- 1 - CRL.A No.100571/2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF APRIL, 2025 PRESENT THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 100571 OF 2022 (A) BETWEEN: STATE OF KARNATAKA REPRESENTED BY THE POLICE INSPECTOR, COWL BAZAAR, POLICE STATION, BALLARI. THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA DHARWAD BENCH. …APPELLANT (BY SRI. M.B. GUNDAWADE, ADDL. SPP.) AND: VEERESHA S/O. GAJRAPPA AGE. 23 YEARS, OCC. COOLIE, R/O. BEHIND RAMULAMMA TEMPLE, BANDIHATTI, COWL BAZAAR, BALLARI-583102. …RESPONDENT (BY SRI. SRINIVAS B. NAIK, ADVOCATE) THIS APPEAL IS FILED UNDER SECTIONS 378(1) AND (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 11.08.2021 PASSED BY THE I ADDITIONAL DISTRICT AND SPECIAL JUDGE, BALLARI IN SPECIAL CASE NO.18/2016 (POCSO) AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 11.08.2021 PASSED BY THE I ADDITIONAL DISTRICT AND SPECIAL JUDGE, BALLARI IN SPECIAL CASE NO.18/2016 (POCSO) AND TO CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTION 366(A), 376, 511 OF IPC AND UNDER SECTION 4 AND 18 POCSO ACT 2012. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 28.03.2025, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD - 2 - CRL.A No.100571/2022 CORAM: THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM AND THE HON'BLE MR. JUSTICE G BASAVARAJA CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) State has preferred this appeal against the judgment of acquittal dated 11th August 2021 passed in SC No.18 of 2016 by the I Additional District & Special Judge at Bellary (for short hereinafter referred to as the “trial Court”). 2. For the sake of convenience, the parties herein are referred to as per the status before the trial Court. 3. Facts of the case leading to this appeal are that the Inspector, Cowl Bazar Police Station, Bellary filed charge-sheet against accused for the commission of offences under Sections 366(A), 376, 511 of Indian Penal Code and under Sections 4 and 18 of Protection of Children from Sexual Offences Act, 2012 (for short, hereinafter after referred to as the “POCSO Act”). 4. It is alleged in the charge sheet that on 02nd January 2016 at 5:30 PM while the minor CW4 was going to a book stall, at that time accused with an intention to commit rape upon her, came on a motorbike and said that he was also going - 3 - CRL.A No.100571/2022 on the same way and that he will drop her near the book stall. When she refused, he forced her to sit on the motorcycle. It is further alleged that instead of dropping her at the book stall, he took her near the huts which were located behind the plot belonging to CW9, where, against her will, attempted to commit a rape upon her and when she shouted CW5 came there and enquired. Accused told that he came there to pluck vegetables and by saying so he fled the spot. It is further alleged that accused was very well aware that CW4 was minor as on the date of incident, and he kidnapped her on his motorbike under the guise of dropping her to the book stall and took her to a hut located near the plots belonging to CW9, wherein he attempted to commit sexual assault upon her by force. Accordingly, accused committed the offence punishable under Section 366(A), 376, 511 of Indian Penal Code and Sections 4 and 18 of POCSO Act. 5. After filing, the charge-sheet, cognizance was taken against the alleged offences and a case came to be registered in Spl.C.No.18 of 2016. Upon hearing charges, the special judge framed charges and same were read over and explained to the accused in the language known to him. Accused pleaded not guilty and claimed to be tried. To prove the case, the - 4 - CRL.A No.100571/2022 prosecution has examined twelve witnesses as PWs1 to 12 and marked thirteen documents as per Exhibits P1 to P13. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure came to be recorded. Accused denied the incriminating evidence appearing against him and has not chosen to lead any defence evidence on his behalf. But, during the cross-examination by the prosecution, defence side has marked two documents as Exhibits D1 and D2. Having heard on both sides, that trial Court acquitted the accused. Being aggrieved by the judgment of acquittal passed by the trial Court, the State has preferred this appeal. Submissions advanced on behalf of the State: 6. Sri M.B. Gundwade, learned Additional State Public Prosecutor appearing for the State would submit that the judgment and order of acquittal passed by the trial Court are contrary to law and facts and evidence and record, and is not sustainable in the eye of law and liable to be set aside. He would submit that PW1 is the victim and she was minor as on the date of incident and she has supported the case of prosecution. She has further given statement before the - 5 - CRL.A No.100571/2022 Judicial Magistrate under Section 164(5) of the Code of Criminal Procedure as per Exhibit P2. PW1 has clearly stated in her evidence that on the date of incident, the accused came on his motorcycle and asked PWs1 & 4 to sit on the motorbike as he was also passing the same way and when they refused to sit on the motorbike, accused forced them and thereafter, PWs1 & 4 sat on the motorcycle and when they reached Padma Book Stall, her friend PW4 got down from the motorcycle and while the victim was about to alight, at that time, accused started the motorcycle and did not allow PW1 to get down and took her to the hut situated behind the plots belonging to CW9 where he forced her to lie down and removed his dress. When she shouted, CW6 came to the spot and questioned them. Accused told him that he came to pluck vegetables and ran away from the spot. Learned SPP would further submit that evidence of PW1 is further corroborated by the evidence of PWs2 & 3- parents of victim and the evidence of CW6, who went to the spot when PW1 shouted. 7. PW6 is the watchman working in Reddy compound, who has also stated regarding the presence of accused along with victim and also deposed as to the commotion near the spot, and when he went to the spot, after seeing him, the - 6 - CRL.A No.100571/2022 accused ran away from the spot. PW9, who is the owner of Padma Book Stall has stated regarding the presence of accused and victim as also her friend CW5 on the date of incident in front of shop and has also deposed regarding accused taking away victim on his motorbike towards Dollars colony i.e. the spot of the incident. 8. PW11 is the headmistress of the school where the victim was studying and she has issued the school certificate as per Exhibit P8 and also copy of Admission Register as per Exhibit P9. As per school record, the date of birth of victim is 09th February 2003, and accordingly as on the date of incident, the victim was minor. He would submit that the trial Court acquitted the accused on the ground that there are lot of inconsistencies in the version of PWs1, 4, 6 & 9, and the trial Court by giving much importance to minor contradictions and improvements found in the evidence of prosecution witnesses, has come to a wrong conclusion and acquitted the accused, which is perverse and the same is not sustainable in the eye of law. 9. The trial Court discarded evidence of PW1 on the ground that without the permission of the watchman, the - 7 - CRL.A No.100571/2022 accused and victim entered the premises of PW8 and on this ground, the trial Court has rejected the evidence of PW1, which is perverse and not sustainable in the eye of law. Further, the trial Court acquitted the accused on the ground that there is a delay in filing the complaint. PW2-mother of the victim has clearly explained as to delay in filing the complaint. She has deposed that her husband was not in the station and after arrival of her husband immediately on the next day, PW2, lodged the complaint. The said explanation has been given a goby by the trial Court and thereby erred in acquitting the accused. He would submit that the delay in filing FIR in a rape case is not fatal to the case of prosecution and the said principal has been discussed by the Hon’ble Apex Court in the case of STATE OF PUNJAB v. RAMDEV SINGH reported in 2004(1) SCC 421 wherein it is observed that, the delay in lodging FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the FIR. Even in the statement recorded under Section 313 of Code of Criminal Procedure, the accused has not explained the circumstances under which he was present on the spot at the time of incident along with PW1. Non-explanation of the same, would result in drawing adverse - 8 - CRL.A No.100571/2022 inference against the accused. He would further submit that the learned Special Judge has totally ignored the provisions of Sections 29 & 30 of the POCSO Act. 10. The trial Court has not made proper presumptions while assigning the reasons for acquittal and the same had resulted in miscarriage of justice. Hence, the judgment of the trial Court suffers from legal infirmities and illegalities which requires re-appreciation of this Court. On all these grounds he sought to allow the appeal. Submissions advanced on behalf of the respondent: 11. As against this, Sri Srinivas B Naik, learned Counsel for the respondent/accused would submit that the trial Court has appreciated the evidence and materials on record in accordance with law and facts, and there is no irregularity in the finding of the trial Court and the judgment and order of acquittal does not call for interference by the Court. 12. He would submit that the accused and the victim belong to the same community and the parents of the victim requested accused to marry their daughter, but he has refused and married one Yerramma and for the said reason, to take - 9 - CRL.A No.100571/2022 revenge on the accused, the parents of the PW1-victim, filed a false and frivolous case against the accused. During the course of cross-examination, the Counsel for the accused posed a question with regard to said aspect, the witnesses have not whole-heartedly denied the said suggestion, but only pleaded their ignorance. 13. Admittedly, the alleged place of incident is a busy area and if actually the alleged incident had taken in public place, definitely by hearing the noise/hue and cry of the victim, somebody would have come to her rescue and the said circumstance also would create a doubt in the mind of the Court and further, the evidence of prosecution witnesses is not supported with medical evidence. The prosecution also failed to prove the age of the victim as the Investigating Officer has not produced the birth certificate given by the parents of the victim. The Medical Officer also has not examined the victim as to determine her age. 14. He would further submit that the alleged incident said to have taken place on 02nd January, 2016 5.30 pm whereas the complaint came to be filed on 03rd January, 2016 at 7.55 pm, may be only after due deliberations and discussions with - 10 - CRL.A No.100571/2022 the husband of the complainant to lodge a false and frivolous complaint against the accused. The prosecution has not given proper explanation as to delay in filing the complaint. The evidence placed by the prosecution is quite unnatural and cannot be believed. The victim was tutored by her parents and police and she has accordingly deposed in her evidence. But the circumstances and the conduct of the witnesses reveal that the complainant has filed false case against the accused. 15. The trial Court has properly appreciated the evidence on record and also considering the decision of the Hon’ble Supreme Court in the case of ALAMELU AND ANOTHER v. STATE reported in AIR 2011 SC 715 has properly appreciated the evidence on record in its proper perspective and passed the impugned judgment of acquittal and the same does not call for interference. On all these grounds, he sought to dismiss the appeal. 16. Having heard the learned Additional State Public Prosecutor for the State and the learned Counsel appearing on behalf of the respondent-accused and on perusal of the material placed before us, the following points would arise for our consideration: - 11 - CRL.A No.100571/2022 1) Whether the trial Court is justified in holding that the prosecution has failed to prove that as on the date of alleged incident, the victim was minor? 2. Whether the impugned judgment of acquittal suffers from legal infirmities requiring this Court to intercede? 3. What order? 17. Our answer to the above points would be as under: Point No.1: in the affirmative; Point No.2: in the negative; Point No.3: as per final order. Regarding Point No.1: 18. 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. 19. 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: - 12 - CRL.A No.100571/2022 “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 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 - 13 - CRL.A No.100571/2022 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.” 20. 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 - 14 - CRL.A No.100571/2022 not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. …” 21. 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 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, - 15 - CRL.A No.100571/2022 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.…” 22. 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.” 23. 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: - 16 - CRL.A No.100571/2022 “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 the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.” 24. We have examined the material placed before us. With regard to the age of the victim is concerned in Exhibit P3- complaint, the complainant has not disclosed the age of the victim but has deposed that the victim was studying in seventh standard in Government School. Smt. R. Lakshmidevi, Headmistress of Government Higher Primary School, Bandi Hatti, Bellary has issued Exhibit P8-School certificate and Exhibit P9-Admission Register Extract pertaining to the victim, which reveals that date of birth of the victim is 09th February 2003. To substantiate this, Smt. R Lakshmidevi, Headmistress has been examined as PW11. She has deposed as to issuance of Exhibits P8 & P9 at the request of Police. During her cross- - 17 - CRL.A No.100571/2022 examination, she has deposed that Smt. D.R. Leela, Headmistress has entered the name of the victim in the school Admission Register, and further she has deposed that she cannot say on what basis and on which date the victim got admitted to their school. Further, she has deposed that on the basis of the letter issued by Anganawadi, the date of birth of the victim was entered in the school documents, but she has not produced the letter issued by Anganawadi. During the course of evidence, PW12-Investigating Officer, has clearly admitted that he does know as to on what basis school authorities have entered the date of birth of victim in the Admission Register. Further, he has admitted that he has not requested the Medical Officer to determine the age of the victim. Exhibit P13-Medico Legal Examination report of the victim reveals that the date of birth is mentioned as 09th February, 2003. No ossification test conducted by the Medical Officer to determine the age of the victim. Additionally, PWs2 & 3-parents of the deceased have not deposed in their evidence as to the date of the birth of the victim. The Investigating officer has not collected the documents issued by the Anganwadi when PW11-Smt. R. Lakshmidevi, Headmistress of the School has deposed in her evidence that on the basis of the - 18 - CRL.A No.100571/2022 letter issued by the Anganwadi, the date of birth of victim was entered in the school records. It is not ascertained by the Investigating Officer as to on what basis Anganwadi worker has entered the date of birth of victim as 09th February, 2003. The Investigating Officer has not made any efforts to collect this material document. If this material document had been collected by the Investigating Officer, the truth would have come out as to the exact age of the victim. Even the Investigating Officer could not collect the letter issued by the Anganawadi as to the date of birth of the victim, at least Investigating Officer could have requested the Medical Officer to determine the age of victim based on "bone age ossification report" and the upper age given in "reference range‟ could be considered as to age of the victim. Under the given set of circumstances an adverse inference, had to be drawn as provided under Section 114(g) of the Indian Evidence Act which provides that the Court may presume that evidence which could have been produced but is not, would be unfavorable to the person who withholds it. This presumption can be used to draw an adverse inference against the party withholding the evidence. Keeping in mind the decision of the Supreme Court (supra), and considering the material lapses by the - 19 - CRL.A No.100571/2022 prosecution, the trial Court has held that the prosecution has failed to prove that the victim was minor as on the date of alleged incident. Even on re-appreciation of evidence on record, we do not find any error, illegality or infirmity in the finding given by the trial Court. Accordingly, we answer Point No.1 in the affirmative. Regarding Point No.2: 25. As regards the alleged incident is concerned, we have to examine the material on record as also the evidence of witnesses. 26. CW1-Smt. Lakshmi is the complainant and mother of the victim examined as PW2. She has deposed as to the alleged attempt of rape by the accused after getting to know about the fact from her daughter PW1. 27. CW7-Chidananda is the father of the victim is examined as PW2. He also deposed on the lines of PW1. 28. CW5-Kum. Veena is the material eye-witness examined as PW4. She has deposed in her evidence that she know the victim and her parents and also the accused. She has deposed that on 02nd January, 2016 at 4.00 pm, she and the - 20 - CRL.A No.100571/2022 victim were going to Padma Book Stall to get a book and while they were walking near the Church, the accused came on motorcycle and told them to sit on the bike. When they told that since the book stall is nearby and they will walk, the accused forced them to sit on the bike. The accused has dropped her near the book stall and while the victim was about to get down from the motorcycle, the accused did not allow her to get down and moved the motorcycle. Then she got frightened and returned to home. On the same day, at about 8.00 pm, when the Cowl Bazar Police came and enquired, she informed about the incident. 29. CW6-Srinivasa Reddy, said to be the eye-witness to the incident examined as PW5 has deposed in his evidence that he know the victim and har parents and also the accused. About two years back, one day while he was going near the plots of CW10 plots, at that time he heard a shouting of girl and he went to the spot and found the victim there. When enquired with her as to why she was shouting, she informed that accused brought her here and is trying to commit rape on her. By that time CW10 also came to the spot. When he enquired she told that she is the relative of CW9. Then CW10 - 21 - CRL.A No.100571/2022 called CW9 over phone and CW9 arrived at the spot and took the victim girl to home. 30. CW8-Mallikarjuna Durgappa, another eye-witness examined as PW6, has deposed that he is working as Watchman in Reddy Compound where there are many plots. He knows CWs4, 7 and 10. He also know the accused. About two years back at about 5 to 6 pm, the accused was having verbal fight with CW6 near the compound. When I went there, accused ran away and CWs4 & 6 were there. This witness is treated as partly hostile witness and was cross-examined by the Public Prosecutor with the permission of the Court. During the cross-examination by the prosecution, he has admitted the suggestion made by the Public Prosecutor that the accused forcibly brought the victim to the said place with an intention to commit rape and the victim screamed and the same is stated before the police. 31. CW9-K Umapathi a relative of victim examined as PW7. He has deposed that he knows CWs4, 6 to 8 and 10, so also, the accused. On 02nd January, 2016 at about 6.00 pm when he was at Sudha Cross, Ballary, CW6 called him over phone and informed that near compound of CWO there is a - 22 - CRL.A No.100571/2022 commotion and called him to the place and he went to the spot. People had already gathered there and CW4 was also there. When he enquired with the victim, she has informed that accused brought her there and tried to commit rape. Then he dropped her to her house. 32. CW10-Nagaraj the owner of the plot examined as PW8. He has deposed that he knows CW6 and CW9 and has seen CW4. He has deposed in his evidence that on the date of alleged incident, he was at his residence, CW8-watchman called him and informed that the accused has brought the victim to the place of incident and tried to commit rape on her. When he enquired with the victim she has informed that the accused has undressed himself and while disrobing her clothes, CW6 came there. Then CW9 took the victim to her home. 33. CW11-Satyanarayana, said to be the eye-witness examined as PW9, has deposed in his evidence that he is the owner of Padma Book Stall and his shop is located in Bandihatti area of Ballari. He knows CWs4 & 5 and know the accused. The victim and her friend came to his shop on 02nd January, 2016. Later accused came on his motorcycle to his shop and took CW4 on his motorcycle towards Dollars colony. On the - 23 - CRL.A No.100571/2022 same day at about 7.00 pm, he came to know that the accused tried to rape the victim. 34. CW2 Mallikarjuna said to be the attester to the mahazar examined as PW10, has deposed as to the mahazar conducted by the police as per Exhibit P1. He has also deposed as to the photos taken by the police as per MOs.1 and 2. Further he has deposed as to panchanama conducted by the police as per Exhibits P4 and P5. 35. CW12-R. Lakshmdevi, Retired Headmistress of Government High School, Bandihatti has deposed as to issuance of school certificate as per Exhibit P8 and also the Admission Register extract as per Exhibit P9 pertaining to the victim, at the instance of the Investigating Officer. 36. CW23-Mohiddin Golasangi, Investigating Officer examined as PW12, has deposed as to the necessary investigation conducted by him. 37. On perusal of the entire evidence, including the evidence of Victim, we do not find any acceptable legal evidence to show that the accused took the victim on his bike forcibly. The material witnesses to the alleged incident i.e. - 24 - CRL.A No.100571/2022 CW5-Kumari Veena, daughter of Yuvaraja, is examined as PW4. In the cross-examination of this witness, she has admitted that her name is Huligemma d/o Panduranga. The SSLC Admission Ticket was confronted to her, which is marked as Exhibit D1. Exhibit D1 reveals that her name is Huligemma and her father name is Panduranga and she was studying in Government High School, Bandihatti, Ballari. She has also put her signature as “E.Huligemma” in vernacular language. Further, she has admitted that Veena daughter of Yuvaraj is her friend. She has also admitted the SSLC hall ticket of Veena M d/o Yuvaraj, studying in the same school. She has also put a signature as “M Veena” in vernacular language, which is marked as Exhibit D2. Further, she has deposed that during her examination-in- chief, she has stated her name as Veena daughter of Yuvaraj at the instance of Police. Additionally, she has also put her signature on the deposition as “E Huligemma” in vernacular language as per deposition recorded on 11th June, 2019, whereas when the court has recorded her examination in chief and part of cross examination, she has put her signature as “M Veena.” This signature of M.Veena does not tally with signature found in Exhibit D2. Even after admission that she has been impersonated her name as ‘Veena’ instead of - 25 - CRL.A No.100571/2022 ‘Huligemma’, the trial Court has not passed any order on that date. However, the perusal of order sheet dated 02nd December 2019 reveals that the Counsel for the accused filed an Application under Section 91 of Code of Criminal Procedure to produce Station House Dairy of Cowl Bazar Police Station from 11th January 2017 to 11th June 2019. The learned State Special Public Prosecutor has filed objections. Thereafter, the trial Court has passed the order. The same reads as under: “I have perused records. It appears that the accused side has stated that, one Huligemma has impersonated before the court as Veena and deposed before the court as if she is Veena. PW 2 is stated that, he was not working at the time of service of summons to the witness and he has not aware who was working at the time of evidence, in Cowl Bazaar P.S. Therefore Station House Dairy is vary much required to find out who where served summons and brought above said witness and who has identified said witness before the court. Prays to allow application. Ld.Spl.PP has stated that, SHD is not required to the just decision of the case to protect the case application is filed. On perusal of material place on record one witness calling herself as a Veena who is really not Veena she is Huligemma has impersonated and deposed before the court that, she is Veena and she witnessed the incident, though she was not present and witnessed the incident and she admitted in her cross examination Under circumstances to know what is behind impersonation and who intends to brought a person - 26 - CRL.A No.100571/2022 witness who is not at all connected to the case on hand it is fit case to allow application. By doing so there is no prejudice occurred to the other side. Hence, in the interest of justice application is allowed. Issue direction to the SHO Cowl Bazaar P.S. to produce Station House Dairy from 11-1-2017 to 11-6- 2019 in Sealed cover on or before next date of hearing. Call on. 26-12-2019.” 38. Thereafter, the trial Court has not passed any order as to whether the Investigating Officer has produced the Station House Diary of the said Police Station or not. In this regard, no finding is given by the trial Court in its judgment. However, on perusal of evidence of PW4, it is crystal clear that name of Huligemma is not shown in the charge sheet as she was examined as ‘Veena’ by impersonating her name and real Veena daughter of Yuvaraja, who is shown in the chargesheet, has not been examined by prosecution. Even after admission made by PW4, Prosecution has not taken any steps to examine real witness CW5 Veena, daughter of Yuvraj who is the material witness to this alleged incident. The Investigating Officer has also admitted in his evidence that he has not recorded the statement of Huligemma d/o Panduranga and further, he has pleaded his ignorance that CW5-Huligemma d/o Panduranga is impersonated in the name of Veena daughter of Yuvraja. It is the duty of the Investigating Officer to serve summons to the - 27 - CRL.A No.100571/2022 witnesses as per the order of the court. Instead of that the concerned police officials have misused the summons issued to CW5 and served it on Huligemma, who is not witness to the incident. However, she has deposed in the examination-in- chief that she has witnessed the incident and she has accompanied the victim to Padma Book Stall at the relevant point of time. Therefore, the entire evidence of PW4 is found to be false and the police have planted this witness before the Court and tried to show this Huligemma as Veena. The medical evidence also has not supported the case of prosecution. In this regard, the trial Court has also observed in the course of judgment that PW4 has given false evidence before the Court in the name of Veena d/o Yuvaraja. The trial Court has properly appreciated the evidence and record and also defence set up by the accused. Considering the inconsistence and unnatural evidence given by the prosecution witnesses, the trial Court has given proper reason to discard the evidence of prosecution witnesses. Even on re-appreciation, re-consideration, re- examination and re-evaluation of the entire evidence on record, we do not find any error, illegality or infirmity in the finding given by the trial court while acquitting the accused. Accordingly, we answer Point No.2 in the negative. - 28 - CRL.A No.100571/2022 Regarding Point No.3: 39. For the aforestated reasons and discussions, and also keeping in mind the above-mentioned decisions of the Hon’ble Supreme Court, we proceed to pass the following: O R D E R i) Appeal is dismissed; ii) Judgment and order of acquittal dated 11th August 2021 passed in SC No.18 of 2016 by the I Additional District & Special Judge at Bellary, is confirmed; iii) Registry to send the trial court records and the copy of the judgment to the concerned court. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE Sd/- (G BASAVARAJA) JUDGE Lnn Ct-cmu