2020 Supreme(Kar) 639

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Aravind Kumar, Ashok S Kinagi, JJ.
Mahadevu @ Pappi - Appellant
Versus
State Of Karnataka - Respondent
Criminal Appeal No. 1126 of 2014
Decided On : 21-07-2020

Headnote:

Protection of Children from Sexual Offences Act, 2012 - Section 4 - Schedule Caste/Schedule Tribe Act, 1989 - Section 3(2)(v) - Negotiable Instruments Act 1881 - Prevention of Corruption Act, 1988 - Terrorist and Disruptive Activities Act, 1987 – Indian Penal Code - Section 354A and 376(2) – Constitution of India, 1950 - Article 14 and 21 – Appeal against conviction - Rigorous imprisonment – First Information Report - Accused was a resident of Nagar Village and his house is adjacent to house of complainant - Accused knowing full well that complainant belongs to Scheduled Caste community sexually assaulted minor girl aged about eleven years repeatedly by giving soft drinks - It was alleged accused was lifting langa of victim girl and after removing her underwear he had put his penis on place where urine is passed by girl vagina and pressed about eight to ten times and committed rape against her will and knowing full well that she is a minor girl accused committed aggravated penetrative sexual assault on her and threatened her with dire consequences that if she informs about incident to anybody he will kill her by piercing a knife and committed criminal intimidation and sexual assault on her - It was further alleged that mother of the child on coming to know that her daughter had not taken bath which usually she used to take on monthly menses she had enquired with minor victim girl who narrated to complainant about sexual assault committed on her by accused - Complainant further alleged that accused had called her to demanding her to marry victim girl to him - Thereafter complainant approached Women Counseling Centre and informed incident and with their help complainant got filed complaint against accused before police station – Held, Reading of evidence of these two witnesses PW-2 and PW-3 clearly establishes that it would not be safe to rely upon sole testimony of child witness PW-2 to convict appellant in present case - There is no corroboration to evidence of said child witness PW-2 and evidence of other witnesses would not support case of prosecution and they have turned hostile - As there is no medical evidence on record to support theory of prosecution that victim was subjected to sexual assault by appellant it becomes difficult to uphold conviction ordered by trial court - Proper analysis of evidence of prosecution witnesses and medical evidence brought on record by prosecution shows that foundational facts necessary in present case to raise a presumption under Section 29 of POCSO Act have not been laid or established beyond reasonable doubt by prosecution - Statutory presumption under Section 29 of POCSO Act must be understood and tested on anvil of golden thread which runs through web of criminal jurisprudence system in this country that an accused is presumed tube innocent till guilt is conclusively established beyond reasonable doubt - Defense has been able to demonstrate that prosecution story cannot be believed and therefore presumption would not operate in favor of victim girl and even otherwise it had stood rebutted by medical evidence and oral evidence of PW-2 and documentary evidence Ex.P3 P19 and P20 - It has come in evidence of other prosecution witnesses that there was a loan transaction between appellant and complainant - Statement of accused recorded under Section 313 of Criminal Procedure Code he has denied allegations made against him and he has given a reply stating there under that there was loan transaction between P.W.5 who is none other than aunt of accused and parents of victim and hence a quarrel took place between P.W.3 and accused namely when accused demanded repayment of loan complainant had filed a false case against accused - On careful scrutiny and analysis of material evidence on record it clearly demonstrates that present case is a case of false implication or complete misunderstanding of situation by learned Sessions Judge who seems to have jumped to a conclusion by presuming that allegations made by P.W.2 and P.W.3 against appellant are presumed to be true - In backdrop of overwhelming medical evidence available on record it would be unsafe to hold that prosecution had proved its case against appellant under provisions of POCSO Act or under Sections 354A and 376 of IPC - Bare reading of aforesaid provision would reveal that whoever not being a member of a SC/ST commits an offence under IPC which is punishable with imprisonment of ten years or more even after knowing such person belongs to SC/ST or property belongs to such person it is not sufficient that injured person should be a member of either category - Further it requires to be proved that offence has been committed on ground of victim being a member of scheduled caste or scheduled tribe - In absence of this material merely because PW-2 happen to be a member scheduled caste automatically offence under Section 3(2)(v) of SC/ST Act is not made out - There is no material on record indicating that alleged rape was committed on ground that PW-2 was a member of Scheduled Caste - Fact that PW-2 is a member of Scheduled Caste is not in dispute – However in absence of material that alleged offence has been committed on ground of victim was a member of Scheduled Caste conviction under aforesaid provision of Act cannot be sustained - In view of aforesaid discussion conviction of appellant under Section 3(2)(v) of SC/ST Act and sentence imposed thereon cannot be sustained and same is liable to be set aside - Prosecution has also failed to explain delay in lodging complaint - Alleged incident took place on August - Complaint-Ex.P.4 came to be lodged by P.W.3 - Same has been sought to be explained by PW-2 and PW-3 contending accused had threatened PW-2 and as such complaint was not lodged - When theory of rape committed by accused on PW-2 and consequently PW-2 having become pregnant is not proved and fact that complainant PW-3 having not assigned any cogent reason for delay of about five months in lodging complaint or in other words same having not been explained which would inspire confidence in court as well as inconsistency in evidence of PW-7 and PW-8 as to actual date of visit of PW-2 and PW-3 to said Kendra being vague and in doubt explanation for delay in lodging complaint cannot be accepted - These aspects have been overlooked by trial court and merely on basis of presumption learned Sessions Judge has convicted appellant for offences punishable under Section 354A and 376(2) of IPC and Section 4 of POCSO Act and Section 3(2)(v) of SC/ST Act and thereby committed a serious error – Hence court are of considered view impugned judgment is contrary to material evidence available on record and same cannot be sustained and it is liable to be set aside - Appeal is allowed