ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

This appeal is preferred by the State, assailing the judgment of acquittal dated 17.02.2018 passed by the Court of I Additional District and Special Judge, Mandya in Spl.C No.47 of 2014. Vide impugned judgment, the trial Court has acquitted the accused of the offences punishable under Section 376 of IPC read with Section 4 of POCSO Act and Section 302 and 201 of IPC.

2. In brief, case of the prosecution is that on 07.03.2014 between 4.30 and 05.00 p.m., the accused by luring the minor victim, aged about seven years with biscuits and Rs.5/- currency, took her to the sugarcane field bearing Survey No.27/1A of Nuggahalli in Pandavapura Taluk and committed rape on her. Further, he strangulated her by using her underwear and committed her murder and thereafter to cause disappearance of the evidence, buried the body in the said sugarcane field.

3. Heard both side and perused the evidence and material on record.

4. Entire case of the prosecution is based on circumstantial evidence. The prosecution got examined 20 witnesses and got marked 39 documents and MOs.1 to 25, to establish its case. On behalf of the defence, Ex.D1, Ex.D1(a) and Ex.D2 were marked. The defence of the accused was one of total denial, however, he has not led any defence evidence on his behalf.

5. The learned Sessions Judge on appreciation of the oral and documentary evidence on record came to the conclusion that the prosecution has failed to prove the guilt of the accused by placing clear, cogent and consistent circumstantial evidence and corroborative medical evidence.

6. It is contended by learned Addl. SPP that PW.2 to PW.4 are the witnesses, who have seen the deceased and the accused together prior to the incident, on the previous day. The dead body was found on the following day and as per post-mortem report, the death is homicidal and rape is also committed on the victim. Further, to cause disappearance of evidence, accused has buried the dead body. The said evidence coupled with medical evidence of PW.20, the prosecution has established the guilt of the accused beyond reasonable doubt. She has therefore contended that the reasons assigned by the trial Court for acquitting the accused are not in accordance with law and accordingly, sought to allow the appeal and convict the accused for the charged offences.

7. Per-contra, learned counsel for respondent No.1/accused contended that the evidence of PW.2 to PW.4 is not sufficient to hold that it was the accused and accused alone, who has committed the murder. Their evidence is full of contradictions and improvements. Further, it is admitted that their statements are not recorded by the police. He further contended that evidence of PW.20 is not conclusive in nature to hold that the sperms found on the underwear was that of the accused and therefore, considering all these aspects, the learned trial Judge has rightly acquitted the accused. He has therefore sought for dismissal of the appeal.

8. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that, it is an appeal against the judgment of acquittal. Therefore, the accused has primarily the double benefit. Firstly, the presumption under law is that unless the guilt is proved, the accused has to be treated as innocent in the alleged crime. Secondly, the 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 analysed.

(a) The Hon’ble Apex Court, in its judgment in the case of Chandrappa and others -v- State of Karnataka reported in (2007) 4 SCC 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 Nos.42(4) and 42(5) as below:

“42(4) An appellate Court, however, must bear in mind that in case of acq