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Saddam Hussen Mahibbob Mulla vs State Of Karnataka on 24 April, 2019

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)
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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
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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
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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
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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
10

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
11

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
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committed 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
19

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
21

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.

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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
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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
25

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
48

not 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

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