Karnataka High Court
Mahesh S/O. Balappa Shivannagol vs The State Of Karnataka on 27 September, 2024
Author: B.M.Shyam Prasad
Bench: B.M.Shyam Prasad
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C/W CRL.A No. 100339 of 2020
CRL.A No. 100255 of 2021
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 27TH DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
CRIMINAL APPEAL NO.100013 OF 2021 C/W
Digitally signed by
VINAYAKA B V CRIMINAL APPEAL NO. 100339 OF 2020 AND
Location: HIGH
COURT OF CRIMINAL APPEAL NO. 100255 OF 2021
KARNATAKA
DHARWAD
BENCH
DHARWAD
Date: 2024.10.01
IN CRL.A.NO.100013 OF 2021:
12:32:28 +0530
BETWEEN:
SRI. SOMASHEKHAR DURADUNDESHWAR SHAHAPUR,
AGE: 26 YEARS, OCC: STUDENT,
R/O. BAILHONGAL, SOMAWAR PET,
TAL: BAILHONGAL, DIST: BELAGAVI 591102.
- APPELLANT
(BY SRI. ASHOK R. KALYANSHETTY, ADVOCATE)
AND:
THE STATE OF KARNATAKA REPRESENTED BY THE SPP,
THROUGH KAKATI POLICE, BELAGAVI,
TAL: & DIST: BELGAUM-590002.
- RESPONDENT
(BY SRI. M.B.GUNDAWADE,
ADDITIONAL STATE PUBLIC PROSECUTOR;
SMT. ANURADHA DESHPANDE, AMICUS CURIAE FOR P.W.1)
THIS CRIMINAL APPEAL IS FILED U/S. 374 OF CR.P.C.,
AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 12.11.2020 PASSED IN S.C. NO. 156/2017
BY THE SPECIAL COURT (POSCO) AND (SC AND ST
PREVENTION OF ATROCITIES) & III ADDL. DISTRICT AND
SESSIONS JUDGE, BELAGAVI BY ALLOWING THIS APPEAL AND
ACQUITTING THE APPELLANT FOR THE OFFENCES
PUNISHABLE U/SEC.341, 504, 506 OF IPC AND SEC.17 OF
POCSO ACT & ETC.
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IN CRL.A.NO.100339 OF 2020:
BETWEEN:
1. SANJU ALIAS BABA SIDDAPPA DADDI,
AGE: 27 YEARS, OCC: COOLIE,
R/O. MUTTYAANKATTI MARUTI GALLI,
TAL: BELAGAVI, DIST: BELAGAVI-590001.
2. SUNIL ALIAS YALLA LAGMANNA RAJKATTI
ALIAS DUMMGOL, AGE: 21 YEARS, OCC: COOLIE,
R/O. MUTYANGATTI, MARUTI GALLLI,
BELAGAVI, DIST: BELAGAVI-590001.
- APPELLANTS
(BY SRI. JAGADISH PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ITS SPP,
THROUGH KAKATI POLICE, BELAGAVI,
TAL: & DIST: BELAGAVI-590001.
- RESPONDENT
(BY SRI. M.B.GUNDAWADE,
ADDITIONAL STATE PUBLIC PROSECUTOR;
SMT. ANURADHA DESHPANDE, AMICUS CURIAE FOR P.W.1)
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C.,
SEEKING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE IN SC
NO.156/2017 IMPOSED BY THE SPECIAL COURT (COURT FOR
SEXUAL ASSAULT ON CHILDREN) AND (SC/ST ATROCITIES
COURT) & III ADDL. DISTRICT AND SESSIONS COURT,
BELAGAVI ON APPELLANT NO.1(ACCUSED NO.1) FOR
OFFENCES PUNISHABLE U/S 376(D), 395, 341, 354, 385, 504,
506 OF IPC AND U/S 4, 6, 8, 12 OF POCSO ACT, 2012 AND U/S
67 OF IT ACT, AND ON THE APPELLANT NO.2 (ACCUSED NO.3)
FOR OFFENCES PUNISHABLE U/S 376(D), 341, 354, 504, 506
OF IPC AND U/S 4, 6, 8, 12 OF POCSO ACT, 2012 & ETC.
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IN CRL.A.NO.100255 OF 2021:
BETWEEN:
MAHESH S/O. BALAPPA SHIVANNAGOL,
AGE: 27 YEARS, OCC: COOLIE,
R/O. MANAGUTTI, AMBEDKAR GALLI,
TAL: HUKKERI, DIST: BELAGAVI 590001.
- APPELLANT
(BY SRI. PRASHANT S. KADADEVAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA REPRESENTED
BY ITS SPP, HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
THROUGH KAKATI POLICE STATION,
TQ: BELAGAVI, DIST: BELAGAVI-590011.
- RESPONDENT
(BY SRI. M.B.GUNDAWADE,
ADDITIONAL STATE PUBLIC PROSECUTOR;
SMT. ANURADHA DESHPANDE, AMICUS CURIAE FOR P.W.1)
THIS CRIMINAL APPEAL IS FILED U/S. 374(2) OF CR.P.C.,
SEEKING TO ALLOW THE APPEAL BY SETTING ASIDE THE
JUDGMENT OF CONVICTION AND SENTENCE IN SC
NO.156/2017 IMPOSED BY THE SPECIAL COURT (COURT FOR
SEXUAL ASSAULT ON CHILDREN) AND (SC/ST ATROCITIES
COURT) AND III ADDL. DISTRICT AND SESSIONS COURT,
BELAGAVI ON APPELLANT (ACCUSED NO.4) FOR OFFENCES
PUNISHABLE U/S 376(D), 341, 354, 504, 506 OF IPC AND U/S
4, 6, 8, 12 OF POCSO ACT, 2012 & ETC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 02.09.2024 AND COMING ON
FOR 'PRONOUNCEMENT OF JUDGMENT', THIS DAY,
B.M.SHYAM PRASAD J., PRONOUNCED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
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CAV JUDGMENT
(PER: THE HON’BLE MR. JUSTICE B.M.SHYAM PRASAD)
These appeals are filed by the first, third, fourth and
the fifth accused in Special Case No 156/2017 on the file of
the Special Court [POCSO & SC ST Prevention of Atrocities
Act] and III Additional District and Sessions Court, Belagavi
[for short, the ‘Special Court’]. The first and third accused
have filed their appeal in Criminal Appeal No. 100339/2020,
the fourth accused has filed his appeal in Criminal Appeal
No. 100255/2021 and the fifth accused has filed his appeal
in Criminal Appeal No. 100013/2021. The Special Court
has convicted the appellants-accused1 by its judgement
dated 12.11.2020 under the provisions of Indian Penal
Code, 1860 [for short, ‘the IPC’] and Protection of Children
from Sexual Offences, 2012 [for short, ‘the POCSO Act’]. The
details relating to each of their conviction, punishment and
sentence are encapsulated in the following table.
1 These appellants, for reasons of convenience, are referred to as they
are arraigned before the Special Court.
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The details of the conviction and sentence of the first
accused and second accused2 [Sri Sanju and Suresh]
Offences Imprisonment/Fine Default Imprisonment
Section 341 of IPC. Rs. 2000/- Simple imprisonment of
one [1] month.
Section 8 and 12 of Simple 1 Month
the POCSO Act r/w Imprisonment of
Section 354 of the three [3] years and
IPC Rs. 5,000/-.
Section 385 of IPC. Rs. 5000/- 1 Month.
Section 395 of the Rigorous 1 Month.
IPC. Imprisonment of five
[5] years and Rs.
5,000/-.
Section 504 of the Rs. 2000/- 1 Month
IPC.
Section 506 of IPC. Rs. 2,000/- 1 Month
Section 4 of POCSO Life Imprisonment Simple imprisonment.of
Act r/w Section and Rs. 2,50,000/-. three [3] years.
376[d] of the IPC.
Section 6 of POCSO Life Imprisonment Three [3] years of
Act r/w Section and Rs. 2,50,000/-. Simple Imprisonment.
376[d] of the IPC.
The details of the conviction and sentence of the third
accused and fourth accused [Sri Sunil and Sri Mahesh]
Offences Imprisonment/Fine Default Imprisonment
Section 341 of Rs. 2000/- Simple imprisonment of 1
IPC. month.
Section 8 and Simple Imprisonment of 1 Month
12 of the three [3] years and Rs.
POCSO Act r/w 5,000/- Section 354 of the IPC Section 504 of Rs. 2000/- 1 Month the IPC. Section 506 of Rs. 2,000/- 1 Month IPC.
2 This accused has not filed an appeal against his conviction.
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The details of the conviction and sentence of Fifth
Accused. [Sri Somshekhar]
Offences Imprisonment/Fine Default Imprisonment
Section 341 of Rs. 2000/- Simple imprisonment of
IPC. 1 month.
Section 504 of Rs. 2000/- 1 Month
the IPC.
Section 506 of Rs. 2,000/- 1 Month
IPC.
Section 17 of Life Imprisonment and Rs. Three [3] years of
POCSO Act. 5,00,000/-. simple imprisonment.
2. The Special Court has directed that the
sentences against the accused, both the respective term and
life sentences, shall run concurrently. The Special Court, in
view of the provisions of Section 33 [8] of the POCSO Act,
Section 357A [2] and [3] of the Code of Criminal Procedure
[for short, ‘the Cr.P.C’] and Rule 7 of the Protection of
Children from Sexual Offences Rules, 2012, has also
imposed a fine of Rs. 5,21,000/- [to the first accused and the
second accused], Rs. 5,11,000/- [to the third and fourth
accused] and Rs. 5,06,000/- [to the fifth accused]. The
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Special Court has directed these amounts to be given to the
prosecutrix as compensation, and the Special Court has also
directed the State Government to pay Rs. 2,00,000/- as
compensation to the prosecutrix.
The Prosecutrix’s case as stated in the first information
dated 20.02.2017 [Ex – P 1]:
3. On 15.02.2017, the prosecutrix and the co-
victim had been to Muttyanatti after 6 o’ clock in the evening
to watch sun set when the accused [and a juvenile offender]
coming from the hill side detained them using vulgar
language. The accused snatched their two mobiles and
Rs.300/- from them. The accused pushed the prosecutrix
and the co-victim into a more secluded place and compelled
them to remove their dress/clothes and forced the co-victim
to force himself on the prosecutrix while recording the
occurrence with co-victim’s mobile using the prosecutrix’s
mobile as a torch. The accused belittled the co-victim by
calling him impotent because he could not force himself on
the prosecutrix and threatening them that they would
sexually assault her. Subsequently, the first to fourth
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accused took the prosecutrix further inside and each one of
them committed rape on her and the fifth accused and the
juvenile offender detained the co-victim abetting such crime.
3.1 The accused permitted the prosecutrix to
put her dress on [without the undergarments] and the co-
victim his clothes. The accused demanded a sum of
Rs.20,000/- from them threatening to upload the video
recorded by them if they failed to pay such amount. The
incident occurred between 06:30 and 07:30 p.m., and they
were detained at the same place till 09:00 p.m., and they
later hitchhiked to Belagavi. The prosecutrix has named the
assailants as Sri Sanju, Sri Suresh and Sri Mahesh because
they were addressing themselves accordingly while stating
that she came to know that they are from Muttyanatti.
The Prosecution’s case as in the Prosecutrix’s further
Statement – [Ex. P 2]
4. The prosecutrix’s statement under Section
24 of the POCSO Act is recorded by a Woman Police
Inspector [Smt. Shreedevi Patil – PW 31] from the Women
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Police Station, Belagavi Town on 20.02.2017. The
prosecutrix narrating the incident as stated above has
further stated that the accused had snapped the petrol tube
of the co-victim’s bike and they were therefore forced to walk
some distance on NH4 [Highway] past a Dhaba when they
could hitchhike a ride in the car driven by Sri. Sandesh Patil
[P.W.6]. They did not relate the incident to this witness and
his companion but only told them that their phones were
snatched. Sri. Sandesh Patil dropped them at K.L.E.
Hospital, Belagavi. She spent a night outside the emergency
ward in this hospital while the co-victim spent the night
outside the emergency ward.
4.1 The prosecutrix, as regards the reason for
not filing the first information immediately, has offered the
following narration stating that she feared the accused
would upload the offending video. The prosecutrix did not
call her parents on 15.02.2017 as she typically did, but her
mother called her in the evening of 16.02.2017 on the
landline in the hostel enquiring why her mobile was
switched off. She told her mother that her mobile was lost.
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Her mother called her on 17.02.2017 to inform her that she
was getting calls stating that her phone is located and
enquiring where she had lost her mobile. She gave some
lame excuse, but did not relate the incident. On 18.02.2017,
her mother called again assuring her that she need not
worry, her phone is located and that her father would come
on Sunday [on 19.02.2017] to Belagavi. She did not relate
the incident to her mother even then.
4.2 The prosecutrix has further narrated that
her father visited her at the hostel on 19.02.2017 and
started making persistent enquiries about the loss of her
mobile. She only told him that six persons had snatched her
mobile when she had gone out for a walk with the co-victim.
Her father insisted on talking to the co-victim and therefore,
she called him. She was asked to speak to him first, and the
co-victim related that when he visited the place of
occurrence on the next day, the first accused did not return
the mobile but insisted on paying them the amount. He also
told her that the first accused permitted him to take his SIM
and that he had retrieved the motorcycle. Her father also
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spoke to him after her, and her father informed him that if
the mobile is not returned, a police complaint will have to be
filed. Later, her father took her to the place of occurrence,
and she showed him the place of occurrence albeit from a
far distance.
4.3 The prosecutrix has explained that her
received a call on his mobile [from 9482274124] as they
returned to Belagavi from the place of occurrence. The
caller informed her father that they were seen at the place of
occurrence and they must return within the next half an
hour because the caller had certain demands and
threatened saying that if they did not return, an offending
video would be uploaded bringing disrepute to the
prosecutrix. After this telephone call, her father took her
back to her native place [Annigeri] informing her that they
can discuss what has transpired with their relative, Sri.
Shirish Babaladi [P.W.5] and file a complaint if necessary.
4.4 The prosecutrix has also explained what
transpired on 20.02.2017 leading to the first information
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with the Kakati Police [the jurisdictional police] on this day.
Her mother saw injuries on her back and limbs when she
stepped out of the bathroom and enquired with her. Her
mother also called her father, and both of them enquired
about the reason for such injuries. She then disclosed to
them the assault on her, and after discussing about filing a
police complaint they left Annigeri by car. They reached
Sri.Shirish Babaladi’s residence in Belagavi. After
ascertaining that the complaint had to be lodged with the
jurisdictional police, they typed out her complaint on a
laptop and filed it with the jurisdictional police.
4.5 The prosecutrix has stated that she came to
know that the place of occurrence was Muttyanatti only
when she visited this place with her father on 19.02.2017.
The co-victim has visited Muttyanatti after the incident with
two of his acquaintances. She has named the first, second
and the third accused in the complaint and she has later
remembered the name of the fourth accused. She stated
specifically stating that the first to fourth accused have
committed rape on her and that she does not remember the
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name of the other two assailants but she would give the
names as and when she can recollect their names. She can
identify each of the assailants if shown to her. She has had
made a mistake in giving the registration number of the co-
victim’s motorcycle and she has furnished the landline
number, her mobile numbers, including the mobile number
obtained for her use in her father’s name.
The details of the Investigation
5. The jurisdictional police, upon receiving the
prosecutrix’s statement under Section 24 of the POCSO Act
recorded by the Woman Police Inspector [Smt. Shreedevi
Patil- PW31], has registered the FIR in Crime No. 38/2017.
The essential details of the investigation are stated thus for
reasons of convenience.
Date Details of the Procedure Exhibit
conducted
20.02.2017 The Prosecutrix’s parents [who are Ex P 60
examined as PW3 and PW4] have
given their consent for the
prosecutrix’s medical examination,
and she is examined accordingly.
The Doctor, who has examined the Ex P 100
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prosecutrix and who is examined as
PW 28 in the trial, has filed Medical
Examination Report3, and this
examination is at the Belgaum
Institute of Medical Sciences, District
Hospital, Belgaum.
21.02.2017 The first to third accused are
arrested.
The police have seized the 'Coolpad Ex P 63
Mobile' [MO 16] from the first
accused under this Panchanama.
This mobile belongs to the co-victim.
The seizure is in the presence of Sri
Gangadhar M. Gasare [PW. 15] and
this witness supports the recovery4.
The audio and video recordings are Ex P 64
downloaded on to a laptop and the
audio clip is transcribed under the
Panchanama.
Simultaneously, the fourth accused
is also arrested.
The specimen5 from the prosecutrix's Ex P 65
person is sealed under this
Mahazar.
22.02.2017 A Spot Panchanama and Sketch of Ex P 66
3 The details of these Medical Examination Reports and Forensic
Reports are elaborated in a separate table later in this judgement.
4 The prosecution contends that further proceedings even after this
date and the arrest of the other accused are in the presence of this
witness, and this witness has supported all these proceedings.
5 The seized Specimens are mentioned Material Object’s List.
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the spot are drawn in the presence [The
of the prosecutrix and Sri Gangadhar Panchnama]
M. Gasare [PW. 15]. and Ex P 67
[Sketch] -
[The photos
of the
procedure in
this regard
are are
marked in
Ex P 3- 11]
The Medical Examination Report of Ex P 168-
the first to fourth accused with the 171
Doctor opining that there is nothing
to indicate these persons are
incapable of having sexual
intercourse.
The prosecutrix's statement is Ex P 12
recorded by the learned
Magistrate under Section 164 of
the Cr.P.C.
23.02.2017 The IO has taken first to third Ex P 70 [The
accused to carry out Spot Panchanam
Panchanama. a]
[The photos
of the
procedure in
this regard
are are
marked in Ex
P 71 to Ex P
74.]
24.02.2017 The IO has recorded the audio Ex P 80
samples of the first to fourth
accused.
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28.02.2017 The fifth accused is arrested.
01.03.2017 The co-victim gave his statement Ex P 14
under Section 164 of the CRPC.
The IO has recorded the voluntary Ex P 81
statement of the juvenile offender
[the sixth accused, aged about 15
years] who was with the other
accused persons at the time of the
incident.
————- These exhibits indicate that IO has Ex P 108-
recorded the sample voice recordings 133
of the fifth accused [Ex P 136] and
juvenile offender [Ex P 141] and
certain CDs are received from the
Truth Lab after forensic examination.
01.03.2017 The fifth accused is taken for Ex P 106
medical examination and certain
medical samples [Ex P 144] are
collected.
The IO has recorded the sample Ex P 145
voice recording of the co-victim.
02.03.2017 The co-victim and the juvenile Ex P 166
offender are taken for medical and 180
examination.
10.03.2017 The prosecutrix and the co-victim are Ex P 17-53
summoned by a notice on this day
and a Test Identification Parade [TIP]
and Photo Identification [Parade] are
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conducted by Tahsildar [PW 30] and
the accused6 are identified.
Details of Material Objects collected during the course
of the investigation:
6. The details of the material objects recovered
during the course of the investigation from the prosecutrix,
the co-victim and the accused are detailed separately in
terms of the following table.
Recovery from the Prosecutrix and her belongings
Mahazar/ Photograph of Mahazar Material MO
Proceedings and its details thereof Objects Number
Ex. P 65 dated 21.02.2017 – Panchanama Finger Nail MO 1
at the time when the Doctor has collected
specimen from the prosecutrix when she Pubic Hair MO 2
underwent a medical examination. Axillary hair MO 3
Vaginal
MO 4
Smear
Vaginal
MO 5
Swab
Ex. P 66 dated 22.02.2017 -Panchanama White Bra MO 6
for the recoveries from the place of
occurrence. White Slips MO 7
White Laadi MO 8
Jangali
MO 9
Badige
Ex. P 68 dated 22.02.2017 – Panchanama Black
for the recoveries from the prosecutrix. Chudidaar MO 10
Top
White Odni MO 11
6 The details of the TIP in respect of the Juvenile Offender are in Ex P
145 and 146.
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White
Chudidaar MO 12
Pant
Ex P 63 dated 21.02.2017- Panchanama of Mobile of MO 19
the recovery from the second accused. the
prosecutrix
Recovery from the co-victim:
Mahazar/ Photograph of Mahazar Material MO
Proceedings and its details thereof Objects Number
Ex. P 69 dated 22.02.2017.-
Panchanama of the recoveries from the co- White Shirt MO 13
victim.
Jeans pant MO 14
Blue
MO 15
Underwear
Vodafone
MO 17
Sim
Jio Sim MO 18
Ex. P 63 dated 21.02.2017-
Cool Pad
Panchanama of the recovery from second MO 16
Mobile [
accused.
Recovery from the first accused:
Mahazar/ Photograph of Mahazar Material MO Number
Proceedings and its details thereof Objects
Ex. P 75 dated 21.02.2017: The
Panchanama for recovery from the first Brown
accused. Jeans MO 20
Blue Shirt MO 21
Underwear MO 22
Lenovo
Phone MO 23
BSNL Sim MO 24
Jio Sim MO 25
Memory
Card MO 26
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Recovery from the Second Accused
Mahazar/ Photograph of Mahazar Material MO
Proceedings and its details thereof Objects Number
Ex. P 75 dated 22.02.2017: The Brown Pant MO 27
Panchanama for recovery from the second Red striped
accused. T-shirt MO 28
Brown
underwear MO 29
Samsung
Phone MO 30
Recovery from the third Accused
Mahazar/ Photograph of Mahazar Material MO
Proceedings and its details thereof Objects Number
Ex. P 75 dated 23.02.2017.
Panchanama for recovery from the third
accused.
Blue Jeans MO 31
White Shirt MO 32
Brown
underwear MO 33
Recovery from the Fourth Accused:
Mahazar/ Photograph of Mahazar Material MO
Proceedings and its details thereof Objects Number
Ex. P 134 dated 25.02.2017. Black Pant MO 36
Panchanama of the recovery from the Blue and
fourth accused. white
chequered
shirt MO 37
Grey colour
Underwear MO 38
China
Company
Mobile with
Sim MO 39
Recovery from the fifth accused
Mahazar/ Photograph of Mahazar Material MO
Proceedings and its details thereof Objects Number
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Ex P 137 dated 28.02.2017.
Panchanama of recovery from the fifth Jeans Pant MO 40
accused.
Chequered
MO 41
Shirt
Orange
MO 42
Under wear
Samsung
MO 43
Mobile
Airtel and MO 44 &
Zio Sim 45
IMEI No. MO 46
Ex. P 144 dated 01.03.2017; Panchanama
at the time when the Doctor has collected
specimen from the fifth accused when he Public Hair MO 34
was subjected to a medical examination Nail
Extracts MO 35
The details of the Regional Forensic Science Laboratory
Report.
7. The Material Objects collected as
aforementioned are sent to a Regional Forensic Science
Laboratory for examination and the details of the same
reads as under:
Material Objects sent The person to whom Article number assigned
for forensic it belongs to. in the RFSL Examination.
Examination
MO 1- MO 8 and MO The prosecutrix Article Nos. 1 to 11
10-12
MO 13-15 The co-victim Article Nos. 12 to 14
MO 20-22 Sri. Sanju [the first Article Nos. 15 to 17
accused]
MO 27-29 Sri. Suresh [the Article Nos 18 to 20
second accused]
MO 31-33 Sri. Sunil [the third Article Nos. 21 to 23
accused]
MO 36-38 Sri. Mahesh [the Article Nos 24 to 26
fourth accused]
MO 40-42 and MO 34- Sri. Somashekhar [the Article Nos. 27 to 31
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The RFSL has examined these articles, and its report in this
regard is dated 09.05.2017 and the material part of the
report reads as under:
1. Seminal stains were detected in Article Nos. 17, 20
and 26.
2. Seminal stains were not detected in Article Nos 2, 3,
4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 21,
22, 23, 24, 25, 27, 28, 29 and 30.
3. Blood stains were detected in Article nos. 5 and 31.
4. Blood stains were not detected in Article nos. 1, 2, 3,
4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,
20, 21, 22, 23, 24, 25, 26, 27, 28, 29 and 30.
5. Skin tissue was detected in Article no. 31.
6. Skin tissue was not detected in Article no.1.
7. Spermatozoa was not detected in Article no. 4.
Details of the medical examination conducted, the
reports thereof:
8. The details of the aforementioned medical
examination of the prosecutrix, co-victim and all of the
accused are follows:
Concerned Person Exhibits/ Details of the injuries
Date of medical recorded/Medical
examination Opinion
conducted.
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CRL.A No. 100255 of 2021The prosecutrix. Ex P 104 dated In the Wound Certificate,
20.02.2017 the Doctor who has
examined the prosecutrix
has opined that [i] there
are multiple abrasions of
brown colour on right
and left shoulder, the
clavicle, upper arm,
lower arm, wrist, elbow,
hand and buttocks, [ii]
minor abrasions on spine
scapula region, legs,
patella, both thighs and
feet, and [iii] contusion of
greenish colour in the
upper medial quadrant of
the right breast nipple
and areola.
In this report it is also
stated by the doctor that
the findings are
suggestive that the lady
is used to an act like that
sexual intercourse.
The co-victim Ex P 167 dated The doctor has recorded
20.02.2017. that there are no external
injuries.
The first accused Ex P 168- P 171 dated The doctor has recorded
The second accused 22.02.2017. that there are no external
The third accused injuries seen in external
The fourth accused genitalia while also
opining that there is
The fifth accused Ex P 106 dated nothing to suggest that
01.03.2017 he is incapable of sexual
The juvenile Ex P 180 dated intercourse.
offender. 02.03.2017
The commencement of trial
9. The jurisdictional police have filed the
chargesheet against the accused, and with the accused
pleading not guilty, the trial is commenced with the
prosecution examining 33 witnesses [PW1 to 33] including
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the prosecutrix, the co-victim, their respective parents and
relatives, a mahazar witness, a photographer, the Doctor
who has examined the prosecutrix, the expert who has
analysed video/audio [specimen] and some other witnesses,
including the official witnesses who have drawn the sketch
of the place of occurrence and who have assisted the police
in completing the investigation. The evidence of the material
witnesses is discussed as hereunder.
The evidence of Prosecutrix and her parents:
10. The evidence of Prosecutrix: The prosecutrix
is examined as PW. 1 and her parents are examined as PW.
3 and 4. The prosecutrix, as regards her family and
education, has stated thus. She resides in Annigeri with her
parents, a younger brother and both paternal and maternal
grandmothers and that she has studied up to 10th standard
in Annigeri. She has completed second PUC in Prerana
College in Hubballi, and from the year 2016, she is studying
medicine in JNMC college, Belagavi. She stays in the
college’s hostel [Akkamahadevi Hostel]. The prosecutrix’s
evidence as regards her acquaintance with the co- victim is
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that they were classmates while studying 6th to 10th
standard and that the co-victim is pursuing diploma in
engineering with RNS Engineering College.
10.1 The prosecutrix, on what transpired on
15.02.2017 has deposed in the following terms. The co-
victim called her on her mobile, when she was in the hostel,
at about 5:30 p.m. on 15.02.2017 suggesting that they go
out for some time. The co-victim picked her up from the
hostel on his bike and they reached Muttyanatti at about 6
PM. They were together at the first Windmill for about 15
minutes when about six boys reached this place. One
amongst the six boys, assaulted the co-victim.
10.2 The prosecutrix identifies the person who
first assaults the co-victim, and her evidence in this regard
is relied upon, amongst others, by Sri Ashok R
Kalyanashetty, the learned counsel for the appellants, to
contend that the presence of one of the accused7 is not
established. The prosecutrix has identified the fifth accused
7 This is with reference to the fifth accused.
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as the person who first assaulted the co-victim, but when
this accused gives out his name at the Court’s instance, the
prosecutrix identifies the first accused as the person who
first assaulted the co-victim. The prosecutrix has
volunteered to say that because the incident is about seven
months prior to the date of her evidence she could not
immediately identify the accused and therefore she has
pointed out to the fifth accused as the assailant but it is the
first accused who has assaulted the co-victim first.
10.3 The other accused detained her and the co-
victim; and snatched their respective mobiles and ₹ 300/-
that was with them while also assaulting. The second
accused, who is identified in the Special Court without any
error, snatched her Duel SIM mobile [Moto Company
mobile]8. The accused dragged them into an area that was
more densely covered with trees and, at the first instance;
they compelled her to remove her dress. When compelled by
the accused, she only removed her external wear [her dress]
8 She has also furnished one of the mobile numbers stating that she
cannot remember the other mobile number
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but the accused pulled out her inner wear. Next, the
accused forcibly removed the co-victim’s clothes and made
both of them nude.
10.4 The accused started compelling the co-
victim to have sexual intercourse with her and that when he
pleaded with them, the accused started threatening them
saying that if he did not do so they would have sexual
intercourse with her. When she started screaming, the
accused gagged her and started abusing her using obscene
expressions. The accused also forced her to participate in
sexual intercourse with the co-victim being very abusive9.
The accused switched on the torch in her mobile and started
recording her and the co-victim compelling them to be in a
compromising position.
10.5 The first to fourth accused separated her
and the co-victim by taking her further into a more covered
area but within earshot of the others and that the fifth
accused [with the assistance of the juvenile offender]
9 The prosecutrix’s evidence is recorded in Kannada, and she has
mentioned that the accused were insisting on she doing a
particular act so that the co- victim would commit sexual
intercourse with her.
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detained the co-victim. These four accused took turn in
sexually assaulting her and thereafter, they dragged her to
where the fifth accused and the juvenile offender had
detained the co-victim. She and the co-victim were shown
the video recording threatening them that this video would
be telecast. The video essentially contains some part of the
co-victim and she being in a compromising position under
duress. They were also threatened about relating the
incident to any person stating that if the video was uploaded
they would be maligned. When she and the co-victim
requested for return of the mobile, the accused insisted
upon them to pay Rs.20,000/-and take the mobiles.
10.6 The accused permitted them to put on their
clothes but essentially their external wear but telling them
that they must pay Rs. 20,000/- on the next day and take
back their mobiles, and it is only after the co-victim and she
were thus humiliated and assaulted they were let to leave
the place of occurrence. The co-victim and she could not
return on the bike because the bike-key was lost during the
episode and they walked up to the Highway and reached a
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nearby Dhaba and started waiting for a vehicle to hitchhike.
As they were walking along the Highway expecting a vehicle
to stop, Sri Sandesh Patil [PW 6] stopped his vehicle and
dropped them at K L E Hospital, Belagavi. Sri Sandesh Patil
was accompanied by another person but she cannot
remember the name of this person. He enquired about why
there were trying to hitchhike so late in the evening, and
they only told him that the mobile was lost. While dropping
them at the Hospital, he shared his mobile with them and
also gave Rs.100/-.
10.7 She spent the night near the emergency
ward of the Hospital and that the co-victim was waiting
outside. Sri Sandesh Patil visited the Hospital on the next
day and dropped her at the hostel. She called home from
the hostel’s landline. Her family members enquired with her
as to why she had not called the previous evening, and she
only stated, without mentioning the incident, that she had
left her mobile in the laboratory. She again called her
family, as she normally did, even the next day, but
somebody from amongst the accused had called her mother
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using one of her SIM card [JIO SIM Card] and told her that
she had lost the mobile. Her mother informed the caller that
the number did not belong to her because her family
members did not know that she had subscribed for another
SIM number.
10.8 Later, the accused using the same number
have called her cousins informing then that she had lost her
mobile and they had found it. Her mother came to know that
she had lost her mobile only when her cousins called her
and told her that they were also receiving such calls. Her
mother then called the JIO number from which she had
received calls and informed the accused that she had lost
her mobile. When her father was informed that she had lost
her mobile and somebody was calling, her father called back
on the same number and informed the caller that the mobile
would be collected on the next Sunday. Her mother called
her on 18.02.2017 and also informed her that the lost
mobile will be collected on Sunday [19.02.2017].
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10.9 On 19.02.2017 her father visited her at the
hostel and enquired with her how she had lost the mobile,
and she then told him, without disclosing any other detail,
that she had gone with the co-victim when the mobile was
lost. Her father asked her to call the co-victim, and she
accordingly called him. The co-victim then told her that the
next day he had gone to the place of occurrence to retrieve
the bike and that the accused were insisting upon payment
of Rs. 20,000/-. Her father also spoke to the co-victim, and
before disconnecting, her father told him that if the mobile
was not located/traced, police complaint may have to be
lodged.
10.10 Thereafter, she accompanied her father to
the place of occurrence when he wanted to go there, and on
their return to Belagavi, when they were near Ramdev Hotel
one of the accused called her father on his mobile and told
him that they had seen them visiting the place of occurrence
and that if they did not return within half an hour, her
future will be affected. The accused informed her father that
she had gone wayward and that they had some demands to
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be met. One of their relative Sri Shirish Babaladi [PW 5] was
present with them when her father took this call and they
returned to Annigeri.
10.11 On the next day when she stepped out of
the bathroom, her mother noticed injuries on her and
started making enquiries because, even as of that time, she
had not told either her mother or father about the incident.
When her mother persistently enquired, she related the
entire incident, and her mother informed her father. She
and her parents came to Belagavi to file a complaint, and
after discussing with Sri Shirish Babaladi, the complaint [Ex
P1] is lodged and she was referred to Belagavi [BIMS]
hospital on the same evening for medical examination. She
spent the night in the hospital, and she was examined until
the next afternoon with certain specimens [MO 1- 5] being
taken from her. After she was sent home from the hospital,
she was at Sri Shirish Babaladi’s residence when women
PSI, Smt. Shreedevi Patil [PW 31], called on her to record her
statement [Ex P2] under Section 24 of the POCSO Act. The
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recording of the statement was captured on video and
photographed.
10.12 The jurisdictional police on 22.02.2017,
took her to the place of occurrence and she showed the
police the places where the incident occurred10. The
jurisdictional police recovered her inner wear [MO 6-9]. She
has also produced and the dress that she was wearing [M.O.
10-12] at the time of occurrence. She has given her
statement with the learned Magistrate as per Ex P 12.
Later, on 10.03.2017, the police took her to the office of
Belagavi Tahsildar where she was shown mug shots of
different persons, and she was asked to identify the
accused. She has identified the mugshots of the accused11.
She has next identified the records relied upon by the
prosecution to establish that she is born on 19.03.1999
while stating that the video clip recorded by the accused is
in M.O. 16 [the co-victim’s mobile].
10 The prosecutrix is shown the photographs of the place and she has
identified the photographs [Ex P4 -P 11]
11 The prosecutrix has identified the mug shots shown to her [Ex. P
27-41] and the proceedings drawn by the Tahsildar [Ex. P 42-P53]
and her signatures in these proceedings [Ex. P 42a – P 53a].
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10.13 The cross-examination of the prosecutrix:
The prosecutrix has been subjected to cross-examination
separately by the accused over almost a period of two years.
The prosecutrix’s chief-examination is completed on
11.10.2017 and she is first cross-examined on 07.11.2017,
but her cross-examination is completed on 15.05.2019. The
Special Court has observed that this delay is because of the
transfer of the presiding Officer. This Court must at the very
outset observe that the cross-examination in the initial
hearing dates is essentially to suggest that her entire
evidence is false.
10.14 The prosecutrix is specifically cross-
examined as regards evidence about her age and a few other
aspects. The cross-examination is that according to Ex. P
54 [the prosecutrix’s Birth Certificate issued in the year
1999], her date of birth is 08.04.1999, but it is seen from
this Exhibit that the prosecutrix’s age is mentioned as
19.03.1999 and the certificate is issued on 03.05.1999. It is
also suggested to the prosecutrix that she had completed 16
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and 18 years as of the day she completed respectively her
10th standard and second PUC, but she is categorical that
she had only completed 15 and 17 years respectively
because she was admitted one year earlier than usually the
children are admitted to school.
10.15 Though the prosecutrix is cross- examined
on the proof of age submitted for obtaining passport and
Aadhaar card, this Court must observe that she is
consistent that her date of birth in these documents is
mentioned based on the birth certificate showing that she
was born on 19.03.1999. The prosecutrix is confronted with
the records of the proceedings in Criminal Miscellaneous No.
387/2017 commenced by her with the jurisdictional court
under the provisions of the Registration of Birth and Death
Act, 1969. The prosecutrix has admitted these records [Ex.
D1-D5] and has also admitted that the directions by the
learned judge to mention her name in the Register of Birth
cannot be conclusive proof and in case of a dispute the
entries in such register will be subject to proof.
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10.16 The prosecutrix is also cross-examined
about the distance between the different places where the
accused dragged her and the co-victim, but the prosecutrix
is very substantially consistent with her statements in the
examination-in-chief. When she is cross-examined about
she staying at the emergency ward but not taking any
treatment when Sri Sandesh Patil [PW -6] left her at the
Hospital, she has stated that the witness had told her to
stay at the entrance emergency ward as that would be a safe
place, and when cross-examined about her interaction with
the co-victim after the incident, she has reiterated that she
did not speak to him until her father insisted upon her to
call him. The prosecutrix has also been elaborately cross-
examined on when the complainant was typed and when she
visited the police station. The prosecutrix has stated that
when she reached the police station along with her parents
and Sri Shirish Babaladi it was about 4 PM in the evening
and that the complaint was typed on her laptop at home but
after the police informed her parents that they must come
with a written complaint.
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10.17 The prosecutrix, under intense cross-
examination, has admitted that in the complaint she has
stated that there were only three persons but in her
statement [Ex. P2] to the woman PSI [Smt. Shreedevi Patil –
PW 31] and in her statement with the jurisdictional
Magistrate [Ex. P12] she has stated about the fourth
accused, but she has explained stating that there is an error
in mentioning that there were only three persons. The
prosecutrix has also stated that the Mahazar was typed at
the place of occurrence but the laptop is not seen in the
photographs marked as exhibits. On the last date of the
prosecutrix’s cross examination [23.01.2019], it is suggested
to her that she and the co-victim were engaged in sexual
intercourse at the place of occurrence when they were seen
by the villagers, some of the villages have recorded the same,
and she has lodged a false complaint to implicate the
accused.
10.18 The evidence of prosecutrix’s parents [PW 3
and 4]: The prosecutrix’s father is examined as PW-3 and
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her mother is examined as PW-4. The father, while
essentially stating what his wife [the prosecutrix’s mother]
told him about somebody calling on her mobile informing
that the prosecutrix’s mobile was found in a KFC joint, has
stated that when he and his wife informed the prosecutrix
that her mobile was traced, she offered to collect but he told
her that they will collect the mobile from the concerned
person when he came to Belagavi on next Sunday
[19.02.2017]. He has also stated about the prosecutrix
relating the occurrence and the threat held out by the
accused and about lodging complaint with the police with
the assistance of Sri Shirish Babaladi [PW-5].
10.19 The cross-examination of this witness is
also essentially to deny the statement in the chief
examination, but when asked about the reason for initiation
of proceedings under the Registration of Births and Deaths
Act, 1969, he has stated that such proceedings is initiated
because the concerned officials informed that the
prosecutrix’s name was not mentioned in the concerned
register. On the drafting of the complainant [Ex. P1], the
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prosecutrix’s father has stated that the contents of the
complainant were indeed discussed amongst themselves in
the residence of Sri Shirish Babaladi and the complaint was
typed into the laptop by this person. He has also stated that
Sri Shirish Babaladi stepped out of the residence to obtain
suggestions on corrections in the complaint and he does not
know from whom he solicited suggestions but only to say
later that Sri Shirish Babaladi had stepped out to secure
suggestions and get a printout Sri Shirish Babaladi.
10.20 The prosecutrix’s mother has primarily
stated what the prosecutrix has stated about not calling
home on 15.02.2017 and she calling the prosecutrix on the
hostel land line. However, she has stated that on
17.02.2017, a young boy called her stating that the
prosecutrix [her daughter] had lost the mobile, but she told
him that her daughter had not lost her mobile.
10.21 When her relative [Smt. Kalyani Patil] called
her and told her that even she was informed over telephone
that the prosecutrix’s mobile is found, she called the
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number from which she had received her call, and when
enquired, the person on the other side informed her that her
mobile number was saved as ‘Avva12’ and therefore he had
called her. This youngster also told her to call on her
daughter’s number if she or any other family member
wanted to talk, and she informed them that her husband,
who was scheduled to travel to Belagavi on 19.02.2017, will
collect the mobile from him.
10.22 The prosecutrix’s mother has stated that
she informed her husband about the call, and that when her
husband on 19.02.2017 called on the prosecutrix’s mobile
number to get in touch with the youngster who had called,
the mobile was switched off and therefore her husband
asked her to call the number because he will be driving.
She called the number, and when somebody responded, she
asked the person not to switch of the mobile as her husband
was driving to Belagavi to collect the mobile. The
prosecutrix’s mother has next spoken about her husband
instructing her, when he returned home with the
12 The expression “Avva” in vernacular is for ”mother”.
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prosecutrix on 19.02.2017 at about 11 PM, not to ask the
prosecutrix anything. She has stated that she has made
enquiries with the prosecutrix the next day only when she
found injuries on her.
10.23 The cross-examination of this witness is
also to contest the statements made in the chief examination
about she noticing the injuries on the prosecutrix when she
stepped out after the bath on 20.02.2017. In fact, the
witness has stated that when she examined the
prosecutrix’s person for the injuries, when she stepped out
of the bath, she found abrasion injuries on the prosecutrix’s
back and lower limb and that two of such injuries, though
superficial, were big. The witnesses also admitted that the
contents of the complaint are discussed with Sri Shirish
Babaladi [PW – 5]. The defence suggested to this witness
that her daughter [the prosecutrix] and the co-victim were
found by villagers at the place of occurrence in a
compromising position and the villagers assaulted them.
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The evidence of the co-victim and his parents and a
cousin.
11. The evidence of the co-victim [PW2]: The co-
victim in his chief examination, on what transpired on
15.02.2017 and on the next morning, is consistent with the
evidence given by the prosecutrix in detailing that the first
accused assaulted him, compelling the prosecutrix to
disrobe and forcibly removing his clothes and the
prosecutrix’s underwear to make both nude, compelling him
and the prosecutrix to be in a compromising position
taunting him for his inability and abusing the prosecutrix to
get into a compromising position, recording the conduct
using his mobile and the prosecutrix’s mobile as a torch, the
first to fourth accused dragging the prosecutrix aside and
the fifth accused and the juvenile offender holding him back,
and the first to fourth accused committing rape of the
prosecutrix.
11.1 The witness, in addition, has stated that
when he requested with the accused to let them go assuring
them that he would get money from his father, the first,
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fourth and the fifth accused kicked and hit him and the fifth
accused also hit the prosecutrix. He can identify the
accused by name as well because they were addressing each
other by their names. The co-victim has also stated about
the accused holding out threat of public humiliation and
loss of honour if the incident was related to any person.
11.2 The co-victim, on the efforts made by him to
retrieve the motorbike and the mobile retained by the
accused at the place of occurrence on 15.02.2017, has
stated that he called his cousin [Sri. Vishal Kamalapura –
PW 713] on 16.02 2017 to accompany him to the place of
occurrence to get back the bike without giving all the details
of the incident and only stating that because the petrol pipe
was disconnected, he had to leave the bike at Muttyanatti.
When they reached the place of occurrence, they found the
handle of the bike damaged and the bike’s key was also lost
at the place the previous evening. He and his cousin [PW-7]
13 This witness has essentially spoken about what he and the co-
victim did on 16.02.2017, and Shri Ashok R Kalyanashetty, has
pointed out in the course of argument that, unlike the co-victim,
this witness has stated that they had gone to a garage to get a
duplicate key done and because ₹ 400 was demanded, they went
back to the co-victim’s house to get a duplicate key.
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came back and returned with the spare key at home and
collected the bike.
11.3 On the next day, on 17.02.2017, he
requested two of his friends from his college [again without
informing them about the incident entirely] to accompany
him to the place of occurrence after the first accused
responded to the call on the prosecutrix’s number. When he
reached a dhaba near the place of occurrence, as instructed
by the first accused, he requested his two friends to stay out
and he went inside. He met the first accused there and
requested for return of the mobile, who told him that the
mobile will not be returned unless the amount is paid. The
first accused relented only to return the SIM card but telling
him that he must make arrangements for the money at the
earliest. On 18.02.2017, he requested his friend, Sri Rohit,
to call on the prosecutrix’s mobile number, who after so
calling said that he will not be able to retrieve the mobiles
until the amount was paid, and his friend has assured to
help in organising the fund.
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11.4 The co-victim has next spoken about
receiving a call from the jurisdictional police on 20.02.2017,
visiting the police station, the police recording the statement
on 22.02.2017, he making over the the bill that he had
saved for the purchase of his mobile, the bike records and
the clothes he was wearing at the time of the incident. The
co-victim has identified his clothes [M.O. 13-15] and his
Coolpad Mobile [M.O. 16]. The receipt for purchase of his
mobile is marked as Ex. P 13.
11.5 The co-victim has also spoken about his
statement being recorded by the learned Magistrate [Ex P
14] and that he has been subjected to medical examination
as also voice recording. The co-victim has identified the
photographs taken at the time of recording his voice
samples. The co-victim has spoken about the Test
Identification Parade conducted at Hindalga Jail. In this
regard, the co-victim has stated he has identified the
accused referring to the proceedings drawn about the same
admitting his signatures [Ex. P 17 -P 26 and Ex. 17a – 26a]
while emphasising that during the identification parade only
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the Tahsildar and his office members were present and the
police was outside the office. The co-victim has also opened
the Coolpad mobile using the password, and upon seeing
the video clip concerned, he has identified that the video clip
relates to the incident.
11.6 On the cross-examination of the co-victim:
The learned counsel for the accused have not immediately
cross-examined the co-victim, and as in the case of the
prosecutrix, the cross-examination of the co-victim is after a
substantial break. The co-victim’s chief examination is
completed on 11.10.2017. The cross-examination of this
witness on behalf of the first accused is taken as Nil on
15.02.2019, but with the Special Court, on an application
filed, permitting cross-examination, the witness is cross-
examined on behalf of all the accused between 03.06.2019
and 05.08.2019.
11.7 The initial cross-examination of the co-
victim is suggestions to deny the evidence rendered by him
about how he and the prosecutrix were accosted, detained,
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pushed away from the Windmill and compelled to remove
their clothes. This witness is cross-examined in detail about
the location of the Windmill from the metalled road and the
distance that they were taken in, but this Court, on reading
of this cross-examination and the sketch as per Ex. P 67
conjointly, must opine that this witness is very consistent in
describing not just the locations of the different places but
also in mentioning the distances from one place of incident
to another place of incident.
11.8 The co-victim is next cross-examined about
the highway being widely used and the place of occurrence
being used by the villagers for open defecation and to visit
the nearby cultivable lands. The cross-examination in this
regard, including the cross-examination on the jurisdictional
police station being very close to the place of occurrence, is
to bring out that if there were to be any incident, many
people would have come to know about it. However, the co-
victim has admitted certain suggestions in this regard, but
crucially states in categorical terms that at the time of
occurrence there was nobody near the place of occurrence.
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11.9 During the cross-examination of the co-
victim, certain parts of the statements to the police under
Section 161 of Cr.P.C marked as Ex.s D6 and D7. The first
Exhibit relates to a statement to the police that he switched
off his mobile because the prosecutrix’s father while talking
to him on 19.02.2017 threatened him about filing a
complaint with the police against him if he did not get back
the prosecutrix’s mobile and SIM. This part of the statement
is confronted after the co-victim is categorical that the
prosecutrix’s father only told them about lodging a
complaint but not against him or against any person in
particular. The next Exhibit relates to his statement that
because his mobile was switched off for reasons as
aforesaid, the police contacted his brother on his mobile. In
this part of the cross-examination, the co-victim has also
stated that he cannot definitely say whether the fifth
accused was present at the place of occurrence.
11.10 The co-victim is next cross-examined in
detail about the Test Identification Parade at the Hindalaga
Jail, but the co-victim is consistent in deposing that nobody
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assisted him in identifying the accused but stating that it is
possible that he was shown the photographs of the accused
at the police station. Though this witness has stated that he
has not signed the Test Identification Parade proceedings
insofar as the second accused [despite these proceedings
being signed by him], he is steadfast in his evidence, even in
his cross examination, that he has identified this accused in
the Identification Parade and he was part of the group of
people who assaulted him and the prosecutrix.
11.11 However, the co-victim in his cross-
examination, on 29.07.2019, at the instance of the learned
counsel for the fifth accused, has stated that [i] he has not
identified the fifth accused in the Special Court because he
was not present at the place of occurrence, [ii] the fifth
accused is not related to the incident, [iii] he has made an
error in mentioning the fifth accused’s name in the statement
before the learned Magistrate and in his chief examination,
[iv] he has identified this accused even in the Test
Identification Parade by an error and [v] he has seen the fifth
accused for the first time in the police station. This witness,
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like the prosecutrix, has denied the assertion that a false
case is filed only because both of them were caught in a
compromising position by the villagers.
12. The evidence of the co-victim’s parents and
elder brother: The co-victim’s father [PW-8] has stated in his
evidence that he called his son [the co-victim] on two
occasions on 15.02.2017; on the first occasion, his mobile
was switched of and on the second occasion he could hear
some loud exchange of voices but he did not cross verify
with his son when he spoke to him next because he thought
it must be amongst his friends. The father has also stated
that, because he was posted outside Belagavi being an
employee of the Fire Department, he left home early in the
morning on 16.02.2017 but his son had not returned, and
that when he returned home that evening, he found his son
at home but with a swollen face and when he enquired he
did not respond.
12.1 The co-victim’s mother is examined as PW-
9. This witness has only stated that the co-victim did not
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return home until 16.02.2017 afternoon and that he did not
tell her anything though she repeatedly asked him about the
injuries. This witness, as emphasized by Sri Ashok R
Kalyanashetty has stated that the jurisdictional police called
on 19.02.2017 and she learnt about the incident from them.
There is nothing material in the cross-examination of this
witness to undermine her evidence that her son did not
return home on 15.02.2017. The evidence of the co-victim’s
brother [PW 10] is also in similar lines. The merits of their
evidence that the police called them on 19.02.2017 are
examined later in the course of this judgement.
Evidence of unofficial witnesses
13. The evidence of Sri Shirish Babaladi [PW-5]:
Sri Shirish Babaladi is related to the prosecutrix, and not
only she but also her parents have referred to the role
played by this witness in filing the complaint as per Ex. P1.
This witness has stated that he is related to the
prosecutrix’s father and that though he works in Sholapur
he visits Belgaum regularly because his parents stay there.
He has stated that on 19.02.2017 he was at home in
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them that he was visiting him in connection with the loss of
prosecutrix’s mobile, but he did not meet him because he
had some work.
13.1 Sri Shirish Babaladi has further stated that
he was present with the prosecutrix and her father in the
evening near Ramadev Hotel, when her father received a
call, and he has spoken about the information that is given
by the caller to the prosecutrix’s father and the limited
information given by the prosecutrix at that time. He has
next stated about the prosecutrix and her father leaving to
Annigeri and her father calling him back in the morning to
say that they were coming to Belagavi to lodge a complaint
because of what the prosecutrix had told them that
morning. In the cross-examination he has stated that the
complaint was typed on his laptop and could have been
typed either by the prosecutrix or her parents. He has also
stated that he has visited the police station first and briefed
the police about the incident, and that is even before the
prosecutrix and accused could come to the police station.
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13.2 On consulting somebody in drafting the
complainant, Sri Shirish Babaladi has stated he did not
consult anybody and it is possible that the prosecutrix’s
father could have consulted some advocate. As pointed out
by Sri Ashok R. Kalyanashetty, in the last part of his cross-
examination, Sri Shirish Babaladi has stated that it is true
that he learned from the prosecutrix that she and the co-
victim were found in a compromising position by the
villagers and that to save the prosecutrix’s honour, the
subject complaint is filed. The reliance on this part of cross-
examination is examined in the light of the grounds
canvassed by both Sri. M B Gundawade and Smt. Anuradha
Deshpande, the learned Special Public Prosecutor, and the
learned Amicus Curiae appointed to assist this Court.
13.3 The learned counsels canvass that this one-
off statement cannot undermine the prosecution’s case,
especially with the prosecutrix being steadfast and her
testimony being materially corroborated by the co-victim and
other circumstances. In fact, Smt. Anuradha Deshpande
canvasses that this Court must consider the question
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whether this one of statement in cross-examination could
undermine the prosecutrix’s testimony in the light of the
proposition that the courts are always cognizant of the
rather irrefutable position that neither a sexual assault
victim nor her family members come out in the open easily
and lodged a complaint lest the victim’s name is sullied and
that in this case both the prosecutrix and her parents have
come out in support of initiation of proceedings against the
accused.
14. The evidence of Sri Sandesh Shankaragouda
Patil [PW -6]: Sri Sandesh Shankaragouda Patil, who has
stated in his cross-examination that he is not related to the
prosecutrix, has deposed that on 15.02.2017 he had gone
with his cousin for dinner at a Dhabha and when he was
returning to Belagavi [his place of residence] the prosecutrix
and the co-victim stopped the vehicle and requested for lift
to Belagavi. He suspected that they were runaways, and
when he insisted, the prosecutrix and the co-victim told him
that they had been to watch sunset and some miscreants
had assaulted them and taken their mobile, cash and two-
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wheeler. He has also stated that he dropped both of them at
the Casualty of KLE Hospital and gave the prosecutrix a
sum of Rs.100/- and a shawl.
15. Sri Sandesh Shankaragouda Patil has
further stated that he visited the hospital next day to find
only the prosecutrix at the Hospital who requested him to
drop her at her Hostel. He has stated, in what could be a
departure from the prosecutrix’s evidence, that she told him
about the incident and he advised her to inform her parents
and lodge a complaint and that he came to know about after
few days that the prosecutrix had indeed lodged a
complaint. In the cross-examination, he has admitted the
location of the Dhabha and the police station on the
Highway as well as the different commercial establishment
in the immediate vicinity of the Dhabha, and he has also
stated that he had not gone to hospital next day specifically
to meet the prosecutrix but had gone there to visit a friend’s
ailing father.
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16. The evidence of landlords and owners of the
concerned to two-wheelers: The prosecution has examined
the landlords [PW 11, 12 and 17] who have allegedly rented
accommodation to the accused. These witnesses have
spoken about renting out the premises to the accused, but
their evidence is not helpful to the prosecution in any
manner. The prosecution has next examined the owners of
the vehicles [PW 14, 18 and 20] which according to the
prosecution were used by the accused to reach Muttyanatti
on 15.02.2017, and even this evidence is not helpful to the
prosecution inasmuch as PW 18 and 20 [the relatives of the
first and the fifth accused] have denied permitting these
accused to use their respective vehicles and PW 14 has only
stated that his two wheeler was stolen but he has taken
possession after the orders of the Special Court on his
application.
17. Evidence of the Panchas in whose presence
Mahazars are drawn: The prosecution contends that Spot
Mahazars [both at the place of occurrence and the respective
places of residence of the accused, [voluntary statement of
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the accused, recoveries from accused, downloading of the
video clip from the recovered mobile/ Coolpad and recording
of voice of the accused’ specimen was conducted in the
presence of two common panchas [Sri Gangadhar Maruti
Ghasari and Sri Arjuna Yellappa Sambargi]. However of
these two persons only Sri Gangadhar Maruti Ghasari is
examined and he is examined as PW 15.
17.1 This witness, though has initially stated in
this Chief-examination that he is related to the prosecutrix’s
father, has in the cross-examination clarified that is not
related to him and that he was on his way in his car for
purchase when the police stopped him and asked him to
participate in the investigation procedure, and because he
was certain that the prosecutrix is wronged he offered to
participate in the proceedings and he has accordingly
participated.
17.2 This Court must observe that according to
the prosecution the recoveries from the fifth accused [M.O.
40-46] and the spot mahazar at his residence are on
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28.02.2017. The exhibits in this regard are marked as Ex.s
P 137-139. Sri Gangadhar Maruti Ghasari, while
supporting the prosecution’s case entirely on the other
recoveries and Mahazar, has denied that there were
proceedings at the fifth accused’s residence stating that he
signed the Mahazar [Ex. P 137] and the other proceedings in
the evening of 28.02.2017 in the police station.
18. Evidence of the photographer. A
photographer, who admittedly has worked with the
jurisdictional police regularly, is examined as PW 27. This
witness has deposed inter alia that when he was called by
the Investigating Officer, he has visited the police station
with his video camera and used the audio recording option
on his camera to record the accused’s voice specimen and
has transferred such recording onto a Personal Computer
[PC[ at an Internet Browsing Centre and then burnt the
samples on 18 Compact Discs [CDs[ purchased by him from
the market. This witness has admitted that the PC did not
belong to him and that he is not aware of the other contents
on such PC. The witness has also stated that he was not
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called upon to produce any certificate as regards the copying
of such specimens and that he has not given any such
certificate.
19. The evidence of Doctor who has examined
the prosecutrix: Dr. Adinath Annappa Kudachi, Medical
Officer, Belagavi Institute of Medical Sciences, is examined
as PW 28. The Doctor’s evidence is that one of the police
personnel accompanied the prosecutrix on 22.02.2017 with
a request for medical examination with history of sexual
assault on 15.02.2017. The prosecutrix had laceration
wound all over body. She was referred to a dentist and
radiologist who have opined that she is aged between 18 and
20 years. The initial opinion is marked as Ex. P-100, and his
signature as Ex. P-100a, and the Doctor has stated in his
opinion that the final conclusion will be furnished upon the
report from the forensic science laboratory.
19.1 As regards the material objects sent for
forensic examination, the Doctor has referred to hair and
nail specimen, vaginal swab and smear, and the
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prosecutrix’s wear being sent for forensic examination
identifying the same. The Doctor, referring to the Forensic
Science Laboratory Report dated 09.05.2017 [Ex. 101], has
furnished his final opinion dated 15.05.2017 [Ex. P 102].
The Doctor has opined that the findings are suggestive that
the prosecutrix is used to sexual intercourse. The Doctor
has also referred to the injuries on the prosecutrix’s lower
limbs and chest, and the Wound Certificate is marked as Ex.
104. The Doctor has stated that the injuries could be
caused by hard and blunt objects such as the stick [MO-9].
19.2 In the cross-examination, the Doctor has
stated that his opinion about the prosecutrix being used to
sexual intercourse is not because he has personally
examined the prosecutrix but because of the opinion of a
Lady Doctor. This Court must observe that Ex. P -100
mentions that a nurse by name Ms. Sharada was present at
the time the prosecutrix was examined and the Doctor
himself has signed this Certificate. There is no reference in
this Certificate to a Lady Doctor examining the prosecutrix.
Similarly, the Final Opinion [Ex. P-102] does not refer to the
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opinion of a Lady Doctor. The Wound Certificate [Ex.-P104]
does not refer to the prosecutrix being examined by a Lady
Doctor.
20. The evidence on Test Identification
Parade/Photo Identification: The Tahsildar, Ramdurga is
examined as PW 30, and he has referred to the
Communication dated 07.03.2017 sent by the jurisdictional
police to hold Test Identification Parade. The Tahsildar’s
evidence on the Test Identification Parade is as follows. The
two notices [Ex. P148 and 149]14 are addressed to the
prosecutrix and co-victim with the copies thereof being sent
to the Superintendent of Police. The Test Identification
parade for the co-victim was organized in a classroom at
Indalaga prison, and Photo Identification was organized for
the prosecutrix.
20.1 The accused were mixed with about 10
others, and the Test Identification Parade for the co – victim
was conducted in two rounds. The co-victim identified the
14 The officer has also referred to communication as regards the Test
Identification Parade for the juvenile offender
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first and second accused, and he later identified the third
and the fourth accused but he identified the fifth accused
only in the first round. The Mahazar in these regards are
marked as Ex.s 151-156. A Photo Identification exercise
[parade] was organised for the prosecutrix because she was
a minor. The mug shots of the accused were mixed up with
mug shots of the third persons, and she has identified the
first to fifth accused. The proceedings drawn at the time of
this exercise are marked as Ex.s P 42- 50. The report filed
by the officer in these regards with the jurisdictional police
is marked as Ex. P .157.
20.2 The prosecutrix has been cross-examined
on the photo identification exercise conducted by the
Tahsildar, and in fact, the mugshots [of the accused] shown
to the prosecutrix during this exercise are marked as Ex.s P
40-50. It is suggested to the prosecutrix that she has
identified the accused not because she could recognise them
from these mugshots but because of the names of the
accused being written on the flipside of these mugshots. The
prosecutrix has denied the suggestions asserting that she
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has identified the accused from the mugshots. However, in
the later part of the cross-examination, as regards the period
during which she came to know about the names of each of
the accused, the prosecutrix has stated that she came to
know about the names while signing the documents after
the identification exercise while also stating that she came to
know about their names when the photographs were
telecast. The co-victim has spoken to about the Test
Identification Parade conducted and he affixing his
signatures to the proceedings.
21. The evidence on voice specimen: The
Investigating Officer [PW 32] and the photographer/
mahazar witness [PW 15] have spoken about the recovery of
the mobile [MO 16] on 21.02.2017 and transferring
video/audio clip of 3.21 minutes onto a laptop and Mahazar
[Ex. P 64] being drawn during this time. These witnesses
have also spoken about transcribing the audio in the video
clip in the voices of the first to fourth accused on
21.02.2017. The mahazars in these regards are marked as
Ex.s P 64 and 80. Further, these witnesses have spoken
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about the transcription of the audio in the voice of the fifth
accused is recorded on 28.02.2017 after this accused was
arrested. The mahazar in this regard is marked as Ex P –
136. The Investigating Officer has stated that the voice
samples copied/ burnt on CDs by the photographer are
referred to forensic examination by M/s Truth Labs.
21.1 The Deputy Director of M/s Truth labs, Sri
S Neeru [PW 33], after detailing how the video clip and the
voice samples are analysed, has spoken about the Report,
which is marked as Ex.-183. The Report in its material part
reads as under:
1. The mobile phone marked ‘Q1′ contained the
video file named “VID20170215-204833’ in .mp4
format in the directory “Phone:\\DCIM Camera\”.
2. The video file named ‘Ql-a’ retrieved from the
mobile phone marked ‘Q1’ did not contain any
spatial distortion indicating that the video had not
been morphed, however it contained a pause
signature which indicates that the recording had
been paused and then resumed
3. The technical specification of the recording ‘Q1-
a’ strongly indicates a high probability that the
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recording could have been recorded using the
mobile phone marked ‘Q1’.
4. The recording ‘Ql-a’ had been recorded on
2017-02-15 15:30:36 in UTC-Universal Time
Coordinates which would be 2017 February 15,
21:00:36 in IST-Indian Standard Time.
5. The duration of the recording ‘Q1-a’ was 3
Minutes 21 Seconds 109 Milliseconds.
6. The recording ‘Q1-a’ is provided in the CD-R
marked ‘TLB/AV/15/2017 Video Recording ‘Q1-
a”
7. The mobile phone marked ‘Q1’ also contained
images relevant to the case. These images could
have been taken from the video marked ‘QI-a’ as
snapshots or frames.
8. The voice characteristics of four male speakers
in the recording ‘Ql-a’ matched with the voices of
the speakers in the recordings ‘Sl’ to ‘S3’, ‘Tl’ to
‘T3’, ‘Ul’ to ‘U3’ and ‘Vl’ to ‘V3’. The voices in the
recordings ‘X1’ to ‘X3’and ‘Y1’ to ‘Y3’ did not
match with any of the voices in the recording ‘Ql-
a’. The recordings ‘Z1’ to ‘Z3’ did not contain
sufficient speech samples and hence forensic
speaker identification was not carried out for
these recordings15.
15 The evidence indicates that the samples marked as S1- S3 are that
of the first accused, the samples marked as T1-T3 are that of the
second accused, the samples marked as U1-U3 are that of the
third accused, the samples marked as V1-V3 are that of the fourth
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21.2 The video is played during the evidence of
the prosecutrix and the victim who have identified the same.
The Special Court, which has watched the video, has
observed that mostly the images in the video are of the
prosecutrix and victim. The Report essentially states that
the video clip is as recorded and the voice samples of the
first to fourth accused compare with the voice heard in the
video clip but the voice sample of the fifth accused did not
match with any of the voices in the same. The report also
states that the speech of the victim in the video is not
sufficient to identify.
22. The prosecution has relied upon the
evidence as aforesaid and the evidence of the other official
witnesses to establish its case against the accused and the
accused rely upon certain circumstances to contend that
their culpability is not established as required in law. The
Special Court has considered the prosecution’s case as well
accused and the samples marked as X1 – X3 are that of the fifth
accused. The victim’s voice’s sample is marked as Z1-Z3.
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as the circumstances that could be relied upon by the
accused to decide on the culpability.
23. The Special Court’s examination of the
these aspects, for reasons of convenience, are referred to
under certain Sub-headings while further discussing the
evidence on these aspects and examining the Special Court’s
opinion for this Court’s reconsideration of the evidence in
view of the Apex Court’s reiteration in Jogi v. State of
Madhya Pradesh16 that it is necessary for the appellate
Courts to consider whether the trial Court’s assessment of
the evidence and its opinion that the accused must be
convicted deserves to be confirmed. The Apex Court, in
reiteration of the exposition in Majjal v. State of Haryana17,
has stated thus:
………….. The High Court’s cryptic reasoning is
contained in two short paragraphs. We find such
disposal of a criminal appeal by the High Court
particularly in a case involving charge under Section16 Criminal Appeal No. 1350 of 2021 [Arising out of SLP [Crl] No
2245 of 2020] disposed of on 08.11.2021.
17 [2013] 6 SCC 798
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302 IPC where the accused is sentenced to life
imprisonment unsatisfactory.
It was necessary for the High Court to consider
whether the trial court’s assessment of the evidence
and its opinion that the appellant must be convicted
deserve to be confirmed. This exercise is necessary
because the personal liberty of an accused is
curtailed because of the conviction. The High Court
must state its reasons why it is accepting the
evidence on record. The High Court’s concurrence
with the trial court’s view would be acceptable only
if it is supported by reasons. In such appeals it is a
court of first appeal. Reasons cannot be cryptic.
The prosecution’s evidence on the age of the
prosecutrix.
24. The accused are convicted for offences
punishable under Section 376D of IPC and the provisions of
POCSO Act. They prosecution’s case is that the prosecutrix,
who is born on 19.03.1999, was aged below 18 years as of
the date of occurrence [15.02.2017]. If the prosecutrix’s
date of birth is taken as 19.03.1999, she would be aged 17
years 11 months and a few days more. The accused have
disputed that the prosecutrix is born on 19.03.1999 because
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after the incident she has filed a petition under the
provisions of the Registration of the Births and Deaths Act,
1969 in Criminal Misc. No. 385/2017 for correction in her
Birth Certificate. The jurisdictional court has allowed this
petition on 06.06.2017, and thereafter, the concerned has
issued a fresh Birth Certificate.
24.1 The prosecution to establish that the
prosecutrix is born on 19.03.1999 has produced her Tenth
Standard Marksheet issued by the Karnataka Secondary
Examination Education Board [Ex. P 55], Birth Certificate
issued by the concerned with local authority dated
03.05.1999 [Ex. P. 54], Passport [Ex. P. 57], Ration Card
[Ex. P. 58], Aadhaar Card [Ex. P. 56] and Transfer Certificate
issued by the school where she studied Tenth Standard [Ex.
P – 59]. These documents, as observed by the Special Court,
are consistent in indicating that the prosecutrix is born
19.03.1999.
24.2 However, in the Criminal Miscellaneous No.
385/2017 the prosecutrix has contended that when her
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father applied for birth certificate with the concerned, he is
issued with a certificate without showing her name and
therefore she has applied for correction in the Birth
Certificate. The prosecutrix has further explained that the
hospital where she was born [Ashok hospital, Subhash
Nagar, Belgavi] informed the authorities about her birth and
the details were entered without her name and after she was
named in a customary ceremony the concerned was also
informed about the same and Birth Certificate dated
03.05.1999 is issued but after the incident she is issued
with a Birth Certificate without her name.
24.3 The Special Court, while considering the
case of the accused that there is doubt about the
prosecutrix’s age because of the afore proceedings and that
the prosecutrix was a few days short of completing 18 years,
has opined that the jurisdictional Court’s Order dated
06.06.2017 in Criminal Miscellaneous No. 385/2017 is not
conclusive because of the observation that any entry after its
orders for correction will not be conclusive proof if there
exists any dispute and the entries will be subject to further
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proof and that the documents otherwise produced by the
prosecution clearly show that the prosecutrix was aged
below 18 years and the accused’s case that she was not a
minor cannot be accepted.
24.4 The prosecutrix’s Tenth Standard
Marksheet issued by the competent board and her Passport,
Ration Card and Aadhaar Card are consistent insofar as her
date of birth. These documents show that she is born on
19.03.1999. The probative value of these documents, most
specifically the Tenth Standard Mark sheet must be
considered in the light of the Apex Court’s decision on the
documents that must be produced to prove the age of a
victim in cases of sexual offences against children and the
primacy that is to be attached inter se these documents.
24.5 The Apex Court in Mahadeo v. State of
Maharashtra18 has held as follows:
In every case concerning a child or juvenile in conflict with
law, the age determination inquiry shall be conducted by
18 [2013] 14 SCC 637.
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the Court or the Board or, as the case may be, 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;
(b) and only in the absence of either [i], [ii] or [iii] of
clause [a] above, the medical opinion will be
sought from a duly constituted Medical Board,
which will declare the age of the juvenile or child.
In case exact assessment of the age cannot be
done, the Court or the Board or, as the case may
be, the Committee, for the reasons to be recorded
by them, may, if considered necessary, give
benefit to the child or juvenile by considering
his/her age on lower side within the margin of
one year.
The Apex Court in the later decision in State of M.P. v.
Anoop Singh19 referring to the above has held that the afore
is in view of Rule 12[3] of the Juvenile Justice [Care and
Protection of Children] Rules, 2007 and is applicable in
determining the age of the victim of rape.
19 [2015] 7 SCC 773
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24.6 In the light of the significance that is
attached to the Tenth Standard Marksheet in deciding on
the age of the victim and the corroboration thereof in the
present case by the other documents such as Passport,
Ration Card and Aaadhar card, this Court cannot disbelieve
that the prosecution’s case that the prosecutrix is born on
19.03.1999 only because she has chosen to initiate
proceedings under the provisions of Registration of Births
and Deaths Act, 1969 as the concerned, when approached
for a copy of the birth certificate after the incident, has
issued a certificate with all other details except her name.
Therefore, this Court must confirm the Special Court’s
finding that the prosecution has proved that the prosecutrix
was aged below 18 years as of 15.02.2017 [the alleged date
of occurrence] and the defence of the accused cannot be
accepted.
The presumption under Section 29 of the POCSO Act
25. The accused are convicted for the offences
punishable not only under the provisions of Section 376D of
IPC but also under the provisions of the POCSO Act and the
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prosecutrix is shown to be a minor, and as such, the
prosecution will be entitled to call upon this Court to draw
certain presumption in view of the provisions of Section 29
of the latter Act but if certain foundational facts are
established. The Special Court also has also considered the
question of extending the benefit of such presumption.
25.1 This Court must refer to the decision of the
Apex Court in Pappu v. State of U.P20 on presumption
under Section 2921 of the POCSO Act.. The Apex Court in
this decision, after discussing the factual matrix, has
underscored the significance of the presumption that would
be available under Section 29 of POCSO Act if the
foundational facts are established, the Apex Court’s
observations in this regard read as under:
From what has been discussed hereinabove, it is also
but clear that the foundational facts of the offences20 [2022] 10 SCC 321 [Paragraph 108] .
21Section 29. Presumption as to certain offences.–Where a person is
prosecuted for committing or abetting or attempting to
commit any offence under sections 3, 5, 7 and section 9
of this Act, the Special Court shall presume, that such
person has committed or abetted or attempted to commit
the offence, as the case may be unless the contrary is
proved.
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alleged against the accused have been established. In
the given set of circumstances, it could safely be said
that the presumption contemplated by Section 29
POCSO Act came into operation and the burden came
staying with the accused; and it was for him to rebut
the presumption and to prove that he had not committed
the offence. The accused has failed to discharge this
burden.
25.2 The prosecution’s case against the accused,
insofar as the offences punishable under the POCSO Act,
rests on certain foundational facts such as that [a] the
accused compelled the prosecutrix and co-victim to disrobe
themselves in their presence, [b] the co-victim is forced to get
into a compromising position with the prosecutrix by the
accused with them recording the happening, and [c] the first
to fourth accused committed gang rape on the prosecutrix
and the fifth accused, abetting them, held back co-victim
with the assistance of the juvenile offender.
25.3 The prosecutrix is categorical in the
complaint dated 20.02.2017 [Ex. P1] that when she and the
co-victim were at Muttyanatti on 15.02.2017 at around 5:30
PM, about 6-7 persons aged about 20 years came from the
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hillside and started assaulting the co-victim and abusing
them for being at that place snatching their mobiles and
₹300/- that was on their person. The prosecutrix is also
categorical in her complaint that these 6-7 persons forced
them to become nude. The prosecutrix in her statement on
21.02.2017, as recorded by Smt. Shreedevi Patil [PW 31]
under Section 24 of POCSO Act, has stated the same but
explaining that one amongst the aforesaid 6 to 7 persons
assaulted the co-victim detailing how the mobiles and the
amount was snatched driving them to a secluded place and
compelling them to remove their clothes. The prosecutrix
has stated that because she and the co-victim were
hesitating, these persons assaulted and forcibly tore her
clothes, including her undergarments. This Court finds that
the prosecutrix’s statement as regards the above consistent
both in the complaint and the statement [Ex. P1 and P2].
25.4 The prosecutrix’s statement is also recorded
by a learned Magistrate22 on 22.02.2017 under the
provisions of Section 25 of the POCSO Act, and even in this
22 The second Additional Civil Judge and JMFC, Belagavi
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statement she is consistent. The prosecutrix has once again
stated that she and the co-victim, under threats and
because they were being assaulted, removed their outer
wear and these persons forcibly removed her inner wear
with some of them even starting to undress themselves.
Further, the prosecutrix is categorical, even in this
statement, that these persons compelled the co-victim to get
into a compromising position with her while they were
recording.
25.5 The prosecutrix is examined as PW1 on
18.09.2017. This Court, on going through her evidence,
must opine that she is consistent as regards the above
aspects and she has detailed the horrid experience
specifically stating that these persons forcibly pulled out her
inner wear and compelled the co-victim to attempt sexual
intercourse with her threatening both that if he did not do
so they would commit such acts on her. As regards these
persons themselves committing penetrative sexual assault
on her, the prosecutrix, again consistent with the
complainant and the statements [Exhibit P1 and P2], has
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stated that the accused took umbrage because the co-victim
could not and the first to fourth accused took her further
aside with the other accused [the fifth accused and juvenile
offender] holding the co-victim back and that with these
others encouraging, the first to fourth accused committed
aggravated penetrative sexual assault on her.
25.6 This Court finds the prosecutrix’s testimony
on the foundational facts as aforesaid consistent and
believable. However, Sri Ashok R. Kalyanshetty argues that
this Court must not accept the prosecutrix’s testimony as
aforesaid because the first information is lodged five days
after the alleged incident, the identification of the accused is
not established beyond all doubts, the prosecutrix’s evidence
on penetrative sexual assault is not corroborated by medical
evidence, and the charges are contrary to the recoveries or
the forensic evidence, including the forensic report of the
voice samplings. The learned counsel argues that the
evidence is replete with inconsistencies and contradictions.
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25.7 This Court must, before the accused’s
contentions in these regards are examined in the light of the
Special Court’s discussion about the same, examine whether
the accused in the cases of sexual assault could be
convicted on the sole testimony of the prosecutrix or should
the courts always look for corroboration. This question has
been considered by the Apex court in Phool Singh v. State
of M.P.23, and the Apex Court, in the light of its earlier
decisions, has reiterated the following:
[i] A victim’s/prosecutrix’s testimony would be vital
unless there are compelling reasons which
necessitate corroboration and that the courts could
act on the victim’s/prosecutrix’s testimony when it is
found to inspire confidence.
[ii] Looking for corroboration when the Prosecutrix’s
testimony inspires confidence would amount to
adding insult to injury, but the courts can look to
other evidence to assure judicial conscience because
the victim/ prosecutrix, as a person who has levelled
charges, could be interested in the outcome of the
proceedings.
23 [2022] 2 SCC 74
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25.8 The Apex court’s reiteration as aforesaid is
in the light of its earlier decision in State of Punjab v.
Gurmit Singh24, wherein it is held as follows:
“Corroborative evidence is not an imperative
component of judicial credence in every case of rape.
Corroboration as a condition for judicial reliance on
the testimony of the prosecutrix is not a requirement
of law but a guidance of prudence under given
circumstances.”
25.9 This Court has already opined that the
prosecutrix is consistent that she was compelled to remove
her dress, that her undergarments were forcibly removed,
that co-victim was forced to get into a compromising position
with her and that she was sexually assaulted [the
foundational facts] in her complaint, in her statement to
Smt. Shreedevi Patil [PW 31] under Section 24 of the POCSO
Act, in her statement to the learned Magistrate under
Section 25 of the POCSO Act and in her testimony. This
consistent evidence strongly establishes the material
ingredients for the offences of aggravated penetrative sexual
24 [1996] 2 SCC 384
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assault and abetment punishable under the POCSO Act and
under Section 376D of IPC.
25.10 However, to examine whether the accused’s
conviction for such offence can be sustained just based on
the prosecutrix’s testimony with the advantage of the
presumption under Section 29 of the POCSO Act must be
considered in the light of the other evidence because the
prosecutrix was just one month short of completing 18
years. If the prosecutrix had completed 18 years, the
presumption will not be available. Further, the
reconsideration of the other evidence will also enable
examination of the accused’s assertion that the
prosecution’s case is shown to be false by the delay in
initiation of the proceedings, failure to establish identity and
the lack of corroboration of material allegations by medical
or forensic evidence, and the inconsistencies and
contradictions in the evidence.
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The accused’s case on delay in filing the first
information
26. The prosecution alleges that the incident
occurred on 15.02.2017 and the prosecutrix has filed the
first information with the jurisdictional Police on 20.02.2017
because of the threat of the offending video being uploaded.
The prosecution’s case is that the accused, on 15.02.2017,
restrained the prosecutrix and co-victim and committed
different acts as discussed above and that they demanded a
ransom of Rs.20,000/- threatening to upload the offending
video. The Special Court has considered the evidence let in
by the prosecution on these aspects examining the defense
that the delay in filing the complaint shows that the
prosecutrix, in consultation with her family members and
police, has built a false narrative to implicate them.
26.1 The Special Court has opined that both
prosecutrix and co-victim are consistent in their evidence
that some of the accused, acting in cohorts, recorded the
forced physical intimacy between them and threatened them
of uploading this video if a sum of Rs.20,000/- is not paid in
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ransom. The Special Court has opined that in the
circumstances established, the delay is satisfactorily
explained. On the question of law, the Special Court, while
referring to the decision of the Apex Court in State of
Punjab vs. Gurmit Singh and others supra, has observed
that delay in lodging information with the Police when a
minor is sexually assaulted cannot in itself be fatal because
the family will have to decide on initiating criminal
proceedings taking into consideration different
circumstances, such as, the family’s honour.
26.2 The prosecutrix, as on the date of the
incident, was a first-year medicine student, and she has
known co-victim from their school days. He was studying
for diploma in engineering. According to them, they were
subjected to the bizarre [and demeaning] experience of
having to disrobe themselves and be in a compromising
position with the same being captured on one of their
mobiles with the threat of such offending video being
uploaded. This Court must consider whether it would be
natural for both to be hesitant and reluctant in either
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informing the family members or the authorities
immediately.
26.3 The prosecutrix states in her evidence that
she did not contact her parents after she returned to the
hostel spending the night intervening between 15.02.2017
and 16.02.2017 at the entrance of emergency ward in KLE
Hospital, Belagavi and that her mother called her on the
hostel’s landline to verify why she did call; her mother called
her later to inform that somebody had called her on her
mobile and her cousins’ mobile to inform that her phone was
traced. The prosecutrix also states that the accused, after a
day, started calling her female acquaintances informing
them that her mobile was traced. The prosecutrix’s parents
[PW 3 and 4] are also consistent in this regard. Their
evidence is believable especially with the recovery of the
respective mobiles from some of the accused being
established.
26.4 The merits of this evidence are examined in
the light of the circumstances relied upon on behalf of the
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accused. Sri. Ashok R. Kalyanshetty argues that the mother
and the brother of the prosecutrix’s friend have stated in
their evidence that the jurisdictional Police called the
prosecutrix’s friend on 19.02.2017 itself asking him to come
to the Police Station but the complaint is not filed on
19.02.2017 and is allegedly filed on the next date
[20.02.2017]. This, the learned counsel argues, indicates
that the jurisdictional Police and the prosecutrix’s family
members have discussed the contents of the complaint
among themselves and filed the complaint to possibly
protect the prosecutrix’s honour as the physical intimacy
between her and co-victim was recorded by a set of villagers.
26.5 Sri. Ashok R Kalyanashetty further submits
that this Court must consider that the co-victim has stated
in his evidence that [a] he informed two of his friends, [b] he
visited Muttyanatti – the place of occurrence – the next day
to retrieve his bike and he could retrieve the bike with
assistance, [c] he has collected the SIM cards from the
accused on the next date, and [d] he contacted the accused
with his friends who were studying in the same institution
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with him. The learned counsel canvasses that this Court
will have to consider these circumstances and the admitted
fact that the prosecutrix and co-victim had to cross the
Police Station before they reached the place from where they
hitchhiked in the vehicle of Sri.Sandesh Patil [PW6] to decide
whether the undeniable delay is fatal and that the
prosecution has proved the occurrence as alleged.
26.6 The prosecutrix and co-victim are
consistent in their evidence that they did not tell Sri
Sandesh Patil [PW 6] who dropped them at KLE Hospital,
Belagavi about the sexual assault. They are also consistent
in that the prosecutrix spent the night outside the
emergency ward at the hospital [because that would be a
safe place, and she could not return to the hostel in the
same evening] and that co-victim stayed outside the
emergency ward and they did not speak to each other until
19.02.2017 when the prosecutrix’s father visited her at her
hostel and insisted on talking to the co-victim.
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26.7 If this evidence is consistent, it is
reasonable to conclude that the prosecutrix and co-victim,
shocked as they should be by the experience, did not speak
to each other. If the prosecutrix has chosen to remain silent
with co-victim trying to retrieve the situation himself, no
adverse inference can be drawn only from these
circumstances to the accused’s advantage. The co-victim,
without material inconsistencies, has stated that he
informed a couple of his friends from his college [without
disclosing the details] that his mobile was snatched at
Muttyanatti and that they should accompany him to retrieve
the mobile; he called on the prosecutrix’s mobile number
and the first accused asked him to meet near a Dhabha
closer to the place of occurrence; he, accompanied by these
friends, went there but he alone went inside and spoke to
the first accused who only relented to return his SIM. This
evidence is brought out in the cross-examination. The
discrepancy in the evidence by the co-victim and his cousin
[PW – 7] about going to a garage to get duplicate key for the
bike, that before going home to spare key does not
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undermine the otherwise credible evidence. This Court is of
the definite opinion that this evidence does not in any
manner render the prosecutrix’s evidence on what
transpired between 15.02.2017 and 20.02.2017 unreliable.
26.8 The prosecutrix has mentioned in her
complaint [Ex.P.1] in short the details of what transpired
between the evening of 15.02.2017 and 20.02.2017, but in
her statement [Ex P2] to the Woman PSI [Smt. Shridevi Patil
– PW31] she has explained that she tried to live a normal life
between 16.02.2017 and 18.02.2017 despite her experience
on 15.02.2017 fending of the queries by the mother and
refusing to relate her horrifying experience to anyone until
her mother saw the physical injuries on her person on the
morning of 20.02.2017 when she stepped out after a bath.
26.9 Sri. Ashok R. Kalyanshetty argues that the
prosecutrix’s evidence in this regard must be disbelieved
because the co-victim’s and his family members have stated
in their evidence that the Police called the co-victim to the
Police Station on 19.02.2017. The learned counsel contends
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the prosecutrix’s case that neither her parents nor the police
was informed about the occurrence until 20.02.2017 is
rendered completely untrustworthy by this evidence.
26.10 In this regard, this Court must also
consider, as rightly canvassed by Sri. M. B. Gundawade,
that the co-victim is examined on 20.09.2017 but is cross-
examined two and half years later with the co-victim’s
mother [PW- 9] and his brother [PW – 10] being examined
thereafter. Sri. M.B. Gundawade rightly argues that given
the lapse of two and half years from the date on which the
co-victim is examined in chief, he could be confused on the
date and that his family members, who are examined next,
could have been influenced by the statement in the cross-
examination of the co-victim.
26.11 It is settled that delay in every case cannot
be held against the prosecution or the victim and especially
in cases where there is sexual assault, and more specifically,
when the offence is as against a minor. This Court can make
an immediate reference to the decision of the Apex Court in
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Mukesh v. State of Chattisgarh25. The Apex Court in this
decision, while extracting certain paragraphs from State of
Rajasthan v. N.K.26 , has reiterated the law declared in
State of Rajasthan v. Narayan27 and in State of Punjab
vs. Gurmit Singh and others supra. The propositions as
reiterated by the Apex Court in the case of Mukesh v. State
of Chattisgarh supra are follows:
We may however state that a mere delay in lodging
the FIR cannot be a ground by itself for throwing
the entire prosecution case overboard. The court
has to seek an explanation for delay and test the
truthfulness and plausibility of the reason
assigned. If the delay is explained to the
satisfaction of the court it cannot be counted
against the prosecution. In State of Rajasthan v.
Narayan [1992] 3 SCC 615:1992 SCC [Cri] 781] this
Court observed: [SCC p. 623, para 6]
‘True it is that the complaint was lodged two days
later but as stated earlier Indian society being
what it is the victims of such a crime ordinarily
consult relatives and are hesitant to approach the
police since it involves the question of morality and
chastity of a married woman. A woman and her25 [2014] 10 SCC 327
26 [2000] 5 SCC 30
27 [1992] 3 SCC 615
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relatives have to struggle with several situations
before deciding to approach the police….’
In State of Punjab v. Gurmit Singh [[1996] 2 SCC
384:1996 SCC [Cri] 316] this Court has held:
‘8. … The courts cannot overlook the fact
that in sexual offences delay in the lodging
of the FIR can be due to variety of reasons
particularly the reluctance of the prosecutrix
or her family members to go to the police
and complain about the incident which
concerns the reputation of the prosecutrix
and the honour of her family. It is only after
giving it a cool thought that a complaint of
sexual offence is generally lodged.’26.12 This Court, in the view of this law and the
afore discussion of the evidence by the prosecutrix, is of the
considered view that the delay is natural and explanation is
consistent and the Special Court’s conclusions on the
question of delay in the prosecutrix lodging first information
with the jurisdictional police are unexceptional and does not
in any manner undermine the prosecutrix’s evidence or the
prosecution’s case otherwise.
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The accused’s Case on Medical Evidence
27. The prosecution, to establish that the
prosecutrix was sexually assaulted by the first to fourth
accused with the fifth accused and the juvenile offender
holding the co- victim back, has relied upon the
prosecutrix’s evidence, the evidence of the co-victim and the
medical evidence. The prosecution, insofar as the medical
evidence, has examined Dr. Adinath Annappa Kudachi [PW-
28] and produced Medical Report/s and Wound Certificates
[Ex. P 100, 102 and 104]. This Court need not once again
refer to the prosecutrix’s testimony [which is corroborated by
the co-victim’s testimony] about how the accused first forced
them to remove their external wear, tore the prosecutrix’s
inner wear, compelled the co-victim to be in a compromising
position with the prosecutrix and then ultimately, separated
her, took her further away and the first to the fourth
accused committed the offence of aggravated penetrative
sexual offence.
27.1 Sri Ashok R. Kalyanashetty, however,
contends that because the first information about the
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incident is filed after five days from the alleged date of
occurrence, this Court must examine whether the
prosecutrix’s evidence is corroborated by medical evidence
and that if the evidence is not corroborated, this Court must
disbelieve the prosecutrix’s case of being subjected to the
offence of aggravated penetrative sexual assault. The learned
counsel emphasizes that the doctor’s opinion is that the
prosecutrix had not suffered any injuries that would be
consistent with the prosecution’s case and in fact the injury
suffered by her would be consistent with the accused’s
defence that the prosecutrix and the co-victim were found in
a compromising position by the villagers with some of them
recording. In fact, the learned counsel has requested this
Court to re-list this appeal to emphasize the same.
27.2 The Special Court, while examining the
prosecution’s case that the prosecutrix is sexually assaulted
by the first to fourth accused, apart from considering
prosecutrix’s testimony and the co-victim’s testimony in
support thereof, has also played the video recording in the
chambers from the mobile [Material Object-16] which was
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charged using the charger of one of the court’s staff The
Special Court has opined that the prosecutrix is seen lying
naked on the floor with the co- victim on her also nude with
certain persons compelling /abusing him to force himself on
the prosecutrix using vulgar language, but the
embarrassment/difficulties for both are obvious. The
Special Court has also relied upon the evidence of the
Investigating Officer [PW 32] in this regard. The Special
Court, thus relying upon the prosecutrix’s testimony and the
circumstances, has opined that the prosecution has
established that the prosecutrix is sexually assaulted.
27.3 Dr. Adinath Annappa Kudachi [PW – 28]
has furnished Medical Report/s and Wound Certificates [Ex.
P 100, 102 and 104]. The Doctor has stated in his evidence
that, when the prosecutrix was examined on 21.02.2017, it
was seen that she had suffered multiple abrasions on her
lower and upper limbs, her backside, her spine area, and
inner thighs and there was contusion on her chest [her
breast/ areola]. The Doctor, in the Wound Certificate and in
his evidence, has stated that the injury suffered by the
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prosecutrix could be caused by a hard and blunt object, and
he has also identified a stick [Material Object-10] as that
hard and blunt object which could cause these injuries.
27.4 The Medical Reports/Wound Certificate are
silent about the prosecutrix suffering any injury that could
be absolutely conclusive of penetrative sexual assault, but in
the present case, in view of the fact that the proceedings are
initiated after five days of the occurrence [with the
prosecution satisfactorily establishing the delay] neither this
by itself nor the absence of semen either on the prosecutrix
or on her dress is of any significance. This Court, on the
other hand, must opine that the injuries are consistent with
the prosecution’s case that the prosecutrix was forced to lie
naked on the ground with the victim being compelled to be
on her and that the first to fourth accused stoked her chest
forcibly and then committed aggravated penetrative sexual
assault on her. The injuries found on the prosecutrix are
not consistent with the inchoate defence that she and the
co-victim were found in a compromising position by the
villagers. If the prosecutrix and the co-victim were engaged
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in consensual intimacy, the injuries on the chest, backside
and inner thighs could not have been caused, and these
injuries corroborate the prosecution’s case as aforesaid.
27.5 This Court, before considering the next
circumstances relied upon by Sri Ashok R Kalyanashetty to
persuade this Court to hold in favour of the accused, must
observe that Dr. Adinath Annappa Kudachi [PW – 28, and
aged about 68 years as of the date of his evidence] has
opined in the Medical Report [Ex. P102] that the prosecutrix
is habituated to acts of sexual intercourse, and examine
whether such opinion, which is re-iterated in his evidence,
was either warranted or permissible in law. The Doctor has
stated in his evidence that he is speaking about the injuries
on the prosecutrix based on the opinion of a lady doctor, but
neither the Medical Reports nor the Wound Certificate refer
to the prosecutrix being examined by any lady doctor. The
Medical Report [Ex. P 100] indicates that the prosecutrix
was examined by this Doctor [he has signed the report and
none else] recording that a staff nurse by name ‘Sharada’
was present at the time of examination. This Court must
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wonder petulantly whether the Doctor has been nonchalant
in recording this opinion and re-iterating the same in his
evidence.
27.6 The Apex Court in this regard in State of
Jharkhand v. Shailendra Kumar Rai28 has observed as
follows:
65. Whether a woman is “habituated to sexual
intercourse” or “habitual to sexual intercourse” is
irrelevant for the purposes of determining whether the
ingredients of Section 375IPC are present in a particular
case. The so-called test is based on the incorrect
assumption that a sexually active woman cannot be
raped. Nothing could be further from the truth — a
woman’s sexual history is wholly immaterial while
adjudicating whether the accused raped her. Further,
the probative value of a woman’s testimony does not
depend upon her sexual history. It is patriarchal and
sexist to suggest that a woman cannot be believed when
she states that she was raped, merely for the reason
that she is sexually active.”
28 [2022] 14 SCC 299
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The accused’s case based on the forensic examination
of the voice sample
28. Sri Ashok R. Kalyanashetty submits that
this Court must extend the benefit of the forensic report
based on the analysis of the voice specimen and the audio
clip recorded at the time of occurrence. The learned counsel
contends that the prosecution’s case is that the accused and
the juvenile offender [six persons] were at the place of
occurrence, but the report is categorical that [i] the voice
characteristics of only four male speakers matched with the
voice specimens recorded during the investigation, and [ii]
the voice specimen of the fifth accused does not match with
any of the voice characteristics. The merits of this canvass
must necessarily be examined considering the manner in
which the accused’s voice specimen is recorded and copied
and sent to the forensic examination and the law as
enunciated by the Apex Court on the requirement of
compliance with Section 65 B[4]of the Indian Evidence Act,
1872 [for short, the ‘Evidence Act’] while observing that the
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relevant provisions in the new enactment [Section 63 in
Bharatiya Sakshya Adhiniyam, 2024] are in similar lines.
28.1 The prosecution has examined PW 27, a
photographer by profession, to bring on record how the
accused’s voice specimen is recorded and copied for forensic
examination. This witness has stated essentially that he
recorded the accused reading the exhortions in the video clip
using the audio option on his camera and that he visited a
Browsing Center and used a personal computer in such
centre to transfer the audio file and burn the same onto the
CDs that he had purchased from market. He has also
stated that he did not have the control over the personal
computer and he did not know about the contents on such
computer. Further, the witness has specifically stated that
neither the Investigating Officer asked to give a certificate
nor he has given a certificate to demonstrate the
genuineness of the specimen. The CDs and the forensic
examination report are introduced in evidence but without
any certificate as to the genuineness of the contents of the
CDs.
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28.2 This Court must observe that the police
during the course of their investigation undoubtedly have
the power to seize electronic material found beneficial for the
investigation and draw necessary specimen wherever it is
possible, but when it comes to electronic evidence, the
process of seizure followed by the police ought to be
nuanced and the police must ensure that the seizure of
electronic evidence and its subsequent use as evidence later
on in the trial is not rendered inadmissible because of
failure to meet mandatory compliances.
28.3 The Electronic evidence, like any other
evidence, is of two kinds: [a] Primary Evidence and [b]
Secondary Evidence. The Primary evidence vis-a-vis an
electronic record would be when the electronic record which
contains the evidence in question itself is produced as an
exhibit. If a video clip or an audio clip recorded on a mobile
device is being introduced as evidence, the mobile device on
which the video is shot would be primary evidence qua the
video. The Secondary evidence vis-a-vis an electronic would
be when the electronic record which contains the evidence in
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question is created by making a copy of the primary
evidence qua the evidence in question.
28.4 If a video clip or an audio recorded on a
mobile device is copied on to a CD [DVD] or a pen drive and
the CD/ DVD or pen drive is being introduced as evidence,
the CD/DVD or pen drive would be secondary evidence qua
the video. This distinction between primary evidence and
secondary evidence vis a vis an electronic record becomes
crucial as the rigours to introduce such evidence would
differ. In the event a primary evidence of an electronic record
is produced, then there would be no requirement to comply
with the provisions of Section 65-B[4] of the Indian Evidence
Act [Section 63 in Bharatiya Sakshya Adhiniyam, 2024] as
the certificate required under the said Section would be
superfluous to the requirement.
28.5 However, if secondary evidence of an
electronic evidence is produced, then the producing party
would necessarily have to comply with the requirements of
Section 65-B[4] of the Indian Evidence Act. After the
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decision of the Apex Court in Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal29, the law is well settled
inasmuch the requirement of a certificate under Section 65-
B[4] of the Indian Evidence Act would be mandatory in the
event secondary evidence of an electronic record is being
produced. It is imperative that mandatory requirements of
Section 65-B[4] are satisfied if the secondary evidence of an
electronic record is to be relied upon.
28.6 It would also be advisable that when the
primary evidence of an electronic record is obtained during
the investigation, the investigating officer must make copies
of the primary evidence so obtained to ensure that even if
the primary evidence so obtained is destroyed due to the
vicissitudes of time, the copy of the primary evidence exists.
A situation could arise where the primary evidence stops
working30, becomes inaccessible, or is even destroyed. In
such cases, the benefit of the primary evidence must not be
29 [2020] 7 SCC 1
30 In the present case, the learned counsels, when pointed out that
MO 16 may have to be secured from the Special Court as it is not
presently not part of this Court’s record, submit that it cannot be
necessary
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lost due to such vicissitudes and a copy of the same must be
created by the investigating authority. When such copies are
created, the investigating authority must ensure due
compliance with the provisions of Section 65-B[4] of the
Indian Evidence Act/section 63 in Bharatiya Sakshya
Adhiniyam, 2024 and such copies must also be made part of
the charge sheet along with the primary evidence of the
electronic record.
28.7 This Court must observe that in the
absence of a certificate as required under the provisions of
Section 65-B[4] of the Evidence Act, the efficacy of this
entire exercise of drawing specimen and securing forensic
analysis report of the specimen is a futile exercise and
neither has any the probative value. The Special Court,
though has not examined the requirement of a Certificate
under the aforesaid provisions, has refused to rely upon the
same because, at the best, the Expert’s opinion can only be
a corroborative evidence and that the presence of the
accused is established otherwise.
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The accused’s case based on Photo Identification and Test
Identification Parade and [TIP]
29. The prosecution’s case is that the accused’s
culpability for the offences alleged is proved because their
presence at the place of occurrence is spoken to by the
prosecutrix who has identified them not only in the court
during evidence but also in the photo identification exercise.
The prosecution also relies upon the co-victim’s evidence
and the Test Identification Parade proceedings. The Special
Court, while referring to the exposition of the Apex Court
that the identification in a Test Identification Parade would
only be corroborative evidence and substantial evidence will
be the identification in the court, has opined that the
prosecutrix and the co-victim have identified the accused in
the court during evidence and therefore, the prosecution has
succeeded in its case in this regard.
29.1 Sri Ashok R. Kalyanashetty canvasses that
the prosecutrix’s identification of the accused neither in the
court nor in the photo identification is credible and in that
event, and in view of the evidence of the co-victim, this
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Court must opine that the prosecution has failed to
establish the accused’s presence at the time of the alleged
incident. In this regard, the learned counsel relies upon the
following:
• The prosecutrix, who has mentioned the
names of three accused in the complaint
and the names of four accused in the
statement to the Woman Police Inspector
[Smt. Shreedevi Patil – PW 31], has
admitted in the cross-examination that she
had seen the photographs of the accused
with their names when the same were
telecast. This creates doubt, and the doubt
is further accentuated with the prosecutrix
identifying the fifth accused as the first
accused.
• The prosecution contends that Test
Identification Parade comprising of two
rounds was conducted for the co-victim and
that he has identified the accused in such
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victim has identified the fifth accused in
only one of the two rounds.
• The co-victim is categorical in his cross-
examination that the fifth accused was not
present at the place of occurrence and that
he has nothing to do with the alleged sexual
assault or the extortion or the wrongful
restraint or having put him and the
prosecutrix under threat for extortion.
29.2 This Court, because the prosecution relies
upon both identification in Photo Identification exercise and
Test Identification Parade, must refer to the decision of the
Apex Court in Sidhartha Vashisht @ Manu Sharma v.
State (NCT of Delhi)31 wherein it is held as follows, and this
Court must also record that the proposition as below is
reiterated by the Apex Court in its recent decision in
Mukesh Singh v. State (NCT of Delhi)32.
31 (2010) 6 SCC 1
32 2023 SCC OnLine SC 1061
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“254. Even a TIP before a Magistrate is otherwise hit by
Section 162 of the Code. Therefore to say that a photo
identification is hit by Section 162 is wrong. It is not a
substantive piece of evidence. It is only by virtue of
Section 9 of the Evidence Act that the same i.e. the act of
identification becomes admissible in court. The logic
behind TIP, which will include photo identification lies in
the fact that it is only an aid to investigation, where an
accused is not known to the witnesses, the IO conducts
a TIP to ensure that he has got the right person as an
accused. The practice is not borne out of procedure, but
out of prudence. At best it can be brought under Section
8 of the Evidence Act, as evidence of conduct of a
witness in photo identifying the accused in the presence
of an IO or the Magistrate, during the course of an
investigation.”
29.3 The proposition of law is rather settled, and
this Court must examine, upon consideration of the
evidence in the light of the canvass as aforesaid, whether the
prosecutrix has identified each of the accused without any
room for doubt, and if there is any doubt, the same is
cleared by corroboration. This Court while discussing the
evidence of the prosecutrix has observed that the
prosecutrix, when called upon to identify the first accused,
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has identified the fifth accused but immediately clarified
that she is mistaken only because of lapse of time.
29.4 The significance of this must be considered
in the backdrop of the fact that she has not mentioned the
fifth accused in the complaint or in the statement under the
provisions of the POCSO Act and that the fifth accused is
mentioned for the first time in the Photo Identification. The
credibility of this identification is also shaken by the fact
that the prosecutrix has admitted that she has seen the
photographs when there was telecast of the same. This
Court, in the circumstances, must next examine the
evidence of the co-victim.
29.5 The co-victim, as against canvassed by Sri
Ashok R. Kalyanshetty, has identified the first to fourth
accused in both the rounds but the fifth accused in only one
of the two rounds. In the cross-examination, he is
categorical that this accused has nothing to do with the
assault or the incident and that he was not present at the
time of occurrence. The prosecutrix and the co-victim are
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consistent in every detail including the identity of the
accused with the exception of identifying the fifth accused.
This Court therefore must opine that the identity of the first
to fourth accused is clearly established by the consistent
substantive evidence and the corroboration thereof but not
the identity of the fifth accused.
30. Sri. Ashok R Kalyanshetty contends that
the prosecutrix has stated in her complaint that 6-7 persons
assaulted her and the co-victim, in the statement under
section 24 of the POCSO Act she has stated six persons and
in the statement under Section 25 of the POCSO Act she has
again mentioned 6-7 persons. The prosecutrix has
mentioned the names of just the first, second, and fourth
accused in the complaint, but in the statements as aforesaid
she has mentioned the names of the first to fourth accused.
The prosecutrix has not mentioned the name of the fifth
accused at all in the complaint or the statements. The
learned counsel canvasses the following.
• The prosecutrix has stated in complaint
[Ex. P 1] that after they reached the
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residence of her relative [Sri. Shireesh
Babladi- PW5] on 20.02.2017, the
complaint was typed on the laptop and the
printout was taken at his residence and
filed with the Investigating Officer who then
called Smt. Shreedevi Patil [PW -31] to
record her statement under Section 24 of
the POCSO Act. However, according to the
statement recorded by this officer [Ex. P -2],
the prosecutrix has stated that the
complaint was typed at the Police Station.
• The Investigating Officer [PW 32] has
spoken about the recoveries from all the
accused, but Sri Gangadhar Maruti Ghasari
[PW 15], while supporting the prosecution’s
case entirely on the other recoveries and
the Mahazar, has denied the similar alleged
proceedings at the fifth accused’s residence
stating that he has signed the Mahazar [Ex.
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P 137] in the evening of 28.02.2017 at the
police station.
• The fifth accused is taken into custody on
28.02.2017 and nothing that is
incriminating is found from him. The
identification of this accused is not
established beyond doubt, and that even if
the Forensic Examination Report [Ex. P-
180] is to be believed, notwithstanding the
lack of requisite certification, the Expert’s
opinion is that the fifth accused’s voice
specimen does not compare with any of
the voice characteristics found in the
offensive video.
31. This Court must observe that none of the
circumstances can inure to the advantage of the first to
fourth accused against whom the prosecutrix has spoken
consistently and there is due corroboration of her evidence
with the co-victim testifying without any variation. As such,
this Court cannot extend the benefit of either the aforesaid
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circumstances or the evidence of the prosecutrix’s relative
[Sri Shirish Babladi – PW 5], who in the cross-examination,
has stated that the complaint is filed to protect the honour
of the prosecutrix because she was found in a compromising
position with the victim.
32. This Court insofar as the fifth accused
because his identity [and therefore his presence at the place
of occurrence] is not established, and nothing incriminating
is recovered from him as also the fact that he is arrested six
days later, must opine that the prosecution has failed to
bring in the guilt of the fifth appellant for any of the offences
beyond reasonable doubt. The Special Court has failed to
examine the evidence qua the fifth accused and to that
extent this Court must interfere while reiterating the Special
Court’s findings as against the first to fourth accused and
their consequential conviction for the offences in terms of
the charges against them.
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The accused’s case on fine imposed by the Special
Court.
33. Sri Jagadish Patil, who has supported Sri
Ashok R. Kalyanashetty in the different submissions as
aforesaid, argues that this Court must at least interfere with
the Special Court imposing a fine of over ₹ 5,00,000/-
against each of the accused for the offences under Section 4
and 6 of the POCSO Act taking note of the fact that the first
and the fourth accused were all aged below 25 years and
that they all come from a poor strata of the society and they
will not have the means to pay such huge amount. The
merits of this contention are examined in the light of
aforesaid circumstances and the provisions of Section 4 and
6 of the POCSO Act.
34. These provisions, without capping an upper
limit on the fine that could be imposed, stipulate that the
fine must be just and reasonable and be paid to the victim
for rehabilitation. The prosecution has been able to
establish that not only the prosecutrix was forced to suffer
the humiliation of having to take off her clothes, her clothes
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being torn, her acquaintance being compelled to force
himself on her but also suffer the scarring experience of the
first to fourth accused taking turns in committing
aggravated penetrative sexual assault. Further, the
prosecution is also able to establish that the accused did not
stop at that but used the recording of the scarring and
humiliating experience to threaten and extort money calling
the prosecutrix’s relatives on their mobiles.
35. These circumstances must be considered in
the light of the experts stating that an individual who is
subjected to sexual assault suffers consequences which
include psychiatric disorders such as post traumatic stress
disorder, depression and anxiety, and apart from the mental
health diagnosis, the individual also suffers from a feeling of
degradation, persistent confusion, fear and lack of worth.
This is also an aspect underscored by Smt. Anuradha
Deshpande while arguing that no victim of sexual assault
will expose herself to the circumstances that cause
psychological scar unless justified. The prosecutrix is
subjected to hideous conduct and no amount can be
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adequate compensation for the scar that she will suffer.
When the reasonableness of the fine is thus considered, this
Court is of the considered view that no interference is called.
In the light of the above, the following
ORDER
[a] The appeal by the first and third accused in
Criminal Appeal No. 100339/2020 and the
appeal by the fourth accused in Criminal
Appeal No. 100255/2021 are dismissed
confirming the Special Court’s judgement dated
12.11.2020 and order of sentence dated
13.11.2020 in Special Case No. 156/2017.
[b] The appeal by the fifth accused in Criminal
Appeal No. 100013/2021 is allowed and the
Special Court’s respective judgement and order of
sentence are set aside as against this accused.
[c] The Registry is directed to communicate this to
the concerned Jail Authorities to set the
appellant in Criminal Appeal No. 100013/2021
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at liberty forthwith if not required in any other
case.
[d] The Registry is directed to ensure that Smt.
Anuradha Deshpande, the learned amicus
curiae, is paid a fee of Rs. 25,000/-.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(C M JOSHI)
JUDGE
BVV
Ct: VH
List No.: 1 Sl No.: 20