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Azhar @ Azharuddin @ Md. … vs The Stae By Women Police on 5 May, 2020

1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 5TH DAY OF MAY, 2020

BEFORE:

THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

CRIMINAL APPEAL No.404 OF 2019

BETWEEN :

AZHAR @ AZHARUDDIN @
MD. AZHARUDDIN
S/O. DADAPEER
AGED ABOUT 24 YEARS
R/O. VINOBANAGAR,
DAVANAGERE-577 002.
… APPELLANT

(BY SRI. VISHWAJITH RAI FOR SRI. JAYAPRAKASH K.N.,
ADVOCATES)

AND

THE STATE BY WOMEN POLICE STATION,
DAVANAGERE
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001.
… RESPONDENT

(BY SRI. K. NAGESHWARAPPA, HCGP)

***

THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 21.01.2019 AND
24.01.2019 PASSED BY THE LEARNED II ADDL. DISTRICT AND
SESSIONS JUDGE SPECIAL JUDGE AT DAVANAGERE IN S.C.
NO.103/2017 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
313, 506 AND 376 OF IPC AND SECTION 6 OF POCSO ACT AND
ACQUIT THE APPELLANT/ACCUSED FROM ALL THE CHARGES.
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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 27.02.2020 AND COMING ON FOR
PRONOUNCEMENT THIS DAY, MOHAMMAD NAWAZ J.,
PRONOUNCED THE FOLLOWING:

JUDGMENT

This appeal is by accused No.1 challenging his

conviction and sentence passed by the Court of II Addl.

District and Sessions Judge and Special Judge,

Davanagere in SC No.103/2017, convicting and sentencing

him for the offences punishable under Sections 376, 313

and 506 of IPC and Section 6 of POCSO Act.

2. I have heard the learned counsel Sri.

Vishwajith Rai for Sri. Jayaprakash K.N. for the accused-

appellant and Sri. K. Nageshwarappa, learned HCGP for

the respondent-State.

3. The brief facts of the prosecution case are as

under;

The first informant, Sri. K.Y. Raghavendra Rao is a

resident of Vinoba Nagar in Davanagere. He has a

daughter and a son. His daughter is a minor. When she
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was studying in I PUC, accused No.1 used to follow her

and tease her. He used to roam in front of her house. She

had informed the matter to her parents. In spite of

advising the accused, he did not stop following her. The

matter was brought to the notice of one Leela

Kumaraswamy, working in an NGO. However, accused

No.1 did not cooperate when she had called him over

phone to enquire about the matter. The accused was

threatening the victim girl to listen to his words or to face

dire consequences.

4. It is the further case of the prosecution that

accused No.1 forced the victim girl to fall in love with him

and on 08.12.2016, by force and putting threat, he took

her to his house. Accused Nos.2 and 3, his mother and

sister gave juice to her, drinking which she became

unconscious. Thereafter, accused No.1 took her to the

bedroom and committed penetrative sexual assault

against her will and without her consent. Thereafter, on

several occasions, he committed forcible penetrative

sexual assault on her in his house. Due to the
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said act, the victim became pregnant. Accused No.1 in

order to cause abortion, administered three tablets to the

victim, which caused abortion. Hence, the accused

committed the charged offences.

5. Charges were framed against accused Nos.1 to

3 for the offences punishable under Sections 376, 506, 313

read with Section 34 of IPC and under Section 6 of the

POCSO Act read with Section 34 of IPC and Section 17 of

the POCSO Act.

6. The learned Sessions Judge by judgment and

order dated 21.01.2019 passed in SC No.103/2017,

convicted appellant-accused No.1 for the offences

punishable under Sections 376, 313 and 506 of IPC and

Section 6 of POCSO Act and acquitted accused Nos.2 and

3 of the charged offences against them.

7. Assailing the aforesaid judgment and order of

conviction and sentence passed by the trial court, the

learned counsel appearing for the appellant has
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vehemently contended that the entire case of the

prosecution is false and it is a cooked up story. The

learned counsel submits that the version in the first

information report, statement of the victim recorded under

Section 164 Cr.PC and the evidence given before the Court

are not consistent. There are material omissions and

contradictions in the evidence of the prosecution witnesses

which goes to the root of prosecution case. The medical

evidence does not support the version of the prosecutrix.

The DNA examination report is negative. The evidence of

prosecution witnesses is shrouded with doubt. There is no

convincing material to show that either the accused gave

juice laced with sedatives and committed rape on the

victim or that the accused administered tablets to the

victim which caused abortion. There is no investigation as

to from where the accused obtained the tablets or to show

that the said tablets caused abortion. It is contended that

on the same set of evidence, accused Nos.2 and 3 are

acquitted. The date of birth certificate given in proof of age

of the victim is a concocted document. The medical

evidence with regard to age proof does not support the
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prosecution case. The prosecution has suppressed the

actual age of the victim. Hence, the prosecution has failed

to establish that the victim was a minor at the time of

incident.

8. The learned counsel for the appellant would

also contend that the accused were falsely implicated to

cover up the act committed by the first informant-PW1 as

he had tried to outrage the modesty of accused No.3, the

sister of accused No.1. The learned counsel contends that

even before PW1 went to lodge the complaint, accused No.1

was present in the police station which is evident from the

material on record, which shows that initially it was

accused No.1 who went to the police station to lodge a

complaint against PW1. The learned counsel further

contends that the case of the prosecution that the accused

committed rape by threat and coercion and by making the

victim unconscious is totally unacceptable. There is

inordinate delay in lodging the complaint and a written

complaint was filed making frivolous allegations. It is

further submitted that even according to Ex.P18, victim
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was aged more than 17 years at the time of incident. In the

circumstances of the case, two years should be added to

her age and in that case, it cannot be said that the victim

was a minor at the time of incident.

9. The learned counsel submits that the reasons

assigned by the learned Sessions Judge are contrary to the

legal proposition and catena of decisions. Accordingly,

seeks to allow the appeal.

10. In support of his contention, the learned

counsel for the appellant has relied upon the following

citations:

(i) (2003) 8 SCC 202 – State of Karnataka Vs. Mapilla P.P.
Soopi.

(ii) AIR 1973 SC 2773 – Kali Ram Vs. State of H.P.

(iii) 2004 Crl.LJ 226 (Orissa) – Sania Jani Vs. State.

(iv) 2001 Crl.LJ 2123 – Bhika Ram Vs. State of
Rajasthan.

(v) 1997 Cr.LJ 954 (Bombay) – Peter Fernandes Vs. The
State.

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(vi) Crl.A.No.1933/2019 dated 19.12.2019 – Nagappa Vs.
The State of Karnataka.

(vii) Crl.A.No.100162/2015 dated 22.03.2017 – Shri.
Dadakhalandar Vs. State of Karnataka.

11. Per contra, the learned High Court Government

pleader while supporting the impugned judgment and

order passed by the trial court has vehemently contended

that there are no grounds to interfere with the conviction

and sentence passed by the trial court. He contends that

Ex.P18 is the birth certificate issued by PW23 – Chief

Officer, Hanagal Town Municipal Council. The said

document proves that the victim was a minor at the time of

incident. The victim who is examined as PW2 has

categorically supported the prosecution case. Her evidence

shows that by threat and coercion, accused committed

rape on her. Her evidence is corroborated by other ocular

and medical evidence. The medical evidence clearly

suggests that there was abortion. The evidence of the

victim alone is sufficient to bring home the guilt of the

accused. Her evidence inspires confidence. There is no
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absolute rule that two years have to be added to the age of

the prosecutrix. In the present case, the date of birth

certificate issued by PW23 is an authentic document in

proof of age of the victim girl, which cannot be doubted.

Hence, the prosecution has established the guilt of the

accused beyond all doubts. Accordingly, the learned HCGP

seeks to dismiss the appeal.

12. The learned HCGP has placed reliance on the

decision of the Hon’ble Apex Court in ‘State of U.P. vs.

Chottey Lal reported in (2011) 2 SCC 550.

13. Having given anxious consideration to the rival

submission and also having perused the entire evidence

and material on record including the impugned judgment

passed by the trial court, the following points arise for

consideration:

(i) Whether the prosecution has established the
charges leveled against the appellant-accused
No.1 beyond all reasonable doubts?

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(ii) Whether the impugned judgment and order of
conviction and sentence passed by the trial court
is liable to be interfered with ?

(iii) What order?

14. The charges were framed against accused Nos.1

to 3 for the offences punishable under Sections 376, 506,

313 read with Section 34 of IPC and under Section 6 of the

POCSO Act read with Section 34 of IPC and Section 17 of

the POCSO Act, 2012.

15. To establish the guilt of the accused, the

prosecution has in all examined PWs.1 to PWs.26 and got

marked documents 1 to 25 and M.Os. 1 to 7.

16. PW1 is the first informant and he is the father

of the victim. He has lodged complaint as per Ex.P1. PW2

is the victim girl. PW3 is the mother of the victim. PW4 is a

woman police constable who has handed over the blood

samples of the victim and the accused to the RFSL,

Davanagere. PW5 and PW6 are the panch witnesses to the
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spot mahazar – Ex.P3. PW7 and PW8 are the neighbours of

the accused. They are circumstantial witnesses who have

seen the victim girl along with the accused. PW9 is the

Woman ASI. She has produced the victim girl before the

Magistrate for recording her statement under Section 164

Cr.P.C. PW10 is the brother of PW3. PW11 is the WPC,

who has taken the victim girl for medical examination at

CG Hospital, Davanagere. PW12, Head Constable has

transmitted the FIR – Ex.P9, to the jurisdictional

Magistrate. PW13 and PW14 are known to PW1. PW15 is a

Police Constable who has taken the accused for medical

examination at CG Hospital, Davanagere. PW16 is a

neighbour and friend of PW1. PW17 is the doctor at CG

Hospital, Davanagere, who collected the blood samples

from the victim and accused for the purpose of sending it

for DNA examination. PW18 is the doctor at CG Hospital,

Davanagere, who examined the accused and after receiving

the FSL report, has given a report as per Ex.P11. PW19 is

the doctor, who after examining the curettage specimen of

the victim girl, has given a report as per Ex.P12. PW20 is

the doctor at CG Hospital, Davanagere, who after medical
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examination of the victim girl, issued final reports as per

Exs.P13 and P14. PW21 is the doctor at CG Hospital,

Davanagere, who has examined the blood samples of the

victim and the accused and given reports as per Exs.P15

and P16. PW22 is the Asst. Engineer, who has prepared

the sketch as per Ex.P17. PW23 is the Chief Officer,

Hanagal TMC, who issued Ex.P18 – the birth certificate of

the victim girl. PW24 was working in RFSL, Davanagere.

He has given his opinion with regard to Ex.P21 issued by

the Scientific Officer. PW25 is the Investigating Officer who

has filed the charge sheet. PW26, In-charge Asst. Director

of DNA Sector, Bangalore, has issued a report, as per

Ex.P25.

17. The case of the prosecution against accused

Nos.2 and 3 is that, on 08.12.2016, at about 12.00 noon,

they along with accused no.1 in furtherance of their

common intention, forcibly gave juice to the victim and

made her intoxicated. Thereafter accused No.1 committed

rape on her against her will and without her consent. Thus
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accused No.2 and 3 abetted accused no.1 to commit the

offence.

18. In so far as allegations against accused Nos.2

and 3 are concerned, the learned Sessions Judge has held

that the evidence against them is not sufficient to prove

their guilt and acquitted them holding that their guilt has

not been proved beyond all reasonable doubts for any of

the charges leveled against them. The said finding recorded

by the learned Sessions Judge has become final.

19. It is the specific case of the prosecution that

accused No.1 used to follow and tease the victim girl. He

forced her to fall in love with him. On 08.12.2016, at about

12.00 noon, by force and putting threat, he took her to his

house. She was forced to drink juice and when she lost her

consciousness, he took her to the bedroom and committed

aggravated penetrative sexual assault against her will.

Thereafter, on several occasions, he committed aggravated

penetrative sexual assault on her in his house by

threatening her and made her pregnant. When the victim
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brought this to his notice, he administered three tablets to

her, which caused abortion. He threatened the victim not

to disclose the incident to others.

20. The first incident of rape is said to have

occurred on 08.12.2016 in the house of accused No.1.

Thereafter, on several occasions, accused No.1 is said to

have committed rape on the victim girl. Ex.P1 is the

written complaint lodged by PW1 on 10.04.2017. It is

stated in Ex.P1 that when the victim girl informed accused

No.1 that she has stopped menstruating, accused gave

three tablets to her, consuming which, there was bleeding.

In the first information report, any of the accused giving

juice to the victim girl or accused No.1 committing rape

while she was in an inebriated condition is not stated. On

the other hand, it is stated that when no one was present

in the house of accused No.1, he took the victim to his

house and committed rape. In the statement of PW2

recorded under Section 164 Cr.P.C., on 13.04.2017, PW2

has stated that on 08.12.2016 at about 12.00 noon,

accused No.1 forcibly took her to his house. His mother
15

and sister namely accused Nos.2 and 3 gave juice to her,

drinking which, she felt giddiness and thereafter, accused

No.1 committed rape on her. Then he threatened her with

dire consequences. Thereafter, on two to three occasions,

he took her to his house by threatening her and committed

sexual intercourse. She has further stated that she

developed some pain in her stomach and since there was

no regular menstruation, she informed the matter to the

accused on 06.04.2017. The accused gave three tablets

without any cover and forcibly administered those tablets

to her. On the same day, when she returned home, there

was severe bleeding which came to the knowledge of her

parents. On their enquiry, she revealed the entire incident

to them.

21. According to the first informant who is

examined as PW1, accused No.1 was pestering his minor

daughter to fall in love with him and he used to follow her

to the college and trouble her. Hence, he informed the

matter to one Leela Kumarasway, working in an NGO.

When the said person called the accused to enquire,
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accused did not cooperate. The accused was threatening

his daughter with dire consequences. PW1 has deposed

that, accused No.1 took his daughter to his house. At that

time, his parents were present. After drinking juice, his

daughter became unconscious. Thereafter, accused no.1

committed rape on her. Thereafter, he committed rape on

her on two to three occasions. When his daughter did not

menstruate, she informed the matter to the accused. At

that time, the accused forcibly administered three tablets

to her, on account of which, there was bleeding and

abortion. Coming to know about the same, when his wife,

PW3 enquired his daughter, she narrated the incident to

her.

22. PW2 in her evidence has stated that accused

used to follow her and tease her and he was forcing her to

love him. She has stated that on 08.12.2016 at about

12.30 p.m., accused forcibly took her to his house. His

sister and mother gave her juice to drink and she lost her

consciousness. Thereafter, accused took her to his

bedroom and committed rape on her. When she regained
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her consciousness and questioned him, he threatened her

with dire consequences. PW2 has stated that thereafter on

two-three occasions, accused No.1 took her to his house

and committed sexual intercourse with her. After three

months, she developed pain in her stomach and since

there was no regular menstruation, she informed the

matter to the accused. Then, he administered three tablets

to her and told her that everything will be alright and

threatened her not to disclose the incident to anyone.

Same day there was bleeding and she informed the matter

to her parents. Then her parents went to the police station

and lodged the complaint. PW3 – the mother of PW2, has

corroborated the version of PW1 and PW2. PW10 is the

brother of PW3. PW13, PW14 and PW16 are known to

PW1. They are hearsay witnesses. They have supported the

version of PW1.

23. It is relevant to see that in the first information

report, it is not stated that accused by giving juice to the

victim girl made her unconscious and thereafter committed

rape on her. The said theory is introduced for the first time
18

by PW2 in her statement recorded under Section 164

Cr.PC, which was recorded on 13.04.2017. If in fact she

was raped on 08.12.2016 by making her unconscious,

then in the written complaint lodged on 10.04.2017, the

same would have been mentioned. PW2 has admitted in

her cross-examination that she has not informed the police

about the accused giving the juice, the colour of the juice

and its flavour etc., It is stated in the first information

report that when no one was present in the house, accused

No.1 by inducing and threatening the victim girl, took her

to his house and committed rape. Therefore, the evidence

of the prosecution witnesses that the accused gave juice to

the victim girl, drinking which she became unconscious

and accused No.1 committed rape on her when she was in

an inebriated condition, does not inspire confidence.

24. It is the specific case of the prosecution that

even after 08.12.2016, accused No.1 on two-three

occasions, committed sexual intercourse with the victim

girl and since he had threatened her, she did not disclose

the incident to her parents. PW2 has deposed that accused
19

No.1 had threatened saying that he will kill her and also

commit the murder of her brother. She has deposed that

by threatening, he took her to his house on two-three

occasions and committed rape. Though PW2 has stated

that on 08.12.2016 accused No.1 committed rape on her

while she was unconscious, in the cross-examination, she

has stated that she had shouted and screamed when he

committed rape but no one came to her rescue. She has

admitted that when she came out of the house in the first

instance, she did not scream and did not inform the matter

to anyone. Even after accused took her to his house on two

three occasions, she did not inform the matter to her

parents. She has stated that when accused No.1 took her

to his house she was opposing till she reached the house.

In this regard, it is relevant to examine the evidence of the

neighbours of accused No.1 namely PW7 and PW8.

25. PW7 has deposed in his evidence that he has

seen accused No.1 coming to his house along with a girl.

He has stated that he has informed the police that the said

girl was frequently coming there. He came to know about
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the name of the said girl. Even the evidence of PW8 goes to

show that he has seen on four – five occasions, accused

No.1 going to his house along with the victim girl. Their

cross-examination reveals that, there are several houses

near the house of accused No.1 and even if there is a slight

commotion, the neighbours would come to know and they

will gather there. Their evidence does not indicate that

there was any kind of resistance by the victim. On the

other hand, the victim had accompanied accused No.1 to

his house on several occasions without any resistance. If

accused No.1 had really threatened the victim girl with dire

consequences telling her that he will kill her and her

brother if she did not cooperate and if the accused had

committed rape on her by putting threat, then certainly

she would have informed the matter to her parents or her

friends. On the other hand, she has admitted in her cross-

examination that she did not inform the matter to anyone

on the way back to her house and also did not inform the

matter to her parents. Even in the first information report,

it is not stated that accused threatened the victim saying

that he would kill her brother if she did not cooperate. The
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fact remains that as per prosecution, it is not only on

08.12.2016 that the accused committed forcible sexual

intercourse with PW2, but even thereafter, on two-three

occasions, he has committed rape on her. However, the

matter was informed to the parents by PW2 on enquiry by

her mother when she complained about stomach pain. The

evidence of PW7 and PW8 indicate that the victim had

accompanied accused No.1 to his house and they have

seen them together going to the house of accused No.1 on

four-five occasions. Hence, on a careful examination of the

evidence of the prosecution witnesses, it is difficult to

accept that the accused by making PW2 unconscious

committed rape on 08.12.2016 and thereafter on two-three

occasions he committed rape by threatening her.

26. It is the case of the prosecution that accused

No.1 forcibly administered three tablets to the victim girl

on account of which there was profused bleeding and

incomplete abortion. In the first information report, it is

stated that the accused gave three tablets to the victim girl

and asked her to swallow those tablets consuming which
22

there was bleeding. In the evidence, PW1 has stated that

accused No.1 forcibly administered three tablets to his

daughter, on account of which, there was abortion. In the

statement recorded under Section 164 Cr.P.C., PW2 has

stated that accused No.1 gave three tablets and forcibly

made her to swallow it. In her chief-examination, PW2 has

stated that accused No.1 administered the tablets to her.

However, in the cross-examination of PW2, it is elicited

from her that about four – five days prior to lodging of the

complaint, she informed accused No.1 that she has not

menstruated. On the next day, accused No.1 gave the

tablets and she consumed the tablets in her house about

four days prior to lodging of the complaint. Next day, there

was bleeding. This admission by PW2 goes to show that

accused No.1 did not forcibly administer the tablets to her.

On the other hand, he gave the tablets to PW2 and she

consumed it in her house about four days prior to lodging

of the complaint. On the next day of consuming the

tablets, there was bleeding.

23

27. PW2 has categorically stated in her evidence

that immediately when she started bleeding, she informed

the matter to her parents on enquiry by her mother and on

the very same day, she along with her parents went to the

police station and a complaint was lodged. However, the

tenure of her cross-examination clearly go to show that

about three days after she started bleeding, complaint was

lodged. According to PW3, they came to know about the

incident on 10.04.2017. PW3 has stated that about four-

five days prior to 10.04.2017, her daughter was

complaining about stomach pain and her daughter was

bleeding. On enquiry, her daughter disclosed about the

incident. Immediately, she informed the matter to her

husband and they went to the police station and lodged a

complaint.

28. The learned counsel for the appellant has

drawn the attention of this court to the evidence of PW20,

the Senior Medical Officer of CG Hospital, Davanagere. In

her evidence, PW20 has stated that the victim informed

about the history of the incident. According to the history
24

furnished, mother of the victim after doing a UTP test

which came positive, went to a Gynecologist. It is

vehemently contended by the learned counsel that the said

fact has been suppressed by PWs.1 to 3. It is contended

that when victim did not menstruate, a UTP test was done

and since the test was positive, PW2 was taken to a

Gynecologist and there are chances that they tried to

remove the fetus and therefore there was abortion and

bleeding.

29. PWs.1 to 3 have not at all stated about the UTP

test conducted by PW3 and the victim-PW2 having been

taken to a Gynecologist prior to lodging of the complaint.

PW20 in her evidence has stated about the history given by

the victim girl. According to her, victim has stated that the

accused gave juice to her two-three times and then she did

not know what has happened. On 07.04.2017, her mother

did a UTP test and she was taken to the Gynecologist. As

per the history given by PW2, on 08.04.2017, accused gave

three tablets and on 09.04.2017 she had bleeding and

there was blood clumps found in the bathroom.
25

30. In the cross-examination, PW20 has stated that

after the UTP test done by the victim’s mother, victim was

taken to a Gynecologist. She has stated that on

10.04.2017 when she examined PW2, there was bleeding.

PW20 has stated that even if the tablets are consumed on

the advice of a doctor, there could be abortion. Even when

pregnancy is terminated medically, there could be abortion

and bleeding.

31. The evidence given by PW20 is not denied by

the prosecution witnesses. What was the test conducted by

the said Gynecologist or the advise given by her is not

forthcoming. Suppression of PW3 taking the victim girl to

the Gynecologist after conducting a UTP test gives room to

doubt as to whether the abortion took place on account of

consuming the tablets administered by accused No.1 or as

to whether it was at the intervention of the Gynecologist

before whom PW2 was taken by her mother prior to lodging

of the complaint. Further, According to the prosecution,

accused No.1 gave three tablets to the victim girl,

consuming which she started bleeding and there was
26

abortion. There is absolutely no investigation as to from

where the accused obtained those tablets and also the

name of the tablets. Hence, in the background of the

history furnished to PW20, unless there is convincing

material to show as to what are the tablets given by

accused No.1, merely on the oral evidence of the

prosecution witnesses, it cannot be held that either the

accused gave tablets to the victim or that by consuming

the tablets administered by him, there was abortion.

32. Another aspect is that the blood sample of the

victim girl was sent for toxicology examination. The report

issued by RFSL Davanagere marked as Ex.P21 goes to

show that ‘residues of barbiturates, benzodiazepine group

of drugs, alkaloids and antiprojestogenic steroid were not

detected. PW24 has specifically stated that the same are

not detected’. However, strangely PW20 has stated that the

same were detected as per the report issued by the

toxicology department. Hence, PW20 was of the opinion

that the same could be the result if a person is

administered tablets and I.V. sedation. When PW24 has
27

categorically stated that such drugs are not detected, then

the evidence of PW20 and her opinion stating that they are

detected which could be the result of some tablets and I.V.

sedation is misleading and totally unacceptable.

33. PW20 has stated that bleeding and stomach

pain are the symptoms of incomplete termination of

pregnancy. She has stated that according to the scanning

report, there was retained product of conception. After

examination of the victim girl, she has opined that the

hymen was ruptured. There was no external injuries on

her body. Samples taken from the victim were sent to

pathology department. PW19 has stated that she has

received curettage specimen sent from the CG Hospital and

on microscopic examination, she has detected chorionic

villi and gave a report as per Ex.P12 that it is a product of

conception, which is due to incomplete abortion. PW20 has

stated that she has received a DNA report stating human

origna and female sex. She has given her final opinion

stating that ‘Primigravida with fifteen weeks (3½ months)

of amenorrhea with history of intake of MTPK with
28

incomplete abortion, confirmed as product of conceptus in

histo-pathology report and human origin and female sex in

DNA report RFSL’. The reports are marked as Ex.P13 and

Ex.P14.

34. PW26 has stated that on examination of the

three articles received by him and after conducting DNA

examination, it was found that the DNA profile result of

the victim and curette specimen were identical and

matching with each other indicating that the contributor of

blood clots found in item No.3 was the victim.

35. From the medical evidence on record, the

prosecution has been able to establish that the victim

conceived and thereafter there was an incomplete abortion.

The contention of the learned counsel for the appellant is

that the paternal relationship of the curettage specimen

has not been established and therefore it is contended that

the prosecution has not proved beyond all reasonable

doubt that the accused No.1 is the culprit. However, PW2

the victim girl has categorically stated that it is accused
29

No.1 who has committed sexual intercourse on 08.12.2016

and two-three times thereafter. That part of the evidence

given by PW2 is consistent.

36. The defence taken by the accused was that a

year prior to lodging of the complaint, accused No.2 was

working as a maid servant in the house of PW1 and some

times, accused No.3 i.e., the sister of accused No.1 was

also working as a maid servant whenever accused No.2

was on leave. On 09.04.2017, when accused No.3 had

been to the house of PW1, he attempted to sexually abuse

her. Accused No.3 informed the matter to her mother and

brother. Hence, to lodge a complaint, accused No.1 went to

the police station. To cover up his misdeeds, PW1 by

making false allegations lodged a frivolous complaint

against accused Nos.1 to 3.

37. The learned counsel for the appellant by

drawing the attention of this court to the evidence of PW1

has contended that when PW1 and others went to the

police station to lodge the complaint, accused No.1 was
30

already present there and therefore, it was accused No.1

who went to the police station in the first instance to lodge

a complaint against PW1. However, his complaint was not

received by the police, but a false case was registered on

the complaint lodged by PW1.

38. PW1 in the cross-examination has stated that

when they went to lodge the complaint, accused No.1 was

present in the police station. PW3 also in her cross-

examination has stated that the accused No.1 was present

in the police station when they went to lodge the

complaint. PW1 has clarified by saying that after he

informed the police about the injustice caused to his

daughter, the police secured accused No.1 to the police

station. However, the said admission given by the

witnesses does not establish that accused No.1 went to the

police station to lodge a complaint against PW1 and that

PW1 tried to commit sexual assault against the sister of

accused No.1. The witnesses have categorically denied the

said suggestion. The defence has failed to show that either

accused No.2 or 3 were working as maid servants in the
31

house of PW1 or that a day prior to lodging of the

complaint, PW1 tried to commit sexual assault on accused

No.3. Hence, the defence taken by the accused cannot be

accepted as there is not even an iota of evidence in that

regard.

39. The learned counsel for the appellant has

placed reliance on a decision in the case of ‘State of

Karnataka vs. Mapilla P.P. Soopi’ (supra), wherein the

Hon’ble Apex Court in the facts and circumstances of the

said case has held that there was no any forceful assault

and acquitted the accused in view of undue delay in

lodging the complaint.

40. The learned counsel has relied on a decision in

the case of Sania Jani vs. State (supra), to contend that

there is no convincing evidence to show that PW2 offered

any resistance and there is no mention of injury found

either on her private part or anywhere on her body and

therefore the accused is entitled to the benefit of doubt.
32

41. Relying on a decision reported in the case of

‘Bhika Ram vs. State of Rajasthan, (supra), the learned

counsel contends that inordinate delay in lodging the

complaint is fatal to the prosecution case.

42. Relying on a decision reported in ‘Khali Ram vs.

State of H.P.’ (supra) the learned counsel contends that in

a criminal trial, it is for the prosecution to prove the

different ingredients of the offence and unless it discharges

that onus, it cannot succeed. He contends that if two views

are possible on the evidence adduced in the case, one

pointing to the guilt of the accused and the other to his

innocence, the view which is favourable to the accused

should be adopted. Relying on the said decision, he

submits that the guilt of the accused has to be adjudged

not by the fact that a vast number of people believe him to

be guilty but whether his guilt has been established by the

evidence brought on record.

43. The learned counsel for the appellant, relying

on a decision in the case of ‘Peter Fernandes vs. State’
33

(supra) has contended that paternity test is inconclusive

and there are inconsistencies in the evidence of the

prosecutrix. Hence, conviction of the accused cannot be

based on such evidence.

44. The learned counsel has also relied upon a

decision of this Court in ‘Nagappa vs. State’ (supra).

However, the said decision is not applicable to the facts of

the present case, as in the said case, the prosecutrix and

the parents have turned hostile and this court was of the

view that in such circumstances, only because the DNA

test has given a positive result, it is unsafe to convict the

accused.

45. In ‘Shri Dadakhalandar vs. State’ (supra), this

court has observed that it is the fundamental basic

principles of criminal jurisprudence that the prosecution

has to prove the case beyond reasonable doubt. If any

reasonable doubt occurs to the mind of the court that if

that doubt is sufficient to totally uproot the case of

prosecution or suspicion occurred, if it is not satisfactorily
34

explained by the prosecution, under all those

circumstances, the benefit of such doubt should be

extended in favour of the accused.

46. There is no dispute with regard to the

proposition of law laid down in the decisions relied upon

by the learned counsel for the appellant. The nature of

evidence required to lend assurance to the testimony of the

prosecutrix must necessarily depend on the facts and

circumstances of each case. In the present case, even

though the prosecution has failed to establish that PW2

suffered incomplete abortion due to the consumption of

tablets administered by accused No.1, the totality of the

circumstances appearing on the record and on a careful

perusal of the entire evidence and in particular, the

evidence of prosecutrix namely PW2, it can be safely

gathered that accused No.1 has committed penetrative

sexual assault against PW2. However, on a close scrutiny

of the entire material on record, this court is of the view

that the prosecution has failed to establish beyond all

reasonable doubt that sexual act committed by accused No.1
35

against PW2 was either by inducement or by putting threat

on her life or on the life of her brother. The evidence on

record clearly suggests that PW2 herself accompanied

accused No.1 to his house when no one was present in the

house on 08.12.2016 and thereafter on several occasions,

she accompanied accused No.1 to his house. There was

ample opportunity for PW2 either to resist the act of

accused No.1 or to inform the matter to others including

her parents. However, only on an enquiry by her mother,

when PW2 developed stomach pain and her menstrual

cycle was stopped, she informed the matter to her parents

and complaint came to be lodged on 10.04.2017. From the

material on record, it cannot be said that consent was

given under fear of injury or under a misconception of fact.

The conduct of the prosecutrix goes to show that she was a

consenting party and there was consent on her part in the

act committed by accused No.1.

47. PW3 – the mother of the victim girl, has

admitted in her cross-examination that accused no.1 was

known to them from his childhood and for that reason,
36

accused No.1 and her daughter were talking to each other.

Though the prosecution has alleged that accused No.1 was

following and teasing the victim girl and he was troubling

her, there is no convincing evidence to hold that either

accused No.1 was giving trouble to PW2 or that he was

threatening her and forcing her to love him. As noted

above, if there was any threat to the life of PW2 or to her

brother, then, certainly, this could have been informed to

the police. In the complaint, it was stated that since the

accused was following and teasing the victim girl, the

matter was brought to the notice of one Leela

Kumaraswamy working in an NGO. The best evidence,

prosecution could have placed in this regard is the

evidence of the said independent witness. However, the

said witness is neither named in the charge sheet nor has

been examined before the Court.

48. It is the specific case of the prosecution that the

victim was a minor at the time of incident. If that is so,

consent if any on the part of the victim girl is not a consent

in the eye of law. However, the onus is on the prosecution
37

to convincingly establish that the victim was a minor at the

time of alleged incident.

49. To establish that the prosecutrix was a minor,

the prosecution has produced and marked Ex.P18, the

birth certificate. PW23 is the Chief Officer, Hanagal TMC,

who has issued Ex.P18. According to the said document,

the date of birth of the victim girl is 17.09.1999, which

means that at the time of incident, PW2 was aged about 17

years 3 months and therefore she was a minor. The

defence has seriously disputed the said document issued

by PW23. It is contended that the parents of PW2 are the

residents of Davanagere and they never resided at Hanagal

which is in Haveri District and therefore, the birth

certificate issued by the Hanagal TMC is a concocted

document. The learned counsel has drawn the attention of

this court to the admission given by PW3 – the mother of

the victim girl. In her evidence, PW3 has deposed that they

are residing in Davanagere for the past twenty years. She

has stated that her daughter was born in the hospital and

she has handed over the hospital records to the police. In
38

Ex.P18, the place of birth of the victim girl is shown as

Community Health Centre, Hanagal. If according to PW3,

she has handed over the hospital records to the police,

then nothing prevented them to produce and mark the

same. The evidence of PW3 was recorded on 20.01.2018.

When there is a specific admission given by PW3 that they

are residing in Davanagere for the past twenty years and

when it is nowhere stated that victim girl was born in

Hanagal, then a doubt arises in the authenticity of Ex.P18

issued by PW23. None of the witnesses have stated that

PW1 and PW3 at any point of time were residing in

Hanagal and the birth of PW2 took place at Hanagal. PW23

has stated that according to the register, the name of the

victim was recorded in the year 1999. The place of birth is

shown as per the Hospital records. However, he has stated

that he has not brought the said register before the Court.

The Investigating Officer – PW25 has stated that on

25.05.2017, he gave a requisition to the Chief Officer of

Hanagal TMC and obtained Ex.P18. Perusal of Ex.P18

shows that date of its issue is on 06.05.2017. PW23 has

stated that he does not remember as to whether he issued
39

Ex.P18 at the request of the police or the first informant.

According to PW3 date of birth certificate was given to the

police by them. Considering all these aspects, a doubt

arises with regard to Ex.P18 and the actual date of birth of

the victim girl.

50. The learned Sessions Judge has observed that

for non production of the original register, the entire

evidence of PW23 and the document/Ex.P18 cannot be

brushed aside. Document like Ex.P18 – Birth Certificate is

the first and foremost document to prove the date of birth.

The learned Sessions Judge therefore relied on Ex.P18 and

held that the victim was a minor. In this regard, it is very

relevant to examine the evidence of PW20, the Senior

Medical Officer working at CG Hospital, Davanagere. In her

evidence, she has stated that as per the x-ray report, the

age of the victim girl was estimated to be above 18 years

and below 21 years and as per dental examination, her age

was between 18 and 19 years. Strangely, those reports are

not placed on record. On the other hand, they are

suppressed by the prosecution.

40

51. The learned counsel for the appellant would

contend that in the facts and circumstances of the case,

considering the nature of evidence on record, two years

have to be added to the age of the prosecutrix and

therefore at the time of the incident in question, the

prosecutrix was a major and not a minor as alleged by the

prosecution.

52. The learned HCGP has relied upon the decision

of the Hon’ble Apex Court in the case of ‘Chhotey Lal’

(supra) to contend that there is no such rule much less an

absolute one that two years have to be added to the age of

prosecutrix. He contends that rape is a heinous crime and

once if it is established, then, a suitable punishment

should be awarded to the crime doer and therefore seeks to

reject the contention of the learned counsel for the

appellant.

53. In the aforesaid decision relied upon by the

learned HCGP, the Hon’ble Supreme Court has held that
41

there is no such rule, much less an absolute one that two

years have to be added to age determined by a doctor. In

the said case, the doctor on basis of her x-ray as well as

her physical examination, opined that prosecutrix was of

17 years. The High Court was of the opinion that age of

prosecutrix could be even 19 years, done by adding two

years to age opined by doctor. The Apex Court therefore

held that the High Court erred in observing as aforesaid.

54. In the instant case, PW20 – Senior Medical

Officer, CG Hospital, Davanagere, herself has stated that

as per the x-ray report, the prosecutrix was aged above 18

years and below 21 years and as per dental examination,

she was between 18 and 19 years. PW20 has admitted in

her cross-examination that the x-ray report and the dental

examination report have been brought by the police to take

the opinion. The prosecution has not produced the said

documents, on the other hand has suppressed the same.

When the evidence of PW20 has not been controverted or

disputed by the prosecution, then, as per the medical

examination reports, the prosecutrix cannot be said to be a
42

minor at the time of the incident. In the background of the

doubt raised with regard to the genuineness of Ex.P18, the

evidence given by PW20 regarding the estimation of age of

the prosecutrix assumes importance. Therefore, the

prosecution has failed to establish beyond doubt that the

prosecutrix was a minor at the time of incident. The

prosecution has also failed to establish that accused No.1

committed sexual intercourse against the victim without

her consent by inducing or putting threat to her and that

the prosecutrix suffered incomplete abortion due to

consumption of tablets administered by the accused.

55. For the foregoing reasons, I am of the

considered view that the trial court was not proper in

convicting accused No.1 for the charged offences against

him. The reasons assigned by the learned Sessions Judge

are not in consonance with the evidence and material on

record and without properly appreciating the admissions

given by the prosecution witnesses, which goes to the root

of the prosecution case. The impugned judgment and order

of conviction and sentence passed against accused No.1 is
43

therefore liable to be set aside. The points raised are

answered accordingly. Hence, I pass the following :

ORDER

The appeal is allowed. The impugned judgment and

order of conviction and sentence dated 21.01.2019 passed

by the II Addl. District and Sessions Judge and Special

Judge, Davanagere in SC No.103/2017, against

appellant/accused No.1 for the offences punishable under

Sections 376, 313 and 506 of IPC and Section 6 of POCSO

Act, 2012 is hereby set aside.

Appellant-accused No.1 is acquitted of the aforesaid

offences. He shall be set at liberty forthwith, if not required

in any other case.

Fine amount if any is deposited by the appellant, the

same shall be refunded to him.

Registry is directed to communicate the operative

portion of the order to the concerned jail authorities.

Sd/-

JUDGE
Snc

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