STATE OF KARNATAKA Vs. BASAPPA

JUDGEMENT

(1.) WE have heard the learned Addl. SPP on merits in this appeal, the reason being that we desire to satisfy ourselves on merits that the State has made out a valid case for interference with the order of acquittal. It being the premise of law that once the trial Court has recorded an order of acquittal after having the benefit of weighing the oral and medical evidence and having gone through the exercise of a first hand assessment of the evidence; that the Appellant Court would necessarily have to be circumspect before interfering with the order of acquittal, barring instances where material evidence has either been ignored or misread or where the order of acquittal is downright perverse. Basically, the Appellate Court is required to be satisfied that the evidence on record is sufficient to sustain a conviction despite which the trial Court has wrongly acquitted the accused resulting in miscarriage of justice.

(2.) IT is, in the light of these principles that we have considered the submissions canvassed by the learned Addl. SPP. Basically, he has contended that even though the allegation was only one of attempt to rape, that in law the accused would still be liable for a conviction, since, there is material on record to indicate that the incident in question had taken place. He has relied on the evidence of P. Ws. 1 to 9 in support of his contention that on the day in question the victim lady by name Bibi was subjected to sexual assault even if it did not result in rape. He has also relied upon the injury certificate in support of his submission.

(3.) ON a careful assessment of the evidence, we find that this is a case in which there is a serious lacuna, because, even though P. W. 8 Mehaboobi, claims to be the eye-witness principally because it is her case that she was also simultaneously sexually assaulted by one Tirupati on the same day at the same time. We find that the prosecution has not been able to produce victim Bibi, which is a very serious lacuna. The learned counsel has submitted that this lacuna cannot be treated as being fatal to the case of the prosecution because there is sufficient secondary evidence by P. W. 8. Having assessed the quality of evidence of the P. W. 8, we find it impossible to accept this submission moreso because there is zero medical evidence in support.