THE STATE OF KARNATAKA vs RAJU

Against the judgment of acquittal passed by the learned II Additional District and Sessions Judge at Chitradurga in Special Case (SC/ST)

No.18 of 2015 for the offences punishable under Sections 376 & 506 of Indian Penal Code besides under Section 3(1)(12) and 2(5) of SC/ST

(Prevention of Atrocities) Act 1989, the State has filed this appeal urging various grounds and seeking to set aside the acquittal judgment and to

punish the respondent - accused for the aforesaid offences.

Brief facts of the case are that respondent-accused is running a photo studio and when CW-1 Annapurna had been to the studio to take her

photo, she was raped against her will and the said fact was not informed in the house or to the police as the respondent - accused insisted not to

disclose the same on the premises that he would marry her. On 8.10.2014 respondent had brought the victim to Bengaluru and they roamed

together. On 10.10.2014 in the morning the respondent married the victim by tying Thali to her neck near Ganesha Temple situated on the side of

B M T C Bus Stand. Thereafter they returned to Hiriyur town and stayed in Room No.8 of Sri Vinayaka Lodge, Urban Bank Road from

10.10.2014 to 22.10.2014. Then they went to Challakere and stayed in a rented house belonging to CW-10 from 22.10.2014 to 19.12.2014,

during which period respondent abused CW-1 touching her caste. The respondent told CW-1 to go to her parents'' house as otherwise he would

kill her. On 20.12.2014 in the morning CWs-5 to 9 had taken CW-1 and respondent to Nayakanahatti Temple and at the instance of respondent

while proceeding to Challakere Sub-Registrar''s office, the respondent got down the Auto on the guise of attending nature call and escaped. On

the basis of the complaint, crime came to be registered and after investigation police have laid charge sheet for the aforesaid offences.

The Trial Judge framed charge against the respondent. The respondent-accused did not plead guilty but claimed to be tried. The prosecution in

order to prove guilt of the accused - respondent has examined as many as 16 witnesses as PWs-1 to PW-16 and got marked Ex.P1 to P21 apart

from MO-1 to MO- 14. The prosecution gave up CWs-3, 6, 8, 10, 12, 17, 18, 20, 21, 24 to 28 from examination.

Subsequently, statement under Section 313 of Code of Criminal Procedure came to be recorded wherein the respondent - accused denied the

incriminating evidence of the prosecution witnesses. No defence evidence was led by the respondent - accused despite providing opportunity to

him. The Trial Judge heard the argument advanced by the learned Public Prosecutor and defence counsel for the respondent - accused and having

gone through the averments made in the complaint at Ex.P7, seizure mahazar Ex.P1 which contained the signatures of PWs-1, 5, 4 and 15, Ex.P2

injury certificate containing signatures of PW-2 and PW-15, Ex.P4 caste certificate, Ex.P8 spot mahazar in the presence of PWs-4, 5 & 15 apart

from Ex.P14 a statement of the victim recorded under Section 164 Cr P C, Ex.P15 primary report bearing the signatures of PWs-10 & 15 and

analyzing the evidence of PWs-1 to 16, which did not support the version made in the complaint at Ex.P7, came to the conclusion that the

prosecution has failed to bring home guilt of the accused beyond all reasonable doubt and accordingly passed the judgment of acquittal.

We have heard the learned Additional State Public Prosecutor for the State and perused the impugned judgment passed by the Court below. It

is submitted by the learned Additional State Public Prosecutor that the court below has failed to appreciate the evidence of victim PW-4, which

corroborates her statement made before the learned Magistrate. The evidence of the victim girl further corroborates the evidence of PWs.1, 5 & 7

- Mahazar witnesses and PW-6 father of the victim girl and so also the evidence of PWs.2 and 10 - doctors. The court below has failed to

appreciate the evidence of these witnesses in proper perspective manner. The court below has misread the evidence and has erroneously held that

guilt of the accused has not been proved beyond all reasonable doubt.

PW-1 is the seizure mahazar witness. PW-3, 12 & 13 are other witnesses. PW-4 is complainant and spot mahazar witness. PW-5 is spot and

seizure mahazar witness. PW-6 is father of PW-4. PW-7 is spot mahazar witness. PWs.-9 & 11 are hear say witnesses. PW-8 is stated to be

owner of the house where accused stated to have stayed there with PW-4. PW-16 is stated to be Manager of the Lodge. PWs.2 & 10 are the

doctors. PWs-14 & 15 are the investigating officers.

The evidence of PW-4 is in variance with the averments made in the complaint at Ex.P7 and 164 Cr P C statement at Ex.P14. There are

contradictions in the chief examination and to that of her cross-examination. PW-6 father of the victim has admitted in his cross-examination that

complaint is given to separate PW-4 and the accused as the accused belongs to a different caste. PW-6 has admitted that they did not give

complaint to the police after PW-4 was missing. PW-6 has also admitted that they would not have given complaint had the marriage between the

accused and PW-4 registered before the Sub-Registrar. The evidence of PW- 6 is also contrary to the averments made in the complaint and

statement recorded under Section 164 Cr P C. PW-9 Jagannath has deposed that when he saw, PW-4 and accused were living as husband and

wife having Thali. PW-9 has also deposed that they would not have given complaint had the marriage registered before the Sub-Registrar. PW-11

Raju has stated in his evidence that he was not present when the complaint was given, police did not enquire him and he has given statement as

made in the chief examination for the first time before the Court. Therefore, the evidence of PWs-9 & 11 was also found to be contrary to

evidence of PW-4 and averments made in Ex.P7 the complaint. The evidence of PWs-1, 5 & 7 who are spot and seizure mahazar witnesses, their

evidence was not useful in proving the case of the prosecution, as there are material contradictions in their respective cross-examination. PW-8

who was said to be the owner of the rented house, has stated that there is no rent agreement to show that accused was staying in her house. PW-

16 who is said to be the Manager of the Lodge, has stated that he cannot identify the girl who had accompanied the accused. All these materials

have been appreciated by the Trial Judge and he has rightly come to the conclusion that the prosecution has not placed cogent and positive

evidence in order to prove the guilt of the accused of the alleged offences beyond reasonable doubt.

This is an appeal against an order of acquittal. The principles for such an appeal are quite different. Only because the second view is possible,

does not entail the appellate court to take that second view, in the absence of any perversity. On re-appreciating the entire materials on record, we

are of the view that the impugned judgment does not suffer from any perversity nor there are any good grounds to proceed with this appeal.

Consequently, the appeal is hereby dismissed confirming the acquittal judgment passed by the court below.

Since we have considered the appeal on merits, it would not be necessary to consider the application I A No.1/2017 for condonation of delay

in filing the appeal. Hence I A No.1/2017 stands disposed of accordingly.