THE STATE OF KARNATAKA v. SRI. M.M. SALAM @ SAIJJU

Based on the said complaint, he registered FIR as per Ex.P13 against the accused and handed over further investigation to PW-8. PW-8 conducted further investigation and filed the charge sheet.

The Trial Court on hearing the parties, framed the charges against the accused for the aforesaid offences. The accused denied the charges and claimed trial. Therefore, trial was conducted. In support of the case of the prosecution, PWs-1 to 10 were examined and Exs.P1 to P13 were marked. After his examination under Section 313 of Cr.P.C., the accused did not lead defence evidence. The Trial Court on hearing both parties, by the impugned judgment and order, acquitted the accused holding that the charges brought against him were not proved beyond - 5 - NC: 2024:KHC:13937-DB CRL.A No. 1868/ 2017 reasonable doubt. The State has filed the appeal challenging the said judgment and order. Submissions of Sri. P. Thejesh, learned HCGP for the appellant and Smt. K.M. Archana, learned Amicus Curiae for respondent No.2 the informant:

PW-4 the victim, PW-1 the complainant and PW-2 the father of the victim have cogently and consistently deposed about the overt acts of the accused and there was no reason to disbelieve their evidence. PW-3 the neighbour of the victim spoke about the visit of the accused to the house of the victim. The Doctors PW-6, who examined the victim and PW-7, who conducted the cesarean operation for delivery of the child categorically deposed about the pregnancy and delivery of the child. PW-7 further deposed that PW-4 was admitted with history of pregnancy and accused being her husband. The evidence of PWs-1, 4, 6 and 7 was further corroborated by the evidence of official witnesses. The fact of victim belonging to the scheduled caste and her visual impairment were not disputed. Under such circumstances, the Trial Court was not justified in acquitting the accused only based on DNA test report and - 6 - NC: 2024:KHC:13937-DB CRL.A No. 1868/ 2017 delay in filing the complaint, etc. The impugned judgment and order suffers patent illegality and is liable to be set aside. In support of their submissions, they relied on the following judgments: (i) The State of Punjab Vs. Gurmit Singh and Others1, (ii) Pattu Rajan Vs. The State of Tamil Nadu2. Submissions of Sri. Vinod Kumar, learned counsel for respondent No.1 (accused):

It was not the case of PW-4 herself that the accused sexually abused her under the promise or inducement of marriage. The evidence of PW-4 shows that her house was surrounded by houses of the other workers and family members of such co-workers used to stay in their homes even when the workers had gone for work. PW-3 the neighbour/landlord of PWs-1 and 2 did not support the case of the prosecution about the accused visiting victim's house frequently. If the accused had abused the victim for such a 1 (1996) 2 SCC 384 2 (2019) 4 SCC 771 - 7 - NC: 2024:KHC:13937-DB CRL.A No. 1868/ 2017 long time, it is unbelievable that for 7 to 8 months, the parents did not notice that or the pregnancy. The case of the prosecution that the accused sexually abused the victim under the promise of marriage and consequently, she conceived and delivered the child was negated by the prosecution's own document Ex.P6 the DNA test report. The evidence on record clearly shows that PWs-1, 2 and 4 falsely implicated the accused in the case only for the purpose of getting compensation from the Government. The Trial Court on judicious appreciation of the evidence on record, has acquitted the accused. The said judgment does not warrant interference of this Court.

On considering the submissions of both sides and examining the materials on record, the question that arises for determination is: Whether the impugned judgment and order of acquittal is sustainable in law? Analysis

The accused was tried by the Trial Court on the charges that he sexually abused PW-4 under criminal - 8 - NC: 2024:KHC:13937-DB CRL.A No. 1868/ 2017 intimidation, the promise of marriage and on the ground of caste based discrimination which led to her pregnancy and delivery of the child.

The Trial Court on evaluating the evidence, by the impugned judgment and order, has acquitted the accused. What should be the approach of the Court in an appeal against acquittal was expounded by the Hon'ble Supreme Court in Prem Singh Vs. State of Haryana3. In para No.7 of the said judgment, relying upon its earlier judgments, the Hon'ble Supreme Court held that in the appeal against the order of acquittal, the Appellate Court must bear in mind that in such cases, there is double presumption favour of the accused. Firstly, the presumption of innocence available under fundamental principle of criminal jurisprudence and secondly, that presumption of innocence is reinforced, reaffirmed and strengthened by his acquittal by the Trial Court. In para No.13 of the said judgment, it was held that, if two views are possible, the High Court should not disturb the finding of 3 (2013) 14 SCC 88 - 9 - NC: 2024:KHC:13937-DB CRL.A No. 1868/ 2017 acquittal recorded by the Trial Court unless the view taken by the Trial Court suffers perversity or patent illegality.

This Court has to re-appreciate the evidence on record in the light of the aforesaid principles. In the present case, the prosecution charges against the accused are that PW-4 victim was a visually impaired girl, PWs-1, 2 and 4 belong to scheduled caste and the accused taking advantage the same, sexually abused PW-4 under criminal intimidation, inducement, etc., consequently, she conceived and delivered his child. Therefore, the prosecution had the burden of proving the fact that PWs-1, 2 and 4 belong to scheduled caste, PW-4 was a visually impaired girl, the accused under criminal intimidation, committed sexual assault on her frequently and consequently, she conceived and delivered his child.

Unless the prosecution discharges initial burden, there is no burden on the accused to explain any of the circumstances. It is no doubt true that PWs-1, 2 and 4 supported the prosecution version. The accused also did not dispute that PWs-1, 2 and 4 belong to the scheduled caste. - 10 - NC: 2024:KHC:13937-DB CRL.A No. 1868/ 2017 But, his case was of total denial and his defence was that PWs-1, 2 and 4 to get compensation from Government, taking advantage of some untoward incident, have falsely implicated him.

The fact that PW-4 conceived and delivered a child was also not disputed. But, the paternity of the child was disputed. The prosecution’s own document Ex.P6 the DNA test report, ruled out the allegation of the accused being the father of the child. Thereby, Ex.P6 the prosecution’s own document demolished its case that the accused was the father of the child.

Then the question is whether the accused had sexually abused PW-4 as alleged taking advantage of her visual impairment and she staying at home because of her visual impairment? Absolutely no material was furnished to show that PW-4 had any physical disability or visual impairment. Though PW-4 underwent the cesarean operation on admission in Gonikoppa Community Health Centre, no case sheet of the said hospital was collected. At least that could have thrown light about PW-4 being a - 11 - NC: 2024:KHC:13937-DB CRL.A No. 1868/ 2017 visually impaired person. It was not even elicited through PWs-6 and 7 the Doctors who examined her and conducted cesarean surgery on her respectively, that she was visually impaired. Therefore, that fact was also not proved.

The evidence of PWs-1, 2 and 4 shows that their house was surrounded by other houses. PW-4 in her cross- examination admits that when the labourers who are the residents of the surrounding houses go to Coolie work, their family members used to stay back in the houses. She states that the house of the accused was at a distance of 20 ft. from her house and the family members of the accused used to stay in his house. PW-4 claims that when the accused sexually abused her the first time, she screamed. If the accused was visiting her house frequently and she screamed as alleged, that could not have gone unnoticed by the inmates of the other houses. PW-3 the landlady-cum- neighbour of PWs-1, 2 and 4 as well as the accused, in the chief examination states that she sighted the accused only once in the afternoon at 02:00 pm when he was running away from the house of PW-1. She says she went and - 12 - NC: 2024:KHC:13937-DB CRL.A No. 1868/ 2017 enquired PW-4 and she, in turn, revealed that when she was sleeping, the accused came and ran away. According to her version also, PW-4 did not allege any sexual abuse before her. Absolutely, there was no explanation for PW-4 not revealing before her parents or PWs-1 and 2 not noticing the pregnancy of PW-4 for 7 months.

Admittedly, by the time of the alleged incident, the accused was already married and having 3 children. But, his family members were not informed. PW-1 in her cross-examination states that she did not inform the wife of the accused about the incident and she had no difficulty in so informing.

As per Ex.P3, PWs-1 and 2 had taken PW-4 to Community Health Centre, Kutta on 13.10.2014 and PW-6 on examining her, informed PWs-1 and 2 on the same day about her pregnancy. But the complaint was purportedly filed on 14.10.2014 at 07:00 pm. The FIR was delivered to the jurisdictional Court on 15.10.2014. Absolutely there was no explanation for the delay in filing the complaint and delivering the FIR. That probabilizes the defence of the - 13 - NC: 2024:KHC:13937-DB CRL.A No. 1868/ 2017 accused that taking advantage of some untoward incident, to get compensation from the Government, the accused was falsely implicated in the case. That is further probabilized by the admissions of PWs-2 and 4. The evidence of PWs-2 and 4 shows that due to the registration of FIR or criminal case, the Government gave compensation of Rs.1,25,000/- and out of that, PW-4 received Rs.1,00,000/-. The said circumstance probabilizes the defence of the accused that to get the compensation, PWs-1, 2 and 4 on deliberation with the Police, have falsely implicated him. The DNA test report is highly fatal to the prosecution version and demolishes the prosecution’s case.

It is no doubt true that in Pattu Rajan’s case referred to supra, it was held that DNA test is in the nature of opinion evidence and if other facts and circumstances go contrary to such report, such opinion does not bind the Court. Despite holding so, in that case, the Hon’ble Supreme Court accepted the opinion expressed superimposition test report in that case and confirmed his connection of the accused. In that case, there was no DNA - 14 - NC: 2024:KHC:13937-DB CRL.A No. 1868/ 2017 test report. Only superimposition test opinion was for consideration and despite that going negative, the judgment of conviction was confirmed. Therefore, the same is not applicable. Apart from that, in the present case, DNA test report is the document of the prosecution itself. Therefore, it was not open either for the prosecution or to the complainant to disown the same.