1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24TH DAY OF APRIL 2019
BEFORE
THE HON’BLE MR. JUSTICE BELLUNKE A.S.
CRL.A NO 100039 OF 2019
BETWEEN
1. SADDAM HUSSEN MAHIBBOB MULLA,
AGE: 23 YEARS, OCC: MASON WORK,
R/O: RAIBAG, PUNGITOTA, TQ: RAIBAG,
DIST: BELAGAVI.
2. YUSUF NOORUDDIN MULLA,
AGE: 25 YEARS, OCC: MASON WORK,
R/O: RAIBAG, PUNGITOTA, TQ: RAIBAG,
DIST: BELAGAVI.
3. ADAM GULABSAB HIPPARAGI @ MULLA,
AGE: 23 YEARS, OCC: MASON WORK,
R/O: RAIBAG, PUNGITOTA, TQ: RAIBAG,
DIST: BELAGAVI.
….. APPELLANTS
(BY SRI A G MULAWADMATH, ADV.)
AND
STATE OF KARNATAKA
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
DHARWAD.
REPRESENTED RAIBAG POLICE STATION.
….. RESPONDENT
(BY SRI R. RAVINDRA NAIK, HCGP)
2
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING THAT THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE PASSED BY THE III-ADDL.
DIST. SESSIONS JUDGE SPECIAL COURT UNDER
POCSO ACT, 2012 AT BELAGAVI PASSED IN
S.C.NO.202/2016 DATED 10.01.2019 AND SENTENCE
DATED 11.01.2019 AND THEREBY CONVICTING THE
APPELLANTS FOR THE OFFENCES U/S 341, 376, 506 OF
SectionIPC AND U/S 109 R/W 34 OF SectionIPC AND SEC. 17, 4, 5(n), 6
18 OF THE POCSO ACT, BE SET ASIDE.
RESERVED FOR JUDGMENT ON : 03.04.2019
JUDGMENT PRONOUNCED ON : 24.04.2019
THIS CRIMINAL APPEAL, HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING :
JUDGMENT
This is an appeal preferred by the accused
Nos.1 to 3 against the judgment and order of
conviction and sentence dated 10.01.2019 passed
by the learned III Addl. District and Sessions
Judge Special Court under POCSO Act, 2012 at
Belagavi, in S.C.No.202/2016.
By the impugned judgment, the accused have
been convicted for the offence punishable under
Section 341 of IPC and sentenced to undergo
3
simple imprisonment for one month and to pay
fine of Rs.5,000/- each;
Accused are convicted for the offence
punishable under Section 506 of IPC and
sentenced to undergo simple imprisonment for one
year and to pay fine of Rs.5,000/- each;
Accused are further convicted for the offence
punishable under Section109 of SectionIPC and Section 17
of POCSO Act, 2012 and sentenced to undergo
simple imprisonment for ten years and to pay fine
of Rs.10,000/- each;
Accused are further convicted for the offence
punishable under Section 4 of the POCSO Act and
sentenced to undergo simple imprisonment fro
seven years and to pay fine of Rs.5,000/- each;
Accused are further convicted for the offence
punishable under Section 5(n) 6 of POCSO Act,
2012 and sentenced to undergo simple
imprisonment for ten years and to pay fine of
Rs.10,000/- each; and
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Accused are further convicted for the offence
punishable under Section 18 of the POCSO Act,
2012 and sentenced to undergo simple
imprisonment for seven years and to pay fine of
Rs.5,000/-.
2. Briefly stated the facts of the case are
as under:
The complainant’s daughter aged about 11
years was staying in the house of the elder sister
of the complainant and she was pursuing her
studies at Kudachi in 5th standard. The
complainant’s sister’s daughter had delivered a
baby. Therefore, in order to help her aunt, the
victim girl was staying in her house. According to
the complainant, on 14.03.2016, the victim
girl/CW-8 was reported to be suffering from
stomach pain. Therefore, the accused No.1 took
her in a Martui car bearing registration No.MH-
12AF/8875 to the hospital at Raibag. After taking
5
treatment, the victim and accused No.1 were
returning home in the said car. When they reached
near taluk sports ground situated on Raibag-
Kanchakar wadi road, on the eastern side, within
the limits of Raibag Police station, the accused
No.1 stopped the car on a false pretext, that the
car is locked. Then, the accused No.1 called
accused Nos.2 and 3 over a phone. It is alleged
that the accused No.1 with the help of accused
Nos.2 and 3 raped the victim girl CW-8. They
committed the act under a common intention
knowing fully well that the victim girl is a minor,
They wrongfully restrained her by holding her
hands and legs by accused Nos.2 and 3, then
accused No.1 committed the offence. Accused No.1
also threatened to the life of the victim if she
discloses this fact to anybody. Ten days after the
incident the girl narrated the incident to wife of
accused No.1. She in turn told the same to her
mother. She called the victim’s father and told
6
him the fact. Thereafter, a complaint came to be
filed by PW-1 as per Ex.P-5.
After registering the complaint, jurisdictional
police took up the investigation. The statement of
the victim was also recorded under Section 164 of
Cr.P.C. before the learned Magistrate. Accused
and victim were subjected for medical
examination. The school certificate of the victim
was obtained from her school to prove that she
was minor. The car used for carrying the victim
was also seized under a mahazar. The seized
articles were also sent for FSL examination. The
statements of material witnesses were recorded.
After the completion of investigation, the
Investigating Officer filed charge sheet against the
accused persons.
Learned Spl. Judge took the cognizance of
the offence punishable under Sections 341, Section376,
Section506, Section109 read with Section 34 of IPC and Sections
4, 6, 5(n), 17 and 18 of POCSO Act. At this stage,
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it is important to state that in fact, this case
should have been registered as special case as the
offences alleged are under the POCSO Act, 2012,
which is a special enactment. The learned Judge
secured the presence of the accused who were in
judicial custody. After hearing both the sides,
charges came to be framed. After holding trial
and on hearing both the sides, learned Judge held
that the accused are guilty of the offences
punishable under Sections 341, Section376, Section506, Section109
read with Section 34 of IPC and Sections 4, 6,
5(n), 17 and 18 of POCSO Act. Consequently,
learned Judge convicted the accused Nos.1 to 3 as
stated above.
3. Being aggrieved by the said judgment,
the accused have preferred this appeal on
following grounds:
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It is contended that the trial Court has not
properly appreciated the oral and documentary
evidence available on record.
The medical report at Ex.P-12 specifically
discloses that there were no external injuries on
the body of the victim and also on her genitals.
The doctor PW-11 had issued medical certificate at
Exs.P-12 and 13. The doctor has categorically
opined that no sexual assault has taken place on
the victim girl. Therefore, the conviction of the
accused persons for the offence punishable under
Section 376 of IPC and under Sections 4, 6 and 18
of POCSO Act is not just and proper.
The victim has also admitted that she was
studying in 5 t h standard in the month of March,
2016 and she had attended the school at Kudachi
and she had written the examination for 5th
standard. Therefore, the question of victim coming
to the house of PW-7 and accused No.1 during the
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examination time that too a month prior to the
alleged incident cannot be believed.
PW-7 is the wife of accused has admitted that
there is no cordial relationship between them.
Therefore, in order to get rid of from accused No.1
and to stay with the complainant, she had hatched
a plan and implicated the accused No.1 and to
make the offence more aggravated, she has falsely
implicated the accused No.2 and 3.
The Investigating Officer has not conducted
fair investigation and has not collected the
evidence of as to whether the victim girl was
staying in the house of PW-7 and accused No1. He
has not collected any documents with regard to
having taken the girl for treatment to doctor.
Having regard to the age of the girl, accused No.1
alone could have committed rape on her.
Therefore, there was no reason for him to ask for
help to accused Nos.2 and 3. Therefore, the fact
that the accused No.1 has summoned the accused
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No.2 and 3 to commit rape on the victim girl is
totally false and concocted theory.
PW-12 is stated to be the owner of the car
which is alleged to have been used to commit
offence. He has admitted that he is a cook and
earning hardly Rs.2,000/- to Rs.4,000/- per
month. He did not know that accused No.1. He
admitted that police forced him to say that he has
given car to accused No.1. The car belonging to
the ownership of one Nayana Pol who has not been
examined. The prosecution has planted the car to
implicate the accused persons to show that the
crime was committed using the car.
Even as per the medical evidence, hymen of
the girl was found to be intact. There were no
injuries. No seminal stains were found. Therefore,
totally there was no penetration at all. The trial
Court on presumption and assumption, on certain
aspects and considering the fact that the incident
had taken place ten days prior to the examination
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of doctor, held that prosecution has proved the
guilt of the accused beyond any reasonable doubt.
The trial Court based on surmises and
conjurers and baseless presumptions has given
reasoning that no person will go to the extent of
risking their reputation and will come forward to
make a false case of rape. Therefore, believing
the evidence on the said assumption is erroneous
in law.
Accused No.1 has not at all taken the victim
in any car to any place. The use of force to
commit offence is contrary to reasons stated by
the trial Court in paragraph 55 of the judgment.
The reasoning would go to show that the trial
Court has observed that it might be a case of
attempt to rape. Therefore, none of the alleged
offences were proved beyond any reasonable
doubt.
The trial Court suddenly came to the
conclusion that the offences against the accused
12
have been proved. The trial Court committed an
error in holding that the witnesses corroborated
their versions with each other is not at all correct.
The punishment awarded is also excessive in law.
The entire case is concocted by the wife of the
accused No.1 in collusion with the complainant.
Hence prayed to allow the appeal and set aside
the judgment of the trial Court and acquit the
accused.
4. Learned counsel for the appellants,
further argued that there was inordinate delay in
filing the complaint by the father of the victim.
They got filed a typed complaint in order to
implicate the accused persons falsely. The
complainant was having illicit relationship with the
wife of accused No.1/PW-7. Accused No.1 and PW-
7 were not residing together much prior to the
incident in question. Therefore, it is the wife of
accused No.1, who hatched a plan and implicated
13
the accused persons falsely by using the minor
victim. The girl was studying at Kudachi. She had
no reason to come to Raibag. Accused No.1 taking
away the minor girl on false pretext is not proved.
If at all the girl was taken out for treatment, she
could have been taken for the treatment in that
place itself where she was residing. The manner of
incident made out by the prosecution is highly
unbelievable. There was no reason for the accused
No.1 to call accused Nos.2 and 3 to commit rape
on the victim girl. The accused Nos.2 and 3 have
been falsely implicated with accused No.1 in this
case. The medical evidence is totally against to
the prosecution case. Penetration in any manner
has not at all been proved. Therefore, none of the
alleged offences are attracted to the case in hand.
There is no relationship whatsoever between the
accused and the car owner and then how the car
owner could give his car to an unknown person.
At the time of incident, the alleged car was in the
14
possession of the owner. The car owner was
forced to say against the accused by the police. It
is only after the police informing him, he came to
know about accused No1. The alleged car owner is
from Miraj. There is no evidence to show that he
owns a car. The complainant had four children.
He is resident of Kudachi where the victim was
residing and attending her school. The victim was
residing in her father’s sister’s house at Kudachi.
There was no reason for the victim girl to come
and stay with PW-7 who is the wife of accused
No.1. It is alleged that PW-7 has given birth to a
child, even though she had no physical contact
with her husband for pretty long time. When
accused No.1 was in custody the wife delivered a
child after nine months. There was no cordial
relationship between the accused No.1 and his
wife PW-7. The fingerprints on the car seats or
any stains are not at all collected by the
Investigating Officer. No marks were found in the
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place of incident. The complainant CW-1 had affair
with the wife of accused No1. It is them who
hatched a plan to implicate the accused No.1 and
accused Nos.2 and 3 are relatives they are also
implicated. The medical evidence is totally zero.
The victim girl is a tutored witness. Totally it is
false and concocted case. Therefore, learned
counsel has prayed to allow the appeal and acquit
the accused persons.
5. Learned HCGP argued that there are no
evidence to disbelieve the version of the victim.
On account of threat to the life, the girl has not
disposed the fact to anybody. In fact, the wife of
accused No.1 has given evidence against her
husband. Therefore, the happening of the incident
has to be believed. The minor girl was in the
house of accused No.1 and PW-7. Referring to
paragraph 25 of the judgment, learned HCGP
submitted that the guilt of the accused persons
16
has been proved beyond any reasonable doubt and
prayed to dismiss the appeal.
6. Learned counsel, in reply, submitted
that victim was studying in Kudachi School. She
had no reasons to come to Raibag. The owner of
the car never met any of the accused. The
complaint is concocted the wife of accused No.1 in
order to take vengeance against her husband and
to avoid him as he would not come in the way of
having affair with father of the victim. Hence, he
prayed to allow the appeal.
7. On the basis of the above said facts and
arguments and pleading of the parties, the
following points would arise for consideration:
1) Whethe r the prosecutio n had prove d
before the trial Court that the accused
persons No.1to 3 knowing fully we ll that
the victim was a minor, accused No .1 took
her to hospital fo r treatment in a car and
while returning committed rape on her
with the help of accused Nos.2 and 3 who
held her hands and legs and the reby had
17committed offences punishable under
Sections 341, 376, 506, 109 read with
Section 34 o f I PC and under Sections 4, 6,
5(n) , 17 and 18 o f POCS O Act?
2) Whethe r the appellants pro ve that the
impugne d judgment of convictio n and
sentence imposed on the accused is ille gal,
perve rse, capricious and against to the
evide nce on record, the refo re it is liable to
be set aside ?
8. The matter was listed for hearing for
suspension of sentence and releasing of accused
on bail. Learned counsel for the accused
elaborately submitted the arguments touching the
merits of the case. Arguments were almost heard
on all the points involved in the appeal. Therefore,
after hearing the learned counsel for appellant and
learned HCGP, it was thought fit to take up the
case for final hearing and also that the accused
are in custody. Therefore, the matter was taken
up for final disposal.
9. Upon hearing learned counsel for the
appellants as well as learned HCGP, considering
the facts and circumstances of the case, I am of
the considered opinion that the evidence on record
18
has to be once again meticulously requires
appreciation with an open mind. Therefore, I first
proceed to examine the circumstances that are
appearing in the case, on which an inference can
be drawn. This exercise has to be done because it
will enable the Court to appreciate the evidence on
record and to take a decision as to whether the
evidence adduced by the prosecution is
trustworthy or not.
10. It is well established principle of law
that, it is the bounden duty of the prosecution to
prove the guilt of the accused beyond any
reasonable doubt. The contradictions, omissions
and discrepancies which are material would go
against the prosecution beyond any reasonable
doubt arising out of these points. The benefit of it
will enure to the accused.
11. The first and foremost fact to be taken
into consideration in this case is the delay in filing
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the complaint. The incident is said to have
occurred on 14.03.2016 but complaint came to be
filed nearly ten days after the incident.
The next circumstance that has to be
considered is non-existence of any injuries on the
victim and also on her genitals.
The medical evidence on record is also not
supporting the case of the prosecution.
The next circumstance to be taken into
consideration is why the wife of accused No.1
should give false evidence against her husband in
such a serious case. Whether there was any
motive for the wife of the accused No.1 to
implicate her husband in this case.
The relationship between the accused No.1
and his wife is alleged to be strained. She is said
to have given birth to a child even after having no
contact with the accused No.1 for over a period of
nine months.
20
The manner of incident of rape alleged to
have taken place.
Lastly, the fact which has to be borne in mind
is as to whether there was any possibility of victim
being tutored to give evidence against the
accused.
Therefore, I will first find out whether the
trial Court has appreciated the evidence keeping in
mind the above said facts which are not only made
out in the arguments alone but also pointed out
that they are based on the records.
12. PW-5 is the father of the victim
whatever he has stated is a hearsay, heard from
the victim as well as the wife of accused No.1
namely PW-7. He admits that his daughter victim
girl was studying in a school at Kudachi and he
had kept her in his sister’s house. When it was
suggested that his daughter/victim girl was going
to school everyday, he admits that she left the
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school. He states that he has not enquired his
daughter whether she was going to school or not.
Then he do not know how was the relationship
between the accused No.1 and his wife. He did not
know that the wife of accused No.1 had consumed
poison after marriage of five months. He did not
know that in the year 2015, the wife of accused
No.1 had given birth to a child. Thereafter accused
No.1 and his wife/CW-9 were living separately.
Then in the further examination he admits that his
daughter was studying in 5th standard in the
March. He admits that he do not know whether
his daughter PW-6 had appeared for 4th class
examination in the month of March. He also does
not know whether she had completed her 4th
standard and had joined 5 t h standard. When he
received information about the incident on
22.03.2016 over a phone, he did not immediately
come to Raibag but had gone to Kudachi and he
immediately did not file any complaint. According
22
to him, he came to Belagavi SP office and
informed the matter but not filed any written
complaint. He admits that he had no difficulty in
filing the written complaint. He has also not
mentioned in his complaint that when his sister
had come to know about the incident. To the
question that whether his daughter was threatened
by accused No.1 not to disclose the incident and
on the date of filing of complaint, whether
anybody gave protection to him and his daughter,
the witness answered he do not know. He further
admitted that PW-7 is his sister’s daughter. He
admits that he is aged about 36 to 37 years and
he do not know that PW-7 is aged about 26 years.
He denied that he intended to marry PW-7. He
denies that he instigated the PW-7 to leave her
husband. He denied that in order to avoid accused
No.1 and himself and family members together
joined and filed a false complaint in order to spoil
the life of accused No.1.
23
13. On perusal of the above evidence on
record having regard to the nature of suggestions
made by the defence counsel to PW-5 and the
answers given by him with regard to his
daughter’s education and strained relationship
between the accused No.1 and his wife etc. would
certainly raise a reasonable doubt in the minds of
the Court. Therefore, his evidence cannot be
believed without due corroboration. Moreover,
regarding the incident in question is concerned, it
is the evidence of victim alone that plays an
important role. At the most, the only inference
that can be drawn from the evidence of PW-5 is
that he was informed about the incident by his
daughter and PW-7. It is important to note that in
his evidence, he has not at all stated as to why his
daughter had gone to Raibag to the house of
accused No.1 and PW-7. It is not even stated in
examination-in-chief that his daughter was sent to
the house of accused No.1 to look after PW-7 who
24
is said to have delivered a child. What a 5 t h
standard girl could have assist the lady who had
given birth to a child is a matter to be taken into
consideration. When that fact is not at all
deposed by PW-5, father of the victim then his
evidence has to be doubted.
14. PW-6 is the victim. According to her,
she was residing in the house of her father’s
sister’s house for pursuing her studies at Kudachi.
Then she deposed that about a year back she had
stomach pain. Therefore, she was taken to Patil
Hospital at Raibag by accused No.1 in a car. At
about 7.00 in the evening and after she was shown
to the doctor in Patil Hospital, herself and accused
No.1 where returning in the car. When the car
reached near Raibag stadium, the car went out of
order and stopped. Then accused No.1 asked the
victim to get down from the car. Then he called
accused Nos.2 and 3 over a phone. Thereafter
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second accused caught hold of her hands and
accused No.3 held her legs and accused No.1
removed her clothes. Thereafter she did not know
what the accused No.1 did to her. She also
deposed that she was threatened by the accused
that she will be killed if she informs this incident
to anybody in the house or to any other person.
Before proceeding further evidence, if the
evidence stated above is appreciated, it does not
make out the ingredients of aggravated
penetration. She has not stated that whether she
was taken away from the place where the car was
parked, whether the said place was a secluded
place or covered place.
PW-6 has further stated that one week after
the incident, she informed about it to CW-9 who
called her father to Kudachi. Thereafter the father
filed complaint before the police. Further she was
taken to hospital and to the Court where her
statement was recorded. The statement given
26
before the learned Magistrate would be a
statement recorded under Section 164 of Cr.P.C.
Therefore, it can be used only for the purpose of
contradicting the maker. Then she identifies her
clothes at M.Os.1 to 3. She also identifies the
place of incident appearing in Ex.P-4 photograph.
She has identifies the car in which she was taken
by the accused which is appearing in Ex.P-2.
15. In the cross-examination, PW-6 admits
that she did not know her date of birth but in
examination-in-chief, she admits her date of birth
is 02.07.2005. She was admitted to Kudachi Urdu
School where she studied up to 5 t h standard. She
used to pass in first class. She used to go to
school everyday and never missed the school. She
admits that during the month of March, there will
be final examination. She further admitted that
from June to March, she was going to school
regularly. She specifically admitted that before
27
giving evidence in the Court, between herself, her
father and mother talked about this case and since
she is of tender aged, they had taught her what is
to be deposed in the Court. She has also not
stated in her examination-in-chief that she had
gone to the house of accused No.1 as accused
No.1’s wife had given birth to a child and
therefore there was an occasion for accused to
take her in a car. Normally, if a girl gets stomach
pain, she will tell immediately to the next lady
available in the house but not to a male person.
She admits that CW-9 used to come to her house
with her husband i.e., accused No.1. She denies
that during the month of March, 2016, she has
absented her examination in order to look after
the child of CW-9 at Raibag. Then suggestions are
made with regard to the incident and reason for
giving evidence etc. They are all denied. She
admits that when she was taken to Raibag Court, a
lady PC had come and she told her that what is to
28
be deposed and accordingly she gave statement
before the learned Magistrate.
16. On perusal of the above said evidence
on record, I find that the evidence of prosecutrix
is not free from doubt but suffers from serious
doubt. The possibility of tutoring the girl by her
elders or persons who had vengeance against the
accused No.1 to implicate in this case cannot be
ruled out. Further even if the evidence of PW-6 is
admitted as it is, it does not prove the act of
penetration. Apart from that there must be some
reason for the accused persons who committed
such a heinous act. Because this witness has
stated that her hands were held by accused No.2
and legs were held by accused No.3 and then
accused No.1 removed her clothes and committed
the act which she did not know what happened.
Therefore, the evidence looks highly suspicious
and cannot be relied on without due corroboration.
29
It is also important to note that it is not a
universal rule that no lady would come forward to
give such a statement regarding rape on her and
therefore her evidence must be believed. If at all
the accused No.1 wanted to rape her he could
have raped her in the car itself which would have
provided some cover. It is not the case of
prosecution that the accused came to Kudachi to
the house of CW-12 and took the girl to Raibag on
the pretext of getting treatment to her. Therefore,
the corroboration of such evidence is a must.
17. Now, I proceed to examine the medical
evidence on record. PW-9 is the doctor who had
examined the first accused on 31.03.2016 at 5.30
p.m. He found the accused No.1 to be fit to
perform the act of intercourse. He is also married
and that fact cannot be denied as such.
Therefore, evidence of PW-9 is not of much
importance.
30
18. PW-16 is the Assistant Director of FSL,
Belagavi, who had examined the victim and had
given his report at Ex.P-18. He found no seminal
stains were detected on the material objects. The
said objects are at MOs 1 to 6.
19. PW-18 is the officer who had recorded
the statement of PW-6, victim girl. According to
him, the victim girl deposed before him that the
her brother-in-law i.e., accused No.1 took her to a
hospital. While returning, in a forest, they
behaved indecently and stated his name as Yusuf,
who is accused No.2.
20. PW-11 doctor who had examined the
victim girl and thereafter he referred the victim
girl to dentist and radiologist to identify the age of
the victim. According to radiologist, the age of
the victim was 14 to 16 years and according to the
dentist it was 10 to 13 years. He admits that as
per the opinion of lady doctor, the hymen was not
31
ruptured and there were no injuries in her
genitals. Accordingly he gave report at Ex.P-12.
Thereafter, on the basis of FSL report, he gave
final report at Ex.P-13. In the cross examination,
he admitted that according to his opinion, even
before he examining the victim, she has not
undergone an act like sexual intercourse. I think
this evidence of doctor though only an opinion and
not absolutely binding on the Court as provided
under Section 45 of the Evidence Act but it puts
nail in the case of the prosecution and makes the
entire case highly doubtful and suspicious. When
there is a contradiction in the evidence of victim
of this nature and the medical evidence, then it
has to be considered as a very serious
contradiction in the case of the prosecution.
21. The principle of law laid down by the
Hon’ble Apex Court in the case of Baleshwar
Mahto and another Vs. State of Bihar and
32
another reported in (2017) 3 SCC 152 with
regard to how the medical evidence is to be
matched/tallied with ocular evidence Though the
authority pertaining to the case of injured witness.
Then in such a case, it would be turned as serious
contradiction between ocular evidence and the
medical evidence. In this case, it is a case of
alleged rape. The medical evidence which I have
referred on record is quite against to the evidence
stated by prosecutrix. Moreover, the prosecutirx
herself has not specifically stated that the alleged
penetration. Admittedly there are no injuries. FSL
report is also against to the case of the
prosecution. No doubt, victim has been examined
ten days after the incident but the intact of hymen
of the victim is in all probability raises a very
serious doubt as to whether there was any
penetration and whether the act of the accused
amount to rape or aggravated sexual assault.
33
22. Learned counsel for the appellants has
also relied on a judgment in the case of Ravinder
Singh Gorkhi Vs. State of U.P. reported in
(2006) 2 SCC (Cri) 632 with regard to relevance
of the entry in the public record and contends to
fulfill before document to be held under Section 35
of the Evidence Act. In this case, defence has
suggested in the cross-examination to the victim
that her date of birth is 02.07.2005. The incident
is said to have happened on 14.03.2016. The age
of the victim somewhere falls 11 years of age.
The Investigating Officer has collected Ex.P-7 from
CW-24 to prove the age of the victim and the date
of birth is found to be 02.07.2005.
23. Now I come to the evidence of wife of
accused No.1. According to her, at about one and
half years prior to the statement, the victim girl
was complaining that she is suffering from
stomach pain. At that time, she was said to be in
34
her house. She also admits that victim was
residing in the house of her mother at Kudachi and
pursuing her studies but does not say why the
victim had come to her house. Admittedly, she has
not seen the accused No.2 taking the girl in a car
for medical treatment. Her say is only hearsay
what she had heard from the victim. Since the girl
had threatened to kill by the accused, she had not
stated anything before her. If that is so, if after
ten days, what prompted the girl to tell the fact to
others. Further she had not stated that the victim
girl was staying in her house to assist herself as
she had delivered a child. During examination
period, she had come to her house. Therefore, the
evidence of this witness that girl was taken from
her house by accused No.1 in a car is not at all
proved. She admitted in her cross examination,
that immediately five days after her marriage, she
went back to her mother’s house. After her
marriage, she was residing with her husband and
35
her in-laws in one house. Further, she admits that
she had a phone but denies that she was getting
40 to 50 calls a day. She admits that her husband
had taken her to a hospital on one day on the
ground that she has consumed poison. The doctor
told her that there is no problem and had sent
them back. She denies that she had consumed
poison as her husband taken back the mobile. She
admits that she became pregnant of three months
while she was in her mother’s house. To a
suggestion that she gave birth to a child
immediately three months after going to her
mother’s house, first she admits and then denies
and states that after 6-7 months she gave birth to
a baby. She denies that she was quarreling with
her husband. She further admits that her husband
was suspecting her fidelity and his mental
condition was not good. After she returned to her
husband house and there is no intercourse
between them for a period of two months then
36
during March 2016. There was no physical contact
between them and their relationship was also not
cordial. She further admits that on 14.03.2016
also there was no cordial relationship between
herself and her husband and therefore, there was
no physical contact between the husband and wife.
Then she admits that she gave birth to a child on
20.12.2016 and denies that since the child is born
beyond nine months i.e., beyond 14.03.2016, it
does not belong to accused No.1. She further
admitted that she had no difficulty to take the girl
to hospital for treatment. She deposed that in the
case of stomach pain, doctor while examining the
abdomen, touches the stomach and lower
abdomen. She admits that she belongs to
Mohammadan and usually the women belonging to
her religion would go to lady doctor. There are
many number of lady doctors available in Raibag.
Therefore, she had no difficulty to take the girl to
a lady doctor. According to her only that day girl
37
developed pain. Two days after the incident, she
had gone to her mother’s house.
24. If the above evidence is analyzed
carefully, I find that the evidence of this witness
suffers from serious doubt and cannot be believed
without corroboration. It also points out that
there is every possibility of implicating her
husband in this case.
25. Then the last evidence which I would
like to refer regarding the accused taking the girl
to a hospital is that of PW-8. According to him
about one and half years back at 7.00 p.m. the
first accused brought the girl stating that she is
suffering fever and body ache. He admits that he
had treated the victim. He did not know her name
and nor recognized her. In the cross-examination,
it is admitted that he is a reputed doctor and so
many patients come and go and he does not
maintain any record of the out patients. He does
38
not remember who had come along with the girl.
There are no records for having given treatment to
the girl on that day. He admits that it is the duty
to maintain document for having given treatment
to the patients. Therefore, this evidence alone
cannot be taken as corroboration with the
evidence of either victim or any of her relative,
her father or evidence of wife of accused No.1.
26. Then PW-12 is the person who is said to
have given car to the accused. According to him,
the car was used by his uncle. He admits that he
has given the said car to the accused No.1 for his
use about two years. He admits that the said car
was seized by the police and he identifies the car
appearing in photograph at Ex.P-2. In the cross
examination, he admits that he is the permanent
resident of Miraj, he cooks food in the marriage
functions and earns Rs.500/- to Rs.1000/- per
function. Further there are 7 to 8 members in his
39
family and his family is depended upon his
earnings only. He admits that he could not have
alone bought a car. He has no necessity to
purchase a car. He admits that the said car is in
the name of one Nayana Pol of Poona. The
ownership has not been transferred to his name.
He admits that small masons like accused No.1
would not keep a car. Normally nobody will lend a
car to anybody unless the person is known to him.
Accused No.1 is in Kudachi and he resides in Miraj.
Therefore, he did not know the accused No.1. He
further admits that he has not given car to
accused No.1. Since police forced him to say that
he had given car to the accused, he stated so.
27. The evidence of prosecution that the
accused had taken the victim in this car creates a
serious doubt. Learned PP has not asked the Court
to treat the witness as hostile. Therefore, the
learned P.P. should have cross-examined the
40
witnesses as he has almost given evidence against
the prosecution.
28. The next evidence that is to be
considered is that of Investigating Officers. PW-
15 had registered the crime on the basis of the
complaint given by PW-5 as per Ex.P-5. On
24.03.2016 he received information and arrested
the accused on 31.03.2016. He recovers a car on
the voluntary statement given by the accused
No.1. On the voluntary statement of accused
No.2, the Investigating Officer recovered the
motorbike. Accordingly they were seized under
mahazar at Ex.P-1. He had sent the victim to the
hospital for examination. In the cross-
examination, the Investigating Officer deposed
that he do not know where the complaint was
typed, who typed it and who gave information for
it. He admits that the scribe of the complaint who
had typed through computer has not signed. He
41
has also not enquired where the complainant got it
typed. He has not taken the school attendance
register extract to show that on the date of
incident the girl had not gone to school. He has
also not investigated whether during that time
examinations were being conducted. He further
admitted that after apprehending the accused, he
has not produced any records before the Court.
He has not seized the RC book of the car which
has been seized. It shows that it is Poona
registration vehicle. He do not know who is the
original owner of the car. According to him, the
photograph is taken through digital camera and
sometimes the date and time occurs in the snap
and some times they will not occur. He has also
not seized the motorcycle RC book. The
suggestions that were made are all denied.
29. PW-17 is the final Investigating Officer
who has drawn the sketch of scene at Ex.P-3. He
42
recorded the statement of witnesses. The
photographs were included in the records. Medical
records at Exs.P-8 to P-10 were collected.
The expert evidence which he has collected
from the doctor as well as FSL are negative so far
as alleged act of intercourse is concerned. He had
obtained the birth certificate of victim. He
obtained the register extract of motorcycle, map
of spot prepared by PWD Engineer Ex.P-24 were
collected. In cross-examination, he admits that he
did not know that where the complaint was typed,
who had typed and who had given information to
type the complaint. Though there is an
endorsement of PSI, Raibag i.e., “£À£ßÀ ¸ÀªÄÀ PÀëªÄÀ ” and has
signed below it. He has not investigated as to
whether there was any threat and what type of
threat was there to the victim girl in not to
informing about the incident. He has also not
investigated whether there is any cordial
relationship between the accused No.1 and PW-7.
43
30. In the complaint, it is the PW-7 who is
said to have informed her mother CW-12 about the
incident. Though PW-7 had told that her husband
is the culprit, the Investigating Officer has not
investigated as to whether there was any cordial
relationship between the husband and wife. No
statement of witnesses either relatives or naibours
is produced or examined to show that the accused
No.1 and PW-7 were in cordial relationship. If they
were in cordial relationship, then she would not
have informed the incident to anybody. She would
not have quarreled with her husband. He admits
that PW-7 had a mobile and there were quarrels
regarding that mobile phone. He has not aware as
to whether the victim had attended for
examination in the March 2016. It is also admitted
that date of incident i.e., 14.03.2016 was a
Monday. He has not enquired in the school at
Kudachi to find out whether in the month of
March, victim had come to school or not. But
44
according to him, he did not feel it necessary to
investigate in this regard and he felt that the
statement of PW-12 itself was enough for him. He
did not feel it wrong that only on the statement of
CW-12, the victim was found to be residing in
Raibag for over a period of one month.
31. On careful perusal of the above
evidence, absolutely there is no evidence on
record to prove that the victim was residing in the
house of accused No.1 as on the date of incident.
There is no evidence to show that accused No.1
took her in a car in order to get medical treatment
to victim. The fact that there lady doctors
available in Raibag and why they went to male
doctor was not explained by any of the witnesses.
Therefore, there was no reason for accused No.1
to take the girl in a car or to any hospital as such.
32. On account of strained relationship, it is
highly unbelievable that PW-7 was residing with
45
her husband. Further, having regard to the entire
evidence on record, considering the facts and
circumstances of the case, an inference can also
be drawn that there was every possibility of
implication of accused Nos.1 to 3. If at all accused
No.1 wanted to commit rape, he would have done
so with the girl as she would be alone in the home
whenever PW-7 goes out of the house. He himself
was capable of committing rape without any help
from other accused persons to hold hands and legs
of the girl. From the evidence on record and facts
and circumstances, I find that there is an element
of concoction is there in this case. Therefore, I am
of the considered opinion that evidence of
prosecutrix and other witnesses is not at all
believable. The real thing has been suppressed
and the case has been projected in a manner to
suit the complaint and to make the case heinous in
nature so that the accused are awarded
imprisonment. The suggestions made by the
46
defence to the prosecution witness accused have
got force. Having regard to the facts and
circumstances of the case, the suggestions cannot
be simply brushed aside.
33. I am of the considered opinion that the
trial Court has not appreciated the evidence in the
manner stated above. It has not analyzed the
evidence meticulously. It has ignored the strange
and suspicious circumstances appearing in the
case of the prosecution. It has also ignored the
possibility of implication of the accused No.1 by
his wife and PW-5 the complainant. The delay has
not been satisfactorily explained and the medical
evidence is totally against the case of the
prosecution. The trial Court with regard to delay
in filing the complaint, has relied on a ruling of
the Hon’ble Supreme Court reported in (2004) 1
SCC 421 (AIR 2004 SC 1290) (State of Punjab
.Vs Ramdev Singh).
47
Learned Judge has also not assigned
sufficient reasons as to why he believed the
evidence in the background of the facts and
circumstances appearing in the case of
prosecution. The trial Court in paragraph 53 of
the judgment referred to the medical evidence and
said that on medical report of the victim and that
of the accused that whether there was a possibility
of forcible intercourse with the victim girl. The
learned Judge’s finding in paragraph 55 reads as
under:
“55. From all these, it is quit clear
that there is ejaculation of seminal stains
of the accused and same were not found
in the above said articles of the victim
girl. At the same time, hymen of the
victim girl was found to be intact and no
injuries were being found on the private
part of the victim girl and no external
injuries were found on her, gives an
indication that there is no penetration.
This would clearly establish that it might
48not be the case of the actual rape, but it
is a case of attempt to commit rape on
the minor victim girl.”
34. Then how the trial Court can come to
the conclusion that prosecution has proved the
alleged offence and come to the conclusion that
there is ejaculation of seminal stains which were
not found on the articles of the victim girl and the
evidence of the victim gives an indication that
there is no penetration and it might not be an
actual rape but it is a case of attempt to commit
rape? How the trial Court can come to the
conclusion that there is penetration sexual assault
on the victim? Without there being any evidence
of forcible penetration sexual assault on the victim
the trial Court could not have taken the aid of
presumption to come to a conclusion.
35. In paragraph 62 of the trial Court
judgment says that attempt to commit rape is also
49
a serious crime. Though culprit does everything to
accomplish the crime, due to certain unforeseen
occurrence, he might have failed to complete the
act or he might have committed the actual rape.
The reasons assigned by the learned Judge
regarding a very serious offence are absurd. The
learned Judge suddenly jumped to the conclusion
that there are enough material to hold that the
accused has committed rape on the victim girl.
Merely by relying on certain authorities, learned
Sessions Judge cannot come to a conclusion
without there being any due corroboration of
evidence. Therefore, circumstance should be
similar in order to place reliance on any authority.
The precedent can be relied for appreciation of
settled position of law. The case made out by the
prosecution is not from reasonable doubt. It
suffers from serious doubts and contradictions.
The trial Court has committed a grave error in
believing the highly doubtful evidence on record.
50
Therefore, I find that trial Court has committed an
error in applying the provisions of POCSO Act and
that the prosecution had miserably failed to prove
any of the ingredients of the offences alleged
against the accused. The prosecution has not
discharged its initial burden of proof. Therefore,
it cannot ask for applying presumption provided
under the POCSO Act. Hence, for all the above
said reasons, point No.1 is answered in the
negative and point No.2 in the affirmative.
36. The appeal filed by the accused is
hereby allowed.
37. The impugned judgment and order of
conviction and sentence dated 10.01.2019 passed
by the learned III Addl. District and Sessions
Judge Special Court under POCSO Act, 2012 at
Belagavi, in S.C.No.202/2016 for the offence
punishable under Section 341, Section376, Section506, Section109 read
51
with Section 34 of IPC and Sections 4, 6, 5(n), 17
and 18 of POCSO Act is hereby set aside.
38. The accused Nos.1 to 3 are acquitted of
all the charges leveled against them.
39. The accused Nos.1 to 3 shall be set at
liberty forthwith on executing a personal bond for
Rs.50,000/- each and one surety for the likesum
to the satisfaction of the learned Sessions Judge
and the bail bonds shall be in force for a period of
six months or till the expiry of appeal period
whichever is later.
40. Send back the records to the trial Court
along with a copy of this judgment.
Sd/-
JUDGE
Naa