Conviction requires credible evidence; lack of independent witness corroboration undermines testimonies in sexual assault cases.

(PER: HON'BLE MR. JUSTICE S RACHAIAH)

These two appeals have been filed by the appellants/accused Nos.1 and 2 being aggrieved by the judgment of conviction and order on sentence dated 01.04.2017 in Special Case (POCSO) No.1/2016 pending on the file of District and Sessions Judge, Yadgiri.

2. The ranks of the parties will be considered henceforth as that of Trial Court for convenience.

Factual matrix of the case:

3. The case of the prosecution is that, on 12.09.2015 at about 2.00 P.M. C.W.1/victim had gone to attend nature call in the open field situated near her house. The accused Nos.1 and 2 who are the residents of the same village stated to have kidnapped her and took her to a dilapidated shed which belongs to Mr.Ayyappa Sahukar.

4. It is further stated that the accused No.1 stated to have committed sexual assault on her and thereafter he informed accused No.2 to have sexual intercourse with the victim. When the accused No.2 went to have sexual intercourse with the HC-KAR victim, she resisted and pushed accused No.2 by biting his right hand and thereafter she cried for help.

5. On hearing the said hue and cry, C.W.12 who is the son of her uncle went to the said place. After seeing him, accused Nos.1 and 2 ran away from the place. The victim and C.W.12 after discussing the matter with the family members lodged a complaint against accused Nos.1 and 2. Based on the said complaint, the respondent Police have registered a case against accused Nos.1 and 2. After conducting the investigation, submitted the charge sheet.

6. To prove the case of the prosecution, the prosecution examined 17 witnesses i.e., P.W.1 to P.W.17 and got marked 20 documents as EX-P.1 to P.20 and also identified 4 material objects MO.1 to MO.4.

7. Heard Sri.S.B.Sangolagi, learned counsel for appellant / accused No.1 in Crl.A No.200167/2017, Sri. and Sri.Ganesh Naik, learned counsel for appellant / accused No.2 in Crl.A No.808/2017 and Sri.Jamadar Shahabuddin, learned High Court Government Pleader for the respondent - State in both cases.

HC-KAR

8. It is the submission of the learned counsel for the appellant that the impugned judgment passed by the Trial Court is perverse, illegal and against the evidence on record.

Therefore, the same is liable to be set aside.

9. It is further submitted that the evidence of the prosecutrix appears to be tainted and unbelievable for the reason that, even though she stated in her evidence that, accused No.1 had committed sexual intercourse on her and an attempt was made by accused No.2, however, she is stated to have bit the right hand of the accused No.2. However, P.W.7- Doctor, who examined both accused Nos.1 and 2 did not notice such biting marks on the right hand of accused No.2. Further, the Doctor, who conducted examination of the victim, has been examined as P.W.14. According to P.W.14, the victim had not been subjected to recent sexual intercourse. Such being the fact, the evidence of P.W.1, cannot be construed as ‘sterling witness’. However, the Trial Court ignored in considering the said aspect and relied on the evidence of P.W.1 even without corroboration of independent witness which appears to be erroneous.

HC-KAR

10. When the evidence of P.W.1 who is the victim of the case, is not believable conviction in respect of offence under Section

376-D of IPC cannot be sustained.

11. As regards, Section 354 of IPC is concerned, the said ingredients would be attracted only when the modesty of the women is outraged. On the given set of facts and also evidence on record would indicate that none of the independent witness have stated about the outr