Karnataka High Court
Sri K Ashok vs The State Of Karnataka on 24 September, 2018
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24th DAY OF JULY, 2018
PRESENT
THE HON'BLE MR.JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL APPEAL No.1069 OF 2013
C/W
CRIMINAL APPEAL No.146 OF 2014
IN CRL.A. NO.1069 OF 2013:
BETWEEN:
SRI. K. ASHOK,
S/O NARAYANA POOJARY,
AGED ABOUT 24 YEARS,
R/O KADESHIVALAYA GRAMA,
KEMMANE HOUSE,
BANTWAL TALUK-574201.
... APPELLANT
(BY SRI.ARUN SHYAM, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH POLICE INSPECTOR,
RAILWAY POLICE STATION, MANGALORE,
RERESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BANGALORE-560001. ...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)
IN CRL.A. NO.146 OF 2014:
BETWEEN:
A.NISHITH S/O LATE UPENDRA,
AGED ABOUT 24 YEARS,
2
R/O NEAR CHAKRAPANI TEMPLE,
SEETHANILAYA, ATTAVAR,
MANGALORE-575001.
...APPELLANT
(BY SRI.P.KARUNKAKAR, ADVOCATE)
AND:
THE STATE BY RAILWAY POLICE,
MANGALORE. REP. BY STATE PUBLIC PROSECUTOR,
ATTACHED TO THE OFFICE OF ADVOCATE GENERAL,
HIGH COURT, BANGALORE-560001.
...RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, ADDL.SPP)
THESE CRIMINAL APPEALS ARE FILED UNDER SECTION
374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 17/21.09.2013
PASSED BY IV ADDL. DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALORE IN S.C.NO.181/2010-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 376(2)(G) OF IPC.
THESE APPEALS ARE COMING ON FOR FINAL HEARING
THIS DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals have been preferred by accused Nos.2 and 3, being aggrieved by the judgment of conviction and order of sentence passed by the IV Additional District and Sessions Judge, D.K., Mangalore in S.C.No.181/2010 dated 17/21.9.2013. 3
2. Brief facts of the case are that one Asli Haris filed the complaint as per Ex.P14 contending that on 14.7.2010 at about 1.15 p.m. she received a telephone call from the railway station informing that a minor girl from Orissa is present in the station who does not know Kannada and is not keeping well. Immediately, she informed her colleagues Smt.Shyni and Smt.Jyothi to go to the railway station and she also informed to bring the victim to the child line centre and accordingly, they went to Mangalore Railway Station and the C.T.T.I. showed the girl who was in the waiting room and she was produced before the child line centre wherein she was enquired by Smt.Sunitha and Smt.Vidya. On their enquiry, victim informed that she is working in the house of one Emilda situate at Kadri Alvaris road since April as maid servant and since she was not willing to work there and was intending to go to her native place, on 14.7.2010 at about 6.00 a.m. she left from the house and came to Mangalore Railway Station and when she 4 was sitting on the bench in the said railway station, after three hours, three persons came there asking her as to where she is going and as she was not knowing the language she replied as Orissa and thereafter, the said three persons by forcefully holding her hands took her to a railway compartment of the train which was standing there and made her to lie and assaulted on her cheeks and out of the said three persons, two persons have sexually assaulted her and that she informed that she can identify the said persons. She also told that she became unconscious and thereafter she was brought to the waiting room. Accordingly, it was requested to take legal action against the accused persons. The said complaint was registered. On the basis of the said complaint, case was registered in Crime No.12/2010 for the offence punishable under Section 376 r/w Section 34 of IPC. Thereafter, after investigation, charge sheet was laid against the accused persons by showing accused No.1 as absconding and 5 the case was committed to the Sessions Court. The Sessions Court took cognizance of the offence and after securing the presence of accused Nos.2 to 4 who were in judicial custody and after hearing both sides, charge was prepared and explained to the accused in the language known to them. Since, they pleaded not guilty and claimed to be tried, trial was fixed.
3. In order to prove its case, the prosecution got examined 24 witnesses, marked 30 documents and 27 material objects. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. by putting the incriminating material against them. The accused denied the said circumstances and the answers given by the accused were recorded against the respective questions. Thereafter, accused No.3 submitted his written say and the remaining accused persons have not lead any evidence. During the course of cross-examination of the prosecution witnesses, they got marked Exs.D1 and D2. 6
4. The trial Court, after hearing the learned counsel appearing for the parties and after considering the evidence and the material placed on record, came to the conclusion that prosecution has proved the guilt of accused Nos.2 and 3 and convicted them for the offence punishable under Section 376(2)(g) of IPC and acquitted accused No.4 holding that there is no material as against him.
5. Being aggrieved by the said judgment of conviction and order of sentence, accused Nos.2 and 3 are before this Court.
6. Heard the learned counsel for the appellant Sri. Aruna Shyam for accused No.2 and Sri. P.Karunakar, learned counsel for accused No.3 and also Sri. Vijayakumar Majage, learned Additional State Public Prosecutor on behalf of the State. 7
7. It is the contention of the learned counsel for appellant/accused No.2 that though the alleged incident has taken place at about 6.00 am, the complaint was came to be filed only at about 1.10 PM, till then, the victim has not whispered anything about the sexual assault committed on her by accused persons. Even the delay has also not been properly explained. He further submitted that prior to filing of the complaint, so many authorized officers and police have also met with victim, then also she has not made any allegation about the sexual assault committed by the appellant/accused persons. The allegation of sexual assault has been inserted only after the Child Line Organization took her into their possession and lodged the complaint. He further contended that then the victim came to be examined by the Doctor-PW-10. At that time the conduct of victim was normal and the clinical examination of the victim by the doctor were also normal. Under such circumstances, there is no 8 question of she being sexually assaulted by accused persons and will not be a gang rape. He further submitted that there is a variation of the time of the incident and there are absolutely no materials as against the appellant/accused No.2 and the entire order is passed on the basis of the conjectures and surmises which is unsustainable in law and accused No.2 has been wrongly convicted.
8. He further contended that the court below has not properly appreciated the medical evidence. Though there is absolutely no medical evidence in support of the case of prosecution to show that victim has been sexually assaulted on the date of alleged incident but the trial Court has wrongly convicted the accused No.2/appellant. He further submitted that the accused No.4 was acquitted on the same evidence but accused No.2 has been convicted by relying upon the said evidence. He further submitted that though there is 9 no worth believable evidence, the trial Court has convicted the accused No.2/appellant. He further alternatively submitted that if the entire evidence and variation is taken into consideration, then there is no rape as alleged but it will be attracting for the lesser offences i.e., attempt to commit rape and not actual rape, in that light, the trial Court ought to have convicted the accused for the lesser offence.
9. In order to substantiate his arguments learned counsel for appellant/accused No.2 relied upon the following decisions reported in:
(1) (2004) 4 SCC 379 between Aman Kumar and Another Vs. State of Haryana.
(2) 2011 (4) SCC KAR 4229 between Anil Kuamr and others Vs. The State of Karnataka.
(3) 2011 (4) SCC KAR 236 between Anil Kuamr and others Vs. The State of Karnataka.
(4) (2011) 14 SCC 475 between K.P.Thimmappa Gowda Vs. State of Karnataka.10
Hence, he prayed to allow the appeal by setting aside the impugned judgment of conviction and order of sentence passed by the court below and acquit him from all the charges leveled against him.
10. The learned counsel for accused No.3 vehemently argued by contending that the entire evidence produced by the prosecution nowhere alleges that the accused No.3 has sexually assaulted the victim. Even the victim has also not stated anything as against accused No.3. He further submitted that though on similar allegations as against accused No.4, trail Court has acquitted accused No.4 but by wrongly assessing the evidence, accused No.3 has been convicted. He further submitted that though test identification parade was conducted by PW-18-Manjunath, Tahsildar by taking the victim to the jail premises but in her evidence she has clearly admitted the fact that she has seen accused No.3 in the police station. Then under such 11 circumstances, the test identification parade which indicates that victim has identified the accused No.3 will not be sustainable in Law. He further submitted that though there is no worth believable materials as against the accused No.3, he has been convicted. He further submitted that no substantial charge has been framed as against accused No.3. But he has been wrongly convicted only because that his presence was noted in the records.
11. In order to substantiate his arguments learned counsel for appellant/accused No.3 relied upon the decision reported in:
2018 SCC Online DEL 6989 between Anil Thakur Vs. State of NCT of Delhi.
On these grounds, he prayed for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence passed against the 12 accused No.3 and acquit him from the charges leveled against him.
12. Per contra, learned Additional State Public Prosecutor vehemently argued by contending that, the victim has categorically deposed before the Court below that it is the accused Nos.1 to 3 who took her into railway compartment and accused Nos.1 and 2 have sexually assaulted her. The evidence of victim is worth believable and even it is corroborated with the evidence of Doctor-PW-14. He further submitted that the FSL Report-Ex.P13 and the evidence of PW-20 also clearly goes to show that the articles which have been examined are pertaining to the accused Nos. 1 and 2 and the victim and the same have corroborated to show that victim has been sexually assaulted. He further contended that apart from test identification parade the victim has seen the accused persons in the railway station and thereafter in the railway compartment and 13 the incident has not taken place on spur of moment but there was sufficient time for the victim to identify the accused persons. In that light, identification made by the victim even before the Court is reliable and trial Court after considering all these facts, has rightly convicted the accused persons. He further submitted that there were no reasons to falsely implicate the accused persons that too when the victim is from Orissa State and accused persons are from Mangalore and even they were not acquainted with the victim. He further submitted that because of the language problem and as she has been sexually assaulted, immediately she was not in a position to give information and to communicate with the concerned official with regard to the sexual assault. As such, though incident has taken place at about 6.00 am and complaint was lodged at about 1.15 pm, thereafter, investigation has been started. There is no irregularity or illegality. 14
13. He further submitted that the victim has also identified accused Nos.2 and 3 and even, PW1 has also identified accused Nos.2 and 3 when they were taking the victim to the railway compartment. When the evidence is there to show that the accused persons including accused No.3 with a common intention have taken the victim into railway compartment, thereafter, she has been sexually assaulted by remaining accused persons, under such circumstances, accused No.3 is also liable to be convicted for the alleged offence. He further submitted that the trial Court after considering all the legal evidence and materials placed on record has rightly convicted accused Nos. 2 and 3 and there are no good grounds made out by appellant so as to interfere with the impugned judgment and the appeals are devoid of merits and same are liable to be dismissed. Accordingly, learned Addl. State Public Prosecutor prays to dismiss the appeals by confirming the impugned judgment.
15
14. We have gone through the grounds of appeal made out in both the appeals and even oral submission made by the learned counsel appearing for both the parties and impugned judgment of conviction and order of sentence and even oral and documentary evidence.
15. It is the case of prosecution that the victim who has come from Orissa State and was working in the house of PW15-Smt.Emilda, has been brought by PW21 to the house of PW15 as maid servant. When she was working in the house of PW15, she was not interested to work with the said family. As such, on 14.07.2010 when PW15 went to Church, the victim in order to go back to her village left the house from PW15 and went to the Mangalore Railway Station. When she was sitting in the railway station platform, the accused persons noticed her and took her into the railway compartment and committed rape.
16
16. In order to see whether the prosecution has proved its case beyond all reasonable doubt, we feel, it is just and proper to look in to the evidence of PW3- victim girl. In her evidence she has deposed that she is originally from Orissa State. Her parents are residing in Orissa. She studied up to 8th standard. About one and half year back, she came to Mangalore to the house of Emilda for the purpose of work. She further deposed that she has not gone back to her native place since then. The family members of Emilda were not taking care of her, she decided to go back to her village. At about 5.30 am she came out from the house of Emilda without informing her and thereafter, she straight away went to the Mangalore railway station at about 7.30 am. When she was sitting on the bench, two boys came there and enquired her where she had to go. She told that she had to go to Goa and she asked them which train does go to Goa and they told that Goa train comes to Platform No.3. Then, Accused 2 and 3 who are before 17 the Court took her to platform No.3 and there was a train standing in the platform No.3 and there were no passengers in that train, hence, she told them that she wants to go back but accused persons did not leave her. At that time accused No.4 came there and brought tea and bread and offered the same to victim but she refused to take tea and bread. Thereafter, accused No.3 asked her as to whether she is having money to go to Goa otherwise police will arrest her. She further deposed that she has money. At that time, accused Nos. 2 and 3 took her into the railway compartment and closed windows and doors of the railway compartment. Thereafter, all the three accused persons made her to lie on the seat, accused Nos. 3 and 4 caught hold her legs and accused No.2 sexually assaulted her, then, she lost consciousness. Thereafter, accused No.3 sprinkled some water on her face, then she regained her conscious. She further deposed that thereafter, accused No.1 sexually assaulted her who is not present before the Court and 18 he is absconding. She further deposed that after sometime, a women came there to clean compartment, at that time accused persons fled away from the spot. Then, she asked that women to give some water. She gave water to her and took her to waiting room and there she has not informed about the sexual assault. Thereafter, one more lady came and gave her tea and biscuits. After some time two ladies came and took her to their office and victim girl informed them about the incident. Then police took her to hospital for treatment, and thereafter she has been taken to Women Rehabilitation Centre. She further deposed that on 16.07.2010, they took her to police station and she identified accused No.3. After one week, she has been taken to Mangalore jail premises and there she was asked to identify the accused persons who were standing in the line with other persons and she identified all the three accused persons. 19
17. During the course of cross examination of this witness, it has been elicited that her date of birth has been entered in the office register and prior to the alleged incident she was not having any sexual intercourse with anybody. It has been further elicited that she has informed about the sexual assault before the railway police and they have obtained her signature. It has been further elicited that sexual assault taken place at about 7.30 am. It has been further elicited that she made alarm, weep and cry when accused persons took her by holding her hands and at that time nobody was present there and she did not notice whether canteen or other shops were opened or not. It has been further elicited that she fell down when accused persons were taking her by holding her hands and thereafter, they dragged her in to the railway compartment. Both the accused persons have sexually assaulted her once and she lost her consciousness. She regained her consciousness when a lady came and sprinkled water 20 on her face. After she regained her consciousness, she covered her dress. She also identified the accused persons who are before the Court. Except these things nothing has been elicited during the course of cross examination so as to discard her evidence.
18. Though it is the contention of the learned counsel for accused No.2 that when victim girl was taken inside the railway compartment by accused Nos. 2 and 3, she has not made any alarm or she did not weep and cry and even she has not informed to anybody who were all present at the spot. But as could be seen from the evidence of PW3, it clearly goes to show that when accused Nos. 2 and 3 took her by holding her hands, she made alarm, despite alarm, they took her into the railway compartment. Merely because no other persons came to rescue the victim when she made hue and cry, it does not mean that alleged incident has not taken place. Admittedly alleged incident has taken place 21 at about 7.30 am only if train comes there then only there will be people. In this behalf no material has been placed to show that people were there. When victim herself specifically deposed that it is accused Nos. 2 and 3 who made enquiry and thereafter under the guise of taking her to proper train and took her to railway compartment and when she tried to come out, no person were present. Under such circumstances they forcibly took her inside the compartment and accused Nos.1 and 2 sexually assaulted her. When the victim herself has identified accused Nos. 1 and 2 as the - person who sexually assaulted her. The same appears to be worth believable. No women or girl will come forward and expose herself that she has been sexually assaulted. If she is falsely implicating accused Nos. 1 and 2, she should have even stated that accused Nos. 3 and 4 have also sexually assaulted her. In that light the evidence of victim appears to be truthful and reliable. There is worth believable evidence of victim herself and 22 then the same can be relied upon and it can be held that prosecution has proved the guilt of the accused beyond all reasonable doubt in accordance with law.
19. Even though, it is the contention of the learned counsel for the appellant that test identification parade which has been conducted by following the procedure as established by law by PW18-Tahsildar is there in the evidence but by drawing out our attention to the evidence of PW3, he further submitted that before holding the test identification parade and the giving the report as per Ex.P11 and P12, the victim has been shown accused persons. But as could be seen from the evidence of PW3-victim therein she has specifically deposed that she has only seen accused No.3 and no where she has deposed that accused No.2 was also present when she saw accused No.3. Then under such circumstances, the contention of the learned counsel for accused No.2 that test identification parade is after 23 showing the accused persons in the police station does not hold any water. As could be seen from the evidence of PW18, therein he has specifically deposed that on 21.07.2010 at about 4.30 pm there was a test identification parade and there, he has also made arrangements by calling accused No.2 as well as remaining eight accused persons who were all similar in age and similarly built up with body. Then he sent jail authorities out side.
20. Thereafter, he called accused No.2 and he made him to stand along with other accused. He recorded their names. Thereafter, called the victim and asked her whether police have shown photos of accused. She told no. Then, he asked victim to identify the assailant who sexually assaulted her. She identified the person who stood at Sl.No.8. Thereafter he sent victim out of that place. Then, rearranged the persons by changing their shirts, again he called the victim to 24 identify the accused who sexually assaulted her. She identified the person who was standing at 6th in the line. This evidence of PW18 has not been destroyed during the course of cross examination.
21. Even evidence of PW18 shows that similar type of exercise was made in respect of accused No.3. During the course of cross examination even there is no suggestion to the effect that said accused has been shown to the victim in the police station earlier to the test identification parade. There is no evidence that victim has not identified accused persons in the test identification parade. Under such circumstances, the contention of accused persons that the test identification parade is not in accordance with law is also not sustainable in law and it is not having any force. It is further contention of the learned counsel for appellants that immediately after the first incident, victim herself has specifically deposed as she became 25 unconscious and she regained her conscious only after accused No.3 sprinkled some water on her face, by that time already sexual assault has been committed on her. As could be seen from the evidence of PW3, it is clearly goes to show that accused Nos.2 and 3 have taken her into railway compartment. She further deposed that those two closed the windows and all the three accused made her to sleep on the sheet and accused No.2 slept on her and sexually assaulted her at that time accused No.3 and accused No.4 were holding her upper lower limbs. At that time she lost her consciousness. Thereafter accused No.3 sprinkled water. She regained the consciousness. Thereafter, it is the accused No.1 sexually assaulted her who is not present before the Court. There is a concrete evidence of victim to testify the fact that there has been sexual assault. Under such circumstances, the contention of appellant in this behalf is also not acceptable in law. It is the contention of the learned counsel for appellant that there is absolutely no 26 medical evidence in support of the prosecution case. As could be seen from the evidence of victim she has specifically deposed before the court that accused Nos. 1 and 2 have sexually assaulted her and prior to that she has no sex.
22. If we peruse the evidence of PW12-Dr. Sundari, she has deposed that she has examined victim on 14.07.2010 at about 8.45 PM who has come with the history of sexual assault on 14.07.2010 at about 10.00 am at Mangalore Railway Station. In her evidence she has deposed that, she examined pelvic and there she has noticed that hymen absent. Vagina easily admits two fingers. P/S: White Discharge present. Servics and Vagina Normal. P/V: Servics healthy. Uterus was normal. She has also given her opinion that clinical evidence suggests that sexual intercourse occurred and FSL examination evidence suggests, no evidence of 27 recent sexual activity. She has issued a certificate Ex.P8 and Ex.P8a is her signature.
23. Though during the course of cross examination, it has been brought on record that girl might have earlier sexual intercourse on account of which hymen was absent and vagina admits two fingers easily. Swelling and tenderness of labia minora will indicate recent activity. In case of the forcibly sexual intercourse there will be redness of labia minora. Similarly in case of forcible sexual intercourse there will be bruises and inceration external genitals present with redness swelling and inflammation. If there is forcible intercourse there will be tears of vaginal wall or parinalody. If there is forcible intercourse, there will be chance of tear of posterior fornics. She further admitted the suggestion as true that the presence of spermatozova is the proof for sexual intercourse. The presence of seminal stains on the clothes of the victim 28 or on the body of the victim is positive evidence regarding proof of sexual intercourse. Seminal fluid deposits on the vagina if ejaculation inside the vagina.
24. Though this is the evidence of PW-12-Doctor but if we take the evidence of PW3-victim, in her evidence it has been elicited in para-8 of her cross examination that prior to the alleged incident she was not having sexual act. The said evidence clearly indicates the fact that she was not having any sexual activity prior to the alleged incident. The evidence of PW12 clearly goes to show that sexual intercourse has occurred. The said evidence corroborates with evidence of victim and clearly goes to show that victim has been sexually assaulted.
25. Be that as it may, even it is well established principle of law that victim herself come before the Court and has specifically deposed that it is accused Nos.1 and 2 who have sexually assaulted and even 29 nothing has been elicited during the course of cross examination why accused persons falsely implicated in this case.
26. Under such circumstances, we are of the considered opinion that even conviction can be based on sole testimony of prosecutrix. The main evidence in all such cases is that of victim herself only thing which the Court has to see is only credibility of such evidence. If her evidence is credible other evidence is being merely corroborative. It is not necessary that there should be independent corroboration of every material circumstances in that light if we peruse the entire evidence of the prosecution though, there is some variation of medical evidence in this behalf when we peruse the evidence of PW3, we found it to be worth of credence and reliable and that there are no good grounds to reject the evidence of victim. It has been held by the Hon'ble Apex Court in the case of Mohd. Imran 30 Khan Vs. State Government (NCT of Delhi) reported in (2011) 10 Sec. 192 wherein at paragraphs 22 to 24, it has been observed as under:
22. It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Evidence Act, 1872 (hereinafter called "the Evidence Act") nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Sec. 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in case of physical violence. The same degree of care of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If 31 the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.
23. The court must be alive to its responsibility and the sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-
examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (vide State of Maharastra Vs. Chandraprakash Kewalchand Jain, State of U.P. Vs. Pappu and Vijay Vs. State of M.P.)
24. Thus, the law that emerges on the issue is to the effect that statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. That court may convict the accused on the sole testimony of the prosecutrix.
32
27. When we perused the entire evidence on record, it clearly goes to show that the victim is from Orissa and accused persons are from Mangalore and they have seen her in the platform of railway station of Mangalore and at that time only she come in contact with the accused persons. Under such circumstances, false implication of the accused persons by the victim and identifying them with specific identification before the Court as well as in test identification parade will not make to discard the evidence of victim. While appreciating the evidence of prosecutrix background of entire case has to be kept in to consideration and its totality of the circumstances discloses that prosecutrix does not have a strong motive to falsely implicate the accused. Under such circumstances, Court should not hesitate to convict the accused. Even during the course of cross examination no such suggestion has been made why accused No.2 has been falsely implicated in this 33 case. In that light also evidence of PW3 is trust worth and reliable.
28. Even the evidence produced clearly goes to show that accused Nos.2 and 3 first spoken to the victim when she was sitting on bench in the platform and they made enquiry about her and took her to platform No.3 where train was standing. Thereafter, accused persons took her inside the standing train and there sexually assaulted her forcibly. When there is a long gap in the conversation between the accused persons and victim and she has specifically identified the persons who are present before the Court. Under such circumstances, and that too alleged incident has taken place during broad light. Then her evidence can be believed. Even the evidence of victim corroborates with the complaint which has been given as per Ex.P14 which is filed by one Asli Haris, General Secretary, YMCA. Though the said person is no more. Prosecution 34 has established the said fact and the witness has identified the signature of the deceased Asli Haris as Ex.P.14. In this behalf also there is corroboration in the evidence of prosecution with that of the victim.
29. Be that as it may, when we have carefully perused the evidence of PW20- Forensic Expert in her evidence, she has deposed that she has received 20 seized articles on 02.08.2010 and she has given serial numbers to such articles and thereafter she has tested the articles. In Article Nos.A1A, A2, E2 and E5 she found stains of blood and she could not conduct serology test as there is no sufficient blood stain in the sample of A1A, A2 and E2. The evidence clearly goes to show that stains of blood showed on A1A, A2 were on the clothes belonging to the accused No.2 and E2 and E5 are belonged to the victim. This evidence corroborates to the evidence of victim to the effect that there was little bleeding when she was sexually 35 assaulted and when they bite her. Even accused has not given his explanation as to how, where and when his clothes were stained with blood. In that light, an adverse inference can be drawn as against Accused No.2.
30. In that light, there is material as against accused Nos.1 and 2 and it shows that victim was sexually assaulted by accused No.2 and accused No.1. Though it is the contention of the learned counsel for the appellant/accused that there are contradiction and omission and variation of the time with regard to the alleged incident and even there is no consistency in the evidence of PW3 with regard to the sexual assault on her and she was not knowing the local language and other persons who are present in the railway station. Under such circumstances, minor discrepancies are bound to happen in this behalf that too when she has been sexually assaulted. When we peruse the said 36 contradiction and omission, they will not take away the case of prosecution. In that light the contention of learned counsel for the appellant/accused No.2 does not appears to be acceptable. Only on that ground we cannot hold that there is no such sexual assault by accused No.2 on the victim. The prosecution has proved the guilt of the accused beyond all reasonable doubt.
31. In so far as, the evidence of the prosecution, we found that though accused No.3 has been charged for common intention, but if we go through the conduct of accused No.3 with reference to the evidence of PW3- victim, accused No.3 took the victim forcibly inside the railway compartment by holding her hand. After sexual assault on victim, she was unconscious, then, accused No.3 sprinkled water on her face made her to regain her conscious. In order to bring home the guilt of the accused Nos.3 and 4 there must be prior meeting of the 37 mind to execute the said act. In this behalf prosecution has not produced any material. Even there is no evidence to show that accused No.3 also sexually assaulted her. Even as could be seen from the evidence of PW3 at the time of test identification parade which has been conducted in this behalf, victim specifically stated that before taking her to jail premises for test identification parade, they have shown accused No.3 in the police station. Keeping in view the said facts and circumstances, there is no consistent evidence in sofar as accused No.3 is concerned. As such, evidence as against the accused No.3 neither reliable nor acceptable. As such, there is no concrete corroboration in the evidence so as to convict the accused No.3 to the alleged crime.
32. In order to prove the common intention, the prosecution has to prove that the crime which has been committed by several persons or two or more persons 38 and there was a common intention and pre-arranged plan to commit an offence and thereafter that there must be participation in reaching the said common intention but when we perused the evidence which has been produced before the court below though the prosecution has proved the presence of accused No.3 at the alleged place of incident but the second ingredients of the said section i.e., that there was a common intention or pre-meditated mind and it was pre- planned, that evidence is lacking. In that light, the court below has not properly looked in to this aspect of the matter and by holding that accused No.3 was also having common intention has wrongly convicted the accused.
33. Even we have noticed that when accused No.4 was also standing on the same footing in similar line on the basis of said evidence, trial Court has acquitted accused No.4. Under such circumstances, we 39 feel that accused No.3 is also entitled to some benefit and liable to be acquitted.
34. Keeping in view of the above said facts and circumstances, when we are of the opinion that testimony which has been produced as against accused No.3 is not worth believable. In such circumstances, conviction of accused No.3 is concerned is liable to be set aside. Accordingly, it is set aside and we proceed to pass the following:
ORDER
(i) Criminal Appeal No.146/2014 preferred by accused No.3 is allowed.
(ii) Consequently, Judgment and order of conviction and sentence passed by the IV Additional District and Sessions Judge, D.K. Mangalore in S.C.No.181/2010, dated 17/21.09.2013 hereby set aside. Further, accused No.3 is acquitted 40 from the charges leveled against him for the offence punishable under Section 376 (2) (g) of I.P.C.
(iii) The concerned prison authorities are hereby directed to release accused No.3, if he is not required in any other case.
(iv) The Registry is hereby directed to
communicate the operative portion
of the judgment to the concerned
prison authorities, forthwith for
further action.
35. So far as accused No.2 is concerned, we have carefully and cautiously gone through the judgment of conviction and order of sentence and the trial Court after considering the material placed on record and looking to the gravity of offence involved as accused No.1 is also still face the trail, has rightly come to the conclusion and rightly convicted the accused and there are no good grounds to interfere with regard to the 41 conviction and sentence of accused No.2 is concerned and same is confirmed.
* After hearing the learned Counsel for accused No.2 - appellant in Crl. A. No. 1069/13 taking into Consideration the age of accused No.2 and as the Criminal law is not only intending to penalize the Accused and the Court has to keep in mind reformative Principles and as per Section 376 of IPC, the minimum sentence to be imposed is 10 years, if the same is Imposed on accused No.2, it would meet the ends of justice.
In that light, the sentence of life imprisonment as against accused No.2 - appellant in criminal Appeal No.1069/13 is reduced to imprisonment of ten years. The impugned judgment and order of sentence dated 17/21.09.2013 passed by the trial Court as against accused No.2-appellant in Crl.A.No.1069/13 is modified to the above extent.
Hence, Crl.A.1069/2013 filed by accused No.2 is *partly allowed.
Sd/-
JUDGE Sd/-
JUDGE JS/-
*Inserted and Corrected vide court order dated 24.09.2018