Bangalore District Court
State By Pulakeshinagara vs Khan Sadab @ Sadab Khan on 23 April, 2016
IN THE COURT OF THE LIII ADDL, CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE
Special Court (CCH-54)
DATED THIS THE 23rd DAY OF APRIL, 2016.
PRESENT:
Sri.G.B.Mudigoudar, B.Sc., LL.B.(Spl),
LIII Addl. City Civil & Sessions Judge,
Bangalore.
S.C.No.1545/2011
COMPLAINANT State by Pulakeshinagara
Police Station,
Bangalore.
(By Public Prosecutor, Bangalore.)
Vs.
ACCUSED Khan Sadab @ Sadab Khan
S/o Sadruddin Khan
Aged about 24 years,
R/at No. 57/5, Hachins Road,
St. Thomas Town,
Bengaluru.
(By Sri.H.P.A.K -Adv.)
1. Date of Commission : 7.11.2011
Of Offence
2. Date of Report :
07.11.2011
Of Offence
3. Date of arrest of : 07.11.2011
accused
4 Date of release on Bail 21.12.2011
2 S.C.1545/2011
5 Period undergone in 1 month - 14 days
Judicial Custody
6 Name of the : Kum: Suruchi Sukla
complainant
7. Date of :
Commencement of 08.06.2015
recording evidence
8. Date of Closing of :
18.01.2016
Evidence
9. Offences complained of : Section 506, 376 r/w
Sec.511 of Indian Penal
Code.
10. Opinion of the Judge : Accused found guilty
11 Order of the Court : As per final order
JUDGMENT
The Sub Inspector of Police, Pulakeshi Nagara Police Station, Bangalore City has submitted a charge sheet against the accused for the offences punishable under sections 506, 376 r/w Sec.511 of Indian Penal Code on the below said allegations:
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2. The complainant is else the victim girl (aggrieved), who is prosecuting a studies in Dental course in Dr. B.R. Ambedkar Dental College, Bengaluru, lodged a complaint against the accused Khan Sadab as under :
"I Suruchi Shukla student of Mr. Aambedkar Dental College, Cooke town, Bangalore in 2nd year B.D.S. 4 S.C.1545/2011 I stay in Hutchins road in above address, it's a flat with room mate Ranjana Yadav, Sadab Khan came to my house at 7.30 p.m., asking for a book and my roommate was not there so he tried to rape me. I tried to protect to myself but, he closed my mouth at that time I got hurt and I was screaming but nobody was there, I was going to kitchen to protect myself, but, he was not letting me go but some how I escaped from him and I opened the door and I came out and he also came out and he said he will spoil me and ruin my life and he threatened my life with dire consequences.
When I came out from the room my roommate Ranjana Yadav came she helped me, then my junior Madhurima and others came there and consoled me. I cried, for sometime and then decided to come to the Police Station.
Today, about 7.15 p.m., he came to my flat and he took a book from my room mate Ranjana and he went back then my roommate went out and he saw her going out and he came back and knocked the door and said he left something so I opened the door he entered the house and then he locked the door and he tried to rape me.
Inspite of my resistance he tried to rape on me I got hurt near my nose, hands and leg.
Please take necessary action against Mr. Sadab Khan, who is my senior doing internship in my college."
3. On 7.11.2011, about 22.30 hours, the Police Sub Inspector who was then Station House Officer on duty received the above complaint. On the basis of it, he registered a crime in Crime No.299/11 for the offences punishable under Sections 506, 376 r/w Sec. 511 of 5 S.C.1545/2011 Indian Penal Code and dispatched the First Information Report before the 11th Additional Chief Metropolitan Magistrate, Bengaluru and his superior authority.
4. The Police Sub Inspector, who took up the further investigation of the case on 8.11.2011 recorded the re- statement of the complainant as to change in the name of accused in confusion stated by the complainant and this re-statement recorded within the few hours of registration of the crime not hit by a principle of concoction and fabrication is propounded in authority AIR 1977, SC 349. On 7.11.2011, after registering the crime, the Police Sub Inspector recorded the statement of eye witnesses/independent witnesses, i.e., Kum: Ranjana Yadav, who is the room mate of the complainant and was not present at the time of alleged shocking and stunned incident in the room, but, witnessed the incident while both accused and victim girl coming down the stairs accused chasing the PW-1 and threatening, with PW-3. The one more eye witness PW-3 who accompanied Kum:
Ranjana Yadav by name Madhurima Nandi who on hearing screaming of hue and cry from the room of the complainant went up together and witnessed the accused chasing the complainant victim and shouting and the threatening her that if victim discloses the untoward 6 S.C.1545/2011 incident occurred and threaten to face dire consequences in his hand and would spoil her future career. The statements of PW-2 and 3 recorded, on the same day. So, no mud can be thrown on the recording of statements. On 26.11.2011 the Police Sub Inspector recorded the statement of Smt. Farid Tayab who is the care taker of the flat, wherein the PW-1 to PW-3 are residing, on the ground that the original owner was residing at Chennai. The Police Sub Inspector recorded the statement of Police witness Balanayak, ASI who deputed on the orders of the Police Sub Inspector, to trace the accused and taken the accused to his custody, who was nearby Super Market at Hachins Road, St. Thomas Town, Bengaluru and produced him before Police Sub Inspector at 11.45 p.m. with report. The arrest of the accused was made by the Police Sub Inspector on 7.11.2011 itself by following the arrest procedure as laid down by the Hon'ble Supreme Court of India by issuing a grounds of arrest and arrest intimations and no dispute from the side of defence about it. However, it is suggested accused taken from his room denied by the PW-6.
5. The Police Sub Inspector on 8.11.2011, at the instance of complainant in presence of panchas visited a scene of occurrence and drew the panchanama of the same in between 8.00 a.m., to 9.00 a.m. The Police Sub 7 S.C.1545/2011 Inspector during the course of investigation on 8.11.2011, he got medically checked up the victim girl Suruchi Sushkla by producing before Dr. B.R. Ambedkar Medical College and Hospital, Bengaluru through WPC 10282 and her re-statement also was recorded.
6. The Police Sub Inspector got medically checked up accused on 8.11.2011 sending them through men Police before the Dr. B.R. Ambedkar Medical College and Hospital, Bengaluru. Thereafter, he collected the study certificate of both accused and victim from the dental college, which are objected for marking while tendered in the evidence during the course of recording of evidence of PW-6 Though admitted the fact both the victim girl and accused studying in the said college.
7. The Police Sub Inspector on 8.11.2011, he committed the accused to judicial custody by producing before 11th ACMM , Bengaluru City along with remand application. The accused is got released on bail on the orders of Hon'ble High Court of Karnataka, on 21.11.2011, thus the accused was in judicial custody for about 1 month 14 days. The Police Sub Inspector after completion of investigation submitted a charge sheet before learned 11th ACMM, Bangalore city on 12.12.2011, The learned 11th ACMM Bengaluru City on perusal of the charge sheet papers acting under Sec 190 8 S.C.1545/2011 of Cr.P.C. taken the cognizance offences alleged under Sec. 506 and Sec. 506 r/w Sec511 of ICP and registered a criminal case in CC 25118/11 and supplied the charge sheet papers to the accused and thereby substantially followed the provision under Sec. 207 of Cr.P.C and on the same day acting under Section 209 of CR.P.C. committed the accused on 17.12.2011, the learned 11th ACMM, Bengaluru to the Hon'ble Prl City Civil Court, Bengaluru, for trial of accused to detaining him in judicial custody and directing the jail authority to produce whenever called for by the Sessions Court.
8. On receipt of the committal records, the Hon'ble Prl. City Civil and Session Judge, Bengaluru registered a case in SC No. 1545/11 and made over the case to the FTC 12 for disposal in accordance with law.
9. As per the notification No. ADM 1(A) 1132/13 this case is transferred to this court (CCH-54) for disposal in accordance with law. Thus this case falls into this court for disposal in accordance with law.
10. On 6.6.2014, the application for discharge of accused under Sec. 227 of Cr.P.C. filed was dismissed on full hearing and recording a well reasoned order.
9 S.C.1545/201111. On 2.8.2014, this court framed the charge under section 506 and 376 r/w Sec. 511 of Indian Penal Code the contents of the charge read over and explained to the accused in English language by translating from kananda language known to him, the accused pleaded not guilty and claimed to be tried.
12. The evidence commenced on 8.6.2015 and closed on 18.01.2016.
13. After the closure of the prosecution evidence, the 313 statement of accused is recorded in open court by reading out in English language known to him, by suggesting the incriminating evidence led in the deposition of all witnesses examined. The oral statement of accused is recorded by this court in the annexed 313 Cr P C statement. Further the accused filed a written 313 Cr.P.C. statement before this court. The accused has not led any defence evidence and not got marked any documents on his behalf.
14. We have heard the Learned Public Prosecutor for the state and the learned advocate for the accused at length. The defence counsel in support of his arguments relied on below said authority:
10 S.C.1545/20111.(2015) 11 SCC 229
2. (2006) 8 SCC 560
3. (2004) 4 SCC (crl) 370.
15. We have extracted Sec. 511 of Indian Penal code as under:
"Sec. 511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment - Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one - half of the imprisonment for life or as the case may be, one-half of the longest term of imprisonment provided for that offence or with such fine as is provided for the offence, or with both".
We have gone through entire charge sheet papers, the depositions of all witnesses, the 313 Cr.P.C. statement of the accused, the argumental points canvassed by both sides, which forms the part of this record.
16. On the basis of the charge sheet material allegations, this court framed the charges as below:
11 S.C.1545/20111. ªÉÆzÀ®£ÉAiÀÄzÁV: C©üAiÉÆÃd£ÉAiÀÄÄ ZÁ¸Á 1 PÀÄB ¸ÀÄgÀÄa ±ÀÄPÁè ªÀiÁvÀȲæà gÀªÀiÁ¨Á¬Ä CA¨ÉÃqÀÌgï qÀAl¯ï PÁ¯ÉÃdÄ ªÀÄvÀÄÛ D¸ÀàvÉæ PÉèÊ£ï gÀ¸ÉÛ, PÀÄPï mË£ï , ¨ÉAUÀ¼ÀÆgÀÄ E°è qÉAl¯ï PÉÆøïð£À°è «zÀs¨Áå¸À ªÀiÁrPÉÆArzÀÄÝ ZÁ¸Á 1 , 4 MnÖUÉ ªÀÄ£É £ÀAB 35 /2 gÀ 1£Éà ªÀĺÀr, 6£Éà PÁæ¸ï ºÀa£ïì gÉÆÃqï, ¸ÉAmï xÁªÀĸï mË£ï, ¨ÉAUÀ¼ÀÆgÀÄ 84 gÀ°è ªÁ¸ÀªÁVzÀÄÝ DgÉÆæAiÀiÄ ¨ÉÃgÉ PÀlÖqÀzÀ°è ªÁ¸ÀªÁVgÀĪÀÅzÁV, ¢£ÁAPÀ 7.11.2011 gÀAzÀÄ ¸ÀAeÉ 7.15 UÀAmÉAiÀÄ°è ¤Ã£ÀÄ ¸ÁQë1, 4 ªÁ¸À«gÀĪÀ ªÀÄ£ÉUÉ ºÉÆÃV ZÁ¸Á 4 gÀ PÀqɬÄAzÀ ¥ÀŸÀÛPÀ ¥ÀqÉzÀÄPÉÆAqÀÄ §A¢zÀÄÝ vÀzÀ£ÀAvÀgÀ ZÁ¸Á 4 gÀªÀgÀÄ ªÀģɬÄAzÀ ºÉÆgÀPÉÌ ºÉÆÃVzÀÝ£ÀÄß UÀªÀĤ¹ ZÁ¸Á 1 gÀªÀgÀÄ M§âgÉ ªÀÄ£ÉAiÀÄ°ègÀĪÀÅzÀ£ÀÄß CjvÀÄ CªÀgÀ£ÀÄß CvÁåZÁgÀ ªÀiÁqÀĪÀ GzÉÝñÀ¢AzÀ ¸ÀAeÉ 7.30 UÀAmÉUÉ ¥ÀÅ£ÀB ZÁ¸Á 1 gÀªÀgÀ ªÀÄ£ÉAiÀÄ §½ §AzÀÄ, ¨ÁV®£ÀÄß §rzÀÄ ¥ÀŸÀÛPÀ ¥ÀqÉAiÀÄ®Ä §A¢zÁÝUÀ ªÀÄ£ÉAiÀÄ°è K£À£ÉÆßà ©nÖgÀĪÀÅzÁV w½¹ CzÀ£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀ®Ä ¨ÁV®Ä vÉUÉAiÀÄĪÀAvÉ PÉýzÀÄÝ , ¸ÁQë1 gÀªÀgÀÄ ¨ÁV®Ä vÉUÉzÁUÀ DgÉÆæ ªÀÄ£ÉAiÉƼÀUÉ §AzÀÄ ¨ÁV® a®PÀªÀ£ÀÄß ºÁQ ¸ÁQë1 gÀªÀgÀ ¨ÁAiÀÄ£ÀÄß ªÀÄÄaÑ ªÀÄ®UÀĪÀ PÉÆÃuÉUÉ J¼ÉzÀÄPÉÆAqÀÄ ºÉÆÃV CªÀgÀ£ÀÄß ºÁ¹UÉAiÀÄ ªÉÄÃ¯É GgÀĽ¹ CªÀgÀ ªÉÄÃ¯É CvÁåZÁgÀ ªÀiÁqÀ®Ä ¥ÀæAiÀÄvÀß ¥ÀnÖgÀĪÀÅzÁV EzÀ£ÀÄß ZÁ¸Á 1 gÀªÀgÀÄ ¥ÀæwgÉÆâü¸ÀĪÀ ¸ÀAzÀ¨ÀsðzÀ°è DgÉÆæAiÀÄÄ ¸ÁQë1 gÀªÀgÀ ªÀÄÆV£À JqÀ ºÉƼÉîAiÀÄ §½AiÀÄ°è , JgÀqÀÆ vÉÆüÀÄUÀ¼À ªÉÄÃ¯É , §® ªÀÄÄAUÉÊ ªÉÄÃ¯É vÀgÀazÀ UÁAiÀÄ¥Àr¹zÀÄÝ DUÀ ZÁ¸Á 1 gÀªÀgÀÄ DgÉÆæAiÀÄ »rvÀ¢AzÀ vÀ½î ©r¹PÉÆAqÀÄ ¨ÁV®Ä vÉgÉzÀÄ ºÉÆgÀUÉ Nr ºÉÆÃVgÀÄvÁÛgÉ.
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3. K£ÀÄ DzÉñÀ?
17. My findings above points are as under:-
Point No.1 and 2 : In the affirmative Point No.3:as per final Order for the following:
REASONS
18. Point No.1and 2 :- As these two points are interlinked to each other on facts and circumstances and 13 S.C.1545/2011 crime occurred in the same transaction and therefore, taken together for joint and common discussion to eliminate the re-occurrence of the facts of the case.
19. The burden of establishing the guilt of the accused heavily lies on the prosecution by leading a untainted direct, independent, circumstantial and medical evidence beyond all reasonable doubt independently of the defence of the accused.
20. It is for the defence to prove its defence theory with in the preponderance of probability not like that of the prosecution beyond all reasonable doubt.
21. It is case of prosecution that the accused on 7.11.2011, at about 7.30 p.m., in the evening at the room of PW-1 i.e., Flat No. 35/2, 1st floor Hacchins Road, St.Thomas Town, 6th cross, Bengaluru City attempted to commit a rape on the prosecutirx/complainant forcibly.
22. The prosecution in order to establish its case examined out of 11 charge sheeted witnesses, examined 6 witnesses and got marked as many as 6 documents at Ex.P1 to P6 and closed its side evidence. On the contrary, the defence of the accused is one of manifolds from stage to stage by explaining under what circumstances, the prosecutirx sustained injuries on her face(nose), on her arms, on her wrists and himself on what circumstances 14 S.C.1545/2011 sustained injuries on his neck at Police station in the hands of Police Sub Inspector, Kiran Kumar and he pleads totally innocent. The accused neither adduced defence evidence nor got marked any documents on his behalf and not led defence on his behalf. However, he filed 313 CR.P.C. statement before the court and orally explained including the case elicited in the cross examination of PW-1 to 4 and 6.
23. Out of PW-1 to 6 examined, PW-1 is the dwarf and lean victim girl, on whom deadly sexual assault committed on 7.11.2011 at about 7.30 pm., in her room by the accused coming over to her from his different flat and she is a complainant- cum- witnessed to the Ex.P2 spot mahazar. PW-2 and 3 are the eye witnesses set up to speak about the subsequent part of the story after the event of attempt to commit a rape, coming out of the room and down the stairs the accused chasing her, threatening her. PW-4 is the doctor B.M. Nagraj, who got medically checked up the victim girl and accused on 8.11.2011 and issued the medical checked up reports Ex.P3 and P4 respectively. PW-5 is the Farida Thyab, who is the caretaker of the flat where the crime committed her house is formal in character, the defence not disputes the PW-1 and 2 resides in the room where the incident occurred. The PW-6 is the Police Sub 15 S.C.1545/2011 Inspector cum Investigator and submitted the charge sheet against the accused for the offence punishable under Sec. 506 and Sec. 376 r/w 511 of Indian Penal code against whom, the defnece made severe allegations made that he assaulted the accused at Police station on arrest is made in presence of Pw-1.
24. Out of Ex.P1 to P6 marked. Ex.P1 is the complaint, lodged by PW-1, there is no delay in lodging the same. Ex.P2 is the spot mahazar, where the crime took place. Ex.P3 and P4 are the medical checked up reports of victim girl and accused respectively issued by PW-4. Ex.P5 is the MLC register. Ex.P6 is the First Information Report. The defence seriously disputes there is delay in dispatching the First Information Report before the Magistrate leveling allegations that crime registered on 8.11.2011.
25. It is a case of an attempt to commit a rape on the dwarf victim girl taking advantage that she was alone in the room to gratify his lust, but failed due to interruption.
26. We would proceed to discuss both the oral testimony and documentary evidence cumulatively and separately as the lengthy cross examination conducted and the facts and circumstances intermingled each other.
16 S.C.1545/201127. We extracted the history of the case before doctor (requisition) by the complainant as below as per Ex.P3:
"On 7.11.2011 at 7.30 p.m, the accused Khan shadab entered her room and closed the door and fell on her". The word 'fell on her' is a common parlance or jargon shall be construed as SEXUAL ATTACK on her and no other interpretation is possible in the context of the case.
And this medical certificate marked at Ex.P.3, the doctor who checked medically the complainant/prosecutrix noted below said injuries on Ex.P3 on her body found at the time attacked by the accused.
1) Abrasion present below left nostril measuring 0.5 cm x 0.5 cm.
2) Three scratch abrasions present over inner aspect of left arm each measuring 10 cms.
3) Contusion on inner side of right upper arm (4x3 cms), and bluish in colour.
4) Scratch abrasion present over dorsum of right wrist measuring 3 cms, over front of right elbow measuring 3 cms back of left forearm measuring 4 cms. All abrasions are covered by bright red scab.17 S.C.1545/2011
28. On conjoint reading of the contents of the complaint marked at Ex.P.1 and Ex.P.3 especially as to sustaining of injuries mentioned above. The complaint version directly corroborates with the contents of Ex.P.3. The complainant in the complaint has explained categorically under what circumstances on which part of the body and what are the nature of injuries sustained during sexual attack by the accused. One thing we wanted to be mentioned here that the accused during the course of trial as well as during the course of arguments has not denied he went to the room of prosecutrix complainant then who was alone. (In the cross examination defence disputed) Under these facts and circumstances, there are two options for this court either to believe or to disbelieve the version of prosecutrix or the accused. On close scrutiny of the examination in chief and lengthy and searching and piercing cross examination of PW-1, it is seriously noted that the accused gave a mere goby explanation as to why prosecutrix/complainant filed this heinous and graves case against him. Whether the defence story put forwarded by the accused is probable or improbable will be looked into in the later pages of my Judgment.
18 S.C.1545/201129. The accused gave an oral statement before this court while recording of 313 Cr.P.C statement of the accused which runs as under:
"I am a native of Bombay. I came to Bangalore to study B.D.S. at Dr.B.R.Ambedkar Dental College in 2006. I had successfully completed course in the term of five year by 2011 October. Since I completed my B.D.S wanted to further proceeds my MDS study, for which I started preparing thereafter. Since intention is about to complete I had given lunch party on 7.11.2011to forty students including my colleagues and juniors and also on 7.11.2011 was Bakrid festival. In the evening also lunch party. I asked my junior for Dental anatomy book, because I wanted to prepare for my MDS exam in January 2012. One of my junior named Saumyadeep told me that he might be hiding book at his residence which is at third floor Hucchins Road, 6th Cross, same building where Suruchi Shukla resides. At 6.45 p.m., I went with Saumaydeep to his residence to get the book. Unfortunately he did not find said book and suggested me to take it from Ranjan Yadav who resides on the 1st floor in the same building. So, I came down stairs at Ranjan Yadav residence at around 7.00 p.m., to take book. She found the book and gave it to me and told she was in hurry, she ready to go to Heba Ansari's room and 19 S.C.1545/2011 after getting book I climbed the stairs went to third floor to Saumydeep and told him and I have received the book from Ranjan Yadav. So you should not ask any one else for the book. At about 7.30 p.m., I came down stairs I saw my junior Suruchi Shukla talking on phone to some one at the door, near the stairs in the logging, on seeing me she started to talking me and told me you gave lunch party to every time, you did not invite me. I told her party was for only boys, no girls were invited. So, did not invite you. Later she started telling about her well beings and in the middle of conversation asked me about the whereabouts of Bisma Sikander, the girl, I about to marry after BDS exam, MDS exam. This was known to the whole college. Bisma Sikander was a minor girl, whom I about to marry but due to differences in her mother's opinion, it did not happen. And her mother took her intensive transfer to Kashmir. After hearing this Suruchi Shukla showed her sympathy towards me. Later she asked me that since Bisma Sikander had left the college we will not marry each other, why cant I have a relationship with Suruchi Shukla. I denied Suruchi Shukla having relationship with her since she was junior and not appropriate go ahead with Suruchi Suhkla in the relationship.20 S.C.1545/2011
On hearing this she told me since Bisma Sikander has went. Have you become impotent and started laughing. So, I got very furious because of this he slashed on her face. She then started shouting and screaming I asked her why she is screaming and shouting and try to quite her by holding her hands but, she was screaming stand. So, left from there but she kept shouting that she will see later at 8.45 p.m., two men in civil dresses knocked my doors and when I opened door, they caught hold by collar and dragged me down stairs and put me in Santro car near my residence and Huchins Main Road, they abused and assaulted me in the car till we reached Pulikeshinagar Police Station. At Police Station officer-in-charge Kiran Kumar called me in front of him started beating me with fiber stick continuously assaulted me. I told him to leave me and I have not done any thing, but, he kept beating me. All police men and constables slashed on my face one by one, they handcuffed me to a chair in police station. Kiran Kumar confiscated my mobile phone did not let me to call my parents. On 8.5.2011 I was taken Dr.B.R. Ambedkar Medical college at 11.00 a.m. for my medical check up and then taken to 21 S.C.1545/2011
30. The accused further filed a written statement under Sec. 313 of Cr.P.C., with a copy to prosecution, which extracts as below:
1. "I am a native of Bombay. I had come to Bangalore to study BDS in M.R.Ambedkar Dental College and Hospital and I got admission in the year August 2006.
2. Sir, it was 5 year course and I successfully, completed it in the year October 2011.
3. Sir, since my internship was about to complete and I wanted to pursue my further studies. I decided to prepare for entrance exam for MDS to be held in January 2012.
4. As my completion of BDS and internship was due to be completed, I had given a lunch party to around 40 students including my colleagues and junior in college on 7.11.2011 and also it was Bakrid, our festival.
5. On the evening of 7.11.2011, after the lunch party, I asked many of my juniors for 1st year BDS book of Dental Anatomy so that I can prepare for my MDS exams and out of my junior SUMYADEEP told me that he might be having it at his house in Hutchins Road, 6th 22 S.C.1545/2011 Cross, and so I accompanied him to his house to collect book from him at around 6.45 p.m., on 7.11.2011.
6. Since, Saumyadeep did not find the book at his home, she told me to borrow it from Ranjana Yadav who stayed on 1st floor in same building.
7. At 7 p.m on 7.11.2011, I cam down stairs on the 1st floor at Ranjana Yadav's residence to ask for the book.
She found it and gave it to me and told me that she was going to Heba Ansari's home.
8. After taking the book from Ranjana Yadav I again climbed the stairs and went to Saumyadeep on the terrace flat to inform him that I got the book and he should not ask anyone else for it.
9. After compelting my conversation with Saumyadeep, I headed down by the stairs at 7.30 p.m
10. While coming down, on the 1st floor, my junior named Suruchi Shukla who was talking on phone to some one, near her door, besides the stair case, called and started conversation with me near the stair case, in the lobby at her door step.
11. She cancelled the call and asked me, "kya sir eid ki party diye sabko and humko bulaya bhi nahi" (sir your gave eid party to may juniors and did not invite me).
23 S.C.1545/201112. I said, the party was only for boys and so I did not invite any girl.
13. Than she further told me about her well being and in the middle of conversation asked me, the whereabouts of "Bisma Sikander", the girl I was about to marry and this fact was known to the whole college.
14. Bisma Sikander was a Kashmirian muslim girl and we were to marry each other in 2012 after my MDS entrance exam, but unfortunately due to differences in her mother's opinion, we could not move ahead and her mother took her away, by transferring her internship to Kashmir.
15. I told this to Suruchi Shukla and she showed her sympathy towards me.
16. Later, Suruchi Shukla asked me that she liked me and sicne Bisma Sikander left the college and we wont marry each other, why can I have a relationship with her.
17. Suruchi Shukla proposed me to be into a relationship with her. I being her senior did not like her proposal as she was very junior to me and I told her that, it was not at all possible.
24 S.C.1545/201118. After hearing a rejection from me, she said at me, "Bisma mam chali gayi toh kya mardaangi bhi chali gayi", (she told, since bisma mam left you have become impotent or what?) and she started laughing.
19. This statement of her, provoked me and I slaped her on her face out of anger. She then started shouting and screaming. Then I asked as to why she was shouting and screaming by holding her hands.
20. Since, she was shouting unnecessarily I tried to quite her and left myself down and went to my flat.
21.She kept shouting tht she will see me later.
22. On 7.11.2011 at 8.45 p.m. two men came to my residence at Hutchins Main Road, and knocked the door. Later on opening the door and knabbed me by my collar and dragged me down stairs and took me in a Santro car.
23. On the way, they kept abusing and assaulting me, till they reached the Pulakeshinagar Police Station.
24. As I reached the Police Station, the S.I. of the Police Station, Kiran Kumar, without telling me anything or asking anything started beating me with a fiber stick. He continuously assaulted and abused me with the stick on my hand.
25 S.C.1545/201125. I pleaded him, but he did not listen to me. I kept shouting I have not done anything, please leave me but he did not listen to me.
26. All policeman kept slapping me taking turns.
27. I was handcuffed the whole night on 7.11.2011 in the Police Station, Kiran Kumar confiscated my mobile phone and did not even let me calmly parents.
28. On 8.11.2011, I was taken to B.R. Ambedkar Medical College for Medical and examined then taken to Bowring Hospital for some formalities. At 4. pm., I was taken toCity Court and produced in front of the Magistrate.
29.Kiran Kumar, had sent a message through the constable that if I say anything about the police work, the physical torture and abuse and assault of the police on 7.11.2011, he will spoil my life and see to it that I don't come out of prison.
30. When Magistrate ask me about any police torture or abuse, out of fear of my future, I did not say anything.
31. Your Honour, Suruchi Shukla and her friends have given false evidence against me.
26 S.C.1545/201132. Sir, I am absolutely innocent, hence I most humbly pray for acquittal from this case.
31. According to accused, he is a senior dental student in Dr. B.R. Ambedkar Dental college, Bengaluru. The complainant /prosecutrix is a junior Dental student and both of them hailing from out of state i.e., accused is from Mumbai and the victim girl is from M.P state, daughter of Bank Manager, the accused is Muslim by caste, the victim girl is belongs to Hindu. The accused was residing in a different flat. The complainant victim who residing in the incident flat. Prior to incident, it is not the case of the defence that the prosecutrix/complainant and accused are good friends at all and they are not the class mates also at all. They never interacts each other on dental study and the victim never sought the help of the accused in her dental study. Lengthy thread bare and hair splitting cross examination conducting and not thrashed the version or a word of the complainant and fully withstood the test of cross examination and evidence of the complainant is not only self corroborated, but, also above reproach. Added to above, the version of PW-1 corroborated on all material particulars by the version of PW-2 and 3 coupled with a contents of Ex.P3, P4 coupled with the false explanation 27 S.C.1545/2011 tendered by the accused before the court. They are belongs to entirely different castes, except the fact that they are the students of the same college. No any kind of relation existed in between them. As we seen in the open court, the accused is not a handsome fellow and has not attractive personality to attract the girls towards him. According to accused, he fell in love with one Bisma Sikander, who is a Kashmiri beautiful girl, who was also dental student. As the said Bisma Sikander shifted to Kashmir for internship course. So, the love affairs and marriage proposal with her was broken and the same was known to the prosecutrix/complainant which is denied. When he went to near her room, she made a proposal to the accused to marry her. On hearing the proposal he refused to marry her, on his refusal she provoked him by touching his potentiality that it went off with Bisma Sikendar. So, he gets provoked and fury and in a fit of anger he slashed hand blow on her face, especially at nose. While shouting he catch hold the her arms asking her why are you screaming. So, the complainant /prosecutrix sustained bleeding injuries on her nose, hands and arms. Whether this story is probable and fit in the circumstances of the case.
32. According to defence, accused is a love failure boy. The prosecutrix/complainant not concerned with 28 S.C.1545/2011 the love failure of the accused with Bisma Sikander (lengthy cross examination conducted and not swayed). The accused is about to complete the dental degree by going through internship (further study MDS). He is a crude young age of 24 years. In the given case on hand, the character and conduct of the accused is not relevant in criminal trial. It is the character and conduct of the prosecutrix /complainant and her witnesses become a subject matter of assassination in the hands of defence, because of the responsibility of the accused, the conduct of the accused would become relevant. We want to say a few words that there is a differentiation in between the maturity of understanding and saturation of the mind. This analysis is must to accept the probability of the defence theory put forwarded before the court to escape from the clutches of law and as a counter to the complaint. The maturity of understanding means that to judge the acts which are wrong and right and as a mental condition. The saturation of mind means equibalance of mind. In other words, keeping or balance of mind and good temperament. Even if temper looses, the person of this character have balanced mind and advised the wrong doer male or female, in any circumstance. When the behaviour of the said wrong person goes peak or out of control, punish it by chiding only. Even after chiding the mis-behaviour continues or intolerable. This 29 S.C.1545/2011 character (balancing mind) develops only in a case of the person who having a worldly knowledge and marital experience and elderly persons only. By the act of the accused that going to room of the prosecutrix/complainant without any reasons in the guise of asking book for interacting, he attempted to have a sex on her forcibly. This shows that the crocked and wicked nature of the accused. The accused is not the elderly and worldly and competent (old) person to slash the hand blow to mend the manners of the prosecutrix on her face. Whatever the explanation given by him is not fits in the circumstances of the case and not suited to his age. Not worthy of the notions of human beings. The age of the accused is a monkey mind. In other words, he is a pickled minded fellow chosen the circumstances of the friend of the complainant Ranjan Yadav went out of the room and went to her friend room Madhurima to the ground floor, again in the guise of asking something. Though, no connection with the complainant, he went back to room and got it open the door of the room by banging and trespassed into the room and bolted the room and attacked on her, dragged her on bed on a ground and fell on her and gagging his hand on her mouth not to shout for help and trying to kiss forcibly, holding her hands and pulling her outer and inner apparels on her waist and hit on her nose during struggle 30 S.C.1545/2011 she sustained a bleeding injury on her nose, arms, wrist. These acts clearly shows his crocked explanation offered by him to escape from the clutches of law only. The accused has taken the undue advantage of loneliness and lean and dwarf personality of the complainant acted with her as a leopard on a deer. So, the explanation offered by him not accepted by this court.
33. The defence during the course of her cross examination of PW-1 tried to attribute her that it was known to the prosecutrix that the accused was in love with Kashmiri girl Bisma Sikander, marriage proposal of the accused with her not materialized is denied by her. So, she made a proposal to marry him, on refusal of her proposal she provoked him touching his potentiality and this circumstances got irritated then slashed hand blow on her face and other parts of the body is denied by her. Admittedly, accused is a young and energetic not having matured mind and his intention to go to the room itself indicates that he is a criminal fellow to satisfy his lust. The intention is to be gathered from the acts committed only. The accused is a half boiled egg in the life. He is not a married man or elderly person to accept his say. Whatever the explanation he gave not befitting and suited 31 S.C.1545/2011 to his age and experience of the life what he says is patent lie, not stands to reason and logic.
34. The defence counsel has not produced the certified copy of the bail application to know by this court that under what circumstances, this heinous crime committed by the accused or as to why the prosecutrix/complainant staking her future career foisted in such a heinous case in the absence of enmity. On perusal of the Order sheet of the lower court on file as narrated by the accused dated 8.11.2011, the accused was on the date of production was duly represented by his counsel Sri. RPS advocate who filed his vakalath for him the judicial custody extended till 21.11.2011. It is a strange and surprise to note that the learned magistrate made a enquiry as to ill treatment from the side of police and illegal detention before his counsel. If really accused were assaulted by the Police Sub Inspector Kiran Kuamr as alleged by him in his oral statement before this court, he definitely would have narrated in detail through his counsel before the Magistrate. If, accused really sustained injuries in the hands of Police Inspector Kiran Kumar he definitely strip of clothes on his body expose before the learned magistrate under Section 55 of the Cr.P.C. to note it in the order sheet by the learned Magistrate. If Police Sub Inspector Kiran Kumar had 32 S.C.1545/2011 threatened him not to disclose about the police assault, he really would have filed private complaint against the assailant police inspector, Kiran Kumar and got issued a summons to them and asked the court to try the said case simultaneously with this case. In the cross of PW-6 no such plea that he threatened not to disclose the assault before the Magistrate is suggested . He was represented by expert senior counsel in this case. To cover up his criminal act i.e, attempt to commit a rape, he built up a cock and bull story to make believe the court that police have assaulted him on arrest being made at police station to give some account as to sustaining of injuries in the struggle by the victim girl with him.
35. If the accused is dullard and simpleton unknown to police world, we would have to understand the defence theory of the accused that he sustained the injuries in the manhandled by the police. He gave the two tyre explanation. One for how the victim complainant sustained injuries in his hand on her face, arms and wrist. Secondly, the injuries on his body caused in the struggle how sustained he gave this kind of explanations before the court. The so called ethical accused, dentist came over to Karnataka for study from thousand miles can it be believed even by hackney person? To cover up 33 S.C.1545/2011 crime of attempt to rape, he is telling two bitter lies before the court. In the cross examination of PW-1, the defence counsel suggested that the accused was assaulted by the Police Sub Inspector Kiran Kuamr in her presence was flatly denied by her.
36. In his bail application, we do not know whether he had taken such a plea and the certified copy of the bail application was deliberately withheld before this court to know whether the two kinds of above explanation offered found place in his application. It appears to me for the first time, before the court to plead his innocence he made a every circus to make believe the court. We do not know whether such pleas were taken for the first time consistently to accept it by this court.
37. In the cross examination of I.O (PW-6)., not taken such a defence plea for the first time while recording 313 Criminal Procedure code statement put forth such kind of false pleas as to why under what circumstance, the injuries sustained on his body as well as victim girl.
38. As we discussed supra, before the treated doctor, the accused not stated so, that the Police Sub Inspector, Kiran Kuamr assaulted him after arrest is made in the presence of the victim girl at police station 34 S.C.1545/2011 while giving a history of injury. If the accused were really assaulted and sustained injury fixed a false case against him by the complainant/prosecutirx joining the hands with the Police Sub Inspector Kiran Kuamr definitely the accused would litigates it seriously and fought out against erred police official. The men of honest character never hesitate to claim their right or never afraid of anybody including the police. So, to get rid of the serious allegations the accused telling a cock and bull story before this court and it is an after thought of legal brain just to escape from the clutches of law. So he made such an abortive attempt to explain the injuries on his person as well as on the person of victim girl sustained. So, in view of the above aggravating circumstances prevalent against him not believable one.
39. During the course of cross examination of the PW-1, the defence counsel on page 16 to 23 successfully elicited that what are the new thing stated in the examination in chief first time without pleading in the complaint and those alleged improvements were admitted by the PW-1 without any dispute and no quarrel on this aspect. We would discuss at length about the material facts and particulars of material fact in the later stage of my Judgment. Where to be pleaded and when relevant amounts to material facts and their relevancy and failure 35 S.C.1545/2011 to plead them in the complaint having regard to the manner of attack made by the accused is clearly stated by the PW-1. In other words, she stated what are the overt acts committed by the accused i.e., the series of acts committed towards the commission of offence i.e., coming up to room of prosecutirx after noticing the PW-2 went to ground floor, i.e., the room of Madhurima, taking advantage that the prosecutirx was alone in the room and it was evening time all goes out for walk, the victim is a dwarf and lean girl and in helpless condition, and no social contacts or closeness with him, the victim is a junior to him, in the guise of interaction asking book with her and got opened the room, then entered into the room and closed the room, even no such book is with her, he is in the guise he left something in the room when come to take a dental anatomy book from the hands of PW-2, even no such book with her, banged the door and opened the door and he bolted the door inside and when questioned it not bothered about it, and attacked on her dragging on the bed on the ground and fell on her to commit a rape on her. Gagged the mouth preventing from screaming for help and hit on the nose and caught hold her arms and tried to pull out her inner and external apparels on the waist of her body. These acts clearly establishes that there was an intention on the part of this 36 S.C.1545/2011 hard and criminal accused had come to commit a rape on her.
40. When we questioned ourselves, whether the above stated series of acts, amounts to an attempt to commit an offence of rape is a question of a fact and dependent on the nature of the offence and steps taken by the accused in order to commit it. The intention with which the accused had come to prosecutirx coupled with above overt acts in execution thereof. What more material requires for this court that the accused appears to have committed an offence of attempt to commit a rape on the prosecutirx. Under Section 511 Indian Penal code there are four stages in every crime namely intention to commit, secondly preparation to commit, thirdly the attempt to commit and if third stage is successful the commission itself. If failed in attempt, it false under the third stage only. In the instant case, there is a thin line of division between the third and fourth stage. In the third stage the victim by hard struggle escaped from the hands of accused, so the acts of the accused false under the third stage i.e, to attempt to commit a rape.
41. We discuss about the improvements during the course of cross examination of PW-1 elicited before the court. It is for the complainant what to write and what not to write. In the complaint it is averred the accused 37 S.C.1545/2011 made an attack on her and is a shocking and stunned incident. In such circumstances, no person, girl or women recorded the incident, so minutely suggested in the cross examination of the PW-1 by the defence counsel terming them as improvements. THE IMPROVEMENTS WHICH ARE ELICITED IN THE CROSS-EXAMINATION OF PW-1 OR MATTER OF A FACTS ONLY TO BE EXPLAINED OR DEPOSED IN EVIDENCE. So, they are negligible in the eye of law. Only thing, whether such things occurs or not. So, explainable not to be necessarily pleaded in the complaint and no such significance could be attached to them and no benefit be given to the accused. On these reasoning, whatever amount of explanation the accused tendered before the court for the first time through 313 statement and oral explanation without disclosing before the learned Magistrate while committing to judicial custody, or while medically checked up by the doctor or without narrating them in bail application and without apprising the situation before the PW-2 and 3 when come to spot on hearing the scream of PW-1. These explanations are carries no weight at all.
42. Looking to the manner in which attack made struggle went on, the injuries sustained and modes of sexual assault made directly corroborates the sustaining 38 S.C.1545/2011 of injuries both victim complainant and the hard core accused (non compromising position). There is no chance for him to escape from the clutches of law. The accused taken a different stand in his cross examination, before doctor and before learned magistrate. Whatever the stands taken not come to his help.
43. The PW-1 to 3 have stated consistently corroborate each other in their testimony that the accused having committed unsuccessful act of attempt of rape on PW-1 inside the room and chasing her from her room and coming under stairs and saw accused chasing her and threatening to spoil her future career, if the acts were reveals others. This evidence of PW-1 not beaten to ground by the defence. The defence made heaven and earth attempt to thrash the evidence of PW-1 to ground, but, failed it miserably. It is not the defence of the accused that PW-2 and 3 are anemically disposed against him only in statement under Section 313 of Cr.P.C stated their evidence is false. If the accused is so ethical and man of saturated mind, he would not have entered into a room when prosecutirx was alone. In the defence it is suggested that the PW-2 also with her is flatly denied by the PW-1 as well as also PW-2. If the accused is so ethical would have apprised the situation i.e., cropped up before PW-2 and PW-3 he did not made such an attempt 39 S.C.1545/2011 to accept his say. On this reasoning, whatever the amounts of explanation given sustain injury by PW-1 and on his body is not appears to be true or probable one and not fits in the circumstances of the case.
44. The defence made very serious and every attempt to thrash the attempt of the PW-1 to ground, but, not become successful. In the cross examination of PW-1 through out not shown the existence of any kind of animosity or personal grudge to implicate the accused in such heinous crime by staking her future career. This incriminating circumstance prevalent against the accused and whatever the explanation offered not available to him to escape from the clutches of law.
45. We know the accused is a senior student, prosecutirx is a junior student in a dental course. The accused is a Muslim by caste, prosecutirx Hindu by caste. No any close contacts between them and never interacted each other. The prosecutirx never talks to him, except the accused is a senior to her in study and the accused is residing in different flat. The defence counsel tried by every means to thrash her evidence by conducting a searching cross examination on every minute detail. However, the prosecutirx never falls prey to the cross examination of the defence, her evidence resisted and withstand the cross-examination and her 40 S.C.1545/2011 evidence above reproach. The defence by suggesting a case admitted the deadly sexual assault committed by him as below: (on page 14) ¥Àæ±ÉßB £Á£ÀÄ DgÉÆæUÉ ©¸Áä ªÀiÁåªÀiï ZÀ¯ÉÃUÀ¬Ä vÉÆà ªÀÄzsÁðAV©Ã ZÀ¯ÉÃUÀAiÀÄ PÁå? (£Á£ÀÄ DgÉÆæUÉ ©¸Áä ªÀiÁåªÀiï ºÉÆÃzÀ vÀPÀët ¤ªÀÄä UÀAqÀ¸ÀÄvÀ£À ºÉÆÃUï ©qïÛ?) E®èB £Á£ÀÄ D jÃw PÉýzÀÝPÉÌ DgÉÆæ PÉÆÃ¥ÀUÉÆAqÀÄ £À£Àß ªÀÄÄRPÉÌ ºÉÆqÉ¢gÀÄvÁÛgÉ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. £Á£ÀÄ eÉÆÃgÁV QgÀÄaPÉƼÀî®Ä ±ÀÄgÀÄ ªÀiÁrzÉ£ÀÄ JAzÀgÉ ¸ÁQë D jÃw £ÀqÉ¢®è JAzÀÄ ºÉüÀÄvÁÛgÉ DgÀÆæ £À£Àß §®UÉÊAiÀÄ£ÀÄß »rzÀÄPÉÆAqÀÄ KPÉ QgÀÄaPÉƼÀļÀwÛÃAiÀiÁ JAzÀÄ PÉýzÀgÀÄ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. DzÀgÀÆ ¸ÀºÀ £Á£ÀÄ PÀÆVPÉƼÀÄîvÀÛ¯Éà EzÉÝãÀÄ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀi®è. DgÉÆæ £À£Àß JgÀqÀÄ PÉÊUÀ¼À£ÀÄß »rzÀÄPÉÆAqÀÄ KPÉ PÀÆVPÉƼÀÄîvÀÛ¯Éà E¢ÝÃAiÀiÁ JAzÀÄ PÉýzÀgÀÄ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. DgÉÆæ ¤£ÀUÉ JµÀÄÖ d£À ¨ÁAiÀiï ¥sÉæAqïì EzÁÝgÉ JAzÀÄ PÁ¯ÉÃfUɯÁè UÉÆwÛgÀÄvÀÛzÉ KPÉ »ÃUÉ QgÀÄaPÉƼÀÄîwÛÃAiÀiÁ JAzÀÄ ºÉýzÀgÀÄ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. DgÉÆæ KPÉ £ÁlPÀªÁqÀÄwÛÃAiÀiÁ F «µÀAiÀĪÀ£ÀÄß PÁ¯ÉÃf£À°è w½¸ÀÄvÉÛÃ£É JAzÀÄ ºÉý ¨ÁV°¤AzÀ¯Éà ºÉÆgÀlÄ ºÉÆÃVgÀÄvÁÛgÉ JAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è.
46. From the above part of the intrinsic nature of the evidence what is come out from the above suggestion that it is evident that the accused as we discussed supra he attempted to commit a rape taking advantage of the PW-2 went down the stair to the ground flat of PW-3 and she was alone in the room in the guise of interaction and asking book on her failure to surrender to him he concocted and fabricated the above cock and bull story 41 S.C.1545/2011 how the PW-1 and himself sustained injuries in the wriggle to escape from the clutches of law. The defence tried to assassinate the character by throwing a mud on her character that she was moving with other boys in the college and she is a girl of easy virtue and lose character. On this ground it is proved beyond doubt that he attempted on her as depicted by the PW-1 prosecutirx. The defence should know every prostitute or girl or women have their own modesty. The particularly the defence should know even the 10 yearx girl express her modesty with stranger facing down become a shy expression in face. According to defence, the PW-1 is a street girl and to submit to him this amounts to deformation in the eye of law. The prosecutirx may be prosecuted him with out any foundation suggested above case to her. From the above part of the evidence, it appears that the accused not only attacked on the body of the PW-1 but also on her character by suggesting as above without any foundation and these things amply proved that accused attempted on the PW-1 with intention to commit a rape her. On this ground, the accused not entitled to any mercy of law. These being the facts, the learned defence canvasses that the above acts in presence of their explanation not amounts to any offence at all is meaningless. So, their arguments straight away rejected by this court.
42 S.C.1545/201147. If the accused is so called ethical man of elderly nature what prevented him to contact immediately his friend Soumya Deep to apprise the facts really happened with PW-1 in the same analogy why he should not apprise the situation on that day happened before PW-2 and 3. But, defence much cross examined about the mobile phone, the PW-1 had not communicated to PW-2 and 3 to blame the other we should be free from all blame. This principle is forgotten by the defence.
48. The defence conducted a lengthy searching cross examination of PW-1, who is the victim alone in the room at the time of incident as to lodging of complaint and other things. In her cross-examination the defence suggested that the accused was assaulted by Police Sub Inspector Kiran Kumar in her presence which is denied by her . It is further suggested that the Police Sub Inspector Kiran Kumar who gave instruction to her to write the complaint, it was also denied by her. She wrote the complainant in a different room. On the phrase words she used in the complaint, accused fell on her it is not a legal term, if the Police Sub Inspector dictates definitely use legal phrase 'Sexual assault' as well as the manner in which the accused attempted on her as told by the defence in the alleged improvements. If Police Inspector 43 S.C.1545/2011 Kiran Kumar instructed or doctored the complaint the whatever the improvements elicited by the defence would not have crept into in the evidence, definitely, the Police Sub Inspector Kiran lKuamr would have dictated the manner in which the sexual assault committed, what are the overt act accused did, and what are the injuries sustained by the prosecutirx, and how she escaped from the grip of accused and what are the acts she did to escape from his hand by shouting etc., etc., So there is no meaning in blaming the Police Sub Inspector Kiran kumar by the defence.
49. The learned defence counsel argued much on the improvements elicited terming them as contradictions. Their Lordships Justice Sri. R.S. Pachhapuri, the then Hon'ble High Court of Karnataka, in a similar kind of rape case how the word rape should be construed by the court. So, the same analogy would be applicable to the word fell on me is applicable by putting the same construction this court interpreted the word fell on averred in the complaint by the prosecutirx. So, the much significance would not be given to the argument of the learned defence counsel. Hence, rejected by this court. From these facts, it is evident that no hand of the Police Sub Inspector in writing the 44 S.C.1545/2011 complaint. So, the arguments of the defence not makes head or tail on this aspect.
50. The defence in the cross of PW-1 suggested that since PW-2 and 3 are in good terms with Pw-1 supported her story is denied by her. In the same way the accused was in good terms with the so called ethical accused, and within a 15 minutes back the accused taken the anatomy book from the hands of PW-2. Thus, the defence failed to shake the evidence of PW-2 and 3. On this ground, the evidence of PW-1 withstood the test of cross examination through out the cross examination. Not a single word helpful to the defence is elicited.
51. During the course of cross examination, it is elicited by the defence that in the police station in presence of the PW-1 it is elicited that accused went to the room of PW-1 to tell a thanks to her, when severally interrogated. The accused before the doctor while giving a history of injury went to PW-1 for discussion and book. In the defence it is suggested she came down to stair and watching PW-1 conversing in mobile with her friend Sana etc. In another breath he went to her for interaction. From the above stands it is clear that the accused is not firm and stable in his defence through out the cross examination. It is no bar for the accused to take up alternative inconsistent stands, but not mutually 45 S.C.1545/2011 destructive to each other. The taking of false defence or no defence or inconsistent defence not become a ground for the court to convict the accused. However, the accused taken a mutually destructive pleas each other and it would become a one ground for us to come down against the accused heavily. But, at the same time, it is for the prosecution to establish its case independently of the defence beyond all reasonable doubt standing on its own leg. If any one can read the lengthy cross examination of PW-1, the evidence of Pw-1 is hundred percent withstood the test of cross-examination in the hands of defence counsel. In turn corroborates on each minute detail as well as the testimony of PW-2 and 3.
52. In the cross examination of PW-1, the defence categorically suggested about the status of the accused that he is a brilliant, caliber and knowledgeable and a man of attractive personality which is flatly denied by her. Similarly the defence suggested about Bisma Sikander was calling by nick name mum and this suggestion also flatly denied by her.
53. In the cross examination of PW-1, the defence dug out the crust of the earth about the personal particulars of PW-1 that she was the daughter of Bank Manager hailing from Madhya Pradesh, her father availed loan for her study. PW-1 failed in the two years course 46 S.C.1545/2011 subjects. Later on she come out with flying colours on the subject etc. She was previously residing in hostel and cocking up food. From this trend of cross examination, it clearly shows that the accused watched and attacked taking a advantage of PW-1 was alone in the room in the evening hours and PW-2 went out down stairs to the flat of PW-3 and entered the room, bolted it inside the room and fell on her and assaulted her on her face and wriggling take place catch holding her hands and tried to kiss her and tried to stripping up her inner and outer apparels. These are the commencement of series of overt acts in the attempt to commit a rape as discussed supra. In the instant case, the transaction was/is commenced, but PW-1 escaped so it amounts to an offence of attempt. The learned defence counsel during his course of arguments, vehemently contended that these acts not at all constitute an offence of an attempt of rape, but no any offence at all. It is a absurd and devoid of merits and deserve no any consideration not only in the hands of this court, but also in a eye of law. So, the arguments, is straight away rejected by this court.
54. The learned defence counsel during the cross examination of PW-1 failed to attribute to knowledge to her as to the existence of relationship of love in between the accused and Bisma Sikander and they decided to 47 S.C.1545/2011 marry, and marriage between them broken is PW-1 flatly denied the same. During the course of cross examination of PW-1, the defence counsel further tried to show that PW-2 came to room to take a sugar at the time of incident, which fact also denied by her .
55. During the course of cross examination of PW-1, the defence counsel failed to elicit from the mouth of PW- 1 the fact that the accused was coming down from the Soumya Deep room, at that time, she was conversing in mobile with her friend Surya Sarkar and stood near by the room at that time the story narrated by him took place etc. These facts bitterly denied by her. If it may the case of defence what prevented the defence to lead the evidence of Soumya Deep to accept his defence. Mere suggestion and denial not amounts to the evidence at all in the eye of law. The defence though tried hard from heaven to earth failed to prove their defence story that accused assaulted the PW-1 on provocation being given to him assaulted her, on his refusal to accept her marriage proposal, further failed to prove their defence story that the accused was assaulted by Police Sub Inspector Kiran Kumar PW-6 at Police Station. So, the defence theory is not fits in the facts and circumstances existed in this case. The theory of the defence prima facie 48 S.C.1545/2011 palpably and patently false. Hence, rejected by this court.
56. The Police had ill-treated him with no such kind of statement was tendered before the learned Additional Chief Metropolitan Magistrate court, produced by Pulakeshinagar Police and no certified copy of bail application is produced to know what was the exact defence taken at the earliest point of time in the cross- examination of the PW-1 and Investigation officer. This defence not suggested to accepting it as the story of defence is a probable one.
57. On perusal of the order sheet of the committal court, which is a public document, no proof is required to prove it. The order sheet dated 8.11.2011, clearly mentioned that on the date of production of the accused for the first time before the learned 11th Additional Chief Metropolitan Magistrate, the accused was duly represented by his counsel Sri. RPS and counsel filed a Vakalath on behalf of the accused. The accused was before committed to the judicial custody till 21.1.2011. The accused has played a high drama by giving a lengthy oral statement before this court under what circumstances, the injuries on the parts of the body of the complainant sustained and injury on his body occurred. From the plain reading of the above said order 49 S.C.1545/2011 sheet it is a high drama and foul play seems to have played. On close reading it is strange and surprise to note that the learned Magistrate made an enquiry as to ill-treatment from the hands of police and illegal detention in the custody of the police before his investigation. The pretender accused gave some amount of go by explanation that at the instance of complainant he was taken to custody by holding his collar of the shirt and he was assaulted by the investigating officer. Due to assault he had sustained injury on his neck, etc., whether the story is probable one.
58. We know in the eye of law, standard of proof required under law by the defence is that of probability and not as that of prosecution required to prove beyond all reasonable doubt. The investigator on the arrest of the accused on 8.7.2011, got medically checked up before Dr. B.R.Ambedkar Medical College and Hospital. So called innocent accused gave the history of the case before the doctor. As per his statement he personally entered her room to discus and took a book from her on 7.11.2011, at 7.30 p.m. In the cross of PW-1, it is suggested to PW1 that he went to her to tell a thanks for having obtained book, it is not the pW-1 who gave the book to him to go and tell thanks to her. It is the PW-2 Ranjan Yadav who gave the book to him. In the cross 50 S.C.1545/2011 examination of PW-1 in another breath he suggested after obtaining the book from the hand of PW-2 Ranjan Yadav went to the room of his friend Saumya Deepa to tell him to not tried to get a dental anatomy book to him and while down the stairs he found the PW-1 conversing in phone to her friend Sana. On seeing him, she stopped the conversation, by switching off the mobile phone and then she showed the sympathy to him on being Bisma Sikander marriage with her not celebrated and got transferred to Kashmir. Thereafter, she enquired about his well being and accused gave a party to his juniors and his friends on the eve of Bakrid, why not she invited to such a party. Thereafter she made a proposal to choose her as his life partner. In other words, made a proposal to marry her. On his refusal, she retorted him, his potentiality lost with Bisma Sikander. So he provoked and lost his temper and slashed a hand blow on her face, especially on her nose. At that time, the PW-1 out of pain started screaming loudly and attracted the PW-2 and 3. At that time, the accused caught hold her both hands
59. In another breath defence suggested in cross of PW-1 accused asked her to be a good friends to each other. Thus, from stage to stage he standing his pleas and taking different pleas.
The below said injuries were noted:
51 S.C.1545/2011JqÀ ¨sÁUÀzÀ PÀÄwÛUÉAiÀÄ ªÉÄÃ¯É CzÀsð ZÀAzÁæPÀÈw DPÁgÀzÀ 1 cm x 2 cm. GzÀÝzÀ 3 vÀgÀazÀ UÁAiÀÄUÀ¼ÀÄ. PÀÄwÛUÉAiÀÄ ªÀÄzÀå ¨sÁUÀzÀ°è 0.5 cm CAvÀgÀzÀ°è PÀAqÀÄ §A¢zÉ. EªÀÅUÀ¼À ªÉÄÃ¯É PÀAzÀÄ ¹¥Éà ªÀÄÆrzÉ. JqÀ ¨sÁUÀzÀ ªÉÄÃ¯É 3 cm x 2 cm GzÀÝUÀ®zÀ ¤Ã®ªÀtðzÀ PÉA¥ÀÅ UÁAiÀÄ«zÉ. ¥ÀjÃPÀëÁ PÁ®PÉÌ F UÁAiÀÄUÀ¼À ªÀAiÀĸÀÄì 12.24 UÀAmÉUÀ¼ÀÄ
60. From this medical certificate of accused marked at Ex.P.4, the accused produced on 8.11.2011 for medical check up before the Doctor, an independent authority. If really accused was assaulted by the investigator, Police Sub Inspector, he could have mentioned the date of assault, the instruments with which he assaulted, the place where assaulted and nature of injuries sustained by him. This Ex.P.4 falsifies the defence story that the accused was assaulted by the investigator. It is clear from the contents of Ex.P.4 and complaint averments that the injuries sustained by the so called innocent accused are only during the struggle by the prosecutrix/complainant to escape from his claws of his hand only. If really, the accused was assaulted, what prevented the accused to file a private complaint against the Investigating officer/Police Sub-Inspector. It is the guilty conscious mind.
61. According to defence, the so called accused went to prosecutrix room for discussion and book as per Ex.P4 52 S.C.1545/2011 he has not complained up against Police Sub Inspector that was assaulted by investigator at Police station on arrest. He has full and fair opportunity to discuss it before the Doctor, but he did not do. According to prosecution story, both prosecutrix and accused are not a class mate to discuss about the topic, It is not the case of defence that prosecutrix had called him to her room for discussion. If she does so, definitely the prosecutrix would not have made such a hue and cry. Even if acted so, indecently and vividly she never makes complaint against the accused. Such being the character and conduct of the prosecutrix, any amount of explanation offered by the accused about his presence and occurrence of the alleged incident not fits in facts and circumstances of the case and it is not stand to reason and law of logic, how could court as a man of normal prudence, accept it. Secondly, the prosecutrix neither a good friend nor a lover. There is a mere acquaintance between two as both of them are prosecuting dental course in different years. No girl without close contact and without talking with a boy proposes abruptly all of a sudden such a marriage proposal as stated by the accused. On this ground also the amount of explanation is given is unnatural and unreasonable and wholly unacceptable.
53 S.C.1545/201162. The so called ethical accused was really assaulted by Investigation Officer/Police Sub Inspector he could have air his grievances through his counsel. If really the accused were assaulted as alleged by him definitely he could have narrated in detail through his counsel. Therefore, what he is telling the Investigating officer threatened him. If he discloses assault committed upon him by him, he would be see that detention through out the trial and these words not stands to law or logic and reasons. The hunters are criminals, always most dangerous and never bothered to their life. If the accused really sustained injury in the hands of Police, he definitely explained before the Magistrate under section 55 of Cr.P.C., the Magistrate bound to note it in the order sheet and advised the accused to file a private complaint against the erred officer. If really the police had threatened him not to disclose about the police assault, he really would have to file a private complaint against the assaulted police and got issue a summons to them and are to be tried along with this case simultaneously. From these things it is abundantly clear that to cover up his criminal act built up a cock and bull story or clause of law that police have assaulted him and arrest at police station. Even some criminals goes to an extent of committed suicide and played high drama to escape from the clutches of law. On 54 S.C.1545/2011 these reasoning whatever the defence put forwarded is hard and bitter lie.
63. To accept the defence theory, the accused was assaulted by the investigator, their must be two possibilities. Firstly, the complainant/prosecutrix must have bribed them to assault him or their must be some grudge or animosity in between investigator and accused. It is not a defence case that the complainant /prosecutrix bribed to assault him. It is not the case of defence that there was a grudge extended between him and the accused to assault him. The accused is not dullard or simpleton boy, how this court should be believed the theory of defence that the accused completed the dental course.
64. The accused had chosen a time that in the evening hours almost student and job holders went to walk. Further, he had noticed that Ranjan Yadav went out of the room and went to Madhu Rima's room. In which, the accused in the guise of committing crime asking a book and discussed. He is not at all class mate and connected to their studies at all. He went to the room of the prosecutrix/complainant attempted to rape on her. This is the aggregating circumstance existed in this case. If the accused is so ethical and satured mind, he would not have entered into a room of the 55 S.C.1545/2011 prosecutrix/complainant when she was alone. The plan with which he went inside the room and bolting it would shows that he is a man of hunter, but, the legal point to escape from the clutches of law. More over any alleged injury caused to the complainant /prosecutrix tally with the modes of operandi of attempting to commit rape. When the accused rapist fall down on her body and put a hands on her mouth gagging it and in attempted to escape he slashed hand blow on her face, especially on her nose to keep her silent and caught hold her full arms to resist her resistance. The causing of injury on her body and body of accused tally each other. This is only a futile attempt to escape from the clutches of law.
65. It is not the defence of the accused that the victim girl was not belonged to his caste and not deep social contact with him and not talking terms with him not proposes such a marriage proposal. It is highly impossible to accept the defence theory.
66. This court as a man of advocate or as a man of politician or as a stubborn judicial officer acquired vast experience on the side of sexual life and friendly relations, the girl who likes a particular boy at the most she invites for sex only, not for marriage proposal. She may ask a boy inviting him to come and see nothing more. In the given case on hand, no reactions and 56 S.C.1545/2011 mutual talks and social contacts earlier to the incident to accept the defence theory that prosecutrix complainant made a proposal to marry her on his love affairs or failing of marriage proposal with Bisma Sikander. We do not know on seeing what qualities, the accused had either handsome personality or his richness or his brilliantness prosecutrix/ complainant attracted to put marriage proposal to him on being refusal, she provoked.
67. The accused that potentiality went out with the Bisma Sikander. On that provocation he loose temper is unbelievable story. This court finds no attracted personality either his person or his caliber or his status that prosecutrix attracted and loved by accused and put a marriage proposal to him. So, on this ground, it is a concocted story.
68. If the accused is so ethical to the extent to slash on hand blow on the face of the dwarf prosecutrix could have explained to PW-2 and PW-3 what prevented to him to apprise the same situation before them what prevented the accused to bring to the knowledge of the Soumya Deep about the incident who was in the third floor of the same flat. These facts clearly establishes that the accused to cover up his misbehavior and misdeed telling a bitter lie before the court. Hence, his explanation carry a no weight at all.
57 S.C.1545/201169. From the combined and close reading of the examination-in-chief and cross examination of PW-1 conducted at lengthiest way, the testimony of PW-1 withstood the test of cross examination in the hands of defence counsel and contains no inherent improbability or illegality in it and it is a self corroborated testimony, itself alone is sufficient for this court convict the accused for an offence alleged against him under Section of 134 of Indian Evidence Act. Since the evidence of PW-1 is self corroborated on all material particulars is accepted by this court discarding the theory of defence how on two occasions i.e., on the body of prosecutirx and on his body the injury sustained and incident happened.
70. The PW-2 and 3 are the witnesses who cited to speak about the fact that the accused following the PW-1 who was then shouting and weeping down the room and threatening to spoil her future career if disclosed the incident to others and to kill her. This is subsequent part of the story after the event of attempt to commit a rape happened. The defence counsel conducted searching and piercing cross examination on minute particulars their testimony directly corroborated the version of PW-1 as to subsequent story after the event happened in their cross examination, the defence not elicited as to why these two witnesses deposed enmically deposed against 58 S.C.1545/2011 him. Their evidence withstood the test of cross examination in the hands of defence counsel. It is therefore, on this ground alone this court accepted their testimony fully and creditworthy. In the cross examination of PW-2 the defence tried hard to show she was went to Heba Ansari's flat for cocking the sweat. In another breath suggested she was present along with PW-1 at the time of incident and not went to the room of PW-3 which is in the ground floor of the same building and both of them on hearing the screaming coming up confronting the PW-1 as accused following behind her threatening to kill and spoil her life and he went away. Then PW-2 and 3 consoled her and enquired what happened to her, then PW-1 to 3 decided to lodge a complaint against the accused. In the cross examination of PW-3 defence tried hard to show the PW-3 room was closed and were not present and PW-2 not come to her room on hearing a scream of some one else both of them went up to room of PW-1 and witnessed the incident. The PW-2 went to the room of Heba Ansari for cocking sweat and come back to take a sugar to her room, at that time, PW-1 and 2 were present. Whatever heaven and earth effort put by the defence counsel to discredit their evidence is totally and completely failed. In the cross examination of PW-2 the defence failed to suggest what is suggested to PW-6 that PW-1, 3 and PW-6 discussed how 59 S.C.1545/2011 to lodge the complaint against the accused, after discussion the Ex.P1 came to be lodged. In the cross examination of PW-3, it is suggested to her that the Madhurima Nandi come to Police Station along with her boy friend is denied by her as well as PW-1 and 2. The defence tried to assassinate the character of PW-3 like that of PW-1. But, the defence has exceeded their limit. The evidence of PW-1 on one hand and evidence of PW-2 and 3 con the other hand corroborates each other as to subsequent event happened after the attempt of the accused failed. We have discussed the evidence of PW-1 at length how it withstood the test of cross examination in the hands of defefence counsel. So, the evidence of PW-1 to 3 is sufficient to throw away the defence theory, that it is a ostensibly and patently false.
71. PW-4 is the doctor who gave the medical check up reports of the accused marked at Ex.P3 and P4 respectively. As we discussed supra, the accused has not given a history of assault before PW-4 that the Police Sub Inspector Kiran Kumar assaulted him at Police Station on being arrested by him. We have discussed at length at supra about the falsity of the defence taken by the accused. The evidence of PW-4 not shaken by the defence. On the other hand, the evidence of PW-4 directly corroborates, when sexual assault committed 60 S.C.1545/2011 such injuries would be caused. The defence though tried hard failed to discredited the evidence of PW-4 not helpful to prove the prosecution story. On this ground we have accepted the evidence of PW-4 fully as a creditworthy
72. PW-5 is the caretaker of the flat where the incident took place. In the instant case, the defence not disputed about the alleged incident took place but not the manner in which stated by the PW-1 to 3 is disputed and failed to discredited the evidence Pw-1 to 4 in toto. The evidence of PW-5 is formal in character only.
73. PW-6 is the Police Sub Inspector Kiran Kumar who received the complaint and registered the First Information Report and conducted the investigation and submitted the charge sheet before the court, whose evidence also attacked by the defence. The defence in the cross examination of PW-6 tried to show that the accused went to the room of PW-1 to tell a thanks to her. It is not the PW-1, but, it is a PW-2 who give the dental anatomy book to accused. Where is the occasion arises to accused to go to PW-1 to tell the thanks. In another version after getting a book from the hands of PW-2, he went to room of the Soumya Deep in the same building on terrace and told him he had obtained the said book and not tried to get the same, while coming back near the stair case, the 61 S.C.1545/2011 PW-1 was conversing in phone with her friend Sana at that moment, his alleged fictional incident occurred. The defence throughout in the cross examination of all witnesses the defence changing its defence pleas as a chameleon. In the cross examination of PW-6 it is not suggested by the defence that because of his assault with his staff the accused had sustained the injuries as shown in the Ex.P4. But, in the cross of PW-1, the defence suggested in her presence PW-6 assaulted in the Police Station, what is suggested to PW-1 not suggested to PW-
6. So, the falsity of the defence is exposed by their own different versions. The defence counsel in the cross examination of PW-6 suggested to PW-6 that since PW-1 talked about accused and Bisma Sikander in disparaging words he hit on her nose denied by her. Though the defence tried in the cross of PW-1 and 6 to elicit their theory of defence, but, completely failed in it. In the cross of PW-6 the defence failed to suggest that what was the grudge the accused was having with PW-6 to implicate falsely in heinous crime. Viewing from any angle the evidence of PW-6 withstood the test of cross examination in the hands of defence counsel.
74. The defence tried to show there was a delay in dispatching First Information Report. Basing this aspect, the defence tried to show the crime registered on 62 S.C.1545/2011 8.11.2011 and become unsuccessful in it. Finally, the defence tried to show the PW-6 has no jurisdiction to registered and investigate the present crime without showing the provision of law before this court. On the above grounds, we have accepted the evidence of PW-6 is free from all doubts.
75. In the cross examination of PW-1 to 3 the defence tried to assassinate their character suggesting that Pw-1 moving with a college boys, PW-2 and 3 having a boy friends etc. The Hon'ble Supreme Court of India in the authority AIR 1981 ruled that if a boy and girl talks on the street not to be treated them as a lovers. On this reasoning, the whatever the cross examination, the defence did try to assassinate the characters of PW-1 to 3 is exceeded its limit.
76. The PW-1 in her complaint as well as her evidence stated, the accused fall on her these words clearly shows non compromising position between PW-1 and accused at the time of sexual deadly attack. The PW- 1 explained how the accused in what manner he attacked on her to have a sex with her forcibly and she gave the pictorial representation of the event of an attempt of rape, so the evidence of Pw-1 is self corroborated and is free from all doubts. The injuries sustained by PW-1 supported by Ex.P3, the medical check up report. It is 63 S.C.1545/2011 therefore this court accepted the version of PW-1. The subsequent event happened supported by the evidence of PW- 2 and 3. On this ground we have accepted the entire version as a reliable and credit worthy. The injuries sustained by the PW-1 directly corroborates with the P3, the medical check up report. In the evidence of PW-1, there are no any improbable or legal infirmities to reject her evidence. The entire version of PW-1 appears to be most natural and probable one hence accepted by this court. During the course of his arguments, the defence counsel canvassed that since the accused proved his theory of defence is probable one no any offence will be made out against him, hence requested to acquit the accused.
77. We have discussed the evidence of PW-1 to 6 at length as to why their evidence is reliable, creditworthy and hence their evidence accepted fully by this court. On this ground, the arguments of the defence counsel is rejected by this court.
78. We followed the ratio laid down in the authorities quoted by the defence while writing judgment.
79. On total scanning of the entire prosecution testimony, including both documentary and oral testimony on record, the testimony of Pw-1 is self 64 S.C.1545/2011 corroborated on all particulars and is free from all kinds of doubt as to occurrence, the subsequent event after the attempt to commit a rape occurred is supported by the testimony of PW-2 and 3 and version of PW-2 and 3 are reliable and creditworthy. The alleged occurrence attempt to commit a rape is directly corroborated by the testimony of Ex.P3. There is no delay in approaching the police station by the PW-1 in lodging complaint. The defence theory that how PW-1 under what circumstance, she sustained injuries and injuries on the body of accused sustained are not reasonably and properly explained by him. The whatever explanation given by him are not fit in the facts and circumstances of the case. The defence taken by the accused is mutually destructive to each other, though it is the right the investigation also done in a right and proper direction. The defence failed to show that as to why PW-2 and 3 deposed against the accused. The entire prosecution testimony is unimpeachable one. The whatever the oral and documentary evidence placed on record is sufficient to convict the accused for the offences punishable under Sec. 506 and 376 r/w Sec. 511 of Indian Penal code. It is therefore, the accused is found guilty for the offences punishable under Sec. 506 and 376 r/w Sec. 511 of Indian Penal code. Hence, we answered the points No.1 and 2 in the affirmative.
65 S.C.1545/201180. POINT NO.3: In view of my findings on point No.1 and 2 we proceed to pass the following, ORDER Acting under section 235(1) of Criminal Procedure Code, accused is convicted for the offences punishable Under Sections 506 and 376 and r/w Sec. 511 of Indian Penal Code.
For say of sentence (Dictated to the Stenographer corrected and then rd pronounced in Open Court on this the 23 day of April, 2016.) (G.B.MUDIGOUDAR) LIII ADDL, CITY CIVIL & SESSIONS JUDGE, BANGALORE.
66 S.C.1545/201123.4.2016 Judgment pronounced in open court.
(Vide separate Judgment) 67 S.C.1545/2011 Acting under section 235(1) of Criminal Procedure Code, accused is convicted for the offences punishable Under Sections 506 and 376 and r/w Sec. 511 of Indian Penal Code.
For say of sentence (G.B.MUDIGOUDAR) LIII ADDL, CITY CIVIL & SESSIONS, JUDGE, BANGALORE.