State of Karnataka vs Nagappa

Anand Byrareddy, J.—There is a delay of 36 days in filing the appeal. However, it is noticed that on merits the appeal may have to be rejected. On a plain reading of the judgment of the Court below it cannot be said that the trial Court acquitted the accused "on minor discrepancies and omissions" as sought to be urged in the grounds of appeal. Therefore, though the delay in filing the appeal would have to be condoned on notice being served on the respondents, on the application, in view of the appeal itself lacking merit, it is felt not necessary to consider the question of delay.

It was the case of the prosecution that PW-1 was said to be the victim, PW-2 is the brother of the victim, PW-6 was the hither of PW-1. The father of PW-1 was the owner of land in Harangera village. In September, 2014 cotton had been cultivated on the land. On 22.09.2014, at about 9.00 a.m., PW-6 the father of PWs-1 and 2 had called her and her brother to de weed the land since he had to go to Shahapur along with his wife. It is stated that PWs-1 and 2 had started to remove the weeds in the land. While they were so engaged, at about 1.00 p.m. the accused is said to have tress-passed on the land and abused PW-1 saying VERNACULAR MATTER and came near PW-1 and all of a sudden caught, her hands and started to drag her away. When she had shouted for help and on hearing her cries PWs-4, 5 and 7 are said to have come there to her rescue. And on seeing them the accused is said to have run away and while leaving he had again shouted VERNACULAR MATTER. It transpires that PWs-1 and 2 on returning to their house did not inform their father and mother of the incident. It is only on 29.09.2014 at about 1.00 a.m. that PW-1 had informed the residents of the locality about the act of the accused and discussed the matter and it is thereafter they decided to lodge a police complaint.

On the basis of the complaint, a case was registered in Crime No. 115/2014 for the offence punishable under Sections 447, 354-A, 504, 506 of the Indian Penal Code, 1860, and under Section 3 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 12 of the Protection of Children from Sexual Offences Act, 2012. On that basis, the First Information Report was submitted, further investigation was taken up. After recording the statement of witnesses and after obtaining the medical certificate and after further proceedings the matter was committed to the Special Court for a trial. The charges have been framed and the accused have pleaded not guilty and have claimed to be tried, the prosecution had tendered evidence of 10 witnesses and several documents were also marked. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 the Court below had framed the following points for consideration:

"(1) Whether the prosecution proves that on the alleged date, time and place, accused committed criminal trespass by entering in to the land of CW.15 so punishable under Section 447 of Indian Penal Code, beyond all reasonable doubts?

(2) Whether the prosecution proves that on the alleged date, time and place, accused committed sexual harassment against the PW.1 victim girl by making physical contact against her will so punishable under Section 354-A of Indian Penal Code, beyond all reasonable doubts?

(3) Whether the prosecution proves that on the alleged date, time and place, accused intentionally insulted the PW.1 victim girl in filthy language and thereby gave provocation to her intending or knowing it to be likely that such provocation will cause the PW.1 victim girl to break the public peace or to commit any other offence so punishable under Section 504 of Indian Penal Code, beyond all reasonable doubts?

(4) Whether the prosecution proves that on the alleged date, time and place, the accused committed criminal intimidation by threatening PW. 1 victim girl to take her life so punishable under Section 506 of Indian Penal Code, beyond all reasonable doubts?

(5) Whether the prosecution proves that on the alleged date, time and place, the accused committed sexual harassment against PW. 1 victim girl who was below the age of 18 years by making physical contact against her will so punishable under Section 12 of the P.O.C.S.O. Act, 2012, beyond all reasonable doubts?

(6) Whether the prosecution proves that on the alleged date, time and place, accused knowing fully that the PW. 1 victim girl belonged to a schedule caste, with an intent to dishonour, outraged her modesty so punishable under Section 3(1) (xi) of SC/ST (P.A.) Act, 1989, beyond all reasonable doubts?

(7) What order?"

The Court below answered the same in the negative. It is that which is under challenge in the present appeal. The State raised two primary grounds namely, that the material witnesses PWs-1 to 4, 6 and 7 had categorically deposed against the accused, but the Court below, on the basis of minor discrepancies acquitted the accused. Further, the evidence of PWs-1 to 4 and 6 was corroborated by the evidence of PWs-5 and 10 and this also been overlooked by the Court below. It is on these two primary grounds that the appeal is filed.

The learned Government Pleader seeks to take this Court through the record to demonstrate that the evidence been overlooked on the ground of minor discrepancies. However, on a plain reading of the judgment of the Court below it cannot be said that the Court below proceeded to negate the evidence of the prosecution to answer the points for consideration in the negative as there are serious lacunae which the Court below found in acquitting the accused.

Firstly, it is noticed by the Court below that the alleged incident had taken place on 22.09.2014 at about 1.00 p.m. but the complaint was filed on 29.09.2014. This is the first circumstance which the Court below found would be fatal to the case itself. It is also noticed that PW-1 had not immediately intimated her parents on 22.09.2014 about the incident but the information was revealed to them and others in the locality only on 29.09.2014. PW-3 was said to be the uncle of PW-1 and it was also on record that the mother of the accused had filed a complaint in Crime No. 113/2014 against the PW-3 and CW-6 and as a counter blast the present case was sought to be foisted. Though in the evidence of PW-1 she also stated that on the very day of the incident she and her grand mother had visited the police station and informed the incident, there is no whisper about this circumstance in the complaint. Therefore, the very incident have taken place on 22.09.2014 is strongly doubted by the Court below.

It is also found by the Court below that PW-1 had stated that accused had caught her hands and he was holding her hands for more than 15 minutes and that in the course of which the bangles she was wearing had broken and she had sustained abrasions on her hands. There is no indication in the complaint of such abrasions have been sustained. Since it was claimed ambiguously that she had not informed her parents on 22.09.2014 and it was only on 29.09.2014 that she had intimated her parents, it is inexplicable that the abrasions on her hands were not noticed by her parents and the broken bangle pieces were never collected by the Investigating Officer, from the scene.

Further, it is noticed that the prosecution had claimed that PWs-3 to 5 were in the neighbouring land and those witnesses have not spoken about the derogatory language used by the accused in abusing the victim and it is also not reflected in the panchanama that the land on which PWs-3 to 5 were working was situated adjacent to the land where the incident had taken place. This is borne out by the evidence of PW-8 who had drawn the sketch of the scene of occurrence, indicating the location as being different, and not as claimed by the witnesses PWs-3 to 5 that Ambresh Path''s land was situated next to the land where the incident had taken place.

PW-6, the father of the victim had stated that he had come to know about the incident on 29.09.2014 and he had discussed it with the people of the locality before deciding to lodge a complaint. When there was doubt about the author of the complaint, when it was stated that PW-7 had drafted the complaint but however he also stated in his cross-examination that much before PW-6 came to the police station PWs-1 and 2 were already in the police station and it was also not clear as to why they had not informed the police as to the reason for their being present in the police station.

Insofar as the allegations for offence punishable under Section 29 of the Protection of Children from Sexual Offences Act, 2012 (Hereinafter referred to as the ''POCSO Act'' for brevity) is concerned, and since the burden was on the prosecution to prove that he had committed sexual harassment against PW-1 the victim and in the absence of any such evidence, the prosecution had failed to make out a case for the offence punishable under Section 29 of the POCSO Act. It is in this background that the Court below acquitted the accused.

Hence, the learned Government Pleader''s attempt to demonstrate that there were "minor discrepancies and omissions" and that the Court below overlooked the evidence and not viewed the same in the proper perspective, cannot be accepted. Therefore, even though the delay could be condoned, the appeal lacks merit and is rejected.

Consequently, the application in I.A. No. 1 of 2016 does not survive fop consideration.