2, the Investigating Officer has neither recorded the statement of the prosecutrix under Section 162 Cr.P.C. nor got her statement recorded through the jurisdiction magistrate under Section 164 Cr.P.C. On this aspect also the defence has contended that because the prosecutrix was not ready to give statement as desired by her father, the Investigating Officer due to pressure from his higher officials did not choose to get her statement recorded before the jurisdictional magistrate. On the other hand, he has stated to have recorded the statement of the prosecutrix in her own hand writing at Ex.P-3 and it is signed by her.

25. Ex.P-3 is treated as statement under Section 162 Cr.P.C., then as mandated by this Section, such statements shall not be signed. Even though the object behind not getting the signature of the witness to the statement under Section 162 Cr.P.C. is to safeguard the witness from being prosecuted for perjury, the very fact that signature of the witness is taken creates a doubt as to the intent behind the signature being taken. Moreover, as per proviso to Section 162 Cr.P.C., any  part of such statement, if duly proved can be used by the accused and with the permission of the Court by the prosecution to contradict the witness in the manner provided by Section 145 of the Indian Evidence Act and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross- examination. Even though the prosecutrix has totally supported the case of the prosecution, her entire statement is marked as Ex.P-3.

 

26. Assuming for the sake of argument that the statement of the prosecutrix at Ex.P-3 is admissible, now it is necessary to examine, whether based on such statement and the evidence of the prosecutrix on oath before the Court, the prosecution has proved the allegations against the accused persons beyond reasonable doubt. Having regard to the fact that the prosecutrix alone i.e., PW.2 alone is the witness to all the allegations made against the accused persons, it is necessary to examine whether she is a reliable witness and whether her evidence could be relied upon to hold the accused persons guilty of the charges levelled against them.

27. As already noted, at the earliest available opportunity, when Ex.P-1 missing complaint was filed, there was no reference to accused No.2. For the first time his name appears in Ex.P-2 based on the alleged information furnished by the prosecutrix. Before the Court also, the prosecutrix has deposed that alongwith accused No.1, accused No.2 was also present and even though she was reluctant to go with accused No.1, accused No.2 said that there is no need to be afraid of and that they will drop her to Village, so saying, both accused persons made the prosecutrix to sit in between them and took her to Avarolli. At this stage, it would be useful to examine the evidence of PW.12 Netravati, who is admittedly the friend of the prosecutrix and who saw her alongwith accused No.1 after finishing their computer exam and while they were going towards the Bus Stop to catch the bus. During the course of her evidence, she has stated that when they came to S.R.Circle i.e., Sangolli Rayanna Circle, they found accused No.1 and he called the prosecutrix and started speaking to her and as it was late, she returned to her house. Before the Court, this witness based on whose alleged statement, the complainant gave the missing complaint at Ex.P-1, referring to  the presence of accused No.1, she has not even stated that it was accused No.1 who offered the prosecutrix to drop her on his motorbike. She has said nothing about the presence of accused No.2. The Investigating Officer has recorded the statement of PW.12 as though she met the prosecutrix at Rehabilitation Centre and came to know about the incident. However, during the course of her examination-in-chief, she has flatly denied having met the prosecutrix at the Rehabilitation Centre. She is treated as hostile by the prosecution and cross-examined. However, during her cross- examination by the prosecution, she has denied that she came to know about the involvement of all the accused persons through the prosecutrix. Evidence of this witness does not support the case of the prosecution that while the prosecutrix was going towards the Bus Stop, accused No.1 offered to drop her and accused No.2 was also present and both of them insisted her to accompany them and therefore she left her and went home alone.

 

28. The fact that at the earliest available opportunity, there was no mention regarding the involvement of accused No.2 and after realizing that the Courts may not accept the  case of the prosecution that accused No.1 forcibly took the prosecutrix on the motorbike, it appears as an after thought, the complainant has invented the story of accused No.2 helping accused No.1 to kidnap the prosecutrix. In fact, during the course of the cross-examination of the prosecutrix, it is brought on record that when accused Nos.1 and 2 forcibly took the prosecutrix to Avarolli, there was still day light and they passed through several big and small villages and the prosecutrix had the opportunity to shout and attract the attention of the passer by. In fact, at para 49 of her evidence, the prosecutrix has stated that the people who were present at the S.R.Circle might have seen the accused persons forcibly making her to sit on the motorbike. Admittedly, the S.R.Circle is a busy circle with many shops surrounding the area and with people moving around. If at all accused Nos.1 and 2 forced her to go with them, there was no impediment for her to shout for help. Similarly, while proceeding from Bailhongal to Avarolli, if at all the accused persons forcibly took her on the motorbike, she had several opportunities to shout for help and attract the attention of the public. The evidence of the prosecutrix that she was forcibly taken by accused Nos.1 and  2 does not inspire confidence and her testimony is not reliable and acceptable.

 

29. Now coming to the case of the prosecution that at Avarolli, the prosecutrix was forcibly confined in the house of accused No.4. During the cross-examination of the prosecutrix, it is elicited that the said house was a very small house consist of a single room divided into two portions with a dividing half wall (CqÀØ UÉÆÃqÉ). It is not having any toilet inside the house. The prosecutrix has specifically deposed that in order to answer the nature’s call, the person is required to go outside the village in the open field. During the course of her evidence, the prosecutrix has deposed that for all the three days while she was confined in the said house, she did not go to answer the nature’s call. In this regard, she has deposed that all these three days, she did not consume any food and thereby suggesting that there was no need for her to go to relieve herself. She has also deposed that accused No.4 gave her bath in the bathroom which is situated outside the house. It is elicited in the cross-examination of the prosecutrix that accused No.4 is a middle aged woman with a limp i.e., she  walks with a limp and it cannot be accepted that prosecutrix who is an young lady on the verge of attaining majority was prevented by such a middle aged woman with a limp from leaving the house.

 

30. Though prosecutrix has stated that in the three days while she was staying in the house of accused No.4, she did not consume any food, she has specifically stated that during this period she consumed water. Even for relieving herself i.e., to urinate, she was required to go outside as the bathroom was outside the house. If at all the accused Nos.1 and 4 had confined the prosecutrix in the said house, atleast while going to relieve herself i.e., to urinate in the bathroom, there was opportunity for her to attract the attention of the people living in the neighbouring house or atleast run away. The evidence to the contrary by the prosecutrix does not inspire the confidence of the Court.

 

31. Now coming to the case of the prosecution that from Avarolli, accused Nos.1, 4 and 5 took the prosecutrix on two wheeler to Kudala of Maharashtra and confined her in the house of accused No.5. In her statement at Ex.P-3, the  prosecutrix has not stated how she was taken from Avarolli to Kudala. She has only stated that on 05.02.2013, accused Nos.1, 4 and 5 took her to Kudala and kept her in the house of the sister of accused No.5 i.e., by name Bharati Maruti Kambale. However, before the Court she has improved her version by saying that accused No.1 took her on a motorbike with accused No.5 as a pillion rider i.e., she was made to sit in between accused Nos.1 and 5 and accused No.4 came on another motorbike.

 

32. It is not the case of the prosecution that two motorbikes were used to transport the prosecutrix from Avarolli to Kudala on 05.02.2013 and certainly second motorbike is not seized. It is clearly an improvement made by the prosecutrix. Her evidence that from Avarolli she was taken on a two wheeler by accused No.1 and accused No.5 to Kudala of Maharashtra also does not inspire the confidence in the mind of the Court and no reliance could be placed on her evidence. During her cross-examination, when suggested that she had ample opportunity to attract the public as well as the Police to the accused persons forcibly taking her, the prosecutrix has stated that her face was covered with a cloth  by the accused persons and they were threatening her with dire consequences. It has come in the evidence of PW.10 Vijaya Bapu Kambale, owner of the house where the prosecutrix was allegedly confined at Kudala that while going from Maharashtra towards Kudala there are two Forest Check Post and one Police Check post and all the vehicles coming from Belagavi towards Maharashtra will be checked at the border. In order to go to Kudala from Belagavi, it is required to pass through the highway. This information is elicited through this witness to show that if at all the prosecutrix was taken from Avarolli to Kudala on a motorbike against her wish and she was taken by covering her face with a cloth, certainly it would have attracted the public attention including that of the Forest Officials and also Police Officials and they could have questioned accused Nos.1 and 5 as to why they are taking the prosecutrix against her will. The very fact that no such thing has transpired goes to show that the prosecutrix has cooked up a story to corroborate with the complaint given by her father and certainly the evidence of the prosecutrix on this aspect is not reliable and convincing.

33. Thus, from the above discussion, we hold that the prosecution has failed to establish that accused Nos.1 and 2 forcibly took the prosecutrix on a motorbike from Bailhongal to Avarolli and accused No.1 kept her confined in the house of accused No.4. At the same time, the prosecution has failed to establish that from Avarolli, accused Nos.1 and 5 forcibly took the prosecutrix on a two wheeler to Kudala of Maharashtra and kept her confined in the house of accused No.5.

34. Now coming to the case of the prosecution that while the prosecutrix was kept in the house of accused No.4 at Avarolli, accused No.1 committed rape on her during the night of 02.02.2013 to 04.02.2013. During the course of her evidence, prosecutrix has deposed to that effect and stated that by cajoling and coxing her that he will show her Amboli and Kudala of Maharashtra, accused No.1 raped her against her will and in order to prevent her from disclosing this fact to her family members, accused Nos.1 and 4 guarded her. The relevant words in Kannada are as follows:

“7. ªÀÄÄAzÉ gÁwæ 10 UÀAmÉUÉ ¤£ÀUÉ ªÀĺÀgÁµÀÖgÀzÀ CA¨ÉÆý ºÁUÀÆ ¥ÀÄqÁ¯Á vÉÆÃj¸ÀÄvÉÛÃ£É JAzÀÄ ¥ÀĸÀ¯Á¬Ä¹ 1£Éà DgÉÆævÀ£ÀÄ £À£Àß ªÉÄÃ¯É £À£Àß EZÉÑUÉ «gÀÄzÀݪÁV §¯ÁPÁÛgÀ ªÀiÁrzÀ£ÀÄ. CzÉÃjÃw  ªÀÄÄAzÉà 3 ¢£ÀUÀ¼À PÁ® £À£Àß EZÉÑUÉ «gÀÄzÀݪÁV zÉÊ»PÀ ¸ÀA¥ÀPÀð ªÀiÁrzÀ£ÀÄ. F «ZÁgÀªÀ£ÀÄß AiÀiÁªÀÅzÉà jÃw £À£Àß ªÀÄ£ÉAiÀĪÀjUÉ w½¹zÀAvÉ 1£Éà DgÉÆævÀ£ÀÄ ºÁUÀÆ DªÀÄ£ÉAiÀÄ ©ÃªÀĪÀé (4£Éà DgÉÆævÀ¼ÀÄ) JA§ÄªÀªÀgÀÄ £À£ÀUÉ PÁªÀ¯ÁVzÀÝgÀÄ.”

35. On this aspect, the prosecutrix is cross-examined by the defence, more particularly on behalf of accused Nos.1 and 3 and at para 35, she has deposed that while accused No.1 forcibly had intercourse with her, she tried to escape by wriggling out and also she tried to shout and also she tried to push him away and she also tried to come out of the house. When questioned whether she sustained any injuries in the process, though at the first instance, the prosecutrix has replied in the negative, immediately on the next second, she has replied that she sustained injury to her back. However, when questioned whether she has taken any treatment while in the hospital from 12.02.2013 to 14.02.2013, she has answered in the negative. The evidence of the prosecutrix that the accused No.1 coxed and cajoled her by tempting her with the offer of showing her Amboli and Kudala, accused committed rape on her forcibly are contradictory to each other.

36. At this stage, it is relevant to note the medical evidence regarding the alleged rape committed by accused No.1 on the prosecutrix. PW.15 Dr.Malakappa Satappa Mundaginal is the Medical Officer, who has examined the prosecutrix. He has deposed that on 12.02.2013 at 02:15 p.m., he has examined the prosecutrix who was brought with the history of kidnap and rape and issued the Medical Certificate at Ex.P-25. As per this document, the Medical Officer has not found any external injury on the person of the prosecutrix. As per Ex.P-25, the hymen of the prosecutrix was found absent. Except this, all the other genetalia organs of the prosecutrix were found normal. Even the FSL report indicate that the presence of the blood was not detected in the clothes of the prosecutrix as well as seminal stains were also not found. There is no evidence of recent sexual intercourse.

37. During his cross-examination, though PW.15 has denied the suggestion that in case of forcible sexual intercourse, there is chance of causing internal and external injuries on the genital organs, when referred to the Modi’s Medical Jurisprudence, the witness has admitted that if sexual intercourse is committed by force, then there will be chance of  injury on the external and internal organs. He has also admitted that if forcible sexual intercourse is committed on woman for several days, then there is chance of shock, dismay and non-specific anxiety. After answering this question, the witness has volunteered and stated that this may not be true in all cases. However, he has further volunteered and stated that in the present case, the prosecutrix was referred to psychiatrist and as per Psychiatrist Report, there is nil psychiatry which means that the prosecutrix had no psychiatric issues when examined. He has also admitted that for some other reasons also there may be rupture of hymen. The examination of the oral testimony of PW.15 coupled with Ex.P25, falsifies the case of the prosecutrix that for a period of three days continuously, accused No.1 had forcible intercourse with her and during the course of the same, she struggled to escape from the clutches of the accused and resisted resulting in injury to her back. However, as per Ex.P25, no internal or external injuries were found on the person of the prosecutrix. Therefore, we hold that the prosecution has failed to establish that while confining the prosecutrix at Avarolli, accused No.1 committed forcible  sexual intercourse with her, thereby attracting the provisions of Section 375 of IPC and Section 4 of POCSO Act.

38. Now coming to the case of the prosecution that the prosecutrix was rescued by the Police at Kudala and she was brought back to Bailhongal etc. On this aspect the evidence of PWs.2, 13 and 14 throws light. During the course of her evidence, the prosecutrix has deposed that on the intervening night of 09th – 10th of February 2013 i.e., at around 12:30 a.m. of 10.02.2013 Police came and they were two in number, out of them one was in uniform and other person was in the civil dress and after seeing the Police, she became relaxed. She has specifically stated that before the Police she did not reveal what transpired between her and the accused persons and only after they reach Bailhongal Police Station, she revealed the fact before the Police. However, in her statement at Ex.P3, the prosecutrix has stated that on 10.02.2013 when she was brought to the Bailhongal Police Station, she refused to disclose the facts and said that she will tell everything before her father and therefore the PSI took her to the Rehabilitation Centre and admitted there. It is relevant to note that the prosecutrix has not stated anything  about accused Nos.1, 4 and 5, when the Police visited Kudala. She has not stated whether they were present and on seeing the Police they ran away or even before the Police came they had left the place. It is not the case of the prosecution that when the Police went to Kudala, any of the accused persons were present and they were also apprehended. If at all before the Police came to the spot, the accused persons had left the place, then it is for the prosecutrix to say when that happened and whether she had any opportunity to leave the place in the absence of the accused persons. This creates a doubt as to the case put forth by the prosecution. During her cross- examination, the prosecutrix has admitted that while going from Bailhongal to Belagavi, they are required to pass through her Village Phularkoppa. When suggested whether she told the Police that she wanted to meet her parents, the prosecutrix has replied that she told the PSI about meeting her parents, but he refused saying that first she should undergo medical test and only after that she can meet her parents and he also assured that already her parents have been intimated and they will be coming. At para 59 of her evidence, the prosecutrix has stated that from 12.02.2013 to 14.02.2013  she was admitted to the hospital and during the said period, Woman Police Constable was staying with her. However, there is no material placed on record to show that for the purpose of medical examination, the prosecutrix was admitted to the hospital from 12.02.2013 to 14.02.2013.

 

39. Now coming to the case of the prosecution that after the prosecutrix returned from Kudala, the Rehabilitation Centre, the complainant met the prosecutrix and after getting all the details of the ordeal which the prosecutrix has undergone, he has lodged the complaint at Ex.P-2 on 11.02.2013 at 11 p.m. It is pertinent to note that PWs.13 and 14 are the Police Officials who have conducted the investigation and filed the Charge Sheet. In their evidence, they have not at all given the details of the persons who went to Kudala and brought back the prosecutrix and these two witnesses have also not stated at what time she was brought and what are the timings at which she was brought to the Police Station and from there sent to the Rehabilitation Centre etc. Therefore, for these details it has become inevitable to refer to the evidence of the prosecutrix. At para 41 of her evidence, the prosecutrix has stated that on the intervening  night of 9th and 10th of February 2013, when two Police personnel came to Kudala, it was about 12:30 a.m. i.e., 30 minutes past the midnight. At para 43 of her evidence, the prosecutrix has specifically stated that when they left Kudala on 10.02.2013, it was 05:00 p.m. and when they reached the Bailhongal Police Station, it was midnight. In other words, when they came to Bailhongal Police Station, it was midnight of 11.02.2013 i.e., beginning of 12.02.2013. The prosecutrix has further deposed that after staying about one hour at Bailhongal Police Station, she was brought to Rehabilitation Centre. In this regard, P.W.1, the father of the prosecutrix has stated that after coming to know that the prosecutrix was brought back and she was kept in the Rehabilitation Centre, he alongwith his wife CW.7 Balavva, CW.3 Durgappa Wadder, CWs.2 and 9 went to the Santwana Kendra, Belagavi and met the prosecutrix and enquired her about the incident and based on the said information, he got prepared the complaint and filed the same as per Ex.P-2 and it is in the hand writing of CW.10 Erappa Talawar. However, in Ex.P-2, the endorsement made by the Investigating Officer, who has received the complaint is to the effect that he has received it at 11.02.2013  at 11:00 p.m. By that time, the prosecutrix had not yet returned from Kudala to Bailhongal Police Station let alone present at the Rehabilitation Centre. It creates doubt as to the veracity of the prosecution case. As already noted, except the fact that the complainant met his daughter and the rest of the facts alleging the involvement of accused Nos.1 to 5 in the alleged kidnap and rape of the prosecutrix is hearsay and that part of the complaint averments as well as the evidence of PW.1 are inadmissible.

 

40. As already discussed, no material is placed on record as to who were the Police Officers who went to Kudala and brought back the prosecutrix to Bailhongal Police Station and evidence to that effect is silent. PW.13 Dharmakar Shivagouda Dharmatti has conducted part of the investigation. He has deposed that on 11.02.2013 at 11:00 p.m. complainant appeared before him and gave the written complaint at Ex.P-2 and on the basis of it, he has registered the case in Crime No.35/2013. He has deposed that on 12.02.2013 he has recorded the statement of the prosecutrix which refers to Ex.P-3 and thereafter handed over further investigation to CW.27. He is the one who received the  missing complaint at Ex.P-1. He has deposed to that effect and his signature in Ex.P-1 is marked as Ex.P-1(b). During his cross-examination, this witness i.e., PW.13 has stated that after receiving the missing complaint, he has made attempts to search the prosecutrix and during this period, the complainant was with him. He has specifically stated that on 09.02.2013 when the prosecutrix appeared before him, he was the Investigating Officer. It is pertinent to note that this witness does not say that the prosecutrix was produced before him by the two Police Officials and on the other hand, he specifically states that the prosecutrix appeared before him. Relying upon this piece of evidence, learned counsel representing the accused persons submitted that this supports the defence taken by the accused that the prosecutrix had gone to Dharwad without informing her parents and after coming to know that a missing complaint has been filed, she on her own came back and appeared before the Investigating Officer.

 

41. On the other hand, PW.14 Ramesh Basappa Gokak who has conducted further investigation has deposed that on 12.02.0213 he took up further investigation from PW.13 and  on the same day alongwith Woman Police Constable, he went to the Rehabilitation Centre and examined her and received the written statement given by her. Even though according to the prosecution, the prosecutrix was a minor and the provisions of the POCSO Act were attracted, the Investigating Officer has not chosen to get her statement recorded before the jurisdictional magistrate and on the other hand he has chosen to receive a written statement in the hand writing of the prosecutrix with her signature as her statement. The evidence of PW.14 indicate that after accused Nos.1 and 3 were arrested and brought to the Bailhongal PS, the prosecutrix was brought from the Rehabilitation Centre to the Bailhongal Police Station and she has identified them. It is pertinent to note that accused Nos.1 and 3 are related to the prosecutrix and absolutely there was no dispute with regard to the identity of these accused persons. Such being the case, there was no reason as to why she was made to identify these accused persons and no purpose would serve by such exercise.

 

42. It is pertinent to note that at page 3 of his evidence, PW.14 has specifically stated that on 14.02.2013 he  visited the Belagavi Government Hospital and enquired the prosecutrix and since she refused to go to her parents house, she was once again sent to the Rehabilitation Centre. This piece of evidence of PW.14 is contrary to the statement of the prosecutrix that she wanted to meet her parents at the earliest. This statement of PW.14 also supports the defence of the accused that the prosecutrix never went with accused No.1 and on the other hand she was been to Dharwad and after coming to know that a missing complaint has been filed, she returned and she was not at all ready to falsely implicate the accused persons and for that reason only she did not choose to give her statement implicating the accused persons. Therefore, her father choose to lodge a complaint at Ex.P-2 making allegations against the accused persons and based on his hearsay statement, the Police have chosen to falsely implicate the accused persons. This also supports the case of the accused that since the prosecutrix was not ready to give statement as required by her father, the Investigating Officer did not take risk of getting her statement recorded before the jurisdictional magistrate as she would not have supported the allegations which her father wanted to make.

43. The examination of the oral and documentary evidence placed on record establish the fact that even though as on the date of the alleged incident, the prosecutrix was aged 17 years 7 months i.e., a minor, the prosecution has failed to prove that she was kidnapped by accused No.1 with the help of accused No.2 and on the instigation of accused No.3 and with the help of accused Nos.4 and 5, she was confined at Avarolli as well as at Kudala and while at Avarolli, accused No.1 committed rape on the prosecutrix against her will and thereby committed the offences alleged against them. In support of the case of the prosecution, the learned counsel appearing for the prosecutrix i.e., the complainant has relied upon the decision of the Hon’ble Supreme Court in Criminal Appeal No.1919/2010 in the matter of Anversinh @ Kiransinh Fatesinh Zala vs. State of Gujarat, wherein on appreciating the facts, the Hon’ble Supreme Court held that the offence under Section 375 IPC was not proved and therefore, the High Court was justified in acquitting the accused for the offence punishable under Section 376 IPC, but on facts the allegation of kidnapping was proved and the conviction for the said offence was upheld. However, in the  present case, the prosecution has failed to establish both the allegations of kidnapping as well as rape and illegal confinement and therefore this decision is not applicable to the facts and circumstances of the case.

 

44. Thus, from the above discussion, we hold the Trial Court has rightly rejected the case of the prosecution and acquitted the accused of all the charges and we find no justification to interfere with the impugned judgment and order and consequently the appeal fails and it is dismissed.

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