Criminal Appeal No. 890 of 2013 · The High Court
Case Details
- 1 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO. 890 OF 2013 BETWEEN: KISHORE KUMAR S/O VENKATARAMANACHARI AGED ABOUT 27 YEARS MILLIDINNE VILLAGE YELSUR HOBLI, SAKALESHPURA HASSAN DISTRICT. (BY SRI.SHANKAR.H.S., ADVOCATE FOR SRI.PRASANNA DESHPANDE, ADVOCATE) AND: THE STATE OF KARNATAKA REPRESENTED BY YELSUR POLICE SAKALESHPURA TALUK HASSAN DISTRICT …APPELLANT (BY SMT.K.P.YASHODA, HCGP) …RESPONDENT THIS CRIMINAL APPEAL FILED U/S 374(2) CR.P.C. BY THE APPELLANT/ACCUSED PRAYING THAT THIS HON'BLE COURT BE PLEASED TO SET ASIDE THE ORDER DATED 18.07.2013 PASSED BY THE ADDL.S.J., HASSAN, IN SPL.C.NO.2/2012 CONVICTING THE APPELLANT/ACCUSED FOR Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 THE OFFENCE P/U/S 448,376 OF IPC AND SEC.3(1)(XII) OF SC/ST(POA)ACT, 1989, ETC., THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL JUDGMENT
Legal Reasoning
Heard Shri.Shankar.H.S., learned counsel appearing for the appellant/accused and Smt.Yashodha.K.P., learned HCGP appearing for the Respondent/State. 2. This appeal is filed against the judgment and conviction passed in Special Case No.2 of 2012, wherein the appellant/accused was convicted for the offence punishable under Section 448 sentencing him to undergo simple imprisonment for six months with fine of Rs.1,000/; simple imprisonment for seven years with fine of Rs.20,000/- for the offence punishable under Section 376 of the Indian Penal Code; and simple imprisonment for one year with fine of Rs.4,000/-, in default, simple imprisonment for two months, for the offence punishable - 3 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 under Section 3(1)(xii) of Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. The factual matrix of the case of the prosecution before the Trial Court is that the victim is aged about 11 years and she belongs to Scheduled caste; She is studying in 4th Standard and that on 13.11.2011 at about 9.00 am, the complainant and her brother were in the house as on the said day and there was a holiday in School and her parents went to work, at that time, the accused came near the house of complainant and called the complainant and her brother for playing game, then the accused sent her brother to provision stores to bring panparag and when her brother went to provision stores to bring panparag, the accused closed the door of her house, caught hold of the complainant and committed rape on the complainant who is a minor, at that time, the complainant cried for help. After sometime, on hearing the cries, the father of complainant came to the house, at that time, the accused went to Pooja room by taking his clothes and on - 4 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 seeing the accused, her father enquired the accused as to why he came to his house, for that the accused replied that he came to put the mobile charger and then, the accused fled away and then her father went to the work. In the evening, when her other came to home, she informed the said fact to her mother, who in turn, scolded her father and informed the said fact to the wife of accused and thereafter, taken her to the Shanivarasanthe Government Hospital, took treatment and then shifted her to Somavarapete Government Hospital, wherein the police came and recorded her statement. Based on the said statement, Police registered the case, investigated the matter and filed charge-sheet for the above offences. The accused was in custody, he did not plead guilty and claimed trial. 4. The prosecution, in order to prove the case examined PWs-1 to 19 and got marked 13 documents as Exs.P1 to P13; and produced three incriminating articles identified as MOs-1 to 3. - 5 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 5. The accused was subjected to 313 statement of Cr.P.c. and he did not plead any defence at all. 6. The Trial Court, having considered the material on record comes to the conclusion that the evidence of PWs-1 to 3 is consistent with regard to the act of the accused and PW-3 is the father of the accused and PW-7 stated about sending of brother of prosecutrix to the petty shop to bring panparag and hence, accepted the evidence of PW-1. An observation is made that "a girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would face the risk of losing the love and respect of her near relatives, kith and kin. An observation is also made that, ofcourse the medical evidence does not support the evidence of PW-1. But on perusal of evidence of PW-1 who is a child witness has clearly and consistently stated that accused committed rape on her on the date of incident and that the prosecutrix had gone to hospital - 6 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 without any reasonable delay for treatment. There is no delay in informing the incident to the police and hence, the Trial Court accepted the evidence of PW-1 without corroboration. Considering the evidence of PW-1, the Trial Court convicted and sentenced the accused. Hence, the present appeal. 7. The main contention of the learned counsel appearing for the appellant is that the incident occurred on 13.11.2011 and complaint was filed on the very next day, i.e., on 14.11.2011 and counsel would contend that the victim was taken to the hospital immediately and though an allegation is made in the complaint, Ex.P1 that he committed the offence of rape. The medical report which is placed before the Court, Ex.P6 is very clear that no such injuries or subjected to sexual act. The learned counsel also brought to the notice of this Court that the Doctor who examined the victim has not found any injuries over any part of her body, vagina and vulva, hymen is intact; vagina swab was collected and sent for semen analysis on - 7 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 13.11.2011. The learned counsel also brought to the notice of this Court Ex.P8, the report received from the FSL, Mysuru and the opinion of the FSL was also very clear that presence of seminal stain was not detected in Item Nos.1, 2, 3 and 4 and there was no evidence to suggest that sexual intercourse had taken place. The counsel would vehemently contend that inspite of documents, Exs.P6 and P8, the Trial Court comes to a conclusion that evidence of PW-1 is acceptable. The counsel submits that in the evidence of PW-1 also, nothing is stated except stating one word that she was subjected to 'rape' and in the oral evidence, she has not stated anything about the manner in which, she was subjected to sexual act and even she has not spoken anything about the contents of Ex.P1, statement of the victim but the Trial Court has accepted the same. The counsel has also brought to the notice of this Court that PW-2 who is the mother of the victim in her evidence has stated that she took the victim to the hospital and has given the complaint. The counsel also brought to the notice of this Court that when the - 8 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 suggestion was made that she has not sustained any injury on her private part but her only evidence is that the Doctor told her and hence, she has stated the same. The evidence of PW-2 (mother of the victim) is also not consistent about the alleged act of rape. The evidence of PW-3 who is the father of the victim also does not support the case of the prosecution. The counsel submits that though other witnesses are examined as PWs-4 to 19, their evidence has no material, particularly, the counsel brought to the notice of this Court, the evidence of PW-13, Dr.Harini who examined the victim and except stating that she gave treatment and collected seminal swab. In the cross-examination, she categorically admits that she has not found any injuries as well as FSL report is also negative and she gave the report, which is at Ex.P8. The medical evidence also does not support the case of the prosecution. 8. Per contra, learned HCGP appearing for the Respondent/State would submit that the evidence of PW-1 - 9 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 and PW-2 is consistent with regard to the fact that accused was present at the time of the incident and also counsel brought to the notice of this Court that PW-4 who is the brother of the accused has categorically stated that accused gave him Rs.50/- to get panparag and accordingly, he went to the shop and in the shop, as Television was on, he sat there watching the Television. He has also stated that his sister has not disclosed anything and accused was not there in the house and only his father was there in the house. He came to know that his sister was subjected to rape only in the evening at 6.00 pm. The other witness is PW-7 who is the petty shop owner. He has stated in his evidence that PW-4 came to his shop at about 9.00 am and asked him to provide panparag by giving Rs.50/- but PW-7 asked PW-4 to bring the change, but PW-4 sat in his shop by watching the Television. These circumstances clearly discloses that the accused with an intention to commit rape on the victim sent PW-4 to the petty shop and the Court has take note of the same. The Trial Court has rightly accepted the - 10 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 evidence of PW-1 since victim evidence is probable and also she is aged about 11 years. 9. Having heard the learned counsel appearing for the appellant as well as the learned HCGP appearing for the Respondent/State and on perusal of the material available on record and considering both oral and documentary evidence, the following points arise for consideration by this Court: i) Whether the Trial Court has committed an error in convicting the accused for the offence punishable under Section 448 & 376 of IPC and under Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989? ii) What order? 10. Having heard the respective counsel and also on perusal of the material evidence on record, no doubt, the prosecution has relied upon Caste Certificate (Ex.P4) issued by PW-11 who is a retired teacher of Government School where victim was studying, to show that the victim - 11 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 belongs to Scheduled Caste community and the same is also not disputed in the evidence. In order to invoke Section 448 & 376 of IPC and also on perusal of the material available on record, Ex.P6, Wound Certificate of prosecutrix is very clear that when she was examined, there were no injuries. It is also important to note that the hymen was intact. No doubt, the victim is aged about 11 years. The FSL report, which is marked as Ex.P12 is very clear that there is no positive material to show that she was subjected to sexual act, on examination of MOs-1 to 3. It is also important to note that the Doctor has given the opinion in terms of Ex.P8, wherein, it is clearly stated that there is no evidence to suggest the sexual intercourse has taken place. The Trial Court fails to take note of the fact that Ex.P6 is very clear that no injuries were found when the victim was taken to the hospital on the very next day. It is also important to note that the hymen was intact. The Doctor, on examination collected the vaginal swab and sent for semen analysis and semen analysis in terms of EX.P8 is also negative and opinion is very clear - 12 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 that there is no evidence to suggest that sexual intercourse had taken place. The medical evidence is also clear that there were no injuries as well as no evidence to suggest that sexual intercourse had taken place. Apart from that, the Court has take note of the evidence of PW-1 and PW-2. PW-1 who is the victim, in her evidence, an omnibus statement that she was subjected to rape, nothing is stated in her evidence regarding the act of the accused except a single sentence that 'the accused has committed rape on her' and also it is important to note that when PW-2, mother of the victim took her to the hospital and victim was subjected to examination and no medical evidence. Even in the cross-examination, PW-2 says that on the say of the Doctor only, she has stated that the victim has injuries on her private part. No other witnesses have spoken that the accused went inside the house of the victim and only the father of the victim, PW-3 says that the accused was inside the house and PW-4, brother of the victim has also not stated anything about subjecting his sister for sexual act and he has stated that - 13 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 he came to know about the incident only in the evening at 6.00 p.m. He has also stated that the accused was not in the house when he came to his house and only his father was found. PW-7 has stated that PW-4 came to his shop to purchase panparag but he replied that he has not brought the change and hence, asked him to bring the change to purchase panparag. Apart from that, medical evidence, PW-13 who has been examined before the Court has categorically stated that she gave the treatment and intimated the police and police sought her report and she gave the report stating that no sign of any sexual act in terms of Ex.P8. 11. Having considered the oral and documentary evidence available on record, nothing is found to come to a conclusion that the victim was subjected to sexual act. There were no injuries and hymen was intact and no evidence to substantiate that the victim was subjected to sexual act, in terms of Exs.P6 and P8. The oral evidence of the victim girl as well as the mother of the victim girl - 14 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 does not corroborate with each other. PW-2 has also categorically stated that on the say of the Doctor, she says that the victim has injuries on her private part but nothing was found on examination of the private part of the victim. When such being the case, the Trial Court ought not to have presumed that there was sexual act. The Trial Court committed an error in coming to a conclusion that she proposed to accept the evidence of PW-1, when the evidence of PW-1 and PW-2 is not consistent as well as with regard to the committing of heinous offence of sexual act against the minor girl who is 11 years old. The Trial Court ought not to have convicted the accused on the assumption that the girl is not telling lie and there must be a sign of committing any such act, even when there is no such sign of committing such offence also. When the heinous offence was invoked against the accused, sentencing him for a period of seven years for the offence punishable under Section 376 of IPC, unless cogent evidence is placed on record, question of convicting the accused in the absence of any material either the oral - 15 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 evidence, which inspires the confidence of the Court and also the documentary evidence does not support the case of the prosecution, the Trial Court has committed an error and hence, it requires interference by this Court by exercising the appellate jurisdiction. Hence I answer Point No.1 in the 'Affirmative'. 12. In view of the discussion made above, I pass the following:
Decision
ORDER i) Appeal is allowed. ii) The impugned judgment and order of conviction dated 18.07.2013 passed by the Additional Sessions Judge, Hassan in Special Case No.2 of 2012 is set aside. iii) Consequently, the accused/appellant is acquitted for the offences invoked against him. iv) The fine amount, if any, deposited by the accused/appellant is ordered to be released in - 16 - NC: 2025:KHC:16780 CRL.A No. 890 of 2013 favour of the accused/appellant, on proper identification. v) The bail bonds, if any, executed by the accused/appellant shall stand cancelled. Sd/- (H.P.SANDESH) JUDGE DH List No.: 1 Sl No.: 49