Karnataka High Court

The State Of Karnataka vs Shaukath Ali on 2 April, 2024

1 Crl.A. NO.11/2018

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 02nd DAY OF APRIL, 2024

PRESENT
THE HON’BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON’BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.11 OF 2018
BETWEEN:

THE STATE OF KARNATAKA
BY WOMEN POLICE, DAVANGERE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU.

…APPELLANT
(BY SMT. RASHMI JADHAV, ADDITIONAL S.P.P.)
AND:

1. SHAUKATH ALI
S/O SHEKH YOUSUF
AGED 21 YEARS
RESIDENT OF H.K.R. CIRCLE
DAVANGERE-570 001.

2. SMT. AFOZ BANU
W/O SHAFI AHMAD
AGED 38 YEARS
HOUSE WIFE
DOOR NO.1629/3
VIDYARTHI BHAVAN
NEAR KRISHNA HOTEL
2 Crl.A. NO.11/2018

DAVANGERE CITY.
(IMPLEADED VIDE COURT ORDER DATED
23.11.2023)

…RESPONDENTS
(BY SRI P.B. UMESH ADVOCATE FOR
SRI R.B. DESHPANDE, ADVOCATE FOR R-1;
SMT. ARCHANA K.M., AMICUS CURIAE FOR R-2
VIDE COURT ORDER DATED 07.12.2023)

***

THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 13.03.2024, COMING ON FOR PRONOUNCEMENT,
THIS DAY, VENKATESH NAIK T. J., PRONOUNCED THE
FOLLOWING:

JUDGMENT

acquittal dated 05.05.2017 passed by II Addl. District and

Sessions Judge and Special Judge, Davangere in

S.C.No.11/2016 acquitting the accused of the offences

Penal Code, 1860(hereinafter for brevity referred to as

From Sexual Offences Act, 2012 (hereinafter for brevity

2. The summary of the case of the prosecution before

the Special Court was that PW.1 Smt. Afrozabanu, mother

of victim(PW3) lodged a complaint-Ex.P1 on 31.10.2015

alleging that she is a permanent resident of Davangere

Town, she has three children and among them, the first

child-victim is a deaf and dumb girl. PW1’s husband is

working as a flower merchant and her mother-in-law

Bibijan(PW.8) remains in the house. Since three years as on
4 Crl.A. NO.11/2018

the date of alleged incident, the accused was working as a

labour in the flower shop of her husband.

2a. On 26.10.2015 at 2.00 p.m., PW.1 left the house

in order to wash the clothes in a canal and returned at 8.00

p.m. In the mean while, the accused entered the house and

committed penetrative sexual assault on the deaf and dumb

girl-victim, pressed her chest and made scratch marks on

her chest bitten by his teeth and thus caused injuries. Soon

after return of PW.1, the victim was not natural, hence, she

enquired about her behavior, victim was not normal in the

house, later PW.1 saw visible injury on the chest of the

victim and thus when she enquired the victim as to who

caused the injuries, the victim girl did not reveal.

2b. After five days of the incident, again PW.1

enquired the victim and also made hand gestures of about

five to six persons’ names. Ultimately, the victim gave

symbolic gesture that the accused caused such injuries and

hence, PW.1 lodged the complaint as per Ex.P1. Based on
5 Crl.A. NO.11/2018

the complaint, the Women Police, Davangere registered a

case in Cr.No.113/2015 for the aforesaid offences and

submitted FIR (Ex.P10) and complaint to the Court.

2c. After registering the same, the Investigating

Officer visited the scene of occurrence, drew spot mahazar,

recorded the statement of the witnesses, took the victim to

the hospital for medical examination and also produced her

arrested the accused and later produced him before the

Magistrate. The Investigating Officer after completion of

investigation filed the charge sheet for the aforesaid

offences.

3. In order to prove the alleged guilt against the

accused, the prosecution got examined in all 10 witnesses

as PWs.1 to 10 and got marked 10 documents from Ex.P1

to Ex.P10 and no material objects have been marked. From

the accused side, neither any witness was examined nor

any documents were marked as exhibits.

6 Crl.A. NO.11/2018

4. After hearing both side, the learned Special Judge’s

Court, by its judgment dated 05.05.2017, acquitted the

accused of the offences charged. Challenging the same, the

State has preferred the present appeal.

5. Respondent No.1/accused is being represented by

his learned counsel and respondent No.2-complainant

though was served had remained absent and hence the

Court proceeded to appoint learned counsel Smt. K.M.

Archana, as Amicus Curie for respondent No.2.

6. Learned Additional State Public Prosecutor for the

appellant -State and learned counsel for respondent

No.1(accused) and learned Amicus Curiae for the

respondent No.2(complainant) are physically appearing in

the Court.

7. The Special Judge’s Court records were called for

and the same are placed before this Court.
7 Crl.A. NO.11/2018

8. Heard the arguments from both side. Perused the

materials placed before this Court including

the memorandum of appeal, impugned judgment and the

Special Court records.

9. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the

learned Special Judge’s Court.

10. After hearing the learned counsels for the parties,

the Special court framed the following points for its

consideration:-

6. What order?

11. Learned Additional SPP for the appellant-State in

her argument submitted that as on the date of alleged

offence, the victim girl was minor in her age, more

particularly, she is a deaf and dumb girl. As such, her
9 Crl.A. NO.11/2018

alleged consent, if any, would not be a valid consent in the

eye of law. It is contended that the victim-PW.3 and PW.4

the teacher of deaf and dumb school, Davanagere, who

and translated the oral testimony of PW.3 before the Court

have supported the case of the prosecution. Further, PW.5-

Sumiyabanu, sister of PW.1 and aunt of victim and the

grandmother of victim-PW.8 Bibijan have stated about the

incident and corroborate the oral testimony of the victim.

Further, the oral testimony of the victim, her mother, her

aunt, her grandmother and PW.4 teacher is supported by

medical evidence. PW.6-Doctor has clearly stated that there

is injury on left chest of the victim and there were scratch

marks on both sides of chest, bluish injury on left chest,

hymen was not ruptured. But, the Special Court failed to

properly appreciate the medical evidence placed by the

prosecution to establish the guilt of the accused. Non-

appreciation of evidence and materials on record in proper
10 Crl.A. NO.11/2018

perspective has resulted in miscarriage of justice. It is

contended that the Special Court ought to have appreciated

the evidence of the victim which is sufficient to bring home

the guilt of the accused as the victim has categorically

stated about the act committed by the accused.

12. Relying upon few judgments of Hon’ble Apex

Court and also a judgment of co-ordinate bench of this

Court, the learned Additional SPP for the appellant-State

submitted that when there is oral evidence of victim and

her mother showing the age of the victim as a minor and

PW.7-Dr. L. Ashok, Dentist, Bapuji Hospital, Davanagere

has estimated the age of victim as 15 years (+) or (-) 2

years which comes to 17 years as per Ex.P9. Therefore, as

on the date of incident, the victim was a minor, but the trial

Court has not considered this aspect and failed to invoke

the prosecution. Thus, learned Addl. State Public Prosecutor

prayed to allow the appeal.

11 Crl.A. NO.11/2018

13. The learned Additional SPP relied upon the

following citations:

2. State of Himachal Pradesh v.

Manga Singh reported in (2019) 16
SCC 759.

14. Sri P.B. Umesh for Sri R.B.Deshpande, learned

counsel for respondent No.1/accused in his argument

submitted that PW.3 is a deaf and dumb girl and she was

tutored by her mother, aunt and grandmother and they are

planted witnesses in this case. The victim as well as the

those provisions in its perspective.

15. It is contended that the incident took place in a

busy area and there were three other workers working in

the flower shop of PW.1 and her husband. However, PW.1
12 Crl.A. NO.11/2018

and victim made allegation against accused alone in the

absence of any material particulars. It is contended that

though PW.6 Dr. Nagaveni S.K. has shown the injury, but

she has not stated the nature of injury. Further, PW.6 did

not mention that victim was mentally unstable. The Doctor

certifies that the victim is able to make independent

judgment; she is aware of consequence of social action. It

is contended that there is delay of almost 7 days in filing

the complaint and no explanation is offered by the

complainant. Further, the Special Court has failed to

videograph the oral testimony of PW.3-victim during trial,

Act, 1872. It is contended that the scribe of complaint-

Ex.P1 is not examined and so far as statement recorded

question and answer form. Therefore, the very recording of

Hence, learned counsel for the accused/respondent No.1

prayed to dismiss the appeal.

16. The learned counsel for respondent No.1/accused

also relied upon decisions of Hon’ble Apex Court in his

support and submitted that the impugned judgment does

not warrant any interference at the hands of this Court.

17. Smt. Archana K.M. learned Amicus Curiae

appearing for defacto complainant/respondent No.2

submitted that PWs.1, 3, 4, 5 and 8 have clearly stated that

the accused committed penetrative sexual assault on the

victim, he scratched with his teeth on the chest of victim

and also made criminal intimidation to her.

18. The oral evidence of PWs.1, 3, 5 and 8 is

corroborated with medical evidence. PW.6 doctor has stated

that on examination of the victim, she found injury on left

chest, scratch on both sides of chest, and bluish injury on

left chest. Hence, there is ample evidence to show that the
14 Crl.A. NO.11/2018

victim was subjected to penetrative sexual assault by the

accused. Further, as on the date of incident, the victim was

a minor, aged 15 years. PW.7-Dr.L. Ashok, Dentist has

estimated the age of victim to be 15 years (+)/(-) 2 years,

which comes to 17 years. Hence, the victim was below 18

years at the time of the incident. But, the Special Court

without considering the oral evidence of PWs.1, 3, 5 and 8

and medical evidence proceeded to acquit the accused.

Hence, she prayed to allow the appeal.

19. After hearing the learned counsel from both side,

the points that arise for our consideration in this appeal

are:

5. Whether the judgment of acquittal under appeal

warrants any interference at the hands of this Court?

20. Before proceeding further in analyzing the

evidence led in the matter, it is to be borne in mind that it

is an appeal against the judgment of acquittal of

accused/respondent No.1 of the offences punishable under

POCSO Act, 2012. Therefore, the accused has primarily the

double benefit. Firstly, the presumption under law is that

unless his guilt is proved, the accused has to be treated as

an innocent person in the alleged crime. Secondly, the
17 Crl.A. NO.11/2018

accused has already been enjoying the benefit of judgment

of acquittal passed under the impugned judgment. As such,

bearing the same in mind the evidence placed by the

prosecution in the matter is required to be analyzed.

(a) Our Hon’ble Apex Court, in its judgment in the case

of Chandrappa and others -vs- State of Karnataka,

reported in (2007) 4 Supreme Court Cases 415, while

laying down the general principles regarding powers of the

Appellate Court while dealing in an appeal against an order

of acquittal, was pleased to observe at paragraph 42(4) and

paragraph 42(5) as below:

” 42(4) An appellate Court, however, must bear in mind
that in case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is proved
guilty by a competent Court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is further
reinforced, reaffirmed and strengthened by the trial Court.

42(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate Court should not
disturb the finding of acquittal recorded by the trial Court.”

18 Crl.A. NO.11/2018

(b) In the case of Sudershan Kumar -vs- State of

Himachal Pradesh reported in (2014) 15 Supreme

Court Cases 666, while referring to Chandrappa’s case

(supra), the Hon’ble Apex Court at Paragraph 31 of its

Judgment was pleased to hold that, it is the cardinal

principle in criminal jurisprudence that presumption of

innocence of the accused is reinforced by an order of

acquittal. The Appellate Court, in such a case, would

interfere only for very substantial and compelling reasons.

(c) In the case of Jafarudheen and others -vs-

State of Kerala, reported in (2022) 8 Supreme Court

Cases 440, at Paragraph 25 of its judgment, the Hon’ble

Apex Court was pleased to observe as below:

The above principle laid down by it in its previous case

was reaffirmed by the Hon’ble Apex Court, in the case of

Ravi Sharma -vs- State (Government of NCT of Delhi) and another

reported in (2022) 8 Supreme Court Cases 536 and also in the case

of Roopwanti -vs- State of Haryana and others reported in AIR

2023 SC 1199.

21. It is keeping in mind the above principles laid

down by the Hon’ble Apex Court, we proceed to analyse the

evidence placed by the prosecution in this matter.

22. The prosecution, in order to prove the alleged guilt

against accused has examined in all ten witness from PW.1

to PW.10.

23. PW.1-Afrozabanu, mother of victim has stated

that victim is her daughter, one Shafi Mohammed is her
20 Crl.A. NO.11/2018

husband. The accused was working in their flower stall

since three years from the date of alleged incident, her

other two children and her mother-in-law were in the

house. Victim-PW.3 is a deaf and dumb girl and as on the

date of alleged incident, she was aged about 16 years. The

victim for her daily activities has been completely

depending upon her mother i.e., PW.1. It is the evidence of

PW.1 that on 26.10.2015 afternoon, she went to a canal for

washing clothes and she returned at 8:00 p.m. As soon as

she came to her house, the victim did not have her dinner

and she was often going for attending her nature call.

Hence, she enquired the victim, but she did not reveal any

reasons. The victim continued the same activities for two

days, therefore, PW.1 saw the person of victim and noticed

a bite mark injury on the chest of the victim. Therefore, she

enquired the victim, but she did not reveal the names of

any person, but after 4-5 days, PW.1 by hand gestures

showed names of four to five suspected names, for which,
21 Crl.A. NO.11/2018

victim nodded her head as ‘no’, but while PW.1 showed by

hand gesture the name of accused, the victim nodded her

head as ‘yes’, who committed offence against her.

Therefore, on 31.10.2015, PW.1 lodged the complaint as

per Ex.P1. On the following day of the incident, the police

took the victim to the hospital for medical examination and

the police visited the scene of offence, they drew spot

panchanama as per Ex.P3, took the photograph as per

Ex.P2, enquired the witnesses and later took the victim to

PW.1 was subjected to a detailed cross-examination from

the accused side. In her cross-examination, though several

attempts were made to shake the credibility of her evidence

given in her examination-in-chief, but the witness adhered

to her original version.

24. PW.2-Sadhikh Ali, a witness to spot panchanama-

Ex.P3, has stated that on 01.11.2015 at 10:00 a.m., the

Women Police, Davanagere came to the scene of
22 Crl.A. NO.11/2018

occurrence, where they drew spot panchanama in his

presence as per Ex.P3.

25. PW3- the victim was examined through PW.4, the

interpreter, through her signs and hand gestures before the

court that, PW.1 is her mother and accused was working in

flower stall of her father. She has given her evidence

through signs and hand gestures, she showed her finger

and kept in her mouth to a suggestion of a Special Public

Prosecutor through interpreter, as to what happened to her

by the accused. She also showed by signs that the accused

scratched with his nails and caused bite marks on her

chest. By her sign and gesture, she stated that on the day

of the incident, her mother PW.1 had been to canal for

washing of clothes. Her mother used to bathe her everyday.

Her mother used to help her while she wore clothes. Soon

after the incident, the victim told her mother about the act

committed by the accused.

23 Crl.A. NO.11/2018

PW.3 was subjected to cross examination by the

counsel for the accused. In her cross examination, she has

stated that she used to hear the words of her mother. She

denied that as on the date of the incident, her mother had

not been to canal for washing clothes and she was very

much present in the house. But, PW.3 the victim did not

answer to a suggestion as to number of persons who had

visited her house as on the date of the incident. She has

not answered the suggestion that she had no impediment

to inform her mother about the incident on the day of the

incident itself. She further maintained silence to a

suggestion that in her chief-examination, she has not

answered the questions posed by the Special Public

Prosecutor due to her inability to answer and thus her

mother answered all the questions on her behalf. PW.1 has

not answered to a question that, her mother has filed false

case against the accused, inspite of there no case being

made out against the accused.

24 Crl.A. NO.11/2018

26. PW.4-Sharadamma, the teacher of deaf and

dumb school i.e., Sri. Mouneshwari Deaf and Dumb School,

Davanagere has stated that she translated the statement of

164 of Cr.P.C. as well as she translated the statement of

the victim before the Court.

27. PW.5-Sumiyabanu, the sister of PW.1 and Aunt of

victim and PW.8-Bibijan the grandmother of the victim have

reiterated the oral testimony of PW.1 and corroborates her

oral testimony. PWs.5 and 8 admit that they came to know

about the incident through PW.1.

28. It is asserted that PW.3 victim is a dumb witness.

Therefore, a duty is cast upon this Court to examine

whether the oral testimony of PW.3 is recorded as provided

evidence recorded by the learned Special Judge can be

acted upon.

25 Crl.A. NO.11/2018

“119. Witness unable to communicate verbally.-A
witness who is unable to speak may give his evidence in
any other manner in which he can make it intelligible,
as by writing or by signs; but such writing must be
written and the signs made in open court, evidence so
given shall be deemed to be oral evidence:

Provided that if the witness is unable to communicate
verbally, the Court shall take the assistance of an
interpreter or a special educator in recording the
statement and such statement shall be videographed.”

29. The Court while recording the evidence of a dumb

witness, must record the signs as well as the interpretations

of the interpreter and then only it becomes admissible

whether the learned Special Judge recorded the evidence of

dumb witness PW.3 as stated above. The Court also should

see what is the evidence placed on record so as to sustain

conviction.

30. It is with this background, the testimonies of

PW.1, PW.5, PW.8 and the testimony of victim PW.3

coupled with medical evidence of PW.6 and PW.7 have to be
26 Crl.A. NO.11/2018

re-appreciated to find out whether the judgment of

acquittal of the accused is sustainable.

31. It is well settled principle of law that the evidence

has to be read as a whole. It is the function of the Court to

separate the grains from chaff. No hard and fast rule can be

laid down for appreciation of evidence. It is after all a

question of fact and each case has to be decided on facts as

they stand in that particular case. A duty is also cast upon

the Court to see that no person committing an offence

should go scot-free. It is with this background, the evidence

has to be scrutinized.

32. The evidence of PW.3-victim shows that she is

dumb and deaf witness. According to the victim, she used

to tell by making signs and hand gestures. She was

knowing only the words (amma…., abba….. and bayya……).

It is her evidence through signs and hand gestures that she

showed her finger and kept in mouth to the suggestion of

interpreter as to what happened to her by the accused. She
27 Crl.A. NO.11/2018

also showed by signs that on her chest, the accused

scratched with his nails and caused bite mark. The

interpreter has not stated anything with regard to the

sexual assault or penetrative sexual assault alleged to have

been made by the accused against the victim nor the

interpreter interprets in such a manner that the gestures

made by the victim by showing her finger in her mouth

means is penetrative sexual assault.

33. PWs.1, 5 and 8- the mother, aunt and

grandmother of the victim are the hear-say witnesses and

they have stated that soon after the incident, they came to

know about the incident through PW.1. PW.4-the

interpreter, has translated the statement of deaf and dumb

witness in the Court. She has stated on oath that she

interpreted the signs and hand gestures made by the

victim- PW.3. PW.4 has not at all stated on oath about the

Hence, the prosecution failed to elicit the requirement of

34. PW.9-Nagamma the PSI of Women Police Station,

Davanagere, received the complaint and registered the case

on 31.10.2015 and sent FIR-Ex.P10 to the Court. She sent

the victim for medical examination to Chigateri General

Hospital, Davanagere.

35. PW.10-Sanganatha, the Police Inspector has

stated that on 01.11.2015, he visited the scene of

occurrence, drew spot panchanama as per Ex.P3, arrested

the accused, sent the accused to Chigateri General Hospital,

Davanagere for medical examination. On 04.11.2015, he

sent the victim to the Court for recording statement of the

statements of the other witnesses. On 17.11.2015, he

secured documents Exs.P6 to P9, FSL report, medical report

of the victim, medical report of the accused and dental

report of the victim. He secured the articles from the
29 Crl.A. NO.11/2018

Medical Officer, who collected those articles from the

accused and the victim and sent the same to Forensic

Science Laboratory for chemical examination. On

15.12.2015, he completed the investigation and filed the

charge sheet pending receipt of FSL report and final opinion

of the doctor. It is his further evidence that on 21.01.2016,

the Circle Police Inspector -Gajendrappa, received FSL

report and secured final opinion of the doctor and later

submitted the final opinion before the Court on 27.01.2016.

The evidence of PWs.9 and 10, who are the Investigating

Officers, is not of any consequences.

36. PW.6-Dr. Nagaveni S.K., in her evidence has

stated that she was working as an Eye Specialist at

Chigateri General Hospital, Davanagere. She examined the

victim on 31.10.2015, who was brought by Women Police,

Davanagere. On examination, she found the following

injures:-

1. Contusion over the lower part of the left breast.

30 Crl.A. NO.11/2018

2. Nail prick mark 2-3 over the left and right breast,
1/2 x 1cm, 1/2 x 1/2cms,

3. Greenish black colour patch over the left breast on
lateral aspect.

She further stated that there is no external injury over

vulva and hymen is intact. PW.6 has opined that except

injuries on chest of the victim, there are no other external

injuries on her person. As per the FSL report- ExP6, seminal

stains were not detected on item Nos.1,3, 4, 5, 6, 8, 9, 10,

11, 12 and 13. Skin tissue was not detected on item Nos.2

and 7. Foreign hairs were not detected in item Nos.1 and 8.

Based on clinical examination and FSL report, there is no

evidence to suggest the recent sexual intercourse. It is no

doubt true that PW.6 Doctor opined that in the

circumstances even in case of rape, hymen would not be

ruptured. But, in the present case, what we are concerned

is as to whether there are any symptoms of rape or any

penetration has taken place. It is clear from the evidence of

mother of the victim that the victim is aged about 15 years.
31 Crl.A. NO.11/2018

Even if assuming for a while that forcible penetrative sexual

assault had taken place on a girl, aged about 15 to 17

years, it is needless to say that there will be rupture of

vagina at least with some tear. The Doctor who examined

the victim PW.3, did not find any injury over the private

parts. Therefore, there could not have been any penetration

so as to hold that rape or any penetrative sexual assault

has taken place against the victim. If some injuries or

lacerations, abrasions or swelling were found over the

vaginal portion, it could have established that there is

penetration and that a forcible sexual intercourse had taken

place. But, there is no such acceptable evidence available

on record. Therefore, only on the ground that the hymen

may or may not be ruptured itself, that by itself, is not

sufficient in the present case to hold that the penetrative

sexual assault has taken place.

37. PW.7-Dr. L. Ashok, Dentist, Bapuji Dental

Hospital, Davanagere, in his evidence, has stated that on
32 Crl.A. NO.11/2018

09.11.2015, the doctors of CG Hospital, Davanagere sent

the victim to him for ascertaining her age. Hence, he

examined the victim and found that her third molar tooth

was not developed. The Doctor followed various procedures

as contemplated under the Standard literature in the

textbook, titled, “Wheeler’s Dental Anatomy and

Physiology and Occlusion 9th edition, wherein it is held

that complete root formation of 35, 45 occurs at 13-14

years of age and the complete root formation of 17 and 27

occurs at 14-15 years of age. The 1/4th root formation of

38, 48 occur at 15.2 years of age. According to standard

literature, the age of the victim was estimated to be 15

years (+)/(-) 2 years. Hence, he was of the opinion that the

victim was aged about 15 years (+) or (-) 2 years. Hence,

he issued his final opinion as per Ex.P9. It shows that as on

the date of the incident, the victim was aged about 15

years + or – two years, which comes to 17 years, hence,
33 Crl.A. NO.11/2018

PW.3 victim has to be considered as a child as defined

38. On perusal of the entire case of the prosecution,

the accused has denied all the allegations made against him

with regard to the alleged act of penetrative sexual assault,

voluntarily caused hurt on the victim(PW-3) and criminal

intimidation made to her, as contended by the prosecution.

The defence of the accused is that, a false case has been

foisted against him and he did not commit any such act. His

further defence was, father of victim was due to pay daily

wages and as the accused started to work in flower shop of

uncle of victim, this case has been foisted.

39. On the contrary, on perusal of the evidence of

PW.3, the victim, PW.4-Interpreter, PW.1-mother of victim,

PW.5-Aunt of victim and PW.8- Grand mother of victim,

have in categorical terms have stated that the accused

entered the house of victim, the accused touched her

private organ, thereby sexually assaulted the victim, made
34 Crl.A. NO.11/2018

nails marks on her chest and made bite marks with teeth

on her chest. He also made criminal intimidation to finish

her, if she reveals said fact to anybody. However, nothing

worth is elicited by the accused to disbelieve the evidence

of these witnesses with regard to the accused committing

act of sexual assault by touching private organ of the

victim-PW.3, caused injury on her chest with his nail and

teeth. The accused has not elicited any ill-will as suggested

by the defence between the accused and victim or her

family members. The accused merely relied upon some

minor contradictions appeared in the evidence of PW.1, 3, 5

and 8 to disbelieve their evidence, but, those contradictions

will not go to the very root of the case.

40. From the perusal of the prosecution case, it

appears that, victim was a minor girl, aged about 17 years,

as per the report of Dentist-Ex-P9. The accused has not

disputed the contents of Ex-P9 and it was issued by

competent authority. Under such circumstances, the
35 Crl.A. NO.11/2018

learned Addl. SPP vehemently argued and submitted that,

all the prosecution witnesses have supported the case of

prosecution and the fact the victim was minor then and

therefore the Special court ought to have drawn the

Act,2012.

evidence as the accused is expected to effectively rebut this

presumption in case main ingredients are established by the

prosecution. Section 29 of POSCO Act, 2012 reads as

follows:-

36 Crl.A. NO.11/2018

42. In the present case, the medical evidence being

negative as to penetrative assault on the victim, having not

noticed any injury over the private part and there being no

penetration, the evidence of PWs.1 and 3 to the effect that

the accused committed penetrative sexual assault on the

victim, cannot be accepted. Further, the victim and

interpreter have not stated on oath that the accused

committed rape or penetrative sexual assault against the

victim. They merely stated that accused touched the private

parts of the victim, made bite marks on the chest and

scratched on the breast with nails. This part of the evidence

is corroborated by the medical evidence.

43. We have perused the entire evidence on record

and considered the arguments. The evidence of PW.3 victim

shows that she being a girl of tender age and deaf and

dumb, gave evidence in her own signs. Her evidence clearly

discloses as to how the accused committed sexual assault

on her and caused injury on her breast. She revealed the
37 Crl.A. NO.11/2018

incident before her mother, grandmother and aunt as to

how she was subjected to sexual assault by the accused.

The victim-PW.3 has stated in her examination-in-chief that

accused committed sexual assault, but, the case of

prosecution is that accused committed penetrative sexual

assault on the victim. Further, the victim-PW3 in her

164 of the Cr.P.C., has stated that the accused caused

injury on her breast, she was subjected to sexual assault

and the accused had committed penetrative sexual assault

on her. However, the evidence of the victim before the

Court and the evidence of Medical officer is not

corroborated with the statement made by the victim under

Cr.P.C. is only a corroborative piece of evidence and not a

substantive piece of evidence. Therefore, if the testimony of

victim is again subjected to scrutiny, it appears that she

has given a vivid account of the incident. She has clearly
38 Crl.A. NO.11/2018

showed through signs as to how the accused abused her

sexually. In Ex.P4-the statement given by the victim before

stated about the act of accused of having committed

penetrative sexual assault on the victim, but, before the

Court, she has not revealed the fact that the accused

committed penetrative sexual assault on her. Even the

prosecution has not bothered to pose question to the victim

about the omissions made by the victim as to the

penetrative sexual assault made on her.

44. There are minor discrepancies in the statement

evidence tendered by the victim-PW3. The thrust of her

evidence shows that the accused committed sexual assault

on the victim. In such circumstances, the evidence of the

victim and the medical evidence would establish the charge

of sexual assault and not penetrative sexual assault. In

order to corroborate the oral testimony of the victim, PW6
39 Crl.A. NO.11/2018

doctor who examined the victim has stated that the victim

was not subjected to any penetrative sexual assault and

there were no external injuries all over the body except on

the breast, hymen was not torn and there was no evidence

of recent sexual intercourse on the victim. In the light of

the medical evidence and the testimony of the victim, the

prosecution has been able to prove the ingredient of

40 Crl.A. NO.11/2018

45. The question which would however arise for our

consideration is as to whether the charges framed against

4 of POCSO Act would be justified and as to whether the

case would qualify to be one of penetrative sexual assault

or sexual assault.

46. On this aspect, the evidence of PW.3 victim and

PW.6 doctor does not establish the same. So far as the

evidence of PWs.1, 5 and 8, they are hearsay witnesses,

who are none other the, mother, aunt and grandmother of

the victim. The evidence of PW.3-the victim is not

categorical, in as much as, the victim has alleged that the

accused committed penetrative sexual assault. In fact the

very conclusion reached by the Special Court that the

allegation of sexual assault has not been established by the

prosecution against the accused, is not in accordance with

law.

41 Crl.A. NO.11/2018

47. In that circumstances, the charge of rape as

not been established with convincing evidence. However,

having already noted that the incident of attempt to rape or

sexual assault alleged to have been established, it would be

Act.

PW.1 the mother of the victim, PW.3-victim and PW.6

doctor in categorical terms have stated that there is bite

mark on the chest of the victim, which shows that the

accused caused injuries on the breast of the victim, which

49. Even though the prosecution was able to place

sufficient materials to prove the alleged guilt against

324 of IPC, however, the Special Court has erred in
42 Crl.A. NO.11/2018

appreciating the materials placed before it in proper

prospective. The Special Court mainly relied upon the oral

testimonies of PWs.1, 3 to 5, and PW.8 and particularly

based on medical evidence, proceeded to acquit the

accused and held that it was not an act of rape.

50. Furthermore, the learned Special Court adopted

its own methodology of calculating the age of the victim

girl, based upon the statement made by her mother i.e.,

PW.1. Hence, the Special Court has not drawn presumption

the Act. It is these reasonings given by the Sessions

Judge’s Court, which is now proved to be not proper

reasonings, which has been relied on to pronounce the

impugned judgment of acquittal against the

accused/respondent No.1. Since the finding of the Special

Court is now proved to be erroneous and since, the

prosecution has proved the alleged guilt of the accused for

passed by the Special Court warrants interference at the

hands of this Court and the criminal appeal deserves to be

partly allowed. Accordingly, we proceed to pass the

following:

ORDER

The Criminal Appeal stands partly allowed.

44 Crl.A. NO.11/2018

Call to hear on quantum of sentence.

Sd/-

JUDGE

Sd/-

JUDGE

*MN/-

45 Crl.A. NO.11/2018

Dr.HBPSJ VNTJ:-

02.04.2024

HEARING ON SENTENCE

Heard the learned counsel from both side on
sentence part.

The learned counsel for the
respondent/accused submitted that the accused is
a coolie and he has to look after his parents. The
accused hails from a respectable family and
hence prays for taking a lenient view.

It is the sentencing policy that the sentence
ordered should not be either exorbitant nor for
name sake for the proven guilt. It must be
46 Crl.A. NO.11/2018

proportionate to the guilt for which the accused is
found guilty of.

ORDER ON SENTENCE

47 Crl.A. NO.11/2018

[3] The accused shall surrender before the
learned Special Judge’s Court within fortyfive (45)
days from today and serve the sentence as
ordered above by this Court and both the
sentences shall run concurrently.

[6] The remaining sum of `1,000/- shall go
to the State.

[7] A free copy of this judgment be
furnished to the accused immediately by the
Registry.

The Court, while acknowledging the services rendered

by the learned Amicus Curiae for respondent No.2-
48 Crl.A. NO.11/2018

Smt. Archana K.M., recommends honorarium of a sum of

not less than `6,000/- payable to her by the Registry.

Registry to transmit a copy of this judgment along

with Special Court records to the concerned Special Judge’s

Court immediately, for doing needful in the matter.

Sd/-

JUDGE

Sd/-

JUDGE

*MN/-