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Miss Kalavathi vs Madivalappa on 9 July, 2021

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CRL.A.NO.100095/2017

1

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.
CRL.A.NO.100095/2017

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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:
CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

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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.

CRL.A.NO.100095/2017

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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.

CRL.A.NO.100095/2017

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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.

CRL.A.NO.100095/2017

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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.

CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

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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:

CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

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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,
CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

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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.

CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

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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.

CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

23

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
CRL.A.NO.100095/2017

24

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
CRL.A.NO.100095/2017

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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
CRL.A.NO.100095/2017

26

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
CRL.A.NO.100095/2017

27

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.

CRL.A.NO.100095/2017

28

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
CRL.A.NO.100095/2017

29

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£ÉÃ
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.

CRL.A.NO.100095/2017

30

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
CRL.A.NO.100095/2017

31

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
CRL.A.NO.100095/2017

32

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
CRL.A.NO.100095/2017

33

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
CRL.A.NO.100095/2017

34

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
CRL.A.NO.100095/2017

35

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
CRL.A.NO.100095/2017

36

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
CRL.A.NO.100095/2017

37

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
CRL.A.NO.100095/2017

38

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
CRL.A.NO.100095/2017

39

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.

CRL.A.NO.100095/2017

40

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
CRL.A.NO.100095/2017

41

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.

Sd/-

JUDGE

Sd/-

JUDGE
Rsh

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