1 R IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE24h DAY OF APRIL2020PRESENT THE HON’BLE MR. JUSTICE G. NARENDAR AND THE HON’BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL APPEAL No.200098/2019 BETWEEN: The State of Karnataka Through PSI Mannalli Town P.S. Represented by Additional State Public Prosecutor … APPELLANT (By Sri Prabhugouda S. Patil, HCGP) AND: Sandeep S/o. Shivaji Rathod Aged about 30 years Occ: Contractor work R/o. Sindhol Tanda Tq. & Dist. Bidar – 584 101. …RESPONDENT (By Sri Sachin M. Mahajan, Advocate) 2 This Criminal Appeal is filed under Section 378 (1) and (3) of Code of Criminal Procedure praying to (a) grant leave to appeal against the judgment and order dated 6.6.2019 passed by the Additional District and Sessions Judge at Bidar, in Special Case (POCSO) No.119/2017 thereby acquitting the respondent-accused for the offences punishable under Sections 376, 316 and 313 of Indian Penal Code and Sections 4, 5(l), 6, 8 and 12 of POCSO Act, 2012. (b) set aside the judgment and order dated 6.6.2019 passed by the Additional District and Sessions Judge at Bidar, in Special Case (POCSO) No.119/2017 thereby acquitting the respondent-accused for the offences punishable under Sections 376, 316 and 313 of Indian Penal Code and Sections 4, 5(l), 6, 8 and 12 of POCSO Act, 2012. (c) convict and sentence the respondent-accused for the offences punishable under Sections 376, 316, 313 of Indian Penal Code and Sections 4, 5(l), 6, 8 and 12 of POCSO Act, 2012, in the interest of justice and equity. This Criminal Appeal having been heard and reserved for judgment on 12.02.2020, coming on this day, M. NAGAPRASANNA J, pronounced the following:
JUDGMENTAggrieved by the Judgment dated 06.06.2019 passed by the learned Additional District and Sessions Judge, Bidar (hereinafter referred to as the ‘Trial Court’ for short), in Special Case (POCSO) No.119/2017, whereby, the trial Court 3 has acquitted the accused of the offences punishable under Sections 376, 316 and 313 of the Indian Penal Code and Sections 4, 5(l), 6, 8 and 12 of the Protection Of Children from Sexual Offences Act, 2012 (hereinafter referred to as ‘the POCSO Act’ for short), the State has preferred the instant appeal.
2. Parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.
3. The case of the prosecution is that the accused and the victim belong to a place Sindhool Thanda in Bidar District. In the year 2016, the victim girl was aged about 17 years. Her parents were working at the relevant point of time in Hyderabad and the victim used to live in Thanda with her brother. On 05.09.2016, the accused got acquainted with the victim when she had come to the Kirana Stores owned by one Ranjeet, brother of the accused. Since then, the accused began to talk to her and getting acquainted to her, which developed into a close relationship and thereafter, the 4 accused on the false promise of marriage, seduced the victim, a minor girl. The accused forcibly raped her number of times taking her to the land of one Lalya Singh and later, to the school premises at Sindhol Thanda.
4. When the victim met a doctor at Thanda, it was confirmed that she was pregnant. It is the case of the prosecution that she informed the same to the accused over phone, who was working at Bangalore at that point of time. The accused directed her to get the pregnancy aborted and when the victim pleaded that she would not do so, the accused asked her to come alone to Zahirabad bus station. The accused came from Bangalore and took the victim to a hospital at Sangareddy, where the victim was administered some drugs and injections for forcible termination of pregnancy, without her consent and thereby caused the death of an unborn child amounting to culpable homicide. The accused later sent the victim to her place and returned to Bangalore. 5
5. After the abortion, the mother and grandmother of the victim came to know about the incident and requested the elders in the village to convene a panchayath and get the accused married to the victim. Though the panchayat was convened, the members of the panchayat could not bring about a settlement to get the accused married to the victim. The accused also is said to have refused to marry the victim.
6. It is after the aforementioned incident, on 16.08.2017 at about 9.30 p.m., the victim along with her cousin and other relatives came to Manahalli Police station and lodged a complaint, which was written by her cousin on the dictation of the victim. Based on the complaint, a case came to be registered in Crime No.91/2017, for the offences punishable under Sections 376 and 316 of the Indian Penal Code and Sections 4, 8 and 12 of the POCSO Act. The investigating officer commenced investigation in the case and after recording the statement of the victim, conducted a spot Panchanama in the presence of the panch witnesses. The victim was subjected to medical examination and a 6 statement of the victim was also recorded before the Civil Judge under Section 164(5) of the Code of Criminal Procedure. The investigating officer also recorded the statement of the witnesses. On completion of the investigation, the charge sheet was filed against the accused alleging the offences under Sections 376, 316 and 313 of Indian Penal Code and Sections 4, 5(l), 6, 8 and 12 of POCSO Act, 2012.
7. The prosecution, to prove its case, examined 22 witnesses as P.Ws.1 to 22 and marked 18 documents as exhibits P.1 to P.18 and 14 material objects as M.Os.1 to 14. The accused examined himself as D.W.1 and examined three other witnesses as D.Ws.2 to 4 and marked 8 documents as exhibits D.1 to D.8. Based upon the aforementioned facts and the charge sheet filed against the accused, the Trial Court formulated the following points for its consideration: (1) Does the prosecution proves beyond reasonable doubt that on 5.9.2016 at Sindhol Thanda, the accused 7 got acquainted with victim and extended her false promise of marriage and thereby he has seduced the minor girl and he has taken her to the land of Lalya Singh and later to the school premises at Sindhol Thanda, the accused has forcibly raped her number of times and thereby committed offence punishable under Section 376(2)(n) of IPC ?. (2) Does the prosecution proves beyond reasonable doubt that due to forcible rape CW-1 was confirmed that she was pregnant and when she has informed it to the accused, he has directed her to come to Zahirabad and from there he has taken her to Sangareddy and took to a hospital where she was administered some drugs and injections for forcible termination of pregnancy against her consent and thereby he has caused the death of a quick unborn child amounting to culpable homicide and thereby the accused has committed offence 8 punishable under Sections 313 and 316 of IPC ?. (3) Does the prosecution proves beyond reasonable doubt that on the above said date, time and place, when accused by extending false promise of marriage has continuously committed aggravated sexual assault on the minor victim C.W.1 and thereby accused has committed offence punishable under Sections 4, 5(l), 6, 8 of POCSO Act, 2012 as alleged ?. (4) Does the prosecution proves beyond reasonable doubt that on the above said date, time and place, accused with a view to sexually exploit her has given sexual harassment to the victim and thereby accused has committed offence punishable under Section 12 of POCSO Act, 2012 as alleged ?. (5) Does the prosecution proves beyond reasonable doubt that on the above said date, time and place, the 9 accused has continuously committed aggravated sexual assault on the minor victim C.W.1 and accused has caused the victim to become a pregnant and thereby accused has committed offence punishable under Section 5(j)(ii) of POCSO Act, 2012 as alleged ?. (6) What order ?.
8. The Trial Court clubbed all the issues together as they were interlinked and considering the evidence that was led in the trial, acquitted the accused of the charges leveled against him on the ground that the age of the victim was not proved to be below 18 years and there was no evidence to the fact that the victim did become pregnant and it was illegally terminated at the instance of the accused. The allegation that the victim and the accused were in conversation over the mobile phone was not at all proved by the prosecution. The Trial Court held that the defence of the accused was clearly established rather than that of the charge of the prosecution. The Trial Court further, on 10 assessment of the material on record, held that the prosecution had failed to bring home the guilt of the accused on any of the charges and acquitted the accused of the offences punishable under Sections 376 and 316 of the Indian Penal Code and Sections 4, 5(l), 8 and 12 of the POCSO Act. The State is in appeal questioning the correctness of the judgment of the Trial Court.
9. The Additional State Public Prosecutor would contend that the Trial Court has erroneously acquitted the accused of the offences alleged against him and the reasons assigned for such acquittal are contrary to the material on record. It is his contention that the victim was aged 17 years as on the date of the incident and to prove that the victim was a minor, the prosecution had examined P.W.2-the mother of the victim, P.W.8-Head Master of the school, who had issued the School Certificate evidencing the date of birth of the victim as 01.06.1999. It is the submission of the prosecution that the date of birth of the victim mentioned in the school certificate/records will have to be considered as sacrosanct 11 and the age of the victim will have to be determined in terms of the said certificate. If the certificate depicts a particular date of birth, that alone will have to be taken into consideration for determination of the age of the victim. On a perusal of the date of birth of the victim and the date of the offence, it would clearly establish that the victim was minor on the date of the incident. Learned Additional State Public Prosecutor has placed reliance on two judgments of the Hon’ble Supreme Court in the case of MAHADEV Vs. STATE OF MAHARASHTRA reported in (2013) 14 SCC637and the case of JARNAIL SINGH Vs. STATE OF HARYANA reported in (2013) 7 SCC263to buttress his contention that the date of birth given in the school certificate/records should be considered as the determinative factor of the age of the victim.
10. It is further contended by the learned Additional State Public Prosecutor that the prosecution, apart from examining the victim as P.W.1, who fully supported the case of the prosecution, had also examined P.W.2-the mother of 12 P.W.1 and P.W.5, who was a circumstantial witness before whom P.W.1 had disclosed about the commission of the offence by the accused, her pregnancy as well as its termination, at the instance of the accused. The prosecution would further contend that P.W.6 had clearly supported the prosecution case i.e. the version of P.W.1. On the aforesaid submissions, the Additional State Public Prosecutor contended that the prosecution had successfully proved its case beyond reasonable doubt and the accused had committed rape on the victim. Ignoring the glaring evidence, the Trial Court had committed a grave error in acquitting the accused.
11. Per contra, learned counsel appearing for the respondent - accused would contend that the age of the victim, being less than 18 years, was never proved before the Trial Court as per Ex.P.12, which was the admission extract from the admission register, pertaining to the admission of the victim in the school which was marked through P.W.8-the Head Master of the Village School, 13 displayed the date of birth of every student in the school admitted in the academic year of 1999 to be 01.06.1999 which was an absolute impossibility. Thus, the admission register was rightly disbelieved by the Trial Court. The Doctor who examined the victim had stated that the victim was more than 18 years and the radiologist had also stated that the victim was aged 17 to 18 years. The learned counsel would submit that the victim was aged more than 18 years and the offences under the POCSO Act could not have been invoked against the accused. The burden of proving that the victim was aged less than 18 years was squarely upon the prosecution and the prosecution has miserably failed in proving the case.
12. The learned counsel for the accused would submit that there is clear evidence in terms of Exs.D.1 to D.4 which would clearly establish that the accused was gainfully employed at Bangalore during the time of the alleged offence. He would submit that Exs. D.5 to D.8 would indicate the fact that the accused was working at Bangalore at the 14 time of the offence. The learned counsel would further submit that the aforementioned documents were marked through the relevant witnesses i.e. D.Ws.2 to 4, who are the paternal uncle of the accused, village cohabitant who also worked along with the accused at Bangalore and the brother- in-law of the accused who had provided a job to the accused. The learned counsel would also submit that the Trial Court had, on the basis of evidence and its consideration, rightly held that the accused has prima facie rebutted the alleged offences, which does not call for any interference.
13. We have given our anxious consideration to the submissions made before us and have perused entire material on record. On consideration of the same, the following points would arise for our consideration in this appeal, which are as follows:- 1. Whether the prosecution has proved beyond all reasonable doubt that the age of the victim was below 18 years as on the date of the incident ?. 15 2. Whether the prosecution has proved the guilt against the accused beyond all reasonable doubt ?.
3. Whether the judgment of the Trial Court warrants any interference ?.
14. Re. Point No.1: The offences alleged against the accused are punishable under Sections 4, 5(i), 6, 8 and 12 of the POCSO Act. The relevant Sections of the POCSO Act are 2(d), 4, 5(i), 6, 8 and 12 and they read as follows:
2. Definitions.—(1) In this Act, unless the context otherwise requires— (d) “child” means any person below the age of eighteen years; 4. Punishment for penetrative sexual assault.—[(1)]. Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than [ten years]. but which may extend to imprisonment for life, and shall also be liable to fine.
5. Aggravated Penetrative Sexual Assault.—(a) Whoever, being a police officer, 16 commits penetrative sexual assault on a child— (i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or 6. Punishment for aggravated penetrative sexual assault.—(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person, and shall also be liable to fine, or with death.
8. Punishment for sexual assault.— Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
12. Punishment for sexual harassment.—Whoever, commits sexual harassment upon a child shall be punished with imprisonment of either description for a 17 term which may extend to three years and shall also be liable to fine. In terms of Section 2(d) of the POCSO Act, a child should be below the age of 18 years for the Act to become applicable. Thus, to bring in the offences alleged against the accused under the Act, the victim should be aged below 18 years. It is after satisfaction of the applicability of the Act, in terms of Section 2(d), other offences alleged under the Act will have to be considered.
15. In this regard, the evidence before the Trial Court will have to be considered. P.W.1 is the victim, P.W.2 is the mother of P.W.1, P.W.3 is the panch witness of spot panchaname (Ex.P.5). P.W.4 is again a panch witness for seizure panchaname (Exs.P.6 and P.7). P.W.5 is the cousin brother of P.W.1 and he is the scribe of the complaint (Ex.P.1). P.W.6 is the leader of the village and also the head of the panchayat. P.W.7 is the doctor, who examined the victim and has furnished two medical reports (Exs.P.9 and P.11). P.W.8 is the Head Master of the village school, who 18 had issued the admission extract (Ex.P.12). P.W.9 is the Panchayat Development Officer and the author of the house extract (Ex.P.13). P.W.10 is the Revenue Inspector, who has issued the record of rights as per Ex.P.14 concerning the land of one Lalya Singh. P.W.11 is the Magistrate, who recorded the statement of the victim (Ex.P.4) under Section 164(5) of Cr.P.C. P.W.12 is PWD Engineer, who prepared the Sketch Map (Ex.P.15). P.W.13 is a messenger, who carried FIR from the police station to the office of the learned Magistrate. P.W.14 is a witness who carried articles to FSL. P.W.15 is a lady constable, who escorted P.W.1 for medical examination. P.W.16 is a doctor who conducted medical examination of the accused and submitted a report (Ex.P.17). P.W.17 is the police constable, who arrested accused. P.W.18 is the witness, who produced the accused for medical examination. P.W.19 is the witness, who recorded the statement of P.W.1 under Section 161 of Cr.P.C. P.W.20 is the Police Sub- Inspector who registered the complaint as per Ex.P.1 P.W.21 is the CPI who completed the investigation and filed the charge sheet. P.W.22 is the predecessor of P.W.21. 19
16. The defence witnesses who were examined in the trial were D.W.1-the accused himself, D.W.2 - uncle of the accused and the resident of the village, D.W.3 - a cohabitant of the village, who worked along with the accused at Bengaluru, and D.W.4 - brother-in-law of the accused who resides at Bengaluru.
17. Now, we proceed to examine the evidence of relevant witnesses and the documents that were marked before the trial Court. With regard to the age of the victim is concerned, the evidence of the victim (P.W.1) and P.Ws.2 and 3 who are parents of the victim have claimed in unison that the age of the victim was aged 17 years at the time of the incident. In order to prove that the age of the victim was 17 years, the prosecution has examined the Head Master of the village school in which the victim was admitted and through him Ex.P.12 is marked, which is the school admission register extract showing the date of birth of the victim as 01.06.1999. The Trial Court examined the original register from which Ex.P.12 was produced and on perusal of 20 the original register, it was noticed that all the students who were admitted for the academic year 1999–2000 in the school, had one singular common date of birth i.e. 01.06.1999. When this was put in cross-examination to the Head Master of the school (P.W.8), he categorically admits that the admission register may not be correct. It is his further admission that all the students were given the date of birth as born on one single day, as there was no procedure for verification of date of birth of the students either in the form of Aadhar Card or Birth certificate from parents and no verification was done at the time of entry.
18. It is rather shocking that all the children admitted in the village school, in which the victim was admitted, were born on the same date i.e. 01.06.1999. Acceptance of such evidence, which on the face of it looks impossible, to say the least, would be preposterous. Thus, the extract of the admission register showing the date of birth of the victim as 01.06.1999 cannot be considered as conclusive evidence in 21 the eye of law to determine the age of the victim to be below 18 years.
19. Insofar as the judgments of the Hon’ble Supreme Court which the appellant – State places reliance on, they are distinguishable on the facts obtaining in each of the cases, without much ado. In the case of Mahadev (Supra), the Hon’ble Supreme Court was considering the provisions of the Juvenile Justice (Care and Protection of Children) Rules, 2007, with regard to the procedure to be followed in determining the age of the juvenile as set out in the Rules. On consideration of those Rules, the Hon’ble Supreme Court, at paragraph Nos.12 and 13, has held thus:
12. We can also in this connection make reference to a statutory provision contained in the Juvenile Justice (Care and Protection of Children) Rules, 2007, where under Rule 12, the procedure to be followed in determining the age of a juvenile has been set out. We can usefully refer to the said provision in this context, inasmuch as under Rule 12(3) of the said Rules, it is stated that:
22. “12. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, by the Committee by seeking evidence by obtaining— (a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a Panchayat;” Under Rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rules 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of a juvenile, in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of ascertaining the age of a victim as well. 23
13. In the light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her Vth standard and in the school leaving certificate issued by the said school under Exhibit 54, the date of birth of the prosecutrix has been clearly noted as 20.5.1990, and this document was also proved by PW11 Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.5.1990. The reliance placed upon the said evidence by the courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of the occurrence was perfectly justified and we do not find any good grounds to interfere with the same.
20. The next judgment relied on by the appellant is in case of Jarnail Singh (Supra). This was again a case of determination of age of a minor in terms of the Juvenile Justice (Care and Protection of Children) Rules, 2007 24 wherein, the Hon’ble Supreme Court, at paragraph Nos.23 and 24, has held as follows :
23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix, PW6 The manner of determining age conclusively has been expressed in Sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The 25 highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3) envisages consideration of the date of birth entered in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the 26 determination of age of the child concerned, on the basis of medical opinion.
24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix, PW6could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to Class 3 only, and thereafter, had left her school and had started to do household work. The prosecution in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix, PW6on the next available basis in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW4 to prove the age of the prosecutrix, PW6 Satpal (PW4 was the Head Master of Government High School, Jathlana, where the prosecutrix, PW6had studied up to Class 3. Satpal (PW4 had proved the certificate Ext. PG, as having been made on the basis of the school records indicating that the prosecutrix, PW6was born on 15.5.1977. In the scheme contemplated under Rule 12(3) 27 of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix, PW6 It would also be relevant to mention that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material including the ossification test, for determining the age of the prosecutrix, PW6 The deposition of Satpal, PW4has not been contested. Therefore, the date of birth of the prosecutrix, PW6(indicated in Ext. PG as 15.7.1977) assumes finality. Accordingly, it is clear that the prosecutrix, PW6 was less than 15 years old on the date of occurrence i.e. on 25.3.1993. In the said view of the matter, there is no room for any doubt that the prosecutrix, PW6was a minor on the date of occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court, that even if the prosecutrix, PW6had accompanied the appellant-accused Jarnail 28 Singh of her own free will, and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor.” The aforementioned paragraphs in the judgments relied on by the appellant would clearly indicate that the facts obtaining in those cases were different from the facts that are obtaining in the case on hand. But, one factor that would emerge from the law declared by the Hon’ble Supreme Court in the aforementioned judgments is that the age of the victim should be proved by cogent and coherent evidence and the school records are considered as primary evidence.
21. It is no doubt true that under Section 35 of the Indian Evidence Act, 1872, a presumption is available with regard to the maintenance of records and public documents. But that will have to be proved by examination of a competent witness who admits to the said document as it is the settled principle of law that mere marking of a document will not amount to its proof. The Head Master of the school 29 (P.W.8) has categorically admitted that the school admission register depicting the date of birth may not be correct as all the students were given the same date of birth, namely, 01.06.1999. When the author of the document or the custodian of the document admits that it may not be correct, the presumption available under Section 35 of the Indian Evidence Act, 1872, gets diluted. The school records, in such circumstances, cannot be considered as primary evidence. This is the purport of the judgments of the Hon’ble Supreme Court which are extracted hereinabove. Therefore, it can be said that there was no evidence in favour of the prosecution that would conclusively prove the age of the victim to be below 18 years.
22. The other evidence with regard to the age of the victim is that of P.W.7, who is the Gynecologist, who examined the victim and who in the cross-examination clearly admits that in terms of Exs.P.9 and P.11, which are the medical reports given by her, the age of the victim as per the radiologist is about 18 years and as per the dental 30 surgeon is 17 - 18 years. Thus, it can be unequivocally concluded that there was no evidence placed before the Trial Court by the prosecution which conclusively prove that the age of the victim was below 18 years. Therefore, we are of the considered view that the prosecution has miserably failed to establish the fact, beyond all reasonable doubt, that the age of the victim was below 18 years at the time of the incident and the accused could not have been alleged of committing offences punishable under the provisions of the POCSO Act. Thus, we answer point No.1 against the appellant-State.
23. Re. Point No 2: The victim (P.W.1), gives a graphic account of the sequence of the events that have occurred, beginning with the accused befriending her and developing sexual relations on the assurance that he would marry her, the fact of her becoming pregnant and the theory of forcible termination at the instance of the accused at the hospital in Sangareddy. She would further state that on coming to know of these 31 incidents, her parents along with the members of the Panchayat of the village tried to resolve the issue by getting the accused and the victim married. On failure of this attempt, left with no choice, she lodged a complaint before the police in terms of Ex.P.1. In the cross-examination of the victim, several links in the chain are lost. The victim stated that the accused had given her a mobile handset, but did not reveal the mobile number to her father. The victim claimed that the accused frequently called her during the night and spoke for long hours, but there is no evidence presented for the same by the prosecution by way of Call Record Details. The mobile phone was never seized by the police and was lying in the house of the victim. Insofar as the theory of pregnancy and its termination, the victim has failed to even the name the hospital or the doctor who confirmed her pregnancy and conducted the procedure nor has produced any medical documents in that regard. She did not give the particulars of the hospital or the doctor who had allegedly administered her drugs for termination of pregnancy at the hospital at Sangareddy. The victim 32 admitted that her parents had desired to get the victim married to the accused and since he had refused to marry her, a complaint was lodged before the police.
24. P.W.2 is the mother of the victim. She has corroborated the evidence of P.W.1 insofar as the attempt made by the Panchayat to get the victim and the accused married. The witness also admitted that she is residing with her husband who is working at Hyderabad. The witness further admitted that the victim had never been shown places like Hyderabad, Zahirabad and Sangareddy. She also admitted the fact that it takes longer hours from the place where the victim stayed i.e. Sindhol Thanda, to go to Sangareddy and return on the same day. Thus, the evidence of the mother of the victim (P.W.2) again dislodges the theory of the prosecution that the victim, at the instance of the accused, goes into a hospital at Sangareddy and gets her pregnancy terminated. 33
25. P.W.5 is the cousin of the victim and the scribe of the complaint (Ex.P.1). He admits, in the cross-examination, that the accused was working at Bangalore long before the incident and that he has no personal knowledge of the facts of the case and he is giving evidence as res gestae witness. PW-6 is an elderly member of the village and also a member of the Panchayat. His evidence is corroborated only to the fact that the matter could not be resolved in the Panchayat which was convened to bring about a settlement between the parties. This witness further states that, on failure of the Panchayat to resolve the issue, he advised the victim to approach the police. There is no evidence in the aforementioned cross-examination of the hearsay witnesses to link the accused for the offences alleged against him.
26. Insofar as the medical evidence is concerned, the victim was examined at BRIMS, Bidar on 17.08.2017, wherein she gave history of the case stating that the accused had sexual contact with her for 15-20 times and that the pregnancy had been terminated. The Doctor (P.W.7) in the 34 evidence has stated that she noticed that the hymen of the victim was not intact, but found no external injuries over her personal parts. The witness further stated that her examination would suggest that there could be either a delivery or recent abortion, but added that it was only a possibility. Thus, it was the burden on the prosecution to show that the victim was impregnated, it had been illegally terminated, at the instance of the accused. In all criminal cases, it is trite law, that the burden is on the prosecution prove the offences alleged against the accused beyond all reasonable doubt. The Hon’ble Supreme Court in the case of YOGESH SINGH Vs. MAHABEER SINGH reported in (2017)11 SCC195 at paragraph Nos.14 to 18, has held as follows:
14. Further, in Ganga Kumar Srivastava v. State of Bihar [Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC211:
2005. SCC (Cri) 1424]. , this Court added one more ground, namely, where the appreciation of evidence and finding is vitiated 35 by any error of law or procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence.
15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J.
in State of U.P. v. Krishna Gopal [State of U.P. v. Krishna Gopal, (1988) 4 SCC302:
1988. SCC (Cri) 928]. : (SCC pp. 313-14, paras 25-26) “25. … Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere 36 vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.
26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice.” 37 [See also Krishnan v. State [Krishnan v. State, (2003) 7 SCC56:
2003. SCC (Cri) 1577].; Valson v. State of Kerala [Valson v. State of Kerala, (2008) 12 SCC241: (2009) 2 SCC (Cri) 208]. and Bhaskar RamappaMadar v. State of Karnataka [Bhaskar Ramappa Madar v. State of Karnataka, (2009) 11 SCC690: (2010) 1 SCC (Cri) 133]. .].
16. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (Vide Kali Ram v. State of H.P. [Kali Ram v. State of H.P., (1973) 2 SCC808:
1973. SCC (Cri) 1048]., State of Rajasthan v. Raja Ram [State of Rajasthan v. Raja Ram, (2003) 8 SCC180:
2003. SCC (Cri) 1965]., Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC415: (2007) 2 SCC (Cri) 325]., Upendra Pradhan v. State of Orissa [Upendra Pradhan v. State of Orissa, (2015) 11 SCC124: (2015) 4 SCC38(Cri) 309]. and Golbar Hussain v. State of Assam [Golbar Hussain v. State of Assam, (2015) 11 SCC242: (2015) 4 SCC (Cri) 384]..
17. However, the rule regarding the benefit of doubt does not warrant acquittal of the accused by resorting to surmises, conjectures or fanciful considerations, as has been held by this Court in State of Punjab v. Jagir Singh [State of Punjab v. Jagir Singh, (1974) 3 SCC277:
1973. SCC (Cri) 886].: (SCC pp. 285-86, para
23) “23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every 39 case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.
18. Similarly, in Shivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC793:
1973. SCC (Cri) 1033]. , V.R. Krishna Iyer, J., stated thus: (SCC p. 799, para
6) “6. … The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system 40 of justice will then break down and lose credibility with the community.
27. On a consideration of the judgment extracted hereinabove and the evidence of the prosecution before the Trial Court, it becomes unmistakably clear that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. On the other hand, the evidence of the accused (D.W.1) himself and the other three witnesses D.Ws.2 to 4 and the documents produced by the defence viz. Exs.D.1 to D.8 would clearly indicate that, at the relevant point of time, when the incident took place, the accused was in Bangalore and not in Sindhol Thanda as there was no dispute with regard to the fact that the accused was working in Bangalore long before the occurrence of the incident. It is also to be seen that the accused himself voluntarily handed over his mobile phone for inspection and there was no record of mobile conversation as alleged between the victim and the accused for long hours. Thus, the defense of the accused is better established than the case of the prosecution. Thus, we hold point No.2 against the appellant-State. 41
28. Re. Point No.3: It is trite that an acquittal order cannot be lightly interfered with by the Appellate Court, though it has wide powers to review the evidence and come to its own conclusion under Sections 378 and 386 of the Code of Criminal Procedure, 1973. The power so available must be exercised with care and caution because the presumption of innocence is further strengthened by the acquittal of an accused. The Hon'ble Supreme Court in the case of CHANDRAPPA Vs. STATE OF KARNATAKA reported in (2007)4 SCC415has laid down general principles regarding the powers of the Appellate Court while dealing with an appeal against an order of acquittal and they read as follows: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
42. (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (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 43 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. (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.” The aforementioned judgment and the principles laid down herein are reiterated by the Hon'ble Supreme Court in the case of SAMPAT BABSO KALE VS. STATE OF MAHARASHTRA reported in (2019)4 SCC739 29. Thus, the examination of the instant appeal against acquittal will have to be considered on the bedrock of the principles laid down in the afore-extracted judgment of the Hon'ble Supreme Court as the accused is presumed to be innocent until proven guilty. The accused in the instant case has possessed this presumption when he was before the trial 44 Court and the trial Court’s acquittal bolsters the presumption that he is innocent.
30. The Trial Court has considered the entire spectrum of in its proper perspective and, on the basis of evidence on record and for the reasons indicated in answer to point Nos.1 and 2, rightly held that the prosecution has failed to establish the offences alleged against the accused under the provisions of the POCSO Act as there was no evidence to hold that the victim was below the age of 18 years. The Trial Court has also considered the presumption under Sections 29 and 30 of the POCSO Act and has held that only if the initial burden is discharged by the prosecution, presumption under Sections 29 and 30 of the POCSO Act can be drawn. Since the prosecution had failed to prove the guilt against the accused, no presumption can be drawn against the accused in the instant case. The Trial Court, on the basis of the evidence, has held that no case was made out against the accused and he was entitled to be acquitted of all the charges leveled against him. In our considered view and for the reasons aforementioned, the judgment of the Trial Court does not 45 warrant any interference. Point No.3 is answered accordingly.
31. For the foregoing reasons, we pass the following:
ORDER(i) The criminal appeal is dismissed. (ii) The judgment and order dated 6.6.2019 passed by the Additional District and Sessions Judge at Bidar, in Special Case (POCSO) No.119/2017 stands affirmed. (iii) There shall be no order as to costs. Sd/- JUDGE Sd/- JUDGE Cs/-