- 1 - CRL.A No.100546/2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17th DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.100546 OF 2022 (A) BETWEEN: STATE OF KARNATAKA REPRESENTED BY THE POLICE INSPECTOR, HUBBALLI RURAL POLICE STATION, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH-580001. …APPELLANT (BY SRI. M.B. GUNDAWADE, ADDL. SPP.) AND: SHRI. DASTAGIRISAB S/O. RAJESAB SAUNSHI AGE: 60 YEARS, R/O: SHEREWAD, TQ: HUBBALLI, DISTRICT: DHARWAD-580001. …RESPONDENT (BY SRI. T.R. PATIL, ADVOCATE; SERVED) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE, AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30.08.2021 Digitally signed by VISHAL NINGAPPA PATTIHAL Location: HIGH COURT OF KARNATAKA - 2 - CRL.A No.100546/2022 PASSED BY THE V ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI IN SC.NO.18/2018. AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30.08.2021 PASSED BY THE V ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD SITTING AT HUBBALLI IN SC.NO.18/2018 AND CONVICT THE RESPONDENT / ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 376(2)(L) OF IPC. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 06.03.2025, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND HON'BLE MR. JUSTICE G BASAVARAJA CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) State has preferred this appeal against the judgment and order of acquittal dated 30th August 2021 passed in Sessions Case No.18 of 2018 by the V Additional District and Sessions Judge, Dharwad sitting at Hubballi (for brevity hereinafter referred to as “trial Court”). 2. For the sake of convenience, the parties herein are referred to with their rank and status before the trial Court. 3. Brief facts, Leading to this appeal are that the Police Inspector, Hubbali Rural Police filed charge-sheet against the accused alleging that he has committed offence punishable under Sections 366 and 376(2)(L) of Indian Penal Code. - 3 - CRL.A No.100546/2022 It is alleged in the complaint filed on 23rd January 2017 that PW1-Gurunath Siddappa Jogi is the Panchayat Development Officer of Sherewad Grama Panchayat and PW5-Chandra Gowda, has been working as Computer Operator in the said Grama Panchayat. It is stated in the complaint that two months prior to the date of filing of complaint, CCTV cameras were installed to the Grama Panchayat building and the Computer Operator is placed in charge of the said CCTV cameras. That on 21st January, 2017, when the complainant PW1 and the Computer Operator-PW5 were checking the CCTV footage on 21st January 2017, it was noticed that on 15th January 2017 at 8:30 PM, the petitioner, while on duty, in the Grama Panchayat office committed sexual assault on the victim who is mentally retarded. On the basis of this complaint, case was registered for commission of offences punishable under Section 366 and 376(2)(L) of the Indian Penal Code. Accused was arrested on 24th January 2017 and was remanded to judicial custody. Thereafter, in view of the orders passed by the Co-ordinate Bench of this Court in Criminal Petition No.100538 of 2017 dated 10th April 2017, the accused was released on bail. After completion of investigation, investigating officer submitted charge-sheet for the offences - 4 - CRL.A No.100546/2022 punishable under Sections 366 and 376(2)(L) of the Indian Penal Code. The case was committed to the court of Sessions Judge which came to be registered in SC No.18 of 2018. On hearing the charge, the trial court has framed charges for offences punishable under Sections 376(2)(L) and 366 of the Indian Penal Code. Charge was read over and explained to the accused. Accused having understood the same, has pleaded not guilty and claimed to be tried. To prove the case of the prosecution, in all, 10 witnesses were examined as PW1 to 10 and 23 documents were marked as Exhibits P1 to P23 and seven material objects were marked as MOs1 to 7. On closure of prosecution site evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied that evidence appearing against him, but he has not chosen to lead any evidence on his behalf. Having heard the arguments on both sides, the trial Court has passed the judgment of acquittal. Being aggrieved by the impugned judgment of acquittal, State has preferred this appeal. - 5 - CRL.A No.100546/2022 Submission of the learned Addditional SPP: 4. Sri M.B. Gundawade, learned Additional State Public Prosecutor appearing for the appellant-State, would submit that the judgment and order of acquittal passed by the trial Court is contrary to facts and evidence on record and the same is not sustainable in the eye of law. He submits that PW1 is the complainant and PW5 is the computer operator. PW6 is the daughter of victim; PWs7 and 9 who are medical officers, have deposed regarding the sexual assault committed on the victim and all these witnesses have supported the case of prosecution. The trial Court, without appreciation of evidence on record in its proper perspective, has come to the wrong conclusion that victim herself entered the meeting hall of the Panchayat, she herself slept on the floor and thereafter, accused committed the sexual act and after that both of them embraced and by looking to the same, victim was not of unsound mind. The said observation made by the trial Court is against the evidence of the Investigating Officer. It is submitted that at the initial stage itself, the Investigating Officer has produced the victim before the KIMS Hospital, Hubballi for examination regarding her mental health. The Doctor who examined the victim has opined that she was not mentally fit. Thereafter, she was - 6 - CRL.A No.100546/2022 referred to Dharwad Institute of Mental Health and Neurosciences (for short “DIMHANS”), where she has been treated for a period of 17 days and thereafter, upon the request made by the Investigating Officer to the learned JMFC to record her statement under section 164 Code of Criminal Procedure, the same has been recorded as per Exhibit P23. The said document and the evidence on record has not been properly appreciated by the trial court and thereby the trial Court committed an error in acquitting the accused. Further, he would submit that the Doctor who has assessed the psychological position of the victim has opined that the intellectual functioning level of the victim is below average and she has abnormal thought process and the Doctor has opined that the victim was a psychosis. The trial Court, without considering this aspect, has erroneously passed the impunged judgment of acquittal. Therefore the same is not sustainable. PW7, who is the Doctor has clearly stated that at the time of examination of the victim, she was accompanied with her daughter-Bharati and she has stated that the patient was not consistent, she had not given proper information regarding incident, she was not oriented and it was found that she is not mentally fit to say anything about the incident. The Doctor - 7 - CRL.A No.100546/2022 came to know that the victim was suffering from the known case of Schizophrenia. Thereafter, the Doctor-PW7 referred the victim to psychiatric department at KIMS, Hubbali, and after examination, Dr Arun Kumar at KIMS, opined that she is suffering from chronic schizophrenia NOS (not otherwise specified). PW9-Dr. Srinivas, who was in-charge Medical Superintendent of DIMHANS has stated on 27th February 2017, the Investigating Officer came to the hospital with his lady staff and with the victim with a request to examine the mental status of the victim. The victim got admitted under Case Sheet No.161710. The Doctor, after detailed examination and by collecting the history from the daughter of the victim, found that victim is suffering from cognitive mental deficiency. The victim was subjected to structured psychological test and found that the current mental age of the victim is found to be twelve and half years and the Intelligent Quotient (IQ) level is 78% and her intellectual functioning level was below average and accordingly issued reports as per Exhibits P1 to 12 opining that the victim had below average intelligence as she was suffering from severe mental disorder as per Exhibit P13. The learned Additional SPP would further submit that in view of Section 19 of the Indian Penal Code, the consent given by a - 8 - CRL.A No.100546/2022 person having unsound mind and is unable to understand the nature and consequence to which he/she gives consent, is not a consent at all. Therefore, he submitted that the judgment of trial Court is not sustainable in law and accordingly, prays for allowing the appeal. Submission of the learned Counsel for the respondent: 5. On the other hand, Sri T.R. Patil learned Counsel appearing for the respondent-accused would submit that the victim or her daughter has not filed any complaint against the accused. There is an abnormal delay of eight days in filing the complaint by PW1. The so-called victim, in the statement recorded on 27th January 2017 by the learned II Additional Civil Judge & III JMFC Hubli under Section 164 of CRPC, the victim has specifically denied the alleged commission of offence and has not identified the accused. There is no whisper made by the complainant or the victim with regard to kidnap or inducement or having sexually assaulted the victim. Before recording the statement under Section 164(5) of Code of Criminal Procedure, the learned Magistrate has observed as to the mental status of the victim and confirmed that the victim is fit enough to give voluntary statement without any compulsion - 9 - CRL.A No.100546/2022 or influence from anybody and the statement was recorded as per Exhibit P23. Only thereafter, the learned magistrate has recorded the statement under Section 164(5) of Code of Criminal Procedure in which the victim has categorically stated that she do not know the accused and he has not committed any sexual harassment upon her, and she do not know anything. With regard to mental status of the victim is concerned, the trial Court has elaborately discussed the evidence adduced by the prosecution and the trial Court has properly appreciated the evidence on record in accordance with law and facts and absolutely, there are no grounds to interfere with the impugned judgment of acquittal. On all these grounds, it was sought for dismissal of the appeal. 6. Having heard the arguments on both sides and on perusal of materials placed before this Court, the following points would arise for our consideration: 1. Whether the appellant-State has made out a ground for interference with the judgment of acquittal by this Court? 2. What order? - 10 - CRL.A No.100546/2022 7. Our Answer for the above points would be: Point No.1: in the negative Point No.2: as per final order 8. Before adverting to the actual facts of the case and appreciation of evidence, it is necessary to refer the dictum of Hon'ble Supreme Court regarding scope and power of Appellate Court in appeal against the order of acquittal. 9. In the case of MOTIRAM PADU JOSHI & OTHERS v. STATE OF MAHARASHTRA reported in 2018 SCC ONLINE SC 676, at paragraph 23 of the judgment, it is held thus: “23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:- “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or - 11 - CRL.A No.100546/2022 condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” - 12 - CRL.A No.100546/2022 10. In the case of MUNISHAMAPPA & OTHERS v. STATE OF KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under: “16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by well-established principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. …” 11. In the case of HARI RAM & OTHERS v. STATE OF RAJASTHAN reported in 2000 SCC ONLINE 933, at paragraph 4 of the judgment, it is observed thus: “4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while - 13 - CRL.A No.100546/2022 hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis- appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to re- appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While re- appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.…” - 14 - CRL.A No.100546/2022 12. In the case of STATE OF RAJASTHAN v. KISTOORA RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under: “8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.” 13. In the case of MAHAVIR SINGH v. STATE OF MADHYA PRADESH reported in (2016)10 SCC 220, at paragraph 12 of the judgment, it is observed thus: “12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with - 15 - CRL.A No.100546/2022 the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.” Regarding Point No.1: 14. We have carefully examined the materials placed before the Court. It is the case of the prosecution that one Gurunath Siddappa Jogi, the Panchayat Development Officer of Sherewad Grama Panchayat filed complaint on 23rd January 2017 stating in the complaint that two months prior to the date of filing of complaint, CCTV cameras were installed to the Grama Panchayat building and the Computer Operator is placed in charge of the said CCTV cameras. That on 21st January, 2017, when the complainant PW1 and the Computer Operator- PW5 were checking the CCTV footage on 21st January 2017, it was noticed that on 15th January 2017 at 8:30 PM, the petitioner, while on duty, in the Grama Panchayat office committed sexual assault on the victim who is mentally retarded. Thus the petitioner committed offences punishable under Sections 366 and 376(2)(L) of the Indian Penal Code. 15. There are 27 witnesses cited in the charge sheet. Out of them, only ten witnesses were examined as PW1 to 10. In the charge-sheet victim is also cited as witness as CW6. But - 16 - CRL.A No.100546/2022 the victim passed away on 31st August 2018 and hence was not examined. The Death certificate of the victim is also produced. The alleged commission of offence is said to have taken place on 15th January 2017 during night time. Complaint-Exhibit P1 came to be filed on 23rd January 2017 at 16.00 hours. On the basis of complaint filed by PW1 Gurunatha Siddappa Jogi, the Panchayat Development Officer of Sherewad Grama Panchayat, Hubballi, Rural Police registered case against accused for commission of offences punishable under Sections 366 and 370(2)(L) of the Indian Penal Code and submitted FIR to the Court. The prosecution has not properly explained the delay in filing the complaint. Admittedly, there are no eyewitnesses to the alleged incident and it is only on the basis of CCTV footage found by PW5 Chandra Gowda, he has informed the same to PW1-Gurunath Siddappa Jogi, Panchayat Development Officer. Thereafter, PW1 has intimated the same to the President and to all the members of the Grama Panchayat and after thorough discussion and deliberations with President and Members of the Gram Panchayat, the Panchayat Development Officer has lodged complaint on 23rd January 2017. 16. The victim was examined by the II Additional Civil Judge & III JMFC, Hubbali on 21st January 2017 at the request - 17 - CRL.A No.100546/2022 of the Investigating Officer. PW10 has also clearly admitted that since the victim was of sound mind, he has made report under Section 164(5) of Code of Criminal Procedure requesting the Magistrate to record the statement of the victim. The Order Sheet maintained by the trial Court reveals that after production of the victim before the Magistrate, the learned Magistrate has enquired as to mental status of the victim an only after confirmation that the victim willing to give her statement under Section 164(5) of Code of Criminal Procedure voluntarily, the learned Magistrate has recorded her statement. The deposition which is on oath is marked at Exhibit P23 in which the victim has categorically stated on oath as under: “£ÉÆAzÀªÀ¼À ¸Àé EZÁÑ ºÉýPÉ £À£ÀUÉ zÀ¸ÀÛVÃgÀ ¸Á§ gÁeÉøÁ§ ªÀA²ÃgÀªÀgÀÄ £À£ÀUÉ UÉÆwÛ¯Áè. £À£Àß ªÉÄÃ¯É AiÀiÁªÀÅzÉà ¯ÉÊAVPÀ zËdð£Àå DV¯Áè. F §UÉÎ £À£ÀUÉ K£ÀÆ UÉÆwÛgÀĪÀÅ¢®è.” 17. The learned magistrate at the time of recording the statement has also certified that, the police officers were present and the he has recorded the statement by dictating the same to the typist. The same is as under: - 18 - CRL.A No.100546/2022 “(ªÉÄð£À ºÉýPÉAiÀÄ£ÀÄß F ¢£À ¸ÀAeÉ 5.00 jAzÀ 5.15 gÀªÀgÉUÉ vÉgÉzÀ £ÁåAiÀiÁ®AiÀÄzÀ°è ¨ÉgÀ¼ÀZÀÄÑ ªÀiÁr¸À¯Á¬ÄvÀÄ. ¸ÀzÀj ºÉýPÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉƼÀÄîªÁUÀ AiÀiÁªÀÅzÉà ¥ÉÆð¸À C¢üPÁjUÀ¼ÀÄ EgÀ°®è. £Á£ÀÄ, ¨ÉgÀ¼ÀZÀÄÑUÁgÀ¼ÀÄ ºÁUÀÆ ¸ÁQë ªÀiÁvÀæ ºÁdjzÉݪÀÅ).” 18. If really, the victim was mentally, unsound to give statement, the learned Magistrate would not have recorded the statement of the victim. On the contrary, the learned magistrate has recorded the statement in accordance with law and after following the due procedure, which is not disputed by the prosecution. The Investigating Officer has also not disputed the statement recorded under Section 164(5) of Code of Criminal Procedure. Though the victim has stated before the Court that she do not know the accused and she could not identify the accused and he has also not committed any sexual assault on her, however, the Investigating Officer has submitted the charge-sheet only on the basis of CCTV footage and the alleged medical report. During the course of cross- examination, the Investigating Officers PW8 & 10 have clearly admitted that the victim was mentally sound, and therefore the statement of victim was recorded. 19. With regard to medical evidence is concerned, the learned Magistrate has observed that as regards CCTV footage, - 19 - CRL.A No.100546/2022 PWs1 & 5 admit that if the video footage is watched keenly by a prudent man, one cannot say that the victim was suffering from mental illness. The CCTV footage reveals that the victim comes inside the Grama Panchayat Office, she voluntarily sleeps on the floor and on whom the accused had the sexual act and after the act, both got up, hugged each other for sometime and the victim used the washroom in the Gram Panchayat office and she has switched on the light of the meeting hall on her own. She sat in the meeting hall for sometime, again both hugged each other. Later, she left the office of the Gram Panchayat voluntarily. The learned Sessions Judge has clearly observed that there is no record to show that the victim was suffering from mental illness. During the course of cross-examination, PW9-Dr. Srinivas, who is an expert in mental illness, has deposed that, “It is true to suggest that if the intellectual deficiency of the patient comes within the ambit of 35–49%, it is considered as moderate, if it is measured between 50–69%, then it is mild; and if it's in the range of 70%, then the patient cannot be considered as mentally retarded. He has further deposed that the victim has emotions. It is also observed that as per Exhibit P1, after getting the treatment between 1991 to 2015, the mental illness of the - 20 - CRL.A No.100546/2022 victim is cured. The learned Sessions Judge also observed that on the basis of the medical evidence, the victim had the IQ level at 78% which does not come under the category of “mild”. 20. On examination of the entire material evidence placed before us, we do not find any error in the finding given by the learned Sessions Judge as to the mental status of the victim. The learned Magistrate has properly appreciated evidence and record in accordance with law and facts and has come to the conclusion that the prosecution has failed to prove that the accused had the sexual intercourse with the victim who was suffering from schizophrenia and she was not in a position to give consent. Absolutely, there are no evidence to attract the alleged commission of offence punishable under Sections 366 and 376(2)(L) of the Indian Penal Code. 21. Upon re-appreciation, reconsideration and re- examination of the entire evidence and on record and also keeping in mind the judgments of the Hon’ble Supreme Court cited above, we are of the considered opinion that we do not find any error or irregularity/infirmity in the judgment of - 21 - CRL.A No.100546/2022 acquittal passed by the trial Court. Accordingly, answer point number one in the negative. Regarding Point No.2: 22. For the reasons aforestated, we proceed to pass the following: 1. Appeal is dismissed; 2. Registry is directed to transmit the trial court records along with the copy of this judgment to the concerned court forthwith. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G. BASAVARAJA) JUDGE Lnn ct-cmu