Karnataka High Court
Nagaraja vs State Of Karnataka on 12 February, 2020
Author: K.Somashekar
Bench: K. Somashekar
:1:
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO.1290 OF 2010
CONNECTED WITH
CRIMINAL APPEAL NO.1295 OF 2010
CRIMINAL APPEAL NO.1364 OF 2010
CRIMINAL APPEAL NO.131 OF 2011
CRL.A. 1290/2010:
BETWEEN
NAGARAJA
S/O VENKATESHAPPA
AGED ABOUT 23 YEARS
R/AT PANASAMAKALAHALLI
SRINIVASPUR TALUK
KOLAR DISTRICT.
... APPELLANT
(BY SRI. KARTHIK YADAV. U - FOR
SRI S K VENKATA REDDY, ADVOCATES)
AND
STATE OF KARNATAKA
BY SRINIVASAPURA POLICE
KOLAR DISTRICT.
... RESPONDENT
(BY SRI. M. DIVAKAR MADDUR - HCGP)
:2:
THIS CRL.A. IS FILED UNDER SECTION 374(2) OF
THE CR.P.C PRAYING TO, SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND SENTENCE DATED
15/16.11.2010 PASSED BY THE II-ADDL., DISTRICT AND
SESSIONS JUDGE, KOLAR IN SPL.S.C.NO.01/2010 -
CONVICTING THE APPELLANT / ACCUSED FOR THE
OFFENCE P/U/S 366 AND 376 R/W 34 OF IPC AND SEC.
3(1)(xii) OF SC/ST (POA) ACT, 1989 AND ETC.,
CRL.A. 1295/2010:
BETWEEN
SURESHA
S/O SRI MUNIYAPPA
AGED ABOUT 20 YEARS
R/AT PANASAMAKALAHALLI
SRINIVASPUR TALUK
KOLAR DISTRICT.
... APPELLANT
(BY SRI. M. SHIVAPRAKASH, ADVOCATES)
AND
STATE (BY SRINIVASAPURA
POLICE-REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING).
... RESPONDENT
(BY SRI. M. DIVAKAR MADDUR - HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) OF
THE CR.P.C PRAYING TO, SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND SENTENCE DATED
15/16.11.2010 PASSED BY THE II-ADDL., DISTRICT AND
SESSIONS JUDGE, KOLAR IN SPL.S.C.NO.01/2010 -
CONVICTING THE APPELLANT / ACCUSED FOR THE
:3:
OFFENCE P/U/S 366 AND 376 R/W 34 OF IPC AND SEC.
3(1)(xii) OF SC/ST (POA) ACT, 1989 AND ETC.,
CRL.A. 1364/2010:
BETWEEN
SRI NAGESHA
S/O VENKATAREDDY
AGED ABOUT 20 YEARS
R/O PANASAMAKALAHALLI
SRINIVASPUR TALUK
KOLAR DISTRICT.
... APPELLANT
(BY SRI. A.N. RADHA KRISHNA, ADVOCATE)
AND
STATE OF KARNATAKA
R/BY SRINIVASAPUR POLICE STATION.
... RESPONDENT
(BY SRI. M. DIVAKAR MADDUR - HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) OF
THE CR.P.C PRAYING TO, SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION PASSED BY THE II-ADDL.,
DISTRICT AND SESSIONS JUDGE, KOLAR IN
SPL.S.C.NO.01/2010, DATED 15/16.11.2010 -
CONVICTING THE APPELLANT / ACCUSED FOR THE
OFFENCE P/U/S 366 AND 376 R/W 34 OF IPC AND SEC.
3(1)(xii) OF SC/ST (POA) ACT, 1989 AND ETC.,
CRL.A. 131/2011:
BETWEEN
SRI SRINIVASA
S/O DODDARAMANAPPA
AGED ABOUT 25 YEARS
:4:
R/AT PANASAMAKALAHALLI
SRINIVASPUR TALUK
KOLAR DISTRICT.
... APPELLANT
(BY SRI. CHANDRASHEKAR .P, ADVOCATE FOR
SRI RAVI B. NAIK ASSOCIATES)
AND
THE STATE OF KARNATAKA
(THROUGH SRINIVASAPUR
POLICE STATION, KOLAR)
REPRESENTED BY ITS
PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE.
... RESPONDENT
(BY SRI. M. DIVAKAR MADDUR - HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) OF
THE CR.P.C PRAYING TO, SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND SENTENCE DATED
15/16.11.2010 PASSED BY THE II-ADDL., DISTRICT AND
SESSIONS JUDGE, KOLAR IN SPL.S.C.NO.01/2010 -
CONVICTING THE APPELLANT / ACCUSED FOR THE
OFFENCE P/U/S 366 AND 376 R/W 34 OF IPC AND SEC.
3(1)(xii) OF SC/ST (POA) ACT, 1989 AND ETC.,
THESE CRIMINAL APPEALS COMING ON FOR
HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
:5:
JUDGMENT
As all these four appeals arise out of a common judgment, they are taken up for hearing together and are disposed of by this common judgment.
2. Crl.A.1290/2010 has been preferred by one Nagaraja - Accused No.3, Crl.A.1295/2010 has been preferred by one Suresha - Accused No.4, Crl.A.1364/2010 has been preferred by one Nagesha - Accused No.2 and Crl.A.131/2011 has been preferred by one Srinivas - Accused No.1 with a common prayer seeking to set aside the judgment of conviction and order of sentence passed by the II Addl. District & Sessions Judge, Kolar, in Spl.S.C.No.1/2010 by order dated 15/16.11.2010 for offences punishable under Section 366, 376 read with Section 34 IPC and Sestion 3(1)(xii) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989.
:6:
3. Heard the respective learned counsel for the appellant in each of the appeals and the learned HCGP for the State and perused the records.
4. Factual matrix of the appeal as per the case put forth by the prosecution, is as follows:
The complaint at Exhibit P8 was to the effect that on 11.10.2009 at about 6.30 p.m. when the complainant CW- 1 Kum. Shobha was proceeding from the side of Panasamakalahalli village Railway gate towards the land of Subbarayappa to answer nature call in view of the fact that there was no toilet facility in their house, the accused persons - appellants herein, with a common intention to rape her, had caught hold of her and had dragged her to the mango grove of Kempannanavara Gopalappa and had stripped off her dress and committed rape on her. Since her mother Gangamma had come there in search of Shobha, all the accused are said to have left the complainant in the spot and had run away. Gangamma on seeing her daughter's position is said to have assisted her to wear her dress and then is said to have taken her :7: daughter to her house. Thereafter, since she was suffering from severe pain, on the very next day of the incident, she was taken to Srinivaspur Hospital and then to SNR Hospital, Kolar, where she is said to have taken treatment as an in-patient for a period of 8 days. All of the said accused are said to have committed the said act in spite of knowing that Kum. Shobha belonged to Adi Karnataka Community, against her will. It is stated that Accused No.1 belonged to Kuruba community and Accused Nos.2 to 4 belonged to Vokkaliga community. It is stated that the complainant Shobha was very much mentally disturbed in view of the said incident and was not in a position to lodge a complaint with the police immediately after the incident. Hence, after mustering courage, she had lodged a complaint at Exhibit P8 through her uncle Narayanaswamy who drafted the complaint for her, as on 06.12.2009, after a delay of 56 days from the date of the incident of the alleged rape. The investigating officer who registered the case, conducted a spot mahazar, and recorded the statements of witnesses.
On 7.12.2009, the complainant was examined by PW-2 :8: Dr. Chandrakala, a Gynaecologist of General Hospital, Srinivaspur, who gave her opinion. Thereafter, I.O. filed a charge sheet against the accused for the offences punishable under Sections 366, 376G read with Section 34 IPC and Section 3(1)(xii) of the SC & ST (POA) Act.
Subsequent to filing of a complaint after a delay of 56 days, FIR was recorded and the case was proceeded for investigation and the I.O laid the charge-sheet. Subsequent to laying charge-sheet against the accused, the Trial Court framed charges in respect of the aforesaid offences whereby the accused pleaded not guilty and claimed to be tried. In order to establish the guilt of the accused, the prosecution examined in all 18 witnesses as PW 1 to 18 and got marked several documents as Ex.P.1 to P.22(a) apart from marking material objects M.O.1 to MO.3. On behalf of the accused, a portion of the contradictory statement of PW-15 was got marked as Exhibits D1 and D2. Thereafter, the Trial Court, on hearing the arguments of both the prosecution and counsel for the accused, convicted the accused for the alleged offences and sentenced them as aforesaid. It is :9: this common judgment which is under challenge in these appeals by urging various grounds.
5. The primary contention of the learned counsel for the accused / appellants is that the alleged incident of rape though having taken place on 11.10.2009 at 6.30 p.m. in the Mango garden of Kempannanavara Gopalappa, the complaint regarding the said incident came to be lodged only as on 06.12.2009, after a delay of 56 days from the date of the alleged incident of rape. He contends that the complaint has been lodged purely an afterthought which creates a suspicion as regards the occurrence of the very incident itself.
Further, on the very next day of the incident of rape, PW-8 / Gangamma, mother of the complainant Shobha in her evidence has stated that she took Shobha to Srinivasapur Hospital, informed the Doctor about the incident of rape and lodged a complaint. Further, she has also averred that Habibulla / PW-13 had paid Rs.35,000/- for the treatment of PW-7 Shobha. But however, though PW-8 confirms that on 13.10.2009 a complaint was lodged : 10 : with the police, the same is not forthcoming but actually the matter was taken up for investigation only based upon the complaint which came to be registered only as on 6.12.2009. PW-8 has further stated that her daughter had gone to collect fodder for the cattle on the alleged date of the incident, whereas PW-7 Shobha has stated in her evidence that the incident occurred when she went to attend nature call. The evidence of the said witness PW-8 Gangamma is full of inconsistencies, on the basis of which it is very difficult to draw an inference.
Further, the evidence of the complainant Shobha PW-7, who is the prime evidence on the basis of whose statement the complaint came to be lodged, is totally inconsistent. While in the examination-in-chief she has stated that Accused Nos.2 to 4 assisted Accused No.1 to catch hold of her to enable him to attempt to commit rape on her after stripping off her clothes, in her cross- examination she has stated that all the four accused committed rape on her. Hence, the learned counsel contends that the complainant Shobha has not been able to tell clearly whether she was attempted to be raped by : 11 : Accused No.1 alone while Accused Nos.2 to 4 assisted the said act or whether she was raped by all the four accused, one after the other. Further, as regards the complaint which is stated to have been written by her uncle Narayanaswamy, she has stated in her evidence that she did not know as to what was written in the complaint. Further, that she has also deposed that she did not dictate the complaint nor sign the complaint. Added to it, the said Narayanaswamy has not at all subscribed his signature with an endorsement that it was drafted by him and further he has not been examined by the I.O. during the course of investigation in order to ascertain whether that complaint at Exhibit P8 was written by him. Further, there are two Narayanaswamys who were said to be relatives of PW-7 Shobha. Thus, the learned counsel contends that the above circumstances clearly show that the complaint was lodged with an ulterior motive and the credibility of the complaint itself is doubtful.
The learned counsel further points out to the evidence of Dr. Chandrakala, Gynaecologist who has been examined as PW-2. It is clear that the complaint was : 12 : lodged on 6.12.2009 and Shobha was examined by the Doctor on 7.12.2009. The alleged incident of rape is said to have occurred on 11.10.2009. Dr. Chandrakala had given evidence to the effect that as on 13.10.2009 itself i.e., just 1½ days after the alleged rape, she had examined Shobha, the alleged victim of rape who was accompanied by her mother. The Doctor has clearly stated that as on 13.10.2009 itself when she examined Shobha, she had noticed one linear aberration measuring 1 c.m. over sternal region of chest. Further, she found the external genitali to be normal. But however, she has certified that hymen though absent, it was an old tare and she has clearly certified that it was not a fresh tare, when she examined Shobha as on 13.10.2009. Thus, she had opined that as per the FSL report, there is no medical evidence regarding occurrence of rape.
This, the learned counsel points out that when there is no medical evidence with regard to occurrence of rape in view of the fact that the FSL report clearly stated that presence of seminal stains were not detected in Items 1 and 2, the Trial Court erred in convicting the accused for : 13 : the alleged offences. Therefore, the learned counsel contends that the evidence of PW-7 in respect of the complaint at Exhibit P8 and so also the evidence of PW-2 Doctor in respect of the report at Exhibit P19 based upon Exhibit P18 FSL report, runs contrary to the evidence of the prosecution to prove the guilt of the accused under Section 376 IPC that they forcibly dragged the victim and committed rape on her.
It is the further contention of the learned counsel that though the potentiality of the accused persons / appellants herein has been stated by the prosecution by way of medically examining them, it cannot be said that they had committed rape on the victim, unless the same is proved by producing material evidence in that regard.
The learned counsel further points out that the offence under Section 366 IPC alleged against the accused has not at all been made out in view of the fact that there is absolutely no evidence to show that the victim was abducted or kidnapped. In fact the Principal of Junior College, Kolar who has been examined as PW-1 / Smt. B. Renukamma has deposed to the effect that the victim's : 14 : date of birth was 8.6.1989 and that her age was 21 years. This evidence clearly establishes the fact that the victim was not a minor nor was she kidnapped or abducted or induced to compel her marriage in order to attract the said offence under Section 366 IPC. Hence, the learned counsel contends that the Trial Court erred in convicting the accused under Section 366 IPC, which offence is not at all attracted. It is the hence the contention of the learned counsel that the Trial Court has misinterpreted and misdirected the evidence and therefore, it requires re- appreciation.
Further, the learned counsel contends that the offence under Section 3(1)(xii) of the SC & ST (POA) Act also is not attracted since the prosecution has not been able to prove that the appellants / accused had dominated the will of the victim and had exploited her using that she belonged to an oppressed class. There is no evidence forthcoming in this regard. The said fact has also been ignored to be considered by the Trial Court while convicting the accused under the said sections as well. : 15 : Hence, the learned counsel contends that the impugned judgment of conviction and sentence is liable to be set aside, by re-scanning the evidence.
Further, the learned counsel draws the attention of this court to the evidence of PW-9 / Venkata Ratnappa, father of the victim PW-7. His evidence totally does not support the case of the prosecution. He has deposed to the effect that he was not at all in the village on the alleged date of the incident and that neither his wife Gangamma / PW-8 nor his daughter PW-7 / Shobha had informed him about the alleged incident of rape having been committed on his daughter. Hence, his evidence has been treated hostile to the case of the prosecution.
But however, though it has also come in evidence that there was a panchayath held in the village in presence of panchayatdars wherein Accused No.1 had paid a sum of Rs.35,000/- to PW-8 and had compromised the matter, but however, the said witness PW-10 Ramappa @ Chikkaramappa who had deposed to the said effect had turned hostile and had not supported the case of the prosecution. Other witnesses PW-11, PW-12, PW- : 16 : 13 and PW-14 who had deposed in this regard have also turned hostile and have not supported the case of the prosecution. Hence, their evidence is of no credence.
Further, the evidence of PW-15 / Narayanappa is totally different from the versions of PW-7 and PW-8. The evidence of PWs 7 and 8 itself being full of inconsistencies, again the evidence of this witness PW-15, further adds to the inconsistencies and the learned counsel contends that his evidence cannot be believed in toto.
6. Hence, in view of all these circumstances, the learned counsel for the appellants / accused contends that unless the prosecution proves the case of sexual abuse by cogent, convincing and satisfactory evidence, the same cannot be considered to be corroboratory evidence. Thus, they contend that viewed from any angle, the learned Trial Judge has not assessed the entire evidence on record in a proper perspective and therefore, the impugned judgment of conviction and sentence dated 15.11.2010 rendered by the II Addl. Sessions Judge, Kolar, in Spl.S.C.No.01/2010 requires to be set aside and : 17 : the accused / appellants in all these appeals be acquitted of the offences leveled against them.
7. Per contra, the learned Government Pleader appearing for the State in all these appeals contends that the complainant including her parents and the witnesses examined for the prosecution being rustic villagers, it is but common for their evidence to be filled with inconsistencies. But however, he contends that the inconsistencies cannot be highlighted in order to prove fatal to the case of the prosecution since the offence alleged is of a heinous nature, that too having been committed in respect of an oppressed community girl. He points out to the evidence of the Doctor PW-2 to state that the said Doctor has deposed to the effect that as on 13.10.2009 itself she had examined the victim Shobha who was brought to her by her mother with the history of attempt to rape. He contends that this circumstance clearly establishes the fact that the victim Shobha had in fact been sexually abused though the medical evidence does not support the case of the prosecution. Further, : 18 : both PW-8 / Smt. Gangamma and PW-9 / Venkatarathnappa being the parents of PW-7 / Shobha, have stated about PW-13 / Shri Habibulla giving a sum of Rs.35,000/- towards the medical expenses of Shobha. Learned HCGP contends that if really the rape was not committed, there was no necessity for Shobha to have taken treatment in hospital for which Shri Habibulla had given Rs.35,000/. Weighing all the circumstances, learned HCGP contends that the Trial Court has rightly convicted the accused in spite of inconsistencies, which judgment rendered by the Trial Court being just and proper, needs no interference in these appeals.
8. On hearing the learned counsel for the respective appellants / accused Nos.1 to 4 as well as the learned HCGP for the State and on a perusal of the material on record, it is seen that that the allegation is that when the complainant CW-1 Kum. Shobha was proceeding towards the land of Subbarayappa to answer nature call or to collect fodder for the cattle, the accused persons - appellants herein, with a common intention to rape her, : 19 : had caught hold of her, had dragged her to the mango grove of Kempannanavara Gopalappa and had stripped off her dress and committed rape on her. Since her mother Gangamma had come there in search of Shobha, all the accused are said to have left the complainant in the spot and had run away. Thereafter complaint was lodged and matter was proceeded for investigation. But however, as pointed out by the learned counsel for the appellants, the alleged incident of rape though having taken place on 11.10.2009 at 6.30 p.m. in the Mango garden of Kempannanavara Gopalappa, the complaint regarding the said incident came to be lodged only as on 06.12.2009, after a delay of 56 days from the date of the alleged incident of rape. I find that the delay in a case of this nature is very much fatal to the case of the prosecution, since evidence of rape is of much significance. The further circumstances is that though PW-8 confirms that on 13.10.2009 a complaint was lodged with the police, the same is not forthcoming but actually the matter was taken up for investigation only based upon the complaint which came to be registered only as on 6.12.2009. : 20 :
As contended by the learned counsel, the evidence of PW-7 / Shobha and the evidence of PW-8 / Gangamma is full of inconsistencies. In that, the complainant Shobha has not been able to tell clearly whether she was attempted to be raped by Accused No.1 alone while Accused Nos.2 to 4 assisted the said act or whether she was raped by all the four accused, one after the other. Further, as regards the complaint Exhibit P8 which is stated to have been written by her uncle Narayanaswamy, she has stated in her evidence that she did not know as to what was written in the complaint and that she did not dictate the complaint nor sign the complaint. Added to it, the said Narayanaswamy has not at all subscribed his signature with an endorsement that it was drafted by him and further he has not been examined by the I.O. during the course of investigation in order to ascertain whether that complaint at Exhibit P8 was written by him.
The further circumstance is that Dr. Chandrakala, Gynaecologist who has been examined as PW-2 has certified that the hymen though absent, it was an old tare and she has clearly certified that it was not a fresh tare, : 21 : when she examined Shobha as on 13.10.2009. Thus, she had opined that as per the FSL report, there is no medical evidence regarding occurrence of rape in view of the fact that the FSL report clearly stated that presence of seminal stains were not detected in Items 1 and 2. Therefore, it is inferred that the complaint at Exhibit P8 and so also the evidence of PW-2 Doctor in respect of the report at Exhibit P19 based upon Exhibit P18 FSL report, runs contrary to the evidence of the prosecution to prove the guilt of the accused under Section 376 IPC.
Further, it is seen that the offence under Section 366 IPC alleged against the accused has not at all been made out in view of the fact that there is absolutely no evidence to prove that the victim girl was kidnapped or abducted or induced to compel her marriage. Hence, the Trial Court has also erred in convicting the accused under Section 366 IPC, which offence is not at all attracted.
Further, though it is a fact that the victim girl belonged to Scheduled Caste, the offence under Section 3(1)(xii) of the SC & ST (POA) Act is not attracted since the prosecution has not been able to prove that the appellants : 22 : / accused had dominated the will of the victim and had exploited her and committed rape in view of fact that she belonged to an oppressed class. There is no evidence forthcoming in this regard and in fact the offence of alleged rape itself is not established.
The further circumstance is that though it has come in evidence that there was a panchayath held in the village in presence of panchayatdars wherein Accused No.1 had paid a sum of Rs.35,000/- to PW-8 and had compromised the matter, but however, the said witness PW-10 Ramappa @ Chikkaramappa who had deposed to the said effect had turned hostile and had not supported the case of the prosecution. Other witnesses PW-11, PW- 12, PW-13 and PW-14 who had deposed in this regard have also turned hostile and have not supported the case of the prosecution. Hence, viewed from any angle, I find that their evidence is of no credence.
Further, the evidence of PW-15 / Narayanappa being totally different from the versions of PW-7 and PW-8, cannot be believed in toto in order to convict the accused. : 23 :
Hence, in view of all these circumstances, I am of the opinion that the prosecution has not put forth positive, acceptable, cogent, consistent, convincing and satisfactory evidence, to prove the guilt of the accused in respect of the alleged offences beyond all reasonable doubt. Thus, when the offences alleged have not been proved by the prosecution beyond all reasonable doubt, benefit of doubt shall accrue in favour of the accused / appellants. Hence, I find that the impugned judgment requires to be interfered with, if not, certainly it would lead to a miscarriage of justice as narrated in the complaint filed by the victim.
9. Consequently, the appeals filed by each of the appellants / accused nos.1 to 4 are hereby allowed. The judgment of conviction and order of sentence passed by the II Addl. District & Sessions Judge, Kolar, in Spl.S.C.No.1/2010 by order dated 15/16.11.2010 for offences punishable under Section 366, 376 read with Section 34 IPC and Section 3(1)(xii) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 is hereby set aside.
: 24 :
The appellant in Crl.A.1290/2010, Crl.A.1295/2010, Crl.A.1364/2010 and Crl.A.131/2011 / Accused Nos.1 to 4 are hereby acquitted of the respective offences leveled against them.
The bail bond if any executed by Accused Nos.1 to 4 stands cancelled. If any fine amount has been deposited by appellants / Accused Nos.1 to 4, the same shall be refunded to the respective appellant, on proper identification.
Sd/-
JUDGE KS