Karnataka High Court
Balachandra vs The State Of Karnataka on 18 January, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No.479 of 2019
C/W CRL.A No.1356 of 2015
CRL.A No.22 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
CRIMINAL APPEAL No.479 OF 2019
C/W
CRIMINAL APPEAL No.1356 OF 2015 AND
CRIMINAL APPEAL No.22 OF 2016
IN CRL. A. No.479/2019
BETWEEN:
1. YOGISH,
AGED ABOUT 40 YEARS,
S/O KANTHAPPA POOJARY
DRIVER,
R/O CHANDRA NIVASA,
SUBRAYA BETTU ANJARU,
HIRIADKA, UDUPI TALUK-576 101.
Digitally signed
2. HARIPRASAD,
by MALATESH
KC AGED ABOUT 33 YEARS,
S/O NARAYANA POOJARY,
Location: High DRIVER-AUTORICKSHAW,
Court of R/O NADIDARE MANE,
Karnataka 80 -BADAGUBETTU VILLAGE,
UDUPI TALUK -576 101.
3. ANAND,
AGED ABOUT 37 YEARS,
S/O KUKRA PANARA,
LABOUR,
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CRL.A No.479 of 2019
C/W CRL.A No.1356 of 2015
CRL.A No.22 of 2016
R/O SANNAKKIBETTU HERGA VILLAGE,
UDUPI TALUK-576 101.
...APPELLANTS
(BY SRI N.R. KRISHNAPPA, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY MANIPAL POLICE, UDUPI,
REP BY SPL P. P.
HIGH COURT BUILDING,
BANGALORE-560 001.
...RESPONDENT
(BY SRI VIJAY KUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND ORDER OF SENTENCE DATED 15.10.2015 PASSED BY THE
PRINCIPAL SESSIONS JUDGE, UDUPI DIST., UDUPI IN
S.C.NO.49/2013 - CONVICTING THE APPELLANT/ ACCUSED Nos.1 TO
3 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 366, 376D AND
506 R/W 34 OF IPC.
IN CRL. A. No.1356/2015
BETWEEN:
1. BALACHANDRA,
AGED ABOUT 43 YEARS,
S/O KANTHAPPA POOJARY,
DRIVER-CAR,
R/O CHANDRA NIVASA,
SUBRAYA BETTU,
ANJARU,
HIRIYADKA,
UDUPI-576113.
...APPELLANT
(BY SRI. NATARAJA BALLAL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY THE P.I.MANIPAL P.S.,
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CRL.A No.479 of 2019
C/W CRL.A No.1356 of 2015
CRL.A No.22 of 2016
MANGALORE-575005.
...RESPONDENT
(BY SRI VIJAYKUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECTUOR)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 15.10.2015
PASSED BY THE PRL. S.J., UDUPI DIST., UDUPI IN S.C.NO.49/2013 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 201 OF IPC.
IN CRL. A. No.22/2016
BETWEEN:
1. HARINDRA POOJARY,
AGED ABOUT 29 YEARS,
S/O. NARAYANA POOJARY,
DRIVER-AUTORICKSHAW,
R/O. NADIDARE MANE,
80 BADAGUBETTU VILLAGE,
UDUPI TALUK-576113.
...APPELLANT
(BY SRI A. C. NAGARAJ, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY THE P.I. MANIPAL P.S.,
MANGALORE-575 005.
...RESPONDENT
(BY SRI VIJAY KUMAR MAJAGE, ADDITIONAL STATE PUBLIC
PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 15.10.2015
PASSED BY THE PRINCIPAL SESSIONS JUDGE, UDUPI DIST., UDUPI
IN S.C.NO.49/2013 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 201 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
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CRL.A No.479 of 2019
C/W CRL.A No.1356 of 2015
CRL.A No.22 of 2016
JUDGMENT
"GANG RAPE IS MORE DANGEROUS/PAINFUL THAN MURDER"
The accused Nos.1 to 3 who have gang raped P.W.24- Dhathri (not real name) have filed Criminal Appeal No.479/2019 challenging the judgment of conviction and order of sentence dated 15.10.2015 convicting them for the offence punishable under Section 376D r/w Section 34 of the Indian Penal Code and sentencing to undergo rigorous imprisonment for life which shall mean imprisonment for remainder of their respective natural life and to pay fine of Rs.1,00,000/- each, in default, to undergo simple imprisonment for six months; to undergo rigorous imprisonment for ten years and to pay fine of Rs.5,000/- each, in default, to undergo simple imprisonment for three months for the offence punishable under Section 366 r/w Section 34 of the Indian Penal Code; and to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.5,000/- each, in default, to undergo simple imprisonment for three months, for the offence punishable under Section 506 read with Section 34 of the Indian Penal Code. Accused No.4 has filed Criminal Appeal No.1356/2015 -5- CRL.A No.479 of 2019 C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 and accused No.5 has filed Criminal Appeal No.22/2016 challenging the impugned judgment of conviction and order of sentence sentencing them to undergo rigorous imprisonment for three years and to pay fine of Rs.5,000/- each, in default, to undergo simple imprisonment for a period of six months for the offence punishable under Section 201 of the Indian Penal Code.
I. Facts of the Case
2. It is the case of the prosecution that on 20/06/2013 at about 11.20 p.m., accused Nos.1 to 3 with a common intention to commit an offence, abducted the MBBS student - Dhatri (not real name) of Manipal University, in an autorickshaw bearing No.KA.20/A-8850 which was driven by accused No.2-Hariprasad, in front of the Pharmacy College while the victim girl was returning from the library in the campus of Manipal University field at Madaga of Vonthibettu Athrady Village, by dragging her forcibly into the said autorickshaw holding her hand by accused No.1-Yogish and made her to sit in the said autorickshaw by holding her mouth by accused No.3-Ananda. It is the further case of the prosecution that accused Nos.1 to 3 in the midnight of -6- CRL.A No.479 of 2019 C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 20/06/2013 committed sexual assault on the victim against her wish. Thereafter, they gave a threat to her life stating that they will kill her if she does not heed to their say. It is the case of the prosecution that accused No.4-Balachandra who is the brother of accused No.1-Yogish tried to destroy the evidence of the offence committed by his brother accused No.1 by pasting or installing the idol of Radhakrishna in place of Ganesha idol in the autorickshaw bearing No.KA.20/A-8850 which was used for the commission of the offence by accused Nos.1 to 3, by removing the same from the said autorickshaw and kept hidden and also hiding out of their house the black coloured banyan, which was worn by accused No.1 on the date of the crime and after the incident kept in the house by accused No.1. It is the further case of the prosecution that accused No.5 who is the brother of accused No.2 Hariprasad also tried to destroy the evidence of the offence committed by his brother by pasting a small sticker by name 'Shreya' and another sticker by name 'Ashik' above the sticker 'Shreya' in the place of the bigger sticker 'Shreya' which was behind the autorickshaw at the time of the incident and removed the same by accused No.1. Both accused Nos.4 and 5 have done the same act knowing fully well -7- CRL.A No.479 of 2019 C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the offence committed by their brothers accused Nos.1 and 2. Thus, accused Nos.1 and 2 have committed the offences punishable under Sections 366, 376D, 506 read with Section 34 of the IPC and accused Nos.4 and 5 have committed an offence punishable under Section 201 of the IPC.
3. Based on the complaint lodged by the complainant PW.1 as per Ex.P-1 dated 21/06/2013, the jurisdictional police registered a case in Crime No.116/2013 and after investigation, the jurisdictional police filed charge sheet against the accused persons for the aforesaid offences. Since the matter was exclusively triable by the Court of Sessions, the matter was committed to Sessions Court as per Section 207 of Cr.P.C. and the learned Sessions Judge secured presence of the accused persons who are in judicial custody and framed charges and explained in the language known to them, who pleaded not guilty of the claimed to be tried.
4. In order to prove the case of the prosecution, the prosecution examined in all 62 witnesses as PWs.1 to 62 and got marked 173 documents at Exs.P-1 to P-173 and material objects as per MOs.1 to 92 and after completion of evidence of -8- CRL.A No.479 of 2019 C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the prosecution witnesses, the statement of the accused under the provisions of Section 313 of the Cr.P.C. was recorded. The accused denied all the incriminating evidence of the prosecution in toto and have chosen to adduce defence evidence as DWs.1 to 5 and got marked documents as Exs.D-1 and D-2.
5. Based on the aforesaid pleadings, the learned Sessions Judge framed the following four points for consideration:
i) Whether the prosecution proves beyond all reasonable doubt that accused Nos.1 to 3 on 20-6-2013, at about 11-20 P.M., in front of Pharmacy College, in the Campus of Manipal University, Shivalli Village, Udupi Taluk, with a common intention to commit an offence, abducted C.W.2 Victim, an M.B.B.S. girl student of Manipal University in an Autorickshaw bearing No.KA.20/A- 8850, which was driven by accused No.2 Hariprasad, while she was returning to her room from the University Library, to a field at Madaga of Vonthibettu, Athrady Village, by dragging her forcibly into the said Autorickshaw holding her hand by accused No.1 Yogish and making her to sit in the said -9- CRL.A No.479 of 2019 C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Autorickshaw holding her mouth by accused No.3 Ananda and thereby committed an offence punishable under Section 366 read with Section 34 of the Indian Penal Code?
ii) Whether the prosecution proves beyond all reasonable doubt that on the said date, at mid-night, in a field at Madaga, Vonthibettu, Athrady Village, Udupi Taluk, accused Nos.1 to 3 in furtherance of the said common intention, committed sexual assault by gang on the said M.B.B.S. student, against her wish and thereby committed an offence punishable under Section 376D read with Section 34 of the Indian Penal Code?
iii) Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, accused Nos.1 to 3, in furtherance of the said common intention committed criminal intimidation by threatening the said victim girl stating that they would kill her if she does not hear their say and thereby committed an offence punishable under Section 506 read with Section 34 of the Indian Penal Code?
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016
iv) Whether the prosecution proves beyond all reasonable doubt that accused Nos.4 and 5, being the brothers of accused Nos. 1 and 2 respectively, with an intention to save their brothers, i.e., accused Nos.1 and 2, knowing fullywell the incident in question, tried to destroy the evidence of the offence committed by accused Nos. 1 and 2, by pasting or installing the idol of Radhakrishna in the place of Ganesh idol in the Autorickshaw bearing No.KA.20/A-8850 which was used for the commission of the offence by accused Nos.1 to 3, by removing the same from the said Autorickshaw and kept hiding by accused No.4 and also hiding out of the house the black coloured Baniyan, which was worn by accused No.1 on the date of the crime and after the incident kept in the house by accused No.1, and accused No.5 by pasting a small sticker by name 'Shreya' and another sticker by name 'Ashik' above the sticker 'Shreya' in the place of the bigger sticker 'Shreya' which was behind the Autorickshaw at the time of the alleged incident and removed by accused No.1; with an intention to destroy the evidence of crime
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 and thereby committed an offence punishable under Section 201 of the Indian Penal Code?
6. Considering both oral and documentary evidence on record, learned Sessions Judge has recorded a finding that the prosecution has proved its case beyond reasonable doubt that accused Nos.1 to 3, on 20/06/2013 at about 11.20 p.m., in front of the pharmacy college, in the campus of Manipal University, Shivalli Village, Udupi Taluk with a common intention to commit an offence abducted CW.2-Dhatri (not real name) an MBBS girl student of Manipal University in an autorickshaw bearing No.KA.20/A-8850, which was driven by accused No.2 Hariprasad, while she was returning to her room from the university library, a field at Madaga of Vonthibettu Athrady Village, by dragging her forcibly into the said autorickshaw holding her hand by accused No.1-Yogish and made her to sit in the said autorickshaw by holding her mouth by accused No.3-Ananda and thereby committed an offence punishable under Section 366 of the read with Section 34 of the IPC and further recorded a finding that accused Nos.1 to 3 in furtherance of common intention, committed sexual assault as gang on the said victim, against her wish and thereby
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 committed an offence punishable under Section 376D read with Section 34 of the IPC and further recorded a finding that in furtherance of the said common intention committed criminal intimidation by threatening the said victim girl stating that they would kill her if she does not heed to their say and thereby committed an offence punishable under Section 506 read with Section 34 of the IPC and further held that the prosecution has proved its case beyond all reasonable doubt that accused Nos.4 and 5, being the brothers of accused Nos. 1 and 2 respectively, with an intention to save their brothers, i.e., accused Nos.1 and 2, knowing fully well the incident in question, tried to destroy the evidence of the offence committed by accused Nos.1 and 2, by pasting or installing the idol of Radhakrishna in the place of Ganesh idol in the autorickshaw bearing No.KA.20/A-8850 which was used for the commission of the offence by accused Nos.1 to 3, by removing the same from the said autorickshaw and kept hidden by accused No.4 and also hiding out of their house the black coloured banyan, which was worn by accused No.1 on the date of the crime and after the incident kept in the house by accused No.1, and accused No.5 by pasting a small sticker by name 'Shreya' and another sticker by name 'Ashik'
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 above the sticker 'Shreya' in the place of the bigger sticker 'Shreya' which was behind the autorickshaw at the time of the alleged incident and removed by accused No.1 and thereby committed an offence punishable under Section 201 of the IPC. Accordingly, the learned Sessions Judge, by the impugned judgment and order of sentence convicted accused Nos.1 to 3 for imprisonment of life with a fine of Rs.1,00,000/- (Rupees one lakh only) each under the provisions of Section 376D read with Section 34 of the IPC and in default of payment of fine, to undergo simple imprisonment for a period of six months and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/- (Rupees five thousand only) each for the offence punishable under Section 366 read with Section 34 of the IPC and in default to undergo simple imprisonment for three months and also sentenced accused Nos.1 to 3 to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- (Rupees five thousand only) each for the offence punishable under Section 506 read with Section 34 of the IPC and in default to undergo simple imprisonment for a period of three months. Learned Judge also sentenced accused Nos.4 and 5 to undergo rigorous imprisonment for three years
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 and to pay a fine of Rs.5,000/- (Rupees five thousand only) each for the offence punishable under Section 201 of the IPC and in default of payment of fine, to undergo simple imprisonment for a period of six months. Hence, all these appeals have been filed by the accused praying to set aside the judgment and order sentence passed by the learned Sessions Judge, Udupi District, Udupi.
(ii) ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR ACCUSED Nos.1 to 3 in CRIMINAL APPEAL No.479/2019
7. Sri N.R.Krishnappa, learned counsel for accused Nos.1 to 3 contended with vehemence that the impugned judgment and order of sentence of the trial Court convicting accused Nos. 1 to 3 for the offences punishable under Sections 366, 376D and 506 read with Section 34 of the IPC is erroneous and contrary to law. He would further contend that there is abnormal delay in lodging the complaint as the unfortunate incident occurred on 20/06/2013 at about 11.20 p.m. and the complaint came to be lodged by PW.1 on 21/06/2013 at 8.30 a.m. and the same has not been explained by the prosecution and thereby, the learned Sessions Judge
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 ought not to have convicted the accused persons. He would further contend that the complaint lodged by PW.1 as per Ex.P- 1 against the unknown persons under the provisions of Sections 366, 376 read with Section 34 of the IPC. He further contended that the evidence of CCTV footage of the library is not produced. Non-examination of CW.1- Fatima, the roommate of the victim and any staff of the library by the prosecution does not support the case of the prosecution. He further contended that non-conducting of test identification parade would clearly goes to show that the case registered by the police is false and fabricated and that on the date of the incident there was heavy rain as stated by PW.27 and thereby, learned Sessions Judge has not properly appreciated the evidence of PWs.3, 4 and 7 in a proper perspective. Thereby, injustice has been caused to accused Nos.1 to 3. He would further contend that the Investigating Officer summoned all these rowdy sheeters of that police station on 24/06/2013 for an enquiry of the incident occurred on 20/06/2013 and accused No.1 has not appeared for enquiry on that day and enquiry was deferred to 26/06/2013 and on that date also accused No.1 was not present. Thereby, the Investigating Officer on
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 suspicion, falsely implicated accused No.1 to the incident. On the basis of the statement made by accused No.1, accused Nos.2 and 3 were implicated by the Investigating Officer falsely without there being any basis. Thereby, the impugned judgment of conviction and order of sentence cannot be sustained. He would further contend that the spot mahazar was drawn on 22/06/2013 between 10.30 a.m. and 12.00 noon and the mahazar witness is not examined nor drawn the statement made by PW.1 and that the victim was in the hospital on the date of drawing of mahazar. He would further contend that there was no eyewitnesses to the incident and the learned Sessions Judge convicted accused Nos.1 to 3 only on the basis of presumption and assumption without any oral and documentary evidence on record and the same cannot be sustained and thereby, he sought to allow the appeals filed by accused Nos.1 to 3.
8. In support of his contention, Sri Krishnappa learned counsel for accused Nos.1 to 3 relied upon para No.12 of the dictum of the Hon'ble Supreme Court in the case of Dinesh @
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Buddha vs. State of Rajasthan [(2006)3 SCC 771], thereby sought to allow the appeal.
(iii) ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR ACCUSED No.4 in CRIMINAL APPEAL No. 1356/2015
9. Sri Nataraja Ballal, learned counsel for accused No.4 would contend that accused No.4 is the brother of accused No.1. The charge made against accused Nos.4 and 5 was that they had intention to save their brothers accused Nos.1 and 2 knowing fully well about the incident in question by hiding the offence committed by accused Nos.1 and 2 by pasting the idol of Radhakrishna in place of Ganesha in the autorickshaw bearing registration No.KA-20/A-8850 which was used in commission of the offence by accused Nos.1 to 3 by removing the same from the autorickshaw and hidden by accused No.4 and also hidden black colour banyan which was worn by the accused No.1 on the date of the incident out of the house and after the incident kept in the house by accused No.1 and by pasting a small sticker by name "Shreya" and another sticker by name "Ashik" above the sticker "Shreya" in the place of the bigger sticker "Shreya" which was behind the autorickshaw at
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the time of the alleged incident and removed by accused No.1 with an intention to destroy the evidence after commission of the offence under Section 201 of the IPC. Thereby, there is absolutely no case made out by the prosecution in respect of accused No.4.
10. He further contended that PW.22-Sukesh, the panch witness deposed that he saw Harindra - A5 and Balachandra - A4 and he gave a black T-shirt with blood stains which was marked Ex.P-24-mahazar and MO.27. Thereby, absolutely there is no material against accused No.4. He further contended that the learned Sessions Judge at paragraph No.65 of the judgment, recorded a finding to that effect. Thereby there is absolutely no material against accused Nos.1 to 4. Therefore, he sought to allow the appeal filed by the accused No.4.
(iv) ARGUMENTS ADVANCED BY LEARNED COUNSEL FOR ACCUSED No.5 in CRIMINAL APPEAL No. 22/2016
11. Sri A.Nagaraj, learned counsel for the accused No.5 submits that accused No.5-Harindra Poojary is the brother of accused No.2 and there is no averments in the complaint that
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 accused No.5 who told that there was idol of Ganesh and the same got seized by the police and the same was inside autorickshaw of accused No.1. The learned counsel contended that there is no material on record as against accused No.5 and he has been falsely implicated for the only reason that he is the brother of accused No.2 and learned counsel for accused No.5 submits that only on the basis of panch witness, accused No.5 is convicted under the provisions of Section 201 of the IPC and thereby sought to allow the appeal.
(v) ARGUMENTS ADVANCED BY LEARNED ADDITIONAL STATE PUBLIC PROSECUTOR
12. Per contra, Sri Vijaya Kumar Majage, learned Additional State Public Prosecutor, while justifying the impugned Judgment of conviction and order of sentence passed by the trial Court convicting accused Nos.1 to 3 for imprisonment of life and for ten years and seven years under the provisions of Sections 366, 376D and 506 read with Section 34 of the IPC and contended that accused Nos.4 and 5 were convicted for three years with fine of Rs.5,000/- each under Section 201 of the IPC. Thereby he would further contended
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 that the evidence of PWs.3 and 4 refer to kidnapping of the victim PW.24 in a categorical terms asserted that accused Nos.1 to 3 kidnapped PW.24-victim. He further contended that the evidence of PW.1 clearly depicts involvement of accused Nos.1 to 3 in the gang rape of victim-PW.24 and she has specifically stated on oath about the involvement of accused Nos.1 to 3 individually by their names and by their act. He further contended that PW.28 prepared rough sketch and Ex.P- 100 DNA report clearly depict that accused Nos.1 to 3 involved in the gang rape on the victim girl.
13. He further contended that PW.24 identified Exs.103 to 110. He contended that PW-35 - Dr.Prashanth Bhagavath deposed that he found 23 external injuries on the body of the victim. PW.16 deposed that he is the owner of the Hotel Ashraya and PW.17 is the supplier in the said hotel and on the unfortunate date of the incident, the accused persons came to his hotel and had dinner. He further contended that based on the voluntary statement of accused Nos.4 and 5, accused Nos.1 to 3 were implicated in the present case. Accused Nos.1 to 3 committed heinous crime of gang rape on the victim girl and it
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 is shame on the society at large and individual as well. Hence, he sought for dismissal of the appeals.
(vi) POINTS FOR CONSIDERATION
14. In view of the rival contentions urged by learned counsel for the parties, the points that arise for our consideration in these appeals are:
"(i) Whether accused Nos.1 to 3 have made out a case to interfere with the impugned judgment convicting accused Nos.1 to 3 under the provisions of Sections 366, 376D and 506 read with Section 34 of the IPC with imprisonment for life for a period of ten years and seven years with default clause in the facts and circumstances of the present case?
(ii) Whether accused Nos.4 and 5 have made out a case to interfere with impugned judgment convicting accused Nos.4 and 5 for the offences punishable under Section 201 of the IPC for a period of three years with fine?"
(vii) CONSIDERATION
15. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 perused the material on record as well as the original records carefully.
16. This being the appellate Court, in order to re- appreciate the oral and documentary evidence on record, it is relevant to consider the evidence adduced by the prosecution witnesses and the documents relied upon.
i) P.W.1-Jai Vittal who is the complainant is the Estate Officer of Manipal University, lodged the complaint as per Ex.P-1. P.W.1 Jai Vittal in his complaint, which is at Ex.P1, has stated that when he went to Mandavi Plaza after coming to know that victim came to her flat and enquired her and she told that at 11-20 P.M., when she was returning from Library and when she was walking on the road near Pharmacy College, at that time one Rickshaw came and stopped by her side and 3 persons including the driver pulled her and put her in the Autorickshaw and she screamed and they took her to open area and committed sexual assault on her. He has further stated in the complaint Ex.P1 that she has
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 been taken to the Hospital for treatment. P.W.1 has stated that when he went to the flat after coming to know that the victim girl returned to the flat and at that time Police had come there and the victim girl was depressed and there were several persons and he confidentially enquired her and she told that when she was coming from Library to the flat and when she was at in front of Pharmacy College on the road, one Auto came and stopped by her side and they held her and put her into the Auto and she screamed and they took her to an open place and sexually assaulted her and there were 3 persons in the said autorickshaw - one was the driver and 2 others. Thereby, he supported the case of the prosecution.
ii) PW.2-Suresh who is the security guard has deposed that he had been working for more than two years in Manipal University as security guard, on 20/06/2013, at about 8.00 a.m., he had cycle patrolling duty and I was checking security guards
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 on cycle and on the same day at about 11.15 p.m., when he was going in front of the University compound PW.3-Sadananda Devadiga was standing near the compound. PW.2 deposed that in an autorickshaw, three people came and forcefully abducted a girl and went towards Sharda Hostel and PW.4-Manoj Pokan chased the auto and he saw an umbrella and a purse and when he opened the purse he got an identify card and mobile. The name of the victim girl and the name of the college was mentioned in the identity card and he ran behind the auto but could not identify the number of the auto. He returned back and informed PW.8-Kusha S.Salian and later all the persons went in search of the autorickshaw. On that day, both Sadananda Devadiga and Manoj Pokan (PWs.3 and 4) were on duty. On the next day, he went to the spot along with the police from where the accused had kidnapped the victim girl and the police recorded the statement of one Prakash Acharya - PW.5 and Ex.P-3 is the spot mahazar and Ex.P-2(a) is the
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 signature and Ex.P-4 is the seizure mahazar and Ex.P-4(a) is his signature. He identified MO.5 - the umbrella of the victim. Thereby he supported the case of the prosecution.
iii) PW.3-Sadananda Devadiga who is the security guard deposed that he has been working as security guard in the Manipal University. On 20/06/2013 at about 8.00 p.m. till morning he was posted to guard along with one Manoj as security guard and on that day at about 11.00 p.m. there was rain and thereby himself and PW.4 Manoj were sitting near the gate of Pharmacy College and at about 11.20 p.m. when they heard screaming of a girl, they came near the gate and saw three persons abducting the victim and by the time they could reach the spot, the autorickshaw went of with high speed towards Sharada Hostel Road, but they could not note the number though PW.5 chased the autorickshaw. Thereby supported the case of the prosecution.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016
iv) PW.4-Manoj Pokan - deposed that he has been working in the Manipal University as security guard for the last two years along with PW.3 Sadananda Devadiga and he deposed on par with PW.3. Thereby he supported the case of the prosecution.
v) PW.5-Prakash Acharya, Home Guard deposed that he has been working for more than eight months prior to the incident occurred on 20/06/2013 and himself and Halesh were posted on the night of the incident from 8.00 p.m. to 3.00 a.m. At around11.25 p.m. to 11.30 p.m. while they were guarding Sharada Hostel and when they were witting on the compound, they saw a girl waving her hand from the autorickshaw. Thereby Abhijit came and informed that a girl has been abducted in an autorickshaw, by then the auto had crossed Kini Canteen Circle and the same was informed to Hoysala Police and the higher officers came and enquired them. They told them that the auto was about 5 ft. distance and they were not able to
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 identify the faces inside the auto and thereafter, the police came to the spot and drawn mahazar as per Ex.P-3 and identified the signature at Ex.P-3(b) and thereby supported the prosecution case.
vi) PW.6-Jahangir H.Hundekar who is the security deposed that he was working in Mandavi Plaza as security guard for the last two years where the victim was residing in Flat No.201 and his duty was from 12.00 midnight till 8.00 a.m. on the date of the incident and deposed that the Pharmacy College was at a distance of 200 mtrs. and that PW.24- victim and Fatima were residing in the said flat. On 21/06/2013, in the early morning at around 3.00 a.m. PW.24-victim came and asked PW.6 to open the gate and her face was abnormal and was crying. He asked her in Hindi as to what happened to her, but she did not reply and 50 minutes thereafter PW.1-Jai Vittal and police came and asked him about the coming of the girl and he told them that the girl had come. After 5 to 10 minutes they took
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the victim girl, but he did not know where they took her. Thereby he supported the case of the prosecution.
vii) PW.7-Mohini who is a retired employee has deposed that on 20-6-2013, at about 11-30 to 12-00 midnight she heard the sound of screaming of a girl and she got up and out of fear she did not come out and thereafter, she heard the sound of an autorickshaw and her house is situated near the spot and it was raining where PW.24 jumped from the auto and got injured to her leg and again the accused took her inside the auto and went away from that place. Ex.P7 is the mahazar of the spot where victim decided to run away. The said spot mahazar has been prepared by the Investigating Officer as shown by accused No.2 Hariprasad in the presence of P.W.9. She supported the case of prosecution.
viii) PW.8 - Kusha S.Salian has deposed that prior to his retirement in the year 2008, he was working as the
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Security Supervisor in Manipal University. Suresh, Sadananda Devadiga, Manoj Pokan and Prakash Acharya (PWs.2 to 5) were the security guards and the police enquired him on 28/06/2013 at 8.00 a.m. in the Manipal Police Station while he was on duty and his evidence also corroborated with the evidence of PWs.2 to 4. Thereby supported the case of prosecution.
ix) PW.9 - C.Abubakkar who was doing business and he was the panch witness to the spot mahazar Ex.P- 5 and his signature is at Ex.P-5(a). Accordingly, spot mahazar was drawn as per Ex.P-6 and his signature is at Ex.P-6(a) and thereby shown the place where the offence was committed by the accused persons. Accordingly, panchnama was drawn as per Ex.P-7. Thereby supported the prosecution case.
x) PW.10-Vishwanath Kotian who was the Panchayat Development Officer has deposed that on 27/06/2013 i.e., the next day of the incident,
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Manipal Police called him to the police station wherein he identified accused No.2-Hariprasad and the clothes worn by him at the time of the incident. They are, blue jeans, black colour inner wear, and light yellow colour full arm shirt and the same were seized by the police as per seizure mahazar Ex.P-8 and Ex.P-8(a) is his signature. stating that he was wearing the said clothes at the time of the incident and they were black blue coloured jeans pant, black coloured innerwear and light yellow coloured full hand shirt and the Police have seized them under mahazar Ex.P8. He has identified the said seized articles as M.Os.6 to 8. He has further deposed that accused No.2 took them to the police to a house situated in No.80, Badagabettu Village and showed the autorickshaw and it was bearing No.KA.20/A- 8850 and at that time Photographer and FSL expert were present there. They collected mud, hair, rexene pieces (in all 7to 8 items) and along with autorickshaw the said items were seized by the police under mahazar Ex.P-9. He has identified the
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 photos taken at the time of preparing mahazar Ex.P-9 at Exs.P10 to P12 and the seized articles at M.Os.10 to 19 and Autorickshaw at M.O.9. Thereby he supported the case of prosecution.
xi) PW.11-Sundara Shettigar, retired senior technician, who deposed that on 24/06/2013 Dr. Prasshanth Bhagavat gave kurtha, legging, braw and innerwear of the victim in a sealed cover to the Police Inspector seized them in his presence under mahazar Ex.P-13 and he identified his signature as per Ex.P-13(a). He has identified the said clothes at M.Os.20 to 23. Thereby he supported the case of the prosecution.
xii) PW.12-Sadhnanda Moolya, who was doing business has deposed that on 29/06/2013, experts have conducted luminol test in autorickshaw bearing No.KA.20/A-8850 and prepared mahazar to that effect as per Ex.P14. He has deposed that the said test has been conducted in the shed of one A.Ganapathi Kamath (PW.57). PW.57 has also
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 deposed that the Experts and the Police conducted luminol test in the autorickshaw MO.9 in his shed on 29/06/2013. PW.31-Assistant Director, RFSL, Belgaum has deposed that he conducted luminol test and gave preliminary report as per Ex.P-53 and final report as per Ex.P-54. Exs.P-15 to P-18 are the photographs taken at the time of said luminol test wherein blue lights can be seen where the bloodstains are found, which are not visible to bare eye. PW.43-the Scientific Officer, R.F.S.L., Mangalore has also deposed that she was present at the time of conducting luminol test. PW.31 has deposed that the said bloodstains were detected by luminol test below the driver's seat and behind the passengers boarding place, below the passengers' seat and on the handle of autorickshaw. He has further deposed that even after wash also the bloodstains, which are not visible to bare eye, can be observed in luminal test. Thereby he supported the prosecution case.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016
xiii) PW.13-Sukesh Kundar, who was doing laundry business has deposed that he knows accused Nos.1 to 3 (Yogish, Harindra and Ananda) and he deposed that on 26/06/2013 he was called by one Prasanna who was the police to identify the rowdy sheeters who were summoned in the police station, but accused No.1 had not come to the spot and thereby suspected accused No.1 about his involvement of the accused in the incident that occurred on 20/06/2013. Thereby supported the case of the prosecution.
xiv) PW.14 - K. Deepak is stated to have doing real estate business and he is resident of Manipal. He deposed that he know A1-Yogesh, A2-Hariprasad and A3-Anand. He was enquired by Manipal Police about Manipal rape case. He deposed that on 24.06.2013 the police had summoned all the rowdy- sheeters to police station; Himself, Raja, Salim, Suresh and others had come to the police station, but A1-Yogesh did not come. Again the police called
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 all of them to police station on 26.06.2013. Again A1-Yogesh did not come and his mobile was switched off. Every time, A1-Yogesh used to appear in the police station whenever he was called. But on that day he did not come. Therefore, the he suspected A1's involvement in the incident. Accordingly, he supports the case of prosecution.
xv) PW.15-Gunapala stated to have working as supervisor in Big Boss Bar and Restaurant since last one year ; the police have enquired him about this case. A2-Hariprasad is Autorikshaw Driver and he know him as they are residents of same locality; On 20.06.2013 at about 10.45 p.m., A2 called this witness (PW.15) and asked for liquor and he stated that, if he comes within 11.00 p.m., liquor will be available, as the Bar will be closed at 11.00 p.m. But, A2 did not go. He further deposed that, A2- Hariprasad used to come to the hotel to consume Alcohol every day. Thereby, he supported the case of prosecution.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 xvi) PW.16-Jayakara Shetty is doing hotel business. He deposed that, in Vonthibettu Village he got a hotel by name 'Ashraya' and he knows A1-Yogesh and he is an autoriksha driver and his house is situated behind his hotel within 2 Kms. The police have enquired him about the incident. He further deposed that, on 20.08.2013 at about 6.30 p.m., A1-Yogish and another person came to his hotel for lunch, then PW.17 was the supplier, and they ordered for two Omelets and one quarter BC and he secured one quarter B.C. from Hiriyadka Bar and Naveen gave them two glasses of liquor and omelets and one of his friend came and jointed them, and then they ordered for 2 quarter B.C. and Chicken Chilli and thereafter he ordered for other dishes and again this witness secured two quarter B.C.. Then after Dinner, A1-Yogesh paid bill amount nearly Rs.500/- and asked this witness to pay Rs.100/- for petrol stating that he will re-pay it on next day. Thereafter all the said three persons
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 went away in autorikshaw at about 9.45p.m. Thereafter, he came to know that said the persons who accompanied A1-Yogesh are Anand (A3) and Hariprasad (A2). He deposed that he will recognize A1-Yogesh, A2-Hariprasad and A3-Anand before the Court and thereby he supported the case of prosecution.
xvii) PW.17-Naveen was working as a supplier in Ashraya hotel which is situated in Vonthibettu Anjaru Village from last five years and PW.16- Jayakara Shetty is its owner. On 20.06.2013 evening at 6.30 A1-Yogesh and his two friends came to hotel and sat in function hall and started consuming drinks and thereafter they had dinner and out of them two persons came earlier and later one person came and joined them and they went from the hotel at 9.45 p.m. and he does not know as to where they went and he can identify them, and thereby he supported the case of prosecution.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 xviii) PW.18- Gangadhar Bangera is an Artist and he is resident of Hiriyadka. He deposed that since from eight years he has been running his arts shop under the name of Pavitra Arts and the nature of work is writing banners, erecting marriage boards and writing number plates of vehicles and stickering. He further deposed that, on 24.06.2013 at 6.00 p.m., one aurorikshaw driver from Parkala came to his shop and asked him to affix two stickers of names 'Shreya' and 'Ashiq' in the combination of red and white and accordingly he affixed the stickers to the autoriksha and he will identify the stickers affixed to the rexine of autorikshaw. In the open Court, when the rexine affixed with stickers was shown to this witness, he identified the same and that rexine was marked at MO.24 and he identified that person as Harindra (A5). He further deposed that, initially he did not know his name, but afterwards also he was in contact with this witness, but he does not as to who
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 he is, and hereby he supported the case of prosecution.
xix) PW.19 is Jayanthi is owner of Fancy Stores and she is resident of Sannakkibettu. She deposed that near Parkala Bus stop, she is running Lavanya Fansi and Gift Center since from 10 years and wherein she sells the toys and Gift items, and the shop situated in Hegde Complex. She further deposed that, the Manipal police called her to the Station to give statement and accordingly on 01.07.2013, she went to Manipal Police Station, where the police enquired her as to any person has taken gift item of Radha Krishna and she stated that, before one week one lady with a child came to her shop and she asked for Ganesha Idol, but there was no such a big Ganesha Idol and as such she purchased Radha- Krisha Idol for Rs.75/- and she has also purchased two dozen metal bangles to the child. This witness told that, if said Radha-Krishna Idol is shown to her, she will identify the same. Accordingly one Radha-
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Krishna Idol kept in sealed cover was shown to her and she identified the same and the same is marked as MO.25 and thereby she supported the case of prosecution.
xx) PW.20 is Shobha, wife of Honnappa. She deposed that, Ananda (A3) is her brother; On 21.06.2013 at 2.00 p.m., her brother Anand (A3) telephoned to her and asked for Rs.2,000/- urgently and when she asked as to why, he simply said that urgently she need it. She said that she need to ask her husband and she asked the same to her husband and her husband has stated that he is due of Rs.2,000/- to Ananda (A3)and he will pay it. Ananda told her that he is in Bolwar and she conveyed the same to her husband told her that he went to Ananda and paid him Rs.1,500/- and he also said that, at that time, there was one more person along with A3- Ananda. She further deposed that, on next day, A3-Ananda telephoned to her and said that, he will stay in her house for two days. She replied that
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 she will ask her husband to that effect. Thereafter, at 8.00 p.m., again he called her and her husband received the call and told him not to come and also not to telephone them and switched off the phone, and thereby she supported the case of prosecution.
xxi) PW.21-Honnappa is the husband of PW.20-Shobha.
He deposed that, PW.20 is his wife. His mobile No. is 9449267641 and identified the A3-Ananda as the brother of his wife and his brother-in-law. He deposed that the police have enquired him and recorded his statement. He further deposed that, on 21.06.2013, when he was at work place, his wife telephoned to him and said that her brother- Ananda wants Rs.2,000/- and she asked him to give that amount as the Ananda need it urgently and he said that he will pay money; Thereafter, while returning home, Ananda called to his mobile and said that he is in Bolwar and he said that he will come there and when he went to Bolwar in
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 autorikshaw Ananda was there along with Hariprasad(A2), who is the neighbour of Ananda and he paid Rs.1,500/- stating that he is having that much only and in turn Ananda told him that, urgently he need to go to Chikkamagluru and in an autorikshaw they went towards Chikkamagaluru and thereafter, he came to his house and his wife told that there might have some galata and as such Ananda asked for money. Further, he deposed that on the next day, at 4.00 to 4.30 p.m., Ananda telephoned to his wife's phone and he received that call and Ananda told that he will come to their house and he told him not come and not to telephone to them, and disconnected the phone. xxii) PW.22-Sukesh is the alleged autorikshaw driver residing at 80th Badagabettu. He deposed that on 02.07.2014 between 1.00 and 1.30 p.m., he was called to Manipal Police Station by the police and he went to the police station. At that time one Mr. Prashantha was also present there and A5-Harindra
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 and A4-Balachandra were also present there in the Station and he will identify them and then Harindra told that there is a Ganesha Idol at his house and he will show it and A4-Balachandra told that there is T-Shirt in his house and he will show that . Then the police took this witness (Sukesha-PW.22) A5- Harindra and 3-Balachandra to Harindra's (A5's) house at Badagabettu and then A5-Harindra showed the Ganesha Idol kept in his house and told that it was in Autorikshaw. The police drew a mahazar to that effect and then himself, Prashantha and A5- Harindra signed that mahazar, which is marked as Ex.P22 and witness signature of this witness is marked as Ex.P22(a). This witness further stated that he identified the Ganesha Idol, which is marked as MO.26 and Ganesha Photo was marked as Ex.P23. Thereafter, they went to the house of A4-Balachandra, where he (A4) gave one T-Shirt with cap, which was stained with blood and thereby he supported the case of prosecution. He further deposed that on 10.07.2013 evening himself and
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Prashanth were called to police station and there was a Bajaj Autorikshaw and its number is KA.20.A.8850 and he has seen that autorikshaw and the Tharpal behind the auto was removed and on that tarpal, the words 'Shreya' and 'Ashiq' stickers were affixed, which was marked as Ex.P27 and signature of witness was marked as Ex.P27(a). The seized two stickers were marked as Ex.P24 and three photos were marked as Exs.P19 to 21. Further he deposed that there were blood-stains in autorikshaw and the Radha-Krishna Idol (Ex.P25) kept in autorikshaw was also taken by the police and he will identify the same and the photos of inside autorikshaw were marked as Exs.P28 & 29 and thereby he supported the case of prosecution. xxiii) PW.23 is Purushothama. He deposed that, A2- Hariprasad is the son of his wife's sister and he identified the one Umesh in this case as his son. He further deposed that on 22.06.2013 at 8.30 am., Hariprasad (A2) along with two friends came to
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 their house. At that time, he has already had his breakfast and about to leave to his work, and his wife and son were at home. At about 6.00 p.m., when he went to his house, A1-yogisha and A2- Harindra were at home. And A3-Anand told him that he will sell the mobile and he gave mobile to his son Umesh and taken Rs.600/- from him. A2 and A1 appeared to be under some fear and when this witness enquired them about the same, they did not reply properly. Thereafter, Accused No.2- Hariprasad was taken by the police and A1-Yogesh's mobile was also seized by the police and thereby he supported the case of prosecution. Ex.P30 is the mahazar drawn in respect of seizing mobile and MO.28 is the mobile.
xxiv) PW.24 is Mitha Madhava Naik. She is the victim.
She deposed that she is a Medical Student studying in Kasturba Medical College at the time of incident and she was staying at Madhavi Plaza at Flat No.2018 along with her room-mate Ms. Fathima.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 PW.24 further deposed that, on 20.06.2013, she was studying in the Library, since next day she was having examination. The Library closes at 11.30 pm. and she left the Library at 11.15 p.m. and started walking towards her room on the footpath and it is 5 minutes walk from Library to Madhavi Plaza; When she reached near Pharmacy College, an autorikshaw came and stopped by her side. A man came out of autorikshaw and pushed her into the auto and other man inside auto held her by waist and pulled her inside the autorikshaw and at that time the purse and umbrella held by her were fell down, and the autorikshaw started moving; When she started screaming, those persons held her throat and covered her mouth so that she should not scream; There were three male persons in the auto i.e., one was driver and other two were sitting in back side seat; They told her not to scream, otherwise they will kill her; Some how she tried to escape and jumped from auto and at that time, she got hurt to her leg and she could not
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 move. The auto went ahead and came back and it was an empty area and There was only one house with a light, and she tried to scream loudly, but she was again pulled back into auto. She was screaming loudly. The auto proceeded towards Karkala and after 10 - 15 minutes, it reached Karkala and continued on that road and reached an open area and there were large bushes and that place was not visible to any one; Through out auto journey, those persons were trying to remove her clothes and she keep on resisting their attempts. In that open place, Accused Nos. 1 to 3 asked her to get down from the auto and told her to undress; She pleaded them not to do anything to her. They showed Talwar and threatened her that they will cut her into pieces and throw into the river and insisted her to remove her clothes. All the three were completely drunk; She removed her kurtha and they removed her rest of clothes. The driver of the auto pushed her inside the auto on back seat and laid on top of her and he was doing wrong and that went on for some time
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 and he was not happy with the space, so they took a cloth and put it on the ground and made her to lay on that cloth and the same man tried with her in similar way. Thereafter, the 2nd and 3rd persons also did the same things though she was shouting and resisting them from doing so. Thereafter, Accused No.1 came and took her to a side and started doing wrong thing and he told her that if she resist or shout, he will kill her. Then his friend came and told that they should all go. All the three pulled her bank to the auto. They were all discussing among themselves in broken Hindi language as to what they should do with her and they were telling that they would chop her and throw the pieces into the river. Then she begged them to take her back to her house and she wanted to live; Then she put on her clothes and they have also put on their clothes; Then all got into auto. Further, the victim has also stated that, she was dropped near the apartment in which she live, at about 3.00 a.m., and as such they were in the open
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 ground nearly for about two hours; Initially when she fell from auto, she got hurt to her right leg and she had multiple cuts and bruises on her body because of force used on her and because of she being made to lay on ground of rough surface, she had a large injury and her upper Lip was swollen and it was bleeding and it was caused due to biting and she was bitten on multiple occasions; While returning, A1 an A3 were sitting back seat in auto and A2 was driving the auto; A1 dropped her back near apartment at about 3.00 a.m., near Madhavi Plaza; From there she went to her apartment and the gate was closed. The security guard opened the gate and asked her as to what happened and she did not say anything. She went to her flat. Her room-mate was there. When she reached home, she sat down and made some phone calls. Within 10 - 15 minutes, some police officers and some officers of the University came to her flat and they wanted to take her to the hospital and they were waiting for a Lady Police Officer. When the Lady
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Police Officer arrived, she was taken to hospital in a police jeep. Before taking her to hospital, in her house, they all keep on asking her as to what happened. But, did not tell anything to anybody. She was under shock and she was scared and crying. When all other police people went out, herself, her room-mate and one Mr.Jai Vittal were present in the room and he asked what happened, then she told that she was sexually assaulted. Then they took her to Kasturba Medical Hospital to the Trauma Centre and there, she was treated by Dr. Jyothi, Dr. Shyamala and Dr. Prashanth. They made her to stand on white cloth and took her all clothes and samples of some fluids and hairs from her body were taken and she was given hospital garment to wear. She was taken to a room, where she has narrated the incident to Dr. Prashanth, when he asked the history. The police insisted her to give statement. But, she was not in a position to give any statement, because the accused have given threat to kill her, if she discloses the incident
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 to any one and since she was staying alone without her family in the apartment. The police told her that she need not to explain the incident to multiple times and when she is in relaxed state of mind, she can give her statement. She was in the hospital for about 10 days; Repeatedly she was asked by the police including the Lady Police officer to give statement. They asked her to speak with some artist and give some hits to draw portraits of accused persons. She told about the route and the place of incident and also about the autorikshaw having Ganapathi Idol in it, which was affixed behind the staring next to the front windscreen. She said that she cannot identify the autorikshaw, as all autorikshaw looks like the same. But, she will identify the Ganapathi Idol if it is shown to her. She further deposed that, the lady police officer came to her with some portrait sketches of more than 6 to 7 persons and she found much resemblances of that portraits with the accused and she said 'Yes' to some portraits. Thereafter, on 27.06.2013 the
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 accused were arrested by the police and on 01.07.2013 she gained some courage to give her statement in handwriting in brief and signed the statement and it bears her signature. She would further depose that, she received two letters one was for attending ID parade and another for giving her statement under Section 164 of CR.P.C. before the Magistrate. For that, she wrote letter stating that, she has seen the photo in the internet and he it cannot serve any purpose in attending ID parade. Accordingly, she identified that letters as Exs.P35 and P.36, and Ex.P35(a) as her signature. Since she suffered hurt to her leg, she thought that giving repeated statements is not a good idea and hence, she refused to appear before the Magistrate to give statement. She identified the clothes she had handed-over to the Doctor on that day. She has seen the clothes and identified them as MO Nos.20 to 23. MO.20 is the kurtha Top, MO.21 is the Black Colour Cotton Pant, MO.22 is Black Brassiere and MO.23 is cotton innerwear. Likewise,
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the accused were wearing pant, jacket, lungi which were marked at Pant-MO.6 and burmuda the jacket with cap-top ( MO.27) and Umbrella is marked as MO.5 and she identified the same. In cross- examination, she has deposed that, she had not seen the accused persons earlier, and after the incident, she is seeing them for the first time before the trial Court. She refused ID Parade of accused, because she has seen them in newspapers. After the incident the first person she met is her room- mate. Police have asked the victim to give statement before the police and when she refused to give statement, they asked her to give statement before the doctor. Se further admitted that in both the letters marked at Exs. P35 and P36 she has not mentioned about the incident of sexual assault on her. She further deposed that she has not mentioned in her statement about Dhanya Soodana Mohan and Rohin Saini are the two persons present in the library on that night, and Dhaniya Soodana Mohan left the library at the same time. She stays
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 in the hostel and so she went to hostel and she does not know when Roin Saini left the library and they do not know even today as to what happened to victim. Since there was academic examination, there was less communication and the students were visiting library according to their convenience and thereby nothing is elicited to dispute the said fact. In further cross-examination she deposed that, She is Hindu and she do not wear Burkha. But, after the incident she is wearing Burkha to protect herself , her family reputation and also her reputation from Media. It is correct to suggest that one of the accused who put her into the autorikshaw told her that they will leave her at Parkala and she can go home. It is further admitted that, it is true that, she went alone to the apartment after she was dropped in autorikshaw. It is not correct to say that she asked one of them to drop her to home. She admits that, she told one of accused that if she was allowed to go home, she would go to any of her friends room so that
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 authorities are not alerted and she has not alerted the KMC or University authorities. She stated that, it is not correct to say that she has not given descriptive particulars of three persons to any one and when the Dy.S.P. brought the photos, she did not tell them that the photos tally the description she had given. It is not correct to say that on 5th of July police gave a letter to her to help them to identify the culprits. It is true that she told the police that, she has been advised that T.I. Parade is of no use. It is not correct to say that the on 5th, the police officer requested her to again to co- operate with them for investigation of this case and requested her to give statement before the Magistrate. On 05.07.2013, she refused to go before the Magistrate to give her statement. She stated that, it is true that, in her written statement given to the police she has not stated about locking of apartment gate and security guard opening it; It is true that in her written statement given to the police, she has not stated about
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 swelling of her upper lip and bleeding; It is not correct to say that, without police officers she would not have gone to the hospital and the police took her to the hospital and she did not tell them about the incident. It is not true to say that, till 5th of July, she did not tell anyone about the sexual assault or otherwise on her and it is true that she did not reveal the same because of shock and fear; it is not correct that the police have not brought 1 or 2 dozen of persons to the hospital for identification and nobody is brought to the hospital for identification, and she is not aware as to whether there is any proof regarding her 10 days stay in the hospital; She further deposed that, there were 125 students in her class; There are many professors, but she did not now how many; It is true that she do not know the names of Accused Nos. 1 to 3 even as on the date of her examination; It is true that, she is a matured woman undergoing monthly menstruation cycle; It is not true to say that, A1 to A3 did not physically
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 or sexually assaulted me; The jacket with cap is identified by me for the first time in the court today; She has not mentioned in her statement about Dhanya Soodana Mohan and Rohin Saini are the two persons present in library on that night;. Dhanya Soodana Mohan left the library at the same time and she stays in the hostel. So she went to hostel and she do not know as to when Rohin Saini left the library; They also do not know even today as to what happened to her on that night; It is not correct to say that, since she had no intention to write the examination, she created a false story and put the blame on the innocent accused. Further, nothing has been elicited in the cross-examination of PW.3, PW.24 and PW.25 to discard their evidence.
xxv) PW.25-Pradeep Poojar is stated to be the autorikshaw driver. He deposed that, he was running autorikshaw and he knows A2-Hariprasad. On 02.07.2013, the jurisdictional police called him
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 to the police station and his one of the mobile seizure mahazar. (Ex.P13). He deposed that, himself and one Sunil were called to the police Station and he told that he was given mobile to Umesh and he was residing in Garthikere. PW.2- Purushothama produced the said mobile stating that Umesh has given mobile to him and the same was seized under Ex.P28 and he signed the said mahazar and while drawing mahazar three photographs were taken and they were marked as Exs.31, 32 and 33 and thereby this witness has supported the case of prosecution.
xxvi) PW.26 is Sangappa. He is also one of panchass to the Mahazar-Exs.P.37 to P.40. He deposed that he was called to the police station in respect of a rape case. When he went to police station A3-Ananda was present in the police station and he knows him. A3 took them to place, where he thrown the Lungi and A3 also said he would produce his Shirt and mobile; The police took them to a place near
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Parkala water stream, where water was flowing. But, the they did not find Lungi in that place. Thereafter, A3 took them to the Vadidare near Parkala and there from a rook, A3 produced one shirt and a mobile phone, which were seized under a mahazar marked as Ex.40 and the seized shirt and mobile were marked as Exs. P29 and P30 respectively. Thereby, this witness has supported the case of prosecution.
xxvii) PW.27 is Yashodha. She deposed that she is doing Coolie work. She deposed that, she purchased Idea Mobile containing SIM No.8970775214 on an application filed to the Mobile Company. Further she deposed that, she has given that mobile to her son- in-law ie., Somashekar and thereafter, he gave that mobile to his sister Shoba and thereafter he came to know that, the said SIM was used by A3-Anand. He has seen A3 only once and as such, he cannot identify him. Further, this witness stated that the
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 photo in the ID card and Application is of herself, and thereby she supported the case of prosecution. xxviii) PW.28 is Suresh. Yogish (A1) is his brother.
This witness is working as a Cook in M/s. Read and Tiler Factory and his wife's name is Sangeetha and they having two children. He deposed that 5 to 6 months back his wife called this witness and informed regarding Yogish (A1) coming to his house and the Yogish asked to arrange for ticket and she also told regarding booking of ticket inn Guru Hotel and thereby this witness has supported the prosecution case.
xxix) PW.29 is the Vijaya Prasad. He deposed that he was running hotel in the name and style of Guru Vegetarian at Mysore and also running travel agency. He deposed that on 26.06.2013 at 7.30 p.m., one Sangeetha came to his hotel and asked for booking a ticket and she gave the mobile number to book ticket and he is not remember that number. He further deposed that on that day, he
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 saw a person along with said Sangeetha. He further deposed that on the night of 26.06.2013 under the said ticket one male person had travelled to Mysore and he can identify that person and thereby he supported the case of prosecution.
xxx) PW.30 is Ramananda Naik. He is a panch witness to mahazar-Ex.49, under which clothes of A1- Yogish and his mobile (MO.33). On 11.07.2013, he was called to Police Station and when he went to police Station, A1-Yogish was in custody. A1 lead the police and panchas to one house at Anjaru Village of Subraya Bettu and from that house he produced his clothes and one mobile, and photos of the same were taken and the said articles were seized and sealed and clothes were marked as MOs. 32 and 33, and accordingly mobile was marked as MO.31 and photos were marked as 45 to 48 and signature on it was marked s Ex.48(a). This witness further deposed that, A1-Yogish lead them to his sister's house situated at Kabbadi and from
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the TV Draw, he produced a mobile and the same was seized under mahazar (Ex.P50) and marked as MO.34 and the photos of the same were taken, which were marked as Exs. P51 to P52 and he can identify A1-Yogish and thereby, this witness supported the case of prosecution.
xxxi) PW.31 is Narayana R. Naik. He is designated as Deputy Director of FSL, Belgaum. He deposed that, at the request of Dy.SP, Udupi Sub-division, he collected 10 items as evidence from Autorikshaw No.KA.20.A.8850 and after analysis of the same, he gave Interim Report and Final Report to the Investigating Officer which are marked as Ex.P53 and Ex.P54 respectively and thereby he supported the case of prosecution.
xxxii) PW. 32 is Smt. Harini. She is the Home Maker resident of Kodibettu, Pernamkila. She stated that, A2-Hariprsad and A5- Harindra are her younger brothers. A4-Balachandra is not related to her in any way. At the request of A5-Harindra and AR-
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Balachandra, she purchased a Radha-Krishna Idole in Lavanya Stores and that idol is marked as MO.25. She has not given any statement before the court and she is treated as hostile. xxxiii) PW.33 is Dayananda Naik. He is stated to be a business man and he is having a Hotel-cum- provisional stores in 80th Badagabettu Village. He further deposed that, two years back he let-out a room which is next to his shop to A3-Anand and Room having No.3-14/C. He further deposed that the said shop and the said room which was let-out to A3-Ananda were in the name of her mother and since she was aged, he was looking after all the affairs and transactions of the shop as well as the said room, as such, he knows A3. Further he deposed that, he do not know as to when and at what time A3 stays in room or when he goes out. He further deposed that, he does not know phone number of A3 and he came to know about A3
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 involving in the said criminal case and thereby he supported the case of prosecution.
xxxiv) PW.34 is Somanatha. He deposed that, from 24.07.2013 he has been working in PWD Office at Udupi as Junior Engineer, On the request made by Manipala Police, he visited the spot on 29.07.2013, he prepared the sketch of scene of offence as per Ex.56 and submitted the same to the concerned police on 30.07.2013. The requisition letter received by him from police is marked at Ex.P58 and thereby he supported the case of prosecution.
xxxv) PW.35 is Dr. Prashanth Bhagavath. He deposed that he is working in KMC, Manipal since 10 years in the Department of Forensic Medicine and as on the date of his examination of victim, he was working as an Associate Professor since three years. As per the instructions of HOD and Dean of KMC, he conducted examination of victim in trauma center of KMC, Manipal. He further deposed that, he along with one Dr. Jyothi and Dr. Shyamala of KMC Hospital,
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Manipal, has examined the victim on 21.06.2013 between 4.30 a.m. to 5.30 a.m. after obtaining written informed consent of victim for collection of evidentiary materials; On examination, he found two identification marks, i) Pinhead sized black mole over the cheek in the midline 2 cm above to syphilis menti and ii) Pinhead sized black mole over the dorsum of the nose over the tip. He further deposed that the brief history of incident narrated by the victim is that, she was forcefully taken away from the Manipal University Campus at around 11.15 p.m. on 20.06.2013 by some unknown persons to a remote place in an autorikshaw and she was subjected to vaginal intercourse by multiple people sometimes using condoms and sometimes without it; She also says that she was forced to do oral sex; She has not taken bath nor changed her clothes after the incident and she was in tension, scattered and breaks down in between narrating the incident; she was moderately built and nourished and had whitish complexion and her pulse rate was
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 78 beats/min.; BP was 110/70 mm HG; Respiratory rate was 27/min. and oriented; She had difficulty in walking due to pain in the right lower limb; Secondary sexual characters were appropriate for the stated age. Further, he found external injuries on her body and stated that they are fresh at the time of examination ie., less than 12 hours old at the time of examination. Further, on genital examination of victim it is found that, there was matting of few hairs in the posterior aspect. Loose hair over the pubic area was collected. Matted pubic hair were cut close to the skin and collected; On vulval examination it was found that, vulvar edema was present in the posterior aspect of vaginal wall and tender to touch. On vaginal examination, there was laceration measuring 2cmx0.5cmx subcutaneous tissue deep was present in the fourchette and in the perineum. Scanty blood was seen in the introitus ( Not menstrual bleed). The hymen was intact, swollen and tender to touch. Pain was present during the examination. Anal
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 examination was unremarkable. He further deposed that, the following 14 items were collected, sealed, labeled and handed over the Investigating Officer for dispatch to sent for Chemical Examination:-
Articles:-
1. Swab from the vaginal introitus- 1 in number
2. Swab from vaginal wall - 1 in number
3. Swab from posterior fornix - 1 in number
4. Swab from oral cavity - 1 in number 5. Swab from bite mark (Injury No.15) - 1 in number
6. Loose hair strands from the pubic region
7. Matted pubic hair
8. Unstained vaginal smear slide (numbered as 1) - 1 No.
9. Unstained vaginal smear slide (numbered as 2) 1 No.
10. Vaginal smear slide (numbered as 3) stained by papanicolaou staining - 1 in number
11. Maroon coloured cotton Kurta Top - 1 in number
12. Black coloured cotton legging pant - 1 in number
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13. Black coloured brassiere - 1 in number
14. Black coloured cotton innerwear with red and white prints- 1 in number Further, this witness deposed that, on examination of Item No.10 viz., vaginal smear slide (numbered as 3) stained by papnicolacu staining, revealed the presence of Spermatozoa. Further he stated that the containers of the article Nos. 1 to 5, envelops of article Nos. 6 & 7 and the article Nos.8 to 10 were signed by him using black marker pen. Further, he stated that he noticed the following stains:
1. Brownish stains were present over the inner aspect, midline in its middle part with a starchy feel.
Stains present on the cloth can be subjected for serological examination at forensic science laboratory and DNA typing.
After detailed examination, I am of the opinion that there is evidence of recent vaginal penile penetration. The injuries on the body of the patient are indicative of force being used on her. He also stated that, he has issued certificate to that effect, along with annexure which bears his signature and
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the same is marked as Ex.59 and Annexures are marked at Ex.59 (a) and Ex.P59(b).
He further deposed that, Rupture of hymen is not necessary in all the cases of sexual assault. Even after repeated sexual assault, hymen may not rupture. There are instances of non-rupturing of hymen even at the time of delivery and also in cases of prostitutes. There are some types of hymen like elastic hymen and fleshy hymen. They may not rupture during sexual assault. He deposed that, 10 materials were collected and handed over in sealed covers by him to the Investigating Officer are opened in the open Court and shown to this witness. He further deposed that, out of 23 external injuries, Injury Nos. 1 to 5 are caused due to blunt force. Injury Nos. 6, 7 and 15 are caused by biting. Injury Nos. 8 to 14 and 16 to 19 are scratches caused by scratching action or due to scratching on account of rough surface. Injury Nos. 20 to 21 are caused by drag on a rough surface.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Further he opined that, such kind of injuries are possible in cases of forcible sexual assault and resistance by the victim. Further he stated that on 22.06.2013 he received packets marked as 'A' and 'B' packed in cream coloured gauze clothe having 3 intact seal of SHO from the Manipal Police. On opening the packet 'A' it revealed transparent container having a cream coloured cap. It contained a violet coloured used condoms with mud particles at places. It did not contain any fluid. On opening packet 'B' revealed that, it contained a violet coloured used condoms with mud particles at some places. It contained white coloured mucoid sticky fluid. Some fluid from this condom was aspirated using the clean pipette and spread over 2 filter papers in its middle part. The stains were air dried. These filter papers were signed by me as my initials and packed separately and sealed in article 1 and 2. The condoms were placed inside the respective containers, packed along with the paper labels of the Investigating Officer and sealed.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Packet 'A' is marked as Article No.3 and Packet 'B' is marked as Article No.4.
Further, in the cross-examination, this witness (PW.35) deposed that, he examined the victim-lady in the presence of Lady Doctors. Lady Doctors have not prepared any examination report. He prepared the examination notes in his own handwriting with the assistance of Lady Doctors. Exs.P.59 and P.60 are typed by him personally in his chamber.
Exs.P59 and 60 do not show that, he has personally typed them. He states that, he was at
his house when he received the call for examination of victim it is correct to suggest that Dr.Jyothi and Dr. Shyamala were also competent persons to examine the victim and he has taken written consent of the victim and it is with him only and the police did not collect the same from him. Further he stated that, he was not questioned by the police. It is not correct to suggest that his statement that there are instances about hymen being intact even
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 in the prostitutes and even some times at the time of delivery is false. It is true that this statement is not in Ex.P59. Hymen was intact in this case and he can see the picture of female pelvis in Page No.187 of Cunningham's Manual of Practical Anatomy Volume-2: Thorax and Abdomen by G.J. Romances Edition 15 , year 1989. In this picture 15 parts are labeled. He further deposed that, no active bleeding was present in all 23 external injuries. In contusions, there will be bleeding inside the skin. In abrasion the blood will dry after some times. By looking at the colour of the injuries, he has mentioned that they were fresh and he cannot give the exact time. The genital hygiene was good. It is not correct to suggest that my report regarding pubic hair, vulva and vagina in his own estimation without existence of any findings. In further cross- examination, he has stated that, it is not correct to suggest that, he did not have the original notes of Ex.P59. Ex.P59 is collected by the police on 24.06.2013. He has mentioned the date of the
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 report at the beginning of the report. He did not put the date beneath his signature. Further he stated that, he has not tested the stains present in the clothes and he has not mentioned as to what type of stains they are; Further, he states that, he do not agree that the procedure followed him in packing the evidentiary material is not proper. It is not correct to say that they should be kept in either glass vessels or steel vessels. It is true that in Ex.P59, he had not mentioned that, he had kept the materials in his room in cupboard under the lock and key. He further stated that, it is not correct to suggest that, laceration in vagina is his estimation and not the real fact. In Ex.P59, he has not mentioned about the stains found on Item Nos. 11 to 14. This witness volunteers in Annexure-1 that, he has mentioned that the stains are present on Articles- 11 to 14. Thereby this witness (PW.35) has supported the case of prosecution.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 xxxvi) PW.36 is Dr. Vikram Palimar. He stated that, since 13 years he has been working in Forensic Medicine Department, KMC Hospital. From March 2013, he is working as Professor and Head of Department of Forensic Medicine at KMC, Manipal. He deposed that, on 26.06.2013 he received requisition from Police Inspector, Manipal Police Station to examine the accused and to answer the queries. Accordingly, he accompanied by one Sanjay Shetty, PC 1152 of Manipal Police Station, and examined the accused viz., Hariparasad, aged about 27 years, who is stated to be the autorikshaw driver and gave his opinion that the said accused is capable of performing sexual activities. Accordingly, he issued certificate which is marked as Ex.P61 and his signature is marked as Ex.P61(a) and the original consent letter of accused for his examination is marked at Ex.P62. In respect of accused Ananda (A3) also he states that, he was requested to conduct examination on him and in respect of him also he has issued certificates as per
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Exs.65 and his consent letter is marked at Ex.P66 and the tested articles were marked as MOs. 57 to
65. Further in respect of A1 -Yogisha also he issued the certificate as per Ex.67 and his original consent letter for his examination is marked as Ex.68 and also the tested incriminating articles are also marked as MOs. 66 to 74. In cross-examination of this witness, nothing was elicited to contradict the evidence of prosecution, and thereby this witness has supported the case of prosecution. xxxvii) PW.37 - Anil is a Police Constable of Manipal Police Station. He stated that on 21.06.2013 at 9.15 a.m. he carried the FIR relating to Crime No.116/2013 to the concerned Court. He collected the complaint and FIR and submitted to the Court on the same day at 12.55 p.m. and the complaint is marked as EX.P63, and thereby he supported the case of prosecution.
xxxviii) PW.38-Harish Kumar M., is the Senior Inspector of Motor Vehicles. He deposed that, on
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 08.07.2013 at the request of Circle Inspector, Manipal Police Station, he issued the detailed report of Autorikshaw bearing No. KA.20.A.8850, which is marked at Ex.P64 and ownership of the said auto was transferred to the name of A5-Harindra, and thereby he supported the case of prosecution. xxxix) PW.39-Sreelatha is a Woman Police Constable. She stated that, she was working in Udupi Town Police Station as a Police Constable. She further deposed that on 01.02.2013 the Dy.S.P. directed her to report before the Police Inspector, Manipal and accordingly she reported to duty and she was deputed as Guard to Room No.201 of KMC Hospital, where the victim was admitted for treatment. She deposed that, when she was on Special Duty at out side of the said room and at 5.30 p.m., a person who is stated to be the father of victim, gave her a cover asking her to handover the same to the Police Inspector and accordingly
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 she handed over that cover to the Police Inspector and he kept the same in the file.
xl) PW.40-Sridhara Nambiar is the ASI of Manipal Police Station. He states that, he has been working in the said police since from 1½ years. He deposed that, on 01.07.2013 he was deputed to carry the incriminating articles to the Forensic Laboratory. Accordingly he carried the same and submitted to the FSL DNA Center at Bengaluru and its Sl. No. is 147/2013 and he received acknowledgement and returned to Manipal Police Station on 03.07.2013 and handed over the acknowledgement to the Investigating Officer, and thereby he supported the case of prosecution.
xli) PW.41-Preetham Kumar Payas is a Head Constable No.1717. He stated that he has been working in Manipal Police Station since six years and on 01.07.2013 as per the direction of the Investigating Officer, in Crime No.116/2013 he received 33 articles which are separately sealed to submit the
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 same to DNA FSL at Bengaluru and he accompanied with ASI Sridhar Nambiar and Brahmavar and ASI- Girish had submitted those articles to the FSL-DNA Center on 02.07.2913 and took acknowledgement and returned to Manipal Police Station. He further deposed that again on 11.07.2013, he took 11 articles separately packed the lab and received acknowledgement No.162 and retuned back to Manipal Police Station and submitted the same to the Investigating Officer and he stated that, he can identify those articles, and thereby he supported the case of prosecution.
xlii) PW.42-Raghavendra Devadiga is PC -1143. He stated that, he was working as a police constable in Manipal Police Station and as per the instructions of Investigating Officer, on 10.07.2013 at 8.00 .am., he carried 14 packed articles along with pass port through Dy.S.P. Office, to Mangaluru RFSL Office and submitted those articles and received acknowledgement Nos. 133/2013 and 837/2013
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 and came back to Manipal Police Station and handed-over the acknowledgement to the Investigating Officer. He further deposed that again on 1207.2013, as per the instructions of the Investigating Officer, he carried 7 packed articles to Mangaluru RFSL Office submitted the same, taken acknowledgement and came back to Manipal Police Station, and thereby he supported the case of prosecution.
xliii) PW.43-Geethalakshmi is the Scientific Officer, Regional Legal Science Laboratory related to Bengaluru. She deposed that, on 27.08.2013 she was requested to collect the incriminating particles from the alleged autorikshaw bearing No.KA.20.8850 for the purpose of subjecting the same for investigation and accordingly, she along with the police personnel and two panchas and A2- Haripasad went to the house of A2 and she collected the cuttings and swab from inside of autorikshaw and subjected to Benzidine Test and
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 detected blood-stains in the inner front and back side of autorikshaw and decided to subject the alleged autorikshaw to Luminal Test, which help them to detect the blood stains spots even after washing the blood stain spots, and thereby they collected 10 items which are marked as MOs. 10 to
19. Thereafter the said autorikshaw was handed over to the police and the same was kept in campus of police station. She further deposed that, on 10.07.2013 they tested the 10 sealed items in their Laboratory and they were tallying with the samples and again they were replaced into the cover and sent back to the Investigating Officer. She has also issued report, which was marked as Ex.P73. Nothing has been elicited in her cross-examination to discard the evidence of prosecution. xliv) PW.44-Suhas Kini is a business man dealing with mobile phones of all Companies including the I- Phone and I-Pad of Apple Company. He deposed that, on 29.06.2013 as per the instructions of
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Manipal Police, he went to the Police Station at 11.30 along with his Lap-top and he was asked to copy the footages in I-Phone to Blank DVD. He did so and thereafter, the DVD was packed and sealed and drew a panchanama in that regard and that mahazar was marked as Ex.P76 and his signature is at Ex.P76(a) and he can identify the said DVD and thereby supported the case of prosecution. xlv) PW.45-Sathyanarayana Murthy is the Deputy Medical Superintendent of KMC, Manipal. He deposed that on 27.08.2013 A1-Yogish was brought to Emergency Division on the ground that he has consumed poison and while treatment, he narrated the incident to Sri. Pratap Reddy, the Police Commissioner and the same was recorded in I- Phone, A1-Yogish narrated about the incident stating that, himself along with his two friends committed sexual assault on female medical student and while recording his statement, he was conscious. This witness stated that he can identify
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 A1-Yogish, who narrated the incident while he undergoing treatment, and thereby this witness supported the case of prosecution.
xlvi) PW.46 is Sri. L.B. Chandramohana. He deposed that he was working in D.C. Office in Informatics Center Division as Assistant District Informative Officer since from three years from the date of incident, which relates to Secretariat of Central Government. His qualification is M.Tech in Computer Science and he is having experience of copying CC-TV Footages to DVD. He further deposed that, on 11.00 am., the police of Manipal Police Station have telephoned to his office and called him for collection of evidence. Then, along with one Abdul Munaf, who was also working in his office, he went to the said police station, where one person by name Mr. Suhas was also present and who is the dealer of Apple Company Mobiles. Then they downloaded the footages to a DVD and then to Lap-top. In that regard a mahazar was drawn
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 and the same is marked as Ex.P76 and his signature is marked as Ex.P.75(b) and the DVD was marked as Ex.P78 and its cover was marked as Ex.P75. Thereafter, this witness (PW.46), Abdul Munaf and Suhas (PW.44) went to Indrali Petrol Bunk and downloaded CC-TV Footages of said Petrol Bunk to a DVD. In the said footages it is seen, one Autorikshaw entering the Petrol Bunk and one person got down from the auto and thereafter that autorikshaw went off. The said footage was copied to pendrive and thereafter it was copied to DVD. That DVD is marked as Ex.P78 and its cover is marked as Ex.P77. DVD footages are marked as Ex.P79 and his signature is marked as Ex.P79(a). Thereafter all the said three persons went to Hangout Restaurant and where, they copied footages from CC-TV to Pen-drive. The said footages disclose about, an autorikshaw entering the said hotel and returning after about one hour. Said footages were also copied to Pen-drive and thereafter the same was transferred to blank DVD.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 In that regard a mahazar was drawn, which was marked as Ex.P80 and signature of the witness was marked as EX.P80(a), and the said DVD and its cover were marked as Exs.P79 and P.80. He further deposed that, thereafter they went to the house of one Santhosh Prabhu, where they recorded the CC- TV Footages and copied the same to pen-drive and then to DVD, which were seized under a mahazar and they were all marked as Ex.P.81 and signature of witness was marked as Ex.P81(a). Thereby, this witness has supported the case of prosecution. xlvii) P.W.47-Ashoka, Supervisor in Sri. Krishna Petrol Bunk deposed that on 20.06.2013 at 11.00 p.m., when he was on duty in the petrol bunk, three persons came by autorickshaw and asked to pour petrol for Rs.100/- and one person was smoking a cigarette and he instructed him not to smoke and he stopped smoking. He further deposed that he has issued receipt and he has identified the copy of the said receipt at Ex.P.82. He further stated that
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 on seeing the CCTV scenes, he has got confirmed about coming of the said three persons in the autorickshaw and he identified accused Nos.1 to 3 before the Court and deposed that the same persons, who came to the petrol bunk on the day of the incident at about 11.00 p.m. and thereby, supported the case of the prosecution. xlviii) P.W.48-Vinod, who was also working in the Petrol Bunk, deposed on par with P.W.47 that on 20.06.2013 at about 11.00 p.m. when he was on duty along with P.W.47, three persons came by autorickshaw and asked to pour petrol for Rs.100/- and one person was smoking a cigarette and he instructed him that only after stopping smoking then only he will pour the petrol to the autorickshaw. Thereby, accused asked excuse, thrown the cigarette and thereafter, P.W.48 poured the petrol to the autorickshaw. In the cross- examination, he identified the accused from photos shown by the police and that the same persons
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 came to the petrol bunk and thereby, supported the case of the prosecution.
xlix) P.W.49-Praveen H. Nayak, deposed that he has been working as Police Inspector in the District Crime Intelligence Bureau, Udupi from 11.09.2012. He deposed that he was working as Assistant Investigating Officer to the present case and he took assistance of P.W.44 and P.W.46 for copying the CCTV footages to DVDs, which were in the iphone of IGP and prepared mahazars as per Ex.P.76 and thereby, supported the case of the prosecution.
l) P.W.50-Padmavathi, WPC, Kundapura Police Station deposed that she has been working in the Udupi Police Station from 20.06.2013. When she was on night duty, at about 2.30 a.m., she received information from the control room requesting her to come to Manipal Plaza Apartment and accordingly, she went in a Hoysala Vehicle to the said place and in the said place, the higher officer, P.W.1-victim
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 and friend of the victim were present. She further deposed that her Higher Officer gave instructions to take P.W.1 to the hospital, as there was gang rape on P.W.1. Thereby, she took P.W.1 to Manipal Hospital for medical examination and supported the case of the prosecution.
li) P.W.51-Harishandra Hejamady, Dy.SP in Finger Printing Expert Bureau, Western Region, Mangaluru deposed that on 04.06.2012 he was promoted as Dy.SP in the said Department and he has been working in the said finger Bureau Department for more than 25 years. On 27.06.2013, when he was on duty, the higher officer instructed him to take finger prints on the autorickshaw No.KA-20-A-8850 in respect of crime No.116/2013 and on the instructions made by officer, he took finger prints. Accordingly, he submitted finger print report as per Exs.P.89 and 90 and thereby, supported the case of the prosecution.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 lii) P.W.52-Rajendra Maniyani, Head Constable, Mangaluru Police Station deposed that he has been working as Head Constable in Manipal Hospital for more than 4 ½ years. On 27.06.2013, when he was in the police station, he received MLC intimation from KMC Hospital that accused No.3 tried to commit suicide by hanging and he intimated the same to PSI. He further stated that ASI Nagesh has recorded the statement of Ananda and sent the same through PC 1152 to the police station and he received the same at 9.30 p.m. and accordingly, suomoto case was registered in Crime No.119/20163 for the offence under Section 309 of IPC. FIR was marked as Ex.P.96 and thereby supported the case of the prosecution. liii) P.W.53-Laxminarayana, deposed that he has been working as ASI in Hiriyadka Police Station from 2009 to 20.11.2013. On 27.06.2013, when he was in Station House, Manipal Police Station, he received intimation wherein it was mentioned that
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 accused No.1 has consumed poison and was admitted in KMC hospital. Thereby, he went to the hospital and enquired the brother of accused No.1 and he told that accused No.1 has consumed poison, gave a complaint and recorded the statement of brother of accused No.1 and registered the same in Crime No.81/2013 for the offence punishable under Section 309 of IPC. He identified the attested copy of the complaint at Ex.P.97, FIR at Ex.P.98 and thereby, supported the case of the prosecution.
liv) P.W.54-Madhu T.S., Sub Inspector of Police, Udupi Police Station deposed that he has been working at Udupi Police Station from September, 2013. As per the order of the Sub Inspector of Police, Chikamagalur, on 25.06.2013 he went to Manipal Police Station to assist the Investigating Officer in respect of Crime No.116/2013 and secured the presence of accused No.2 and produced him before
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the Court and thereby, supported the case of the prosecution.
lv) P.W.55-Ravikumar .A, deposed that he has been working as Sub Inspector of Police at Manipal Police Station from December, 2012. On 21.06.2013 at about 8.30 a.m., when he was on the duty, he received a complaint from Jaivittal, Estate Officer, Manipal and accordingly, he registered the case in Crime No.116/2013 for the offence punishable under Sections 366, 376 (D) and 201 read with Section 34 of IPC. He sent the copy of the FIR at Ex.P.63 to the Court and to the other higher Officers and since the offences are serious in nature, he entrusted the case to one Manipal, Police Inspector and thereby, supported the case of the prosecution. lvi) P.W.56-Dr. Vinod Janardhan Lakkappan, Scientific Officer, DNA Section, FSL, Bangalore deposed that since 2008 onwards he was working as Scientific Officer, DNA Centre, Madivala, Bangalore. From 2004 to 2008 he was working as Scientific Assistant
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 in Toxicology Department, Forensic Science Lab, Bangalore. He undergone training in National Institute of Criminology and Forensic Science, New Delhi and he has been trained by the Scientists of Center for DNA Finger Printing and Diagnostics (CDFD), Hyderabad and also from the Center for Human Genetic, Bangalore. He further deposed that he has issued more than 200 DNA reports and gave evidence for more than 50 cases so far. He further deposed that on 02.07.2013, ASI Sri. Shreedhar Nambiar of Manipal Police Station has produced 33 sealed articles in connection with Crime No.116/2013 of Manipal Police Station along with request letter to conduct the DNA test. The seals found on the articles were intact and tallied with sample seal and the description found on the articles tallied with the description invoice. Accordingly, he examined the items and opined as under:
"I have therefore, considered the
possibility of:
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CRL.A No.479 of 2019
C/W CRL.A No.1356 of 2015
CRL.A No.22 of 2016
1. Mr. Ananda S/o Kookra Panara sample
blood sent in item No.33, is being the
contributor of the pubic hair combings sent in item No.36 and the seminal stains detected on the vaginal swabs sent in item Nos.5, 6 and 7, matted pubic hairs sent in item No.11, vaginal smear slides sent in item Nos.12 and 13, and the innerwear sent in item No.18.
2. One female individual is being the contributor of the female fraction of the vaginal swabs sent in item Nos.5, 6 and 7, swabs sent in item No.8 and 9, loose hair strands sent in item No.10, the matted pubic hairs sent in item No.11, the vaginal smear slides sent in item Nos.12 and 13, legging pant sent in item No.16, brassiere sent in item No.17, and the innerwear sent in item No.18.
3. Mr. Hariprasad, S/o Narayana Poojari sample blood sent in item No.32, is being the contributor of the seminal stains detected on the innerwear sent in
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 item No.31 and pubic hair combings sent in item No.34.
4. Mr. Yogeesh S/o Late Kanthappa Poojari, sample blood sent in item No.42, is being the contributor of the pubic hair combings sent in item No.43.
5. Mr. Hariprasad, Mr. Ananda, Mr. Yogeesh, sample blood sent in item Nos.32, 33 and 42, are not being the contributors of the seminal stains detected on the condoms sent in item Nos.1 and 2, the filter papers with dried fluid sent in item Nos.3 and 4, and the hairs sent in item Nos.21, 22 and 26."
Accordingly, he has issued report as per Ex.P.100 to Ex.P.110 and supported the case of the prosecution. lvii) P.W.57-A. Ganapathi Kamath, Retired Bank Officer deposed that his house was situated at Anathanagar, Manipal and there was one car shed for parking the car. On 29.06.2013, police came and asked permission for inspection of the car shed
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 and collected the blood stains on the autorickshaw and thereby, supported the case of the prosecution. lviii) P.W.58-Yashodha S. Vantagodi, ACP, Hubbali deposed that she has been working as Deputy Superintendent of Police at Kundapura from 05.09.2012 to 26.09.2013. She deposed that as per the instruction of SP, she went to Manipal Hospital and tried to enquire the victim girl and she was scared and did not give any statement. She further deposed that the victim has given features of the culprits before Dr. Pradeep Kumar and she got prepared photographs of the persons on the basis of the information given by the victim before the doctor and the same has been shown to the victim and she told that one person out of the said three persons tallied 70% to 80%. She has further deposed that she tried again and again to record the statement of the victim girl. She deposed that she has given report to the investigating officer as
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 per Exs.P.113 to 115 and supported the case of the prosecution.
lix) P.W.59-Maruthi G. Nayak, Circle Inspector of Police, Udupi deposed that he has been working as Circle Inspector from September 2012. On 21.06.2013, there was a written order to collect the details of the accused persons involved in the offence. He deposed that himself and other persons started searching of the accused persons and verified all the records pertaining to the mobiles of the accused persons and he has deposed in detail the location of each of the mobiles of accused and about incoming and outgoing calls received by them through the said mobile phones and thereby, supported the case of the prosecution.
lx) P.W.60-Prabhu D.T., deposed that he has been working as Circle Inspector from March 2012 to September 2013 at Brahamavara Circle. On 27.06.2013 on the basis of the written order by the SP, Udupi, he assisted the Investigating Officer in
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 respect of Crime No.116/2013. As per the instructions of the Investigating Officer, on 29.06.2013, he recorded the statement of C.W.31, C.W.32, Jayakara Shetty, Naveen and Gangadhr and as per the written order, he enquired accused Nos.4 and 5 and their voluntary statement has been recorded and the same was marked as Exs.P.25 and P.26 and supported the case of the prosecution.
lxi) P.W.61-Nagesh Mesta, Assistant Police Inspector, Mangaluru Police Station deposed that he has been working in the Mangaluru from 16.07.2008. He was working as Assistant to the investigation in respect of Crime No.116/2013 at Mangaluru Police station. On 27.06.2007, at about 6.45 p.m. there was a direction to record the statement of accused No.3- Anand, who was brought to KMC Hospital. Accordingly, he went to the hospital and recorded the statement of the accused and same was marked
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 as Ex.P.138 and thereby, supported the case of the prosecution.
lxii) P.W.62-Sadananda Thippannanavar, CPI, deposed that he has been working as CPI from March 2012 to September, 2013. On 21.06.2013, he took investigation in respect of Crime No.116/2013 from Ravi Kumar, PSI and continued investigation, visited the spot and drawn spot mahazar as per Ex.P.3. Later, he enquired the witnesses-Suresh, Manoj, Pokkan, Prakash Acharya, Halesh Naik and Sadananda Devadiga and recorded their statements. On 22.06.2013, he took up further investigation and recorded the statement of Narayana Shetty and his wife Mohini, who are residing at 11th Cross, Ishwaranagara, Herga village and submitted report as per Ex.P.130, and supported the case of the prosecution. lxiii) On behalf of the defence, Sangeetha, wife of the brother of accused No.1 was examined as D.W.1. She deposed that she cannot read and write
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Kannada language. Accused No.1 had come to Mysuru about 2 to 3 years ago. She came to know about registering the case against accused No.1, through television. Thereafter, she came to Udupi and went to Police Station to see accused No.1. She spoke to accused No.1 and asked him what happened. Accused No.1 told her that he did not do anything, but police arrested him. She further deposed that police did not record her statement, but took her signature. In the cross-examination, she deposed that, it is true that in the examination- in-chief, question were put to her in Kannada language and she gave answers in Kannada. She is leading happy married life with her husband- Suresh. She will communicate to her husband about any transactions or events which are happening in her family and relations. She further deposed that she will discuss with her husband about their family affairs. She came to know that her husband gave evidence on behalf of the prosecution in this case. She denied the suggestion
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 that she is deposing falsely that police took her signature only to hide the truth of recording her statement. She does not remember the date on which she went to Police Station. She further denied the suggestion that she is deposing falsely as accused No.1 is the younger brother of her husband and to help him by suppressing the truth and supported the defence.
lxiv) D.W.2-Seetha, wife of Ganapathi, deposed that Accused No.1-Yogeesh is her younger brother. He was a taxi driver. She came to know about registering the case against accused No.1 through television. On the next day, she along with others went to Manipal Police Station. Accused No.1 was in custody. He told that he was arrested by the police when he was having meals. Police took her signature saying that it is required to talk with accused No.1. She cannot read and write Kannada language. She does not know whether police recorded her statement or not. In the cross-
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 examination, she denied all the questions put to her. She further denied the suggestion that she is stating concocted falsehood to help the accused No.1, and supported the defence.
lxv) D.W.3-Netravati, wife of Narayan Poojary, deposed that accused No.2-Hariprasad and Accused No.5- Harindra are her sons. Accused No.5 is an autorickshaw driver. About two years back, she came to know about registering of case against accused No.2 through television. Thereafter, she went to Manipal Police Station along with her husband. She spoke to accused No.2 in police station who told her that police arrested him though he had not done anything wrong. She further deposed that police did not record her statement. In the cross-examination she admitted that the photographs found on Ex.P.174-application submitted to Airtel Company and Ex.P.175-copy of the voter's Identity Card are her photographs. The signature found on Ex.P.174 is not her signature.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016
She admitted that mobile SIM bearing No.9900155794 is in her name. She had given the said SIM to her son-accused No.2, as he had lost his mobile phone. Further, denied the suggestion that she is deposing falsely to help her son-accused No.2, and supported the case of the defence. lxvi) D.W.4-Pramod, deposed that he used to park his autorickshaw in Parkala autorickshaw stand, which comes within the limits of Manipal Police. As on the date of giving evidence, he was the President of Autorickshaw Union, Udupi. Prior to him, one Abubakkar was the President. Accused No.5- Harindra is autorickshaw driver and he used to park his autorickshaw in Parkala autorickshaw stand. Two years back, Manipal police called him to police station. He did not see accused Nos.1 to 3 in Manipal Police Station and the police did not record his statement. Thereby, supported the defence. lxvii) D.W.5-Abubakkar, deposed that he runs autorickshaw. About two years back, when he was
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the President of Autorickshaw Union, Udupi, Manipal Police called him to the police station and took his signature. He does not remember whether the police recorded his statement or not. In the cross- examination, he deposed that prior to the incident, accused Nos.1 and 5 were running autorickshaws and used to park their autorickshaws in Parkal autorickshaw stand. He admitted that the Manipal Police, after registering crime in the present case, checked autorickshaws in all autorickshaw stands, scrupulously. He had not seen autorickshaw bearing registration No.KA-20/A-8850 in Parkala autorickshaw stand after 20.06.2013 till the arrest of accused Nos.2 and 5, and supported the defence. Based on the aforesaid oral and documentary evidence of prosecution and defence witnesses, the material documents and the material objects, the learned Sessions Judge proceeded to convict accused Nos.1 to 3 for the offences punishable under Sections 376D, 366 and 506 r/w Section 34 of the Indian Penal
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Code and convicted accused Nos.4 and 5 for the offences punishable under Section 201 of the Indian Penal Code.
17. The case of the prosecution is that the complaint- Ex.P.1 lodged by P.W.1-Jaivittal, Estate Officer of Manipal University, is that, on 20.06.2013, around 11.30 pm, the security people called him and informed that some people came in an autorickshaw and forcibly dragged a girl student into autorickshaw and abducted her. Immediately he went to the spot and inspected. The patrolling guard, though followed the autorickshaw in his cycle, could not find it. It is further case of the prosecution that, accused Nos.1 to 3, with a common intention to commit an offence, abducted the victim girl of Manipal University in front of Pharmacy College, within the Manipal University campus, in an autorickshaw bearing No.KA- 20/A-8850, which was driven by accused No.2-Hariprasad, while she was returning to her room from the University Library. The accused No.1-Yogish dragged the victim girl forcibly into the autorickshaw by holding her hand and making her to sit in the autorickshaw. The accused No.3-Ananda closed her mouth. They took her to a field at Madaga of
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Vonthibettu, Athrady village. The accused Nos.1 to 3 sexually assaulted the victim girl. The same was informed to P.W.1 by the victim. As the victim was not in a position to give any statement, she was taken to hospital. Accordingly, he lodged the complaint on 21.06.2013 at about 8.30 am. The jurisdictional Police registered a case against unknown persons, in Crime No.116/2013 for the offences punishable under Sections 366, 376D, 506 and 201 read with Section 34 of the Indian Penal Code.
18. After investigation, the police filed the Charge Sheet against accused Nos.1 to 3 for the offences punishable under Sections 366, 376D and 506 r/w 34 of the Indian Penal Code and Section 201 of the Indian Penal Code against accused Nos.4 and 5.
19. P.W.24-victim-Dhathri (not the real name), has deposed that on the night of 20.06.2013, she was studying in the library as she had examination on the next day. Since the library closes at 11.30 pm, she left the library around 11.15 pm. She was walking towards her room, on the footpath. It is five minutes walk from library to Madhavi plaza, where she
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 resides. When she was passing in front of the Pharmacy college, an autorickshaw came and stopped by her side. A man came out of the autorickshaw and pushed her into the autorickshaw. Other man who was inside the autorickshaw, held her by waist and pulled her insider. At that time, her purse and umbrella fell down. The autorickshaw started to move. She screamed. One person was driving the autorickshaw and two others were sitting on the back seat. They held her throat and covered her mouth to see that she does not scream. They told her to keep quiet or else they would hill her. The autorickshaw went past BQ, Sharada hostel, Marina Sport Centre, Valley View Hotel and then took left turn and moved towards Karkala. She tried to escape and hit the driver of the autorickshaw. The autorickshaw swirled and slowed down. She jumped out of the autorickshaw and fell on the ground. Her leg got hurt badly. The accused persons pulled her back into the autorickshaw. They threatened that they would kill her if she screams. The autorickshaw proceeded towards Karkala. For about 10-15 minutes autorickshaw continued on the said road. It took slightly up hill road and then took a left turn and reached an open area. There were
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 large bushes in that open area and was not visible to the road. The accused Nos.1 to 3 asked her to get down from the autorickshaw and asked her to undress. She further deposed that, she pleaded them not to do anything to her. They told that they would shoot her. They also told that they have Talwar and they would cut her into pieces and throw into the river. Through out the journey in the autorickshaw, accused Nos.1 to 3 were trying to remove her clothes. They put their hands inside her clothes everywhere. They tried very hard to remove her clothes in the autorickshaw itself and she continuously resisted their attempts. She further deposed that they asked her to get down from the autorickshaw and remove her dress. Though she resisted, they threatened and scared her. She removed her kurtha and they removed rest of her clothes. All the three persons in the autorickshaw were completely drunk. Accused Nos.1 to 3 also removed their clothes. The driver of the autorickshaw pushed her to the back seat of the autorickshaw and lied on her. He was putting his private part into her. This went on for some time. He was not happy with the space. So they took a cloth and put it on the ground and made her to lie there. Then, the same man tried
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 with her in the similar way. He got up and left. During that time, she kept resisting and pushing him all the time. Then, the second man, i.e., the person who dropped her back to the room after the incident, did the same thing with her. Then another person also did the same wrong thing with her. The victim deposed that 'wrong' in the sense, the accused persons put their private part into her private part. All the three persons molested her. Then, one person took her to the side and tried to do the same thing. When she resisted, he told that he would kill her. At that time, one among them told that they should go. All the three persons pulled her back into the autorickshaw. They were discussing among themselves as to what they should do to her. She kept begging them to take her back to her house. She begged to leave her alive. She put on her clothes. The accused also put on their clothes. They were talking to her in broken Hindi. Later, she was dropped near her room around 3.00 am. The victim further deposed that she was in the open ground for about two hours. Initially when she fell down from the autorickshaw, she got hurt on her right leg. She sustained multiple cuts and bruises on her body because of the force used on her. She sustained a large injury to her lip.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 The upper lib was swollen and was bleeding. It was caused due to biting by the accused persons. She was bitten on multiple occasions. She further deposed that while returning, accused Nos.1 and 3 were sitting on the back seat and accused No.2 was driving the autorickshaw. When they reached Parkala accused Nos.2 and 3 got down from the autorickshaw and Accused No.1 drove her back to the apartment. The apartment gate was locked when they reached there at around 3.00 am. The security guard opened the date. He asked as to what happened. She didn't tell anything to him and went inside her flat. Her roommates were there. She told them about the sexual assault. They made her to sit down and made some phone calls. Within 10 to 15 minutes, police and some Officers of the University came to the flat. She was scared. After arrival of the Lady police, she was taken to the hospital.
20. The victim girl categorically identified M.O.26-idol of Ganesha and deposed that it looks similar to the one which she saw in the autorickshaw -M.O.9. She further deposed that on 01.07.2013 she had the courage to give a concise statement in her own handwriting with minimal details, to the police. She
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 put her statement in a sealed cover, gave it to her father, who handed it over to Lady Police Officer. She has further deposed that she was very scared and did not wanted to be exposed to media. However, later, took all the courage to write the statement. She received two letters-one for attending the test identification parade and another for giving statement before the Magistrate, to which she wrote a reply stating that she has seen the photos of the accused in the internet and also in the newspapers and finds no purpose in attending the test identification parade. She identified the letters at Ex.P.35 and her signature at Ex.P.35(a). The victim girl further deposed that she thought that giving repeated statements is not good, and therefore refused to appear before the Magistrate to give statement and in that regard, wrote a separate letter as per Ex.P.36. She further deposed that the accused had given threat to kill her, if she discloses the incident to anyone. Since she was scared and hurt, and as she was staying alone without her family, in the apartment, she did not give any statement to the police. She told the police that she did not wanted to narrate the incident multiple times and when her mind is in proper frame, would come to the Court and give statement.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 She identified the clothes which she was wearing at the time of the incident marked as M.Os.20 to 23, which were handed over to the Doctor on 21.06.2013. In the cross-examination the victim admitted that she is a Hindu. She does not wear burkha. She wore burkha to the Court to protect herself, her reputation and her family reputation from media. She denied the suggestion that accused Nos.1 to 3 did not physically or sexually assaulted her. She further denied the suggestion that, since she had no intention to write the examination, she created a false story and put the blame on the innocent accused persons.
21. P.W.35-Dr.Prashanth Bhagvat, deposed that he examined the victim girl in Kasturba Medical Hospital, Manipal, on 21.06.2013, in the presence of Dr.Jyothi and Dr.Shyamala. He noted 23 external injuries on the body of the victim. Accordingly, he issued the certificate as per Ex.P.59. He deposed that there were injuries on the upper lip of the victim because of the bite by accused persons. Injury No.6 mentioned in Ex.P.59 depicts contusion, reddish in colour, measuring 2.5 cm x 2 cm, with 4 teeth bite marks over the inner aspect of the
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 upper lip in its middle part, with associated swelling of entire upper lip. He further deposed that all the 23 external injuries were fresh and were less than 12 hour old at the time of examination. While examining the victim, he collected matted pubic hairs, vaginal swab etc. Scanty blood was seen in the introitus and it was not menstrual bleed. The evidence of P.W.35-doctor corroborated with the evidence of the victim girl.
22. Ex.P.100 is the report of P.W.56-Scientific Officer of DNA Centre, Madivala, Bengaluru. He deposed that, after examining all the items sent to him for examination, he arrived at the conclusion as under:
"From the DNA profile results of the samples sent in item Nos.1,2,3,4,5,6,7,8,9,10,11, 13, 16, 17, 18, 21, 22, 26, 31, 32, 33, 34, 36, 42 and 43, it is found that:
1. The seminal stains detected on the condoms sent in item nos.1 and 2, filter papers with dried fluid sent in item nos.3 and 4, are of human in origin and all belonging to one individual of male sex.
2. The biological stains detected on the vaginal swabs sent in item nos.5, 6 and 7. matted
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pubic hairs sent in item no.11, vaginal smear slides sent in item nos.12 and 13, the innerwear sent in item no.18, are of human in origin and of a mixture of both male and female sex.
3. The biological stains detected on the swabs sent in item nos.8 and 9, the legging pant sent in item no.16, the brassiere sent in item no.17, are of human in origin and female sex.
4. The seminal stains detected on the innerwear sent in item no.31, are of human in origin and of male sex.
5. The hairs sent in item nos.10 and 21, are of human in origin and of female sex.
6. The hairs sent in item nos.22, 34, 36 and 43, are of human in origin and of male sex.
7. The hairs sent in item no.26, are of human in origin and of a mixture of both male and female sex.
8. In the DNA profile of the sample blood sent in item no.33 collected from Mr. Ananda s/o Sri. Kookra Panara, the alleles in all the STR loci (both Identifiler and Yfiler) were identical and
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 matching in all the STR loci (both Identifiler and Yfiler) with that of the DNA profiles (male fraction) of the seminal stains detected on the vaginal swabs sent in item nos.5, 6 and 7, matted pubic hairs sent in item no.11, vaginal smear slides sent in item nos.12 and 13, and the innerwear sent in item no.18.
9. In the DNA profiles of the female fraction of the vaginal swabs sent in item nos.5, 6 and 7, swabs sent in item nos.8 and 9, loose hair strands sent in item no.10, the matted pubic hairs sent in item no.11, the vaginal smear slides sent in item nos.12 and 13, legging pant sent in item no.16, brassiere sent in item no.17, and the innerwear sent in item no.18, the alleles in all the STR loci were identical and matching with one another indicative of all belonging to one and the same female individual.
10. In the DNA profile of the sample blood sent in item no.32 collected from Mr. Hariprasad s/o Sri. Narayana Poojari, the alleles in all the STR loci were identical and matching with that of the DNA profiles of the seminal stains detected on the innerwear sent in item no.31 and pubic hair combings sent in item no.34.
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11. In the DNA profile of the sample blood sent in item no.33 collected from Mr. Ananda s/o Sri. Kookra Panara, the alleles in all the STR loci were identical and matching with that of the DNA profile of the pubic hair combings sent in item no.36.
12. In the DNA profile of the sample blood sent in item no.42 collected from Mr. Yogeesh s/o Late Kantappa Poojary, the alleles in all the STR loci were identical and matching with that of the DNA profile of the pubic hair combings sent in item no.43.
13. In the DNA profiles (both the Identifiler and Yfiler) of the seminal stains detected on the condoms sent in item nos.1 & 2, and the filter papers with dried fluid sent in item nos.3 and 4, the alleles in all the STR loci were identical and matching with one another indicative of all belonging to one and the same male individual and are not matching with that of the DNA profiles (both the Identifiler and Yfiler) of the sample blood sent in item nos.32, 33 and 42 collected from Mr. Hariprasad S/o Sri. Narayana Poojari, Mr. Ananda S/o Sri. Kookra Panara, and Mr.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016
Yogesh s/o Late Kantappa Poojary,
respectively.
14. In the partially yielded DNA profiles of the hairs sent in item nos.21, 22 and 26, the alleles expressed in the STR loci were not matching with that of the alleles present in the DNA profiles of the sample blood sent in item nos.32, 33 and 42 collected from Mr. Hariprasad S/o Sri. Narayana Poojari, Mr. Ananda S/o Sri. Kookra Panara, and Mr. Yogeesh S/o Late Kantappa Poojary, respectively.
I have therefore, considered the possibility of:
1. Mr. Ananda S/o Sri. Kookra Panara, sample blood sent in item no.33, is being the contributor of the pubic hair combings sent in item no.36 and the seminal stains detected on the vaginal swabs sent in item nos.5, 6 and 7, matted pubic hairs sent in item no.11, vaginal smear slides sent in item nos.12 and 13, and the innerwear sent in item 18.
2. One female individual is being the contributor of the female fraction of the vaginal swabs sent in item nos.5, 6 and 7, swabs sent in item nos.8 and 9, loose hair strands sent in
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item no.10, the matted pubic hairs sent in item no.11, the vaginal smear slides sent in item nos.12 and 13, legging pant sent in item no.16, brassiere sent in item no.17, and the innerwear sent in item no.18.
3. Mr. Hariprasad S/o Sri. Narayana Poojari, sample blood sent in item no.32, is being the contributor of the seminal stains detected on the innerwear sent in item no.31 and pubic hair combings sent in item no.34.
4. Mr. Yogeesh S/o Late Kantappa Poojary, sample blood sent in item no.42, is being the contributor of the pubic hair combings sent in item no.43.
5. Mr. Hariprasad S/o Sri. Narayana Poojari, Mr. Ananda S/o Sri. Kookra Panara, and Mr. Yogeesh S/o Late Kantappa Poojary sample blood sent in item nos.32, 33 and 42, are not being the contributors of the seminal stains detected on the condoms sent in item nos.1 & 2, the filter papers with dried fluid sent in item nos.3 and 4, and the hairs sent in item nos.21, 22 and 26."
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Thereby, the evidence of victim-P.W.24 corroborates with the evidence of P.W.35-doctor and P.W.36-Scientific Officer.
23. The victim girl, aged 23 years was studying in 4th year MBBS, with all dreams of becoming a Doctor and to serve the Nation. The said dream got scattered by the unfortunate incident at the hands of accused Nos.1 to 3 and became victim of the circumstances. She identified accused Nos.1 to 3 in the Court and in categorical terms deposed that, the accused Nos.1 to 3 had forcible sexual intercourse with her (gang rape). Thereby, she is frustrated and her life is spoiled. She has to live with fear. She cannot face the public as well as media. Thereby, she appeared before the Court wearing burkha, though she is a Hindu. In the above circumstances, though the evidence of the victim girl requires no corroboration, in the present case, there is corroboration. The evidence of the doctor and the scientific officer corroborates with the evidence of the victim.
24. It is well settled that conviction in rape cases can be based solely on the testimony of the prosecutrix, as held by the Hon'ble Supreme Court, in the case of Ravi v. State of
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Maharashtra, reported in AIR 2019 SCC 5170, wherein it is held that, "evidence of the victim requires no corroboration. It is well settled that conviction in case of rape can be based only on the testimony of the prosecutrix".
In the present case, the statement of the victim-P.W.24 is corroborated by the evidence of P.W.1, P.W.35 and P.W.56.
25. Admittedly, P.W.1-Jai Vittal, Estate Officer, Manipal University, who lodged the complaint is not the relative of the victim. He knows the victim who was studying MBBS in the college where he was working since 36 years. It is not the mandate of law that only the victim or her relative has to lodge the complaint. It is well settled principle of law that any body can file the first information and set the law into motion. When the victim narrated the incident at 3.00 am after she was dropped to her flat by the accused, P.W.1 filed the complaint, as the victim was in the hospital at that time and she was under depression due to the forcible sexual assault and she was under the threat of the accused. Therefore, she has not lodged the complaint. Not filing of the complaint to the police by the victim is not fatal to the case of the prosecution. Therefore,
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the said contention of the learned counsel for the appellants/ accused cannot be accepted.
26. Though Sri N.R.Krishnappa, learned counsel for the appellants contended that, it is the case of the prosecution that the incident occurred between 12.00 mid night to 3.00 am on 21.06.2013, the same was briefly narrated by the victim to the P.W.1 and the complaint-Ex.P.1 was lodged at 8.30 am on 21.06.2013 by P.W.1 and as such, there is delay in lodging the complaint. Thereby, there was time for deliberations and false implication of accused Nos.1 to 3 in commission of the offence. The said contention cannot be accepted for the simple reason that, the victim who was studying in 4th year MBBS was in the library till 11.15 pm on 20.06.2013 preparing for her next day examination. At 11.15 pm, she left the library to proceed to her flat situated nearby. When she was walking on the road, accused Nos.1 to 3 came in the autorickshaw bearing registration No.KA-20 A-8850, abducted and gang raped her. Accused were intending to kill her. When she begged with folded hands, one of the accused dropped her back near her flat. She was in terrific fear. The parents of the victim were
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 not residing with her. Her room mate C.W.3-Fathima was in the flat. The victim narrated the incident. P.W.1-Estate Officer and other police officers came and took the victim to the hospital. Thereafter, P.W.1 lodged the complaint, as the victim was not in a position to lodge the complaint, as the accused had threatened of killing her if she discloses the incident to any one and she was afraid of her family reputation and fear of being exposed by the media. Thereby, the contention of the learned counsel for the appellants that there was deliberation before lodging the complaint and the accused are falsely implicated, cannot be accepted. In the above circumstances, the delay in reporting the crime becomes irrelevant.
27. It is not in dispute that, Ex.P.1-complaint filed by P.W.1 does not contain the names of the accused persons. Crime was registered against unknown persons under the provisions of Sections 366, 376 and 506 r/w Section 34 of the Indian Penal Code. The FIR was sent to the Magistrate. Ex.P.63 is the FIR. Column No.6 of the FIR pertaining to the details of accused persons, it is mentioned as 'three unknown persons'. Thereby, the question of falsely implicating the
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 accused persons does not arise at all. Therefore, the contention of the learned counsel for the appellants that the accused persons have been falsely implicated, holds no water.
28. It is clear from the records that, initially, the case was registered against three unknown persons and after investigation, after recording the statement of the victim, the police arrested the accused persons. Thereby, at no stretch of imagination it could be held that the accused have been falsely implicated. Hence, delay in lodging the complaint is not fatal to the case of the prosecution, in the present case. The evidence of the victim girl depicts that when she was abducted and gang raped by accused Nos.1 to 3, the accused persons were under the influence of alcohol and they acted inhumanly and cruelly. The said statement is corroborated by the evidence of P.Ws.16 and 17.
29. P.W.16-Jayakara Shetty, deposed that he is running a hotel by name Ashraya Hotel, at Anjaru village, Onthibettu. He knows Yogeesh who is an autorickshaw driver. On 20.06.2013, at 6.30 pm, accused No.1-Yogeesh and another person came to his Hotel for dinner. They occupied a corner
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 table. P.W.17-Naveen was the supplier. Yogeesh and another person ordered for two omelet and one quarter BP. The said items were supplied. Later, another person joined them. Again they ordered two quarter BP and chicken chilli. Later, they ordered for other items. After having meals, Yogeesh paid the bill amount of about Rs.500/-. Then, Yogeesh asked him to lend Rs.100/- to put petrol and he would return the money, next day. As Yogeesh was known to him, he gave Rs.100/-. Then, all the three left the place and went in the autorickshaw. Later he came to know that the other two persons were Ananda and Hariprasad, who are present before the Court. He deposed that all the three persons left the hotel around 9.45 pm. P.W.17-Naveen, deposed that he was working as supplier since five years in Ashraya Hotel owned by P.W.16 situated at Anjaru, Onthibettu. He deposed on par with P.W.16 and identified the accused persons in the Court. Thereby, the evidence of P.Ws.16 and 17 corroborates with the evidence of the doctor who deposed that the accused Nos.1 to 3 were under the influence of alcohol and they were seen together.
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30. It is specifically stated by the victim girl in categorical terms that on the date of the incident at 11.15 pm, she left to her flat from the college library. When she was walking in front of the Pharmacy College, accused Nos.1 to 3 came in an autorickshaw and abducted her. When they pulled her inside the autorickshaw, her purse and umbrella fell down. She was shouting for help. The said evidence is corroborated by the evidence P.W.3-Sadananda Devadiga, who deposed that he was working as security guard in Manipal University. He was on duty at the time and date of the incident. Around 11.00 pm, it was drizzling. Himself and P.W.4 closed the gate and sat at a distance of 50 mtrs in front of Pharmacy College. At 11.20 pm they heard the screaming of a girl. Hearing the same, they ran and came near the gate and saw an autorickshaw standing in front of the gate. They saw three persons dragging a girl inside the autorickshaw. By the time they reached the spot, the autorickshaw moved towards Sharada Hostel very speedily. P.W.4 ran behind the autorickshaw. By that time P.W.2- Suresh, security came in bicycle. He informed the incident to P.W.2. While pulling the girl into the autorickshaw, the purse and umbrella fell on the road. Suresh picked them. Upon
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 searching the purse, they found one Combo Card, one ID Card, One mobile and some cash. On the ID card name of the victim was mentioned. Suresh called the campus jeep and informed the incident. Immediately Kusha and Rakesh Shetty, Supervisor came in jeep. They called the Security Chief and informed the incident. Immediately, Prem Kumar and Jai Vittal came to the spot. P.W.4-Manoj who ran behind the autorickshaw came back and informed that the autorickshaw went towards Sharada Hostel. By that time Hoysala police came to the spot. P.W.1-Jai Vittal, P.W.2-Suresh and P.W.4- Manoj deposed on par with P.W.3.
31. From the evidence of P.Ws.1 to 4 it is clear that abduction of a girl took place near the Pharmacy College. P.W.2 deposed about drawing of spot mahazar-Ex.P.3 by the police. P.W.5- Prakash Acharya, deposed that he was working as Home Guard in Manipal University. On the date of the incident, he was deputed to work in Sharada Hostel. Around 11.30 pm, he saw an autorickshaw moving infront of the hostel and a girl was shouting for help by putting her hand outside the autorickshaw. He acted as pancha to spot mahazar-Ex.P.3.
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 The victim girl deposed that she was abducted near Pharmacy College. The said evidence is corroborated by the evidence of P.Ws.1, 3, 4 and 5. P.W.8-Kusha, Security Supervisor also deposed in similar terms.
32. P.W.6-Jahangir H.Hundekar, who was working as security guard in Mandovi Plaza, deposed that Mandovi Plaza is situated at a distance of around 200 metres from Pharmacy College. The victim and her room mate Fathima were residing at flat No.201 and they used to go to College. On the intervening night of 20.06.2013 and 21.06.2013, around 3.00 am, victim girl came and asked to open the gate. Her face was disfigured and was crying. He opened the gate and asked 'what happened madam' in Hindi. Without giving any answer, victim girl went to her flat. Within 50 minutes, Jaivittal and police came and took the victim with them and he does not know where they went.
33. P.W.7-Mohini, deposed that her house is situated at 11th Cross, Ishwaranagar, Manipal, at a little distance from Milk Dairy. On 20.06.2013, between 11.30 to 12.00 pm, she heard the screaming of a girl and also heard the sound of an
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 autorickshaw. As it was raining and dogs were barking, she did not come out of the house.
34. The spot mahazar-Ex.P.7 was prepared by the Investigating Officer in the presence of P.W.9-Abubakkar, who deposed about accused No.2 showing the spot where the victim tried to jump out of the autorickshaw. He also deposed that he acted as pancha to the spot mahazar. Accused No.2 showed the place where the victim was sexually assaulted situated at Madaga of Athradi. The mahazar was drawn as per Ex.P.5 and his signature is marked as Ex.P.5(a). P.W.9 also showed the place from where they abducted the victim girl. It is in front of the Pharmacy college. The police prepared the sketch as per Ex.P.6. There was no suggestion or denial in the cross- examination.
35. P.W.10-Vishwanath Kotyan, Panchayath Development Officer deposed that on 27.06.2013, Manipal Police called him to the Police Station. At that time, accused No.2 was present in the station. Accused No.2 produced the clothes worn by him on the date and time of the offence viz., Black blue coloured jeans pant, black coloured innerwear, light
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 yellow coloured full arm shirt, marked as M.Os.6 to 8. The police seized them under mahazar-Ex.P.8. He further deposed that the accused No.2 took them to a house situated at 80, Badagabettu village and showed the autorickshaw bearing No.KA-20/A-8850. At that time, photographer and FSL expert were present. They collected the mud, hair, rexine pieces (in all 7 to 8 items) which were seized along with autorickshaw under mahazar-Ex.P.9. There is no suggestion or denial in the cross-examination. P.W.11-Sundara Shettigar, deposed that, on 24.06.2013, Doctor gave kurtha, legging, bra and innerwear worn by the victim at the time of the incident and the Police Inspector seized them in his presence under mahazar-Ex.P.13, marked as M.Os.20 to 23. There is no denial in the cross- examination of P.W.11. P.W.35-doctor also deposed that he gave M.Os.20 to 23-clothes to the Police Inspector. P.W.12- Sadananda Moolya, deposed that on 29.06.2013, experts conducted luminol test in autorickshaw bearing No.KA-20/A- 8850 and prepared mahazar as per Ex.P.14. The said test was conducted in the shed of one Ganapathi Kamath-P.W.57, who also deposed that the experts and the police conducted luminol test in the autorickshaw in his shed on 29.06.2013. P.W.31-
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 N.R.Nayak, Assistant Director, RFSL, Belagavi, deposed that he conducted luminol test and gave preliminary report as per Ex.P.53 and final report as per Ex.P.54. He deposed that the said blood stains were detected by luminol test below the driver's seat, passengers boarding place, below the passengers' seat and on the handle of autorickshaw. He further deposed that even after wash also, the bloodstains which are not visible to bare eyes, can be observed in luminol test. Exs.P.15 to 18 are the photos taken at the time of said luminol test wherein blue lights can be seen where the bloodstains were found, which are not visible to bare eyes. P.W.43-Dr.Geethalaxmi, Scientific Officer, RFSL, Mangaluru, deposed that she was present at the time of conducting luminol test.
36. P.W.13-Sukesh Kundar and P.W.14-Deepak Pai, are the persons who assisted the police by contacting accused No.1 over phone to ascertain his location. P.W.13 deposed that, over telephone accused No.1 told him that he is the main person in Manipal rape case. P.W.20-Smt.Shobha, is the sister of accused No.3-Ananda and P.W.21-Honnappa is the husband of P.W.20. P.W.20 deposed that on 21.06.2013, accused No.3
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 demanded Rs.2,000/- and she contacted her husband and her husband went and gave Rs.1,500/- to accused No.3. P.W.21 also deposed that he gave Rs.1,500/- to accused No.3 on 21.06.2013. He further deposed that accused No.2 was also with accused No.3 when he gave Rs.1,500/- to him. There is no cross-examination of P.Ws.20 and 21 by the accused.
37. P.W.25-Pradeep, is the panch witness to seizure of mobile under Ex.P.30. He deposed that, on 02.07.2013, himself and one Sunil were called to the police station and in the police station, accused No.2 was present and he told that he has given his mobile to Umesh, son of his uncle, who is residing at in Garthikere and that he will produce the same, if he is taken to that place. He further deposed that accused No.2 took them to Garthikere to the house of his unlce Purushotham-P.W.23 who was present there and produced M.O.28-mobile saying that it was given by accused No.3 to his son Umesh. Police seized the said mobile-M.O.28 under mahazar Ex.P.30. There is no denial of the said evidence in the cross-examination by the accused. The evidence of the Investigating Officer also depicts that the mobile was seized at
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the instance of the accused persons who gave voluntary statement. It is also not in disputed that accused Nos.1 and 3 tried to commit suicide, after the incident. The same was spoken to by P.Ws.52 and 53.
38. P.Ws.60, 61, 62, Police Officers supported the case of the prosecution. Accused No.1, as already stated supra, admitted that he attempted to commit suicide by consuming poison. The same was corroborated by the evidence of P.W.53- ASI, who received the informatin and registered a case in Crime No.81/2013 for the offence punishable under Section 309 of the Indian Penal Code. In the cross-examination, there is no suggestion that accused No.1 has not consumed any poison.
39. P.W.52-Head Constable deposed that on 27.06.2013 he was on SHO duty and received one MLC intimation that accused No.3-Ananda tried to commit suicide by hanging and he intimated the same to the PSI. He further deposed that Nagesh, ASI recorded the statement of Ananda and sent the same through PC-1152 to the Police Station and registered a case in Crime No.119/2013 for the offence
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 punishable under Section 309 of the Indian Penal Code. These aspects clearly establish that accused Nos.1 and 3 attempted to commit suicide, after the incident. The evidence of the victim, doctors, scientific officers and other prosecution witnesses including police officers, clearly depicts that the accused Nos.1 to 3 are involved in the gang rape.
40. It is not in dispute that five witnesses were examined on behalf of the accused persons, as D.Ws.1 to 5. D.W.1 is the wife of elder brother of accused No.1. She deposed that accused No.1 had come to Mysuru about 2 to 3 years ago and she came to know about registering of the case against him through television and thereafter, she came to Udupi and went police station to see accused No.1. When she asked as to what happened, accused No.1 told that he did not do anything. She has not deposed the dates on which accused No.1 came to her house at Mysuru and the date on which she came to Udupi and met accused No.1 in the police station. Therefore, her evidence is of no assistance to the accused.
D.W.2-Seetha, elder sister of accused No.1 deposed that she cannot read and write Kannada language. She came to
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 know about registration of case against accused No.1 through television and on the next day, along with others, she came to Manipal police station and at that time, accused No.1 was in police custody. He told to her that he was arrested by the police when he was taking meals. Police took her signature saying that it is required to talk with accused No.1. In the cross-examination, she has deposed that accused No.1 did not come to her house prior to hearing the news of his arrest by police through television. The evidence of D.W.2 is of no assistance to the accused persons.
D.W.3-Nethravathi, mother of accused No.2-Hariprasad and accused No.5-Harindra. She deposed that accused No.5 is an autorickshaw driver and she came to know about the registration of case against accused No.2 through television. Thereafter, she went to Manipal Police Station along with her husband and spoke to accused No.2 in the police station. He told that he did not do anything. Ex.P.174 is the copy of the application submitted to Airtel Company, Ex.P.175 is the copy of the voter ID. She admitted that the photo found on those documents is her photo. She further admitted that mobile SIM
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 No.9900155794 is in her name. She had given that SIM to her son-accused No.2 as he had lost his mobile phone. The evidence of D.W.3 is of no assistance to the accused persons.
D.W.4-Pramod, deposed that he is the President of Autorickshaw Union, Udupi and autorickshaws will be praked in Parkala Autorickshaw Stand, within Manipal Police limits. He deposed that police have not recorded his statement. His evidence is of no assistance to the accused persons.
D.W.5-Abubakkar, deposed that he is an autorickshaw driver. Two years back, he was the president of Autorickshaw Union. Accused Nos.2 and 5 were running autorickshaw and used to park their autos in Parkala Autorickshaw Stand. He has not seen autorickshaw bearing No.KA-20/A-8850 in Parkala autorickshaw stand after 20.06.2013 till the arrest of accused Nos.2 and 5. His evidence is of no assistance to the accused persons.
41. A careful perusal of the evidence of the victim, doctors, scientific officers and other prosecution witnesses including police officers, clearly depicts that the accused Nos.1
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 to 3 are involved in the gang rape of P.W.24. As already stated supra, accused Nos.1 to 3 threatened the victim to kill her and throw the dead body into river by cutting into pieces. Even while dropping her back to the flat, they warned her not to disclose the incident to anyone. Thereby, the prosecution has proved beyond reasonable doubt that accused Nos.1 to 3 abducted the victim, took her to an isolated place and committed gang rape.
42. The victim is an MBBS student who had come from Kerala to Karnataka, with a dream of becoming a doctor. She joined Manipal Medical College. But the unfortunate incident has ruined her life. The accused persons have acted like a deadly beast in the forest. It was, as if the wild animals hunting the helpless prey like rabbit for satiating their sex hunger. In the present case, accused Nos.1 to 3 have hunted victim girl - P.W.24 in order to satisfy their desire of lust and have raped her one after the other, which is a barbaric act against a human being. The accused have acted worse than cruel animals, which cannot be tolerated. In the wake of this incident, there has been public furor over the safety and
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 security of womenfolk. The incident that occurred in the vicinity of the Manipal University is an incident that all the human beings have to bow their heads. It is a solitary incident of ghastly crime, which has raised a question mark on the safety of all.
43. It is relevant to state at this stage that when the ghastly incident occurred on 20/06/2013, no human being was present except the nature. The nature has viewed the barbaric "gang rape" by the accused persons. The helpless victim had to tolerate mental, and physical pains. It is true that imposition of appropriate punishment is the manner in which the "Court responds to the society's cry for justice against the criminal". Justice demands that the Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence. The Court must not only keep in view the rights of the criminal, but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.
44. In the present case, 4th Year MBBS Student of Kasturba Medical College of the Manipal University, had come
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 to Karnataka from Kerala and joined the said college with bundle dreams and because of the ghastly incident in her life by the accused persons, she has discontinued her studies and has returned to her native place cursing State with all frustration. Because of the ghastly incident committed by the accused on the victim girl, the law and order of the entire Karnataka is made responsible. Since the reputation of Karnataka is at stake', no lenience can be shown to the accused persons. Any misplaced sympathy to the accused comes in the way of upholding the 'dignity of the Court, majesty of law, traditions and cultural right from our ancient times' in the State of Karnataka.
45. Under the Constitution of India, 'Right to live with dignity' is a fundamental right guaranteed and it is the fundamental duty of the State to protect it. Sexual violence by the accused persons apart from being a dehumanizing act, is an unlawful intrusion on the right of dignity and sanctity of a woman. It is a serious blow on her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent woman,
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of the victim i.e., her dignity, honour, reputation and chastity. 'Rape is not only an offence against P.W.24-victim girl, but a crime against the entire society'. It takes away the basic human rights and also violates the most cherished fundamental rights of victim guaranteed under Article 21 of the Constitution of India. Alarming increase in crimes depicts that the criminals are not afraid of the present criminal justice system. We are of the considered opinion that more stringent punishment has to be introduced by further amending the provisions of Section 376D of the IPC stated supra imposing death penalty as stated supra and legal awareness has to be given with regard to the amended provisions in discharging and deterring others from committing such crimes. The media, which is rightly called the Fourth Estate of Democracy, can play a pivotal role in bringing about the awareness of the amended provisions of law and in sensitizing the general public on the traumatic impact of the invasion of a woman's body. "The woman form the foundation of a prosperous society".
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46. Even after 75 years of independence, the woman are not safe in the hands of rapists/violators of law. The woman is typically stereotyped as sexual object of pleasure and not as a respectful motherly force. Hence, despite all material progress, western world is still inflicted with insecurity and lack of inner peace. "A woman should always ensure that she is protected. It is the duty of the every father, husband and son to protect her."
"There is no chance of the welfare of the world unless the condition of a woman is improved". It is not possible for a bird to fly on one wing. "The best thermometer to the progress of a nation is treatment of its women" so said a Great Saint Scholar, Swami Vivekananda.
47. As is being rightly held by the Apex Court and this Court, time and again a girl or a woman, in the tradition-bound non-permissive society of India, would be extremely reluctant even to admit that any incident, which is likely to reflect on her chastity, had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 by the society, including her own family members, relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and closer relatives, and of her matrimonial home as apprehended by PW.24-victim in the present case, as she is an unmarried girl aged 23 years pursuing her studies in 4th year MBBS. She would apprehend that it would be difficult to secure a befitting life partner and a respectable matrimonial home. Keeping in view all the above facts, the victims and their relatives are not too keen to bring the culprit to the book as it happened in the present case and she did not come forward to lodge complaint immediately and on getting to know that the accused were arrested on 26th or 27th of June, 2013 and that she has lost her life by way of barbaric act of the accused persons, she ultimately has given complaint in her own handwriting the details in concise manner.
48. In the present case, admittedly, the victim-PW.24 identified all the accused persons and she was mentally strong to give statement before the Court despite traumatic situation to which she was subjected. Even the prosecutrix has a right to privacy and no person can rape her just because a woman is
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 of a easy virtue", as held by the Hon'ble Supreme Court in the case of State of Maharashtra vs. Madhukar Narayan Mardikar [(1991) 1 SCC 57] at paragraph No. 8 as under:
"8. The High Court Observes that since Banubi is an unchaste woman it would be extremely unsafe to allow the fortune and career of a Government Official to be put in jeopardy upon the uncorroborated version of such a woman who makes no secret of her illicit intimacy with another person. She was honest enough to admit the dark side of her life. Even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard. At the most the officer called upon to evaluate her evidence would be required to administer caution unto himself before accepting her evidence. But in the present case we find that her evidence is not only corroborated in material particulars by the evidence of her husband but also by the evidence of PSI Ghosalkar and other
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members of the police party who had accompanied him on receipt of a phone call from the respondent. As pointed out earlier Banubi who was herself living in a glass house considering her antecedents could never have behaved in the manner she is alleged to have behaved if the respondent had merely raided her house and drawn up a nil panchnama. In that case she would not have approached the District Superintendent of Police at the earliest opportunity and would not have lodged a complaint of misbehaviour against the respondent. We, therefore, find it difficult to agree with the High Court that merely because Banubi is a woman of doubtful reputation it is unsafe to rely on her testimony. We have carefully examined the evidence tendered before the Inquiry Officer and we are satisfied that the High Court was completely wrong in concluding that her evidence was not corroborated in material particulars by independent evidence. We are afraid that the High Court embarked upon a reappreciation of the evidence as if it were silting in appeal against the decision of the departmental authorities. Its reappreciation of the evidence is also unsustainable."
49. Sexual violence is not only an unlawful invasion of the right of privacy and sanctity of a woman, but also a serious
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 blow to her honour", as held by the Hon'ble Supreme Court in the case of Pushpanjali Sahu vs. State of Orissa, [(2012) 9 SCC 705] at paragraph No.12 as under:
"12. Before parting, we wish to reflect upon the dehumanising act of physical violence on women escalating in the society. Sexual violence is not only an unlawful invasion of the right of privacy and sanctity of a woman but also a serious blow to her honour. It leaves a traumatic and humiliating impression on her conscience--offending her self- esteem and dignity. This Court in State of H.P. v. Shree Kant Shekari [(2004) 8 SCC 153 : 2005 SCC (Cri) 327] has viewed rape as not only a crime against the person of a woman, but a crime against the entire society. It indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least herchastity. It destroys, as noted by this Court in Bodhisattwa Gautam v. Subhra Chakraborty [(1996) 1 SCC 490 : 1996 SCC (Cri) 133] the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the fundamental rights, namely, the right to life contained in Article 21 of the Constitution. The courts are, therefore, expected to
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deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely."
50. It is relevant to state at this stage that the probative value of the forensic report and the statement of Chemical Analyser are very high on account of perfect match of samples and absence of evidence to discredit DNA analysis process. Admittedly, in the present case overwhelming evidence of the eyewitness account, substantial evidence, DNA analysis have conclusively proved the guilt of the accused persons and hence, they are liable to be convicted. Further, the object and purpose of determining quantum of sentence has to be society centric, suitable, deterrent and commensurate with the gravity of offence. The victim - the de facto sufferer of a crime had no say in the adjudicatory process and was made to sit outside the court as mute spectators. Therefore, sentencing policy needs to strike a balance between the aggravating and mitigating circumstances. The Court has to deal with the rapists with iron hand. Admittedly, in the present case, the appellants- accused persons have not expressed any remorse or repentance for the gory crime, rather they opted to remain
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 silent while recording their statement under Section 313 Cr.P.C. Their deliberate, well-designed silence with a standard defence of "false" accusation reveals their lack of kindness or compassion and leads to believe that they can never be reformed except accused Nos.1 and 3 tried to commit suicide which would not solve the problem that after having committed the blunder and make an attempt of suicide cannot get back the pains and the trauma the girl PW.24 - victim had suffered at the time of gang rape by these accused persons.
51. The Hon'ble Supreme Court while considering the death sentence in the case of Mahesh vs. State of M.P. [(1987) 3 SCC 80], at paragraph No.6 has observed as under:
"6. It will be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the accused would be to render the justice system of this country suspect. The common man will loose faith in Courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon"
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52. The Hon'ble Supreme Court, while considering undue sympathy in the case of Sevak Perumal vs. State of Tamilnadu [(1991) 3 SCC 491] at paragraph No.10 has held as under:
"10. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure such serious threats. The duty of every Court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
53. In view of the pronouncements and declarations made by the Hon'ble Supreme Court, it is true that reformation as a theory of punishment had become the trend but that theory is applicable to such crimes, in which the damage is repairable or even if the damage cannot be repaired, salvation by another mode is possible. That theory is inapplicable in offences where damage is immense, irreparable and cannot be retractable and as such, severe punishment is the only mode. Admittedly, in the present case, the damage caused by accused persons is immense, irreparable and cannot be retractable and
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 the victim has to suffer throughout her life due to the barbaric act of these accused persons on the unfortunate date held against her on 20/06/2013 in between 11.30 p.m. and 3.00 a.m. Therefore, the accused are not entitled for any leniency to be shown as rightly contended by the learned Additional SPP for the State.
54. It is high time for the Courts or Stringent legislation and punishments alone may not be sufficient for fighting the increasing crimes against women. In our tradition-bound society, certain attitudinal changes are required to be brought about in the mind set to ensure gender justice. A child should be taught to respect women in the society in the same way as he is taught to respect men. Gender equality should be made a part of the school curriculum. The school teachers and parents should be trained, not only to conduct regular personality- building and skill-enhancing exercise, but also to keep a watch on the actual behavioural pattern of the children so as to make them gender sensitised. The educational institutions, government institutions, the employers and all concerned must take steps to create awareness with regard to gender
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 sensitisation and to respect women. Sensitisation of the public on gender justice through TV, and press should be welcomed. On the practical side, few of the suggestions are worthwhile to be considered. Banners and placards in the public transport vehicles like autos, taxis and buses, etc. must be ensured. Use of streetlights, illuminated bus-stops and extra police patrol during odd hours must be ensured. Police/Security guards must be posted at dark and lonely places like parks, streets, etc. CCTV cameras have to be installed in the important places. Mobile apps for immediate assistance of women should be introduced and effectively maintained. Apart from effective implementation of the various legislation protecting women, change in the mind set of the society at large and creating awareness in the public on gender justice, would go a long way to combat violence against women.
55. It is high time for the Legislature, Executive, Judiciary, Media as the Fourth Estate of Democracy and General Public to pool in their collective wisdom to curb the menace of 'rape', which is more dangerous than the 'Disease of Cancer' to the future generation of our great Country.
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56. It is relevant to state at this stage that in Halsbury's Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that, "even the slightest degree of penetration is sufficient to prove sexual intercourse". It is violation with violence of the private person of a woman-an-outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order. The physical scar may heal up, but the mental scar will always remain. In the present case, the victim aged about 23 years, 4th year MBBS student is deprived of the dreams of "Spring of Life" and she is pushed into the "Torment of Winter". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the Court and to such a demand; the Courts of Law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the Court.
57. When a woman is ravished, what is inflicted is not merely physical injury, but the deep sense of some deathless
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 shame". Between Nirbhaya's case and in the present case, the only difference is that in the case of Nirbhyaya, the victim died after brutal incident on her, but in the present case, the victim 4th year MBBS student has returned to her native with all curse to the Karnataka State. "The victim - woman body is not a man's play thing and they cannot take advantage of it in order to satisfy their lust and the society will not tolerate such things any more". "Crimes against women continued in a never- ending cycle.
58. This Court, on an earlier occasion while considering the very issue in the case of Ramu & others vs. State by Jnanabharathi Police in Crl.A.No.246/2014 and connected matters disposed of on 21/10/2020 expressed anguish and considering the provisions of Sections 376DB, 376(2)(g) of the IPC expressed opinion that it is high time for the Legislature/Central Government in order to curb the menace of 'gang rape' against woman, the provisions of Section 376D of Indian Penal Code requires further amendment imposing punishment for death in addition to the existing provision of imprisonment for life and shall also liable to fine on
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 par with the provisions of Sections 376AB and 376DB of Indian Penal Code keeping in view the definition of 'Woman' under Section 10 of Indian Penal Code. But legislature has not taken any steps, till today even after more than two years have elapsed.
59. Though Indian Penal Code was enacted by Act 45 of 1860, and even after lapse of 75 years of independence, still woman is not safe in the hands of rapists/violators of law and we are celebrating Azadi ka Amrit Mahotsav. Last but not the least, we want to send a strong message to the Society by reminding ourselves, the famous Quote of the Father of the Nation, Mahatma Gandhi, immediately after independence that, "The day a woman can walk freely on the roads at night, that day we can say that India has achieved independence." Therefore, we express our anguish towards safety of the vulnerable woman folk in the society that when an educated woman studying 4th year MBBS was unable to go from her college library to her hostel room which was in a distance of five minutes walk and she was abducted and committed gang rape by the accused persons, we cannot say that we have
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 achieved the dreams of the Father of Nation - Mahatma Gandhi stated supra, otherwise, we are not proud to say that India achieved empowerment of woman even after seven and a half decades of Independency of our Country.
60. Taking into consideration the repeated gang rapes on women especially the young girls, we the Judges act as the societal parents. If our concern for the society of girls/women can be summed up in one sentence that "an attack on anybody's daughter is an attack on our daughter." Thereby the punishment imposed by the learned Sessions Judge on accused Nos.1 to 3 in the impugned judgment and order of sentence is proportionate to the gravity of the barbaric act committed by accused Nos.1 to 3. Therefore, we answer point No.1 in the negative holding that the accused have not made out any ground to interfere with the order of punishment imposed on them.
61. Insofar as the punishment imposed by the learned Sessions Judge for a period of three years with a fine of Rs.5,000/- on accused Nos.4 and 5, it is the specific case of the prosecution that the evidence of PW.22- Sukesh that accused
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 No.4 is the brother of accused No.1 and accused No.5 is the brother of accused No.2, and knowing fully well about the incident, they tried to destroy the evidence for having committed the offence by accused Nos.1 to 3, by pasting or installing the idol of Radhakrishna in the place of Ganesha idol in the autorickshaw bearing registration No. No.KA.20/A-8850 which was used for commission of offence by accused Nos.1 to 3 by removing the same and hiding the autorickshaw and also hiding the black banyan which was worn by accused No.1 on the date of the incident. On the basis of the evidence of PW.22-Sukesh one of the panch witnesses to the seizure mahazar Ex.P.22, who deposed that on 10/07/2013, in the evening himself and Prashanth were called to the police station and there was an autorickshaw bearing No.KA-20/A-8850 and accused No.4 removed the Ganesha idol and replaced with the idol of Radhakrishna from the auto and accused No.4 removed the T-shirt and he identified both the idols and the stickers and the same have been taken by the police. Except the panch witness, there is no whisper either in the complaint or in the evidence of PW.24-victim or any of the prosecution witnesses including the Investigating Officer about the role of accused
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 Nos.4 and 5. Except on the intimation given by accused Nos.1 and 2, they have done certain acts of removing the idol from the autorickshaw and removing the T-shirt in front of the house out of love and affection for his brother. The entire evidence of the prosecution does not depict that after knowing the ghastly incident-gang rape committed by accused Nos.1 to 3 on the victim-PW.24 they have supported accused Nos.1 and 2. In the absence of any material or any evidence of the prosecution witnesses including PW.1-complainant and the evidence of PW.24-victim, the punishment imposed by learned Sessions Judge is disproportionate to the charge against accused Nos.4 and 5.
62. It is an undisputed fact that accused Nos.4 and 5 are brothers of accused Nos.4 and 5 respectively and they are in joint family. It is possible that any one of the family members could have intimated to the other member to do something and without asking anything they have removed the Ganesha idol and T-shirt of one of the accused persons not knowing about the incident. If really they had known the incident, they ought to have reacted after the incident had
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 occurred when accused Nos.1 to 3 were arrested by the police. In all fairness, accused Nos.4 and 5 should not have tried to hide the evidence of committing the crime by accused Nos.1 and 2, but they have not stated anything by recording statement of accused Nos.1 to 3, rather they tried to support accused Nos.1 to 3, by leading defence evidence by recording evidence of DWs.1 to 5 and have not proved the defence evidence. As per learned counsel for the appellants as well as learned Additional Special Public Prosecutor, accused Nos.4 and 5 have already undergone the sentence of punishment of five months under the provisions of Section 201 of the IPC though the learned Sessions Judge had imposed imprisonment for three years with fine of Rs.5,000/-. Thereby taking into consideration the peculiar facts and circumstances of the case, in the absence of any specific averments in the plaint nor evidence, except the panch witnesses who supported the mahazar, we are of the considered opinion that the punishment imposed by the learned Sessions Judge for a period of three years is disproportionate as they are innocents of the crime committed by accused Nos.1 to 3 and their involvement in the present case is as instructed by accused Nos.1 and 2, without
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 knowing their idea behind the crime, hidden the Ganesh idol and the T-shirt of one of the accused. Therefore, the punishment of five months undergone by accused Nos.4 and 5 is just and proper and the fine of Rs.5,000/-. Thereby, accused Nos.4 and 5 have made out a case to modify the impugned judgment of conviction and order of sentence. Accordingly, we answer point No.2 partly in the affirmative.
(viii) RESULT
63. In view of the above, we pass the following:
ORDER
i) Criminal Appeal No.479/2017 filed by accused Nos.1 to 3 is hereby dismissed as devoid of merit;
ii) The impugned judgment of conviction and order of sentence dated 15th October, 2015 passed in S.C. No.49/2013 passed by the Principal Sessions Judge, Udupi, convicting accused Nos.1 to 3 to undergo rigorous imprisonment for life with fine of Rs.1,00,000/-
(Rupees one lakh only) each, for the offence
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 punishable under the provisions of Section 376D read with Section 34 of the Indian Penal Code, 1860 and in default of payment of fine, to undergo simple imprisonment for a period of six months and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.5,000/- (Rupees five thousand only) each for the offence punishable under Section 366 read with Section 34 of the IPC and in default of payment of fine, to undergo simple imprisonment for a period of three months. Accused Nos.1 to 3 sentenced to undergo rigorous imprisonment for a period of seven years and to pay a find of Rs.5,000/- (Rupees five thousand only) each, for the offence punishable under Section 506 read with Section 34 of the IPC and in default of payment of fine, to undergo simple imprisonment for a period of three months and the same are hereby confirmed.
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iii) Criminal Appeal No.1356/2015 filed by accused No.4 and Criminal Appeal No.22/2016 filed by accused No.5 are hereby allowed in part.
iv) Accused Nos.4 and 5 are sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5,000/- (Rupees five thousand only) each, for the offence under section 201 of IPC and in default of payment of fine, to undergo simple imprisonment for a period of six months is modified. The accused No.4 and 5 are liable to be convicted for period of five months with fine of Rs.5,000/- each already undergone under Section 201 of IPC.
v) Accused Nos.4 and 5 are entitled to the benefit of set off for the period already undergone in prison by them under Section 428 Cr.P.C.
vi) The jurisdictional Superintendent shall take steps to release accused Nos.4 and 5 forthwith on payment of fine in case if they are in default
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of payment of fine, to undergo simple imprisonment for a further period of two months or if they have already paid the fine, release them forthwith if they are not required in any other case.
64. We hereby recommend the Legislature/Central Government in order to curb the menace of 'gang rape' against woman, the provisions of Section 376D of Indian Penal Code requires further amendment imposing punishment for death in addition to the existing provision of imprisonment for life and shall also liable to fine on par with the provisions of Sections 376AB and 376DB of Indian Penal Code keeping in view the definition of 'Woman' under Section 10 of Indian Penal Code.
65. It is high time for the State Government to create legal awareness in co-ordination with Karnataka State legal Services Authority, to prevent the violence against women, by directing all the Cinema theatres, Malls, TV Channels, OTT platforms, Social Media Channels, Print, media, most importantly the Authorities of BMRCL, Indian Railways, KSRTC and BMTC Bus Stations in the entire State of Karnataka and
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CRL.A No.479 of 2019C/W CRL.A No.1356 of 2015 CRL.A No.22 of 2016 ensure that awareness is created among general public, taking into consideration that it is the duty of the State Government to bring awareness in the society as a mark of "Societal Responsibility".
66. We also place on record our full appreciation for rendering effective assistance and discharging their role as Officers of the Court by the learned Counsel for the appellants- accused and the learned Additional State Public Prosecutor, Sri Vijay Kumar Majage.
67. The Registrar General is directed to send a copy of this judgment to:
(i) The Ministry of Home Affairs, Government of India, New Delhi;
(ii) The Ministry of Law, Justice and Parliamentary Affairs, Government of India, New Delhi;
(iii) The Chairman of Law Commission of India to recommend the Union to impart the provisions of Section 376D stated supra by us;
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(iv) Additional Chief Secretary to Government of Karnataka, Home Department, Bangalore;
(v) All the learned District and Sessions Judges in the State;
(vi) Legal Services Authority for taking steps in initiating awareness programmes;
(vii) Judicial Academy for appraisal of the Trainee Judicial Officers;
(viii) All the Deputy Commissioners and Superintendents of Police in the State for conducting effective awareness programmes and all the Deputy Commissioners in the State of Karnataka for conducting the legal awareness programme in the interest of justice at large.
Sd/-
JUDGE Sd/-
JUDGE
Paragraph 1 . kcm
2 to 16(xiii) ... S*
16(xiv) to 16(xlvi).. KGR
16 (xlvii) to 16 (lxii).. MBM
16 (lxiii) to 42.. kcm
43 to end.. S*