Karnataka High Court
Ashok vs State By on 27 June, 2024
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NC: 2024:KHC:24061
CRL.A No. 321 of 2014
C/W CRL.A No. 386 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 321 OF 2014 (C)
C/W
CRIMINAL APPEAL NO. 386 OF 2014
IN CRL.A. NO.321 OF 2014
BETWEEN:
1. ASHOK
S/O LATE ESHWARAPPA
AGED ABOUT 34 YEARS
CONTRACTOR WORK
R/O LABOUR COLONY
BEHIND KSRTC BUS STAND
BHAGATH SINGH NAGARA
DAVANAGERE TOWN-577 002
2. SHRI. SHIVU
S/O LATE ESHWARAPPA
AGED ABOUT 27 YEARS
COMPUTER ENGINEER
R/O LABOUR COLONY
Digitally signed BEHIND KSRTC BUS STAND
by SHAKAMBARI BHAGATH SINGH NAGARA
Location: HIGH DAVANAGERE TOWN-577 002
COURT OF
KARNATAKA 3. SMT. YASHODAMMA
W/O LATE ESHWARAPPA
AGED ABOUT 54 YEARS
HOUSE WIFE
R/O LABOUR COLONY
BEHIND KSRTC BUS STAND
BHAGATH SINGH NAGARA
DAVANAGERE TOWN-577 002
...APPELLANTS
(BY SRI. MOHD USMAN SHAIKH., ADVOCATE)
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NC: 2024:KHC:24061
CRL.A No. 321 of 2014
C/W CRL.A No. 386 of 2014
AND:
STATE BY
HOLALKEE POLICE STATION
HOLALKERE-577 526
...RESPONDENT
(BY SRI. M. DIWAKAR MADDUR, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:11/19.4.14 PASSED BY THE ADDL.
DIST. AND S.J., CHITRADURGA IN S.C.NO.12/10 - CONVICTING
THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 417 R/W
SEC. 114 R/W SEC. 34 OF IPC.
IN CRL.A. NO.386 OF 2014
BETWEEN:
MR. HARSHA
S/O LATE ESHWARAPPA
AGED ABOUT 36 YEARS
CONTRACTOR WORK
R/O LABOUR COLONY
BEHIND KSRTC BUS STAND
BHAGATH SINGH NAGARA
DAVANAGERE TOWN-577 002
...APPELLANT
(BY SRI. MOHD USMAN SHAIKH., ADVOCATE)
AND:
STATE BY
HOLALKEE POLICE STATION
HOLALKERE-577 526
...RESPONDENT
(BY SRI. M. DIWAKAR MADDUR, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED:11/19.4.14 PASSED BY THE ADDL.
DIST. AND S.J., CHITRADURGA IN S.C.NO.12/10 - CONVICTING
THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 376, 417 OF
IPC.
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NC: 2024:KHC:24061
CRL.A No. 321 of 2014
C/W CRL.A No. 386 of 2014
THESE APPEALS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are preferred by the appellant- accused being aggrieved and dissatisfied by the judgment of conviction and order of sentence passed by the Addl. District and Sessions Judge, Chitradurga in SC No.12/2010 dated 11th April 2014.
2. Crl. Appeal No.386 of 2014 is preferred by accused No.1 in the said Sessions Case, whereas, Criminal Appeal No.321/2014 preferred by accused Nos. 2 to 4 in the said case.
3. As both these appeals arise out of a single judgment, in order to avoid conflicting judgments and avoid repetition of discussion, as the common arguments are heard in these two appeals, common documents are relied upon by both the parties, by way of this single judgment, both these appeals are taken up for disposal together.
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4. Parties to these appeals are referred to as per their rank before the trial Court for the purpose of convenience.
PROCEEDING BEFORE THE TRIAL COURT:
5. That the victim lady, on 25.05.2009, at 1.00 p.m. by appearing before the Police Sub-Inspector, Holalkere Police Station filed a written complaint alleging that, during the month of October, 2008, there was a talk of marriage of the complainant with accused No.1 by name Harsha. As per the marriage talks between the elderly members of complainant and accused No.1, the father of the complainant agreed to give a dowry of Rs.2 lakhs and gold worth 150 grams to the groom. Even it was agreed that, 50 grams of gold is also to be given to the complainant. As per the terms agreed between both the families, the marriage date was fixed as 18th and 19th February 2008 at Tulasi B.Narayana Kalyana Mantapa, Hiriyuru. It is further stated that, an amount of Rs. 2 lakhs was paid to the father of the accused No.1 by name -5- NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 Eshwarappa in the house of uncle of the complainant at Hiriyuru. It is stated that, father of the accused Eshwarappa committed suicide. Therefore, the marriage could not be performed and it was postponed.
6. It is further stated by the complainant in the complaint that, the accused No.1 used to visit her and used to have telephonic talks also. The marriage was postponed on the ground that, they will perform the marriage of accused No.1 with the complainant. At that point of time, the complainant was working in a Bank at Vasanthanagara in Bengaluru and was residing with his brother Mahesha who was doing vegetable business. It is specifically alleged by the complainant that, on 20th October 2008, this accused No.1 met her and forced her to accompany him to Mysuru as she intends to get purchase of a ring for her. Initially she refused. But, accused No.1 forcibly took her in his car to Mysuru. It is alleged by the complainant that near Mandya, she experienced headache. Therefore, she requested to -6- NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 provide her a tablet for headache. At that point of time, accused No.1 told that, his father has got house at Mandya, let us take rest in the said house and move ahead. Therefore, both went to the house of father of the accused No.1 at Mandya to take rest. There, this accused No.1 brought a tablet and also the breakfast. After consuming the breakfast, he gave a tablet to her. On consuming the said tablet she fell asleep. It is alleged by the complainant that, when she woke up, she was found undressed. Taking undue advantage, it is alleged by the complainant that, accused had illegal sexual intercourse with her while she was asleep. When she started weeping and when she asked him that, why he has done so, accused No.1 persuaded her that he is going to marry her and engagement is also taken place. He threatened her that, he will cancel the marriage if she discloses the fact to any other person. Thereafter, they returned to Bengaluru.
7. It is alleged that, on 04.04.2008, accused No.1 came to Upparigenahally, the native place of complainant -7- NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 and stayed there for two days. On one day, when nobody is in the house except the complainant, at 3.00 p.m., accused No.1 had forcible sexual intercourse with her. It is further alleged that about fifteen days prior to filing of the complaint, the complainant's parents and other elderly members went to Davanagere to fix the date of marriage. At that time, accused persons demanded additional dowry of Rs.2.00 lakhs. It is further alleged by the complainant that, on 25.05.2009, she informed her parents and elderly members that this accused had committed rape on her. When her parents informed the said fact to the accused, they started abusing them in filthy language and they talked with regard to the character of the complainant. They did her character assassination. When complainant herself contacted accused No.1 through telephone, he refused to marry her and abused in filthy language. He also told that he is planning to marry another girl shown by his mother-in-law. It is further stated in the meantime, father of accused no.1 died by committing suicide. Therefore, the family of the accused persons told -8- NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 the family of the complainant that, because of the engagement of the complainant with her son with accused no.1, the father of the accused no.1 died. Therefore, they have cancelled the marriage. With these allegations, she filed a complaint before PW.14 Hazamathulla Khan Gafoorkhan, the then ASI of Holalkere Police Station.
8. On receipt of the complainant, this PW.14 registered the crime in Crime No.227/2009 for the offences punishable under Sec.376, 420, 114 of IPC and set the criminal law in motion.
9. PW.15 S.Panduranga, the then CPI of Holalkere Police Station took up the investigation on 25.5.2009 itself. He conducted the part of the investigation and during the course of investigation he recorded the statements of various witnesses. Thereafter, he handed over investigation to PW.17 S.A.Wodeyar, the then Police Sub-Inspector of Holalkere Police Station. On 20.7.2009, this PW.17 on taking up the investigation, collected the vital documents regarding the case with regard to the -9- NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 investigation and after completion of investigation, he filed a charge sheet against all the accused persons i.e., accused Nos.1 to 6 for the offences punishable under Sec.376, 420 and 114 of IPC.
10. Before the learned trial Court, to substantiate the case of the prosecution, in all examined 17 witnesses as PWs.1 to 17 and got marked exhibits Ex.P1 to P17 with signatures thereon. During the course of cross- examination Exs.D1 to D4 were marked. Prosecution also got marked material objects as MO Nos.1 to 4 and closed prosecution evidence.
11. The trial Court, on hearing the arguments and on perusal of the material placed on record, found the accused No.1 guilty of committing offence under Section 376 of IPC so also accused 2 to 4 for committing the offence 420 and 114 of IPC and passed sentence against accused Nos. 1 to 4 as under:
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1. The accused-1-Harsha S/o. Late Eshwarappa, Age: 30 years, Occ: Contractor, R/o. Labour Colony, Behind KSRTC Bus-stand, Bhagath Singh Nagara, Davanagere Town, shall undergo rigorous imprisonment for period of ten years and shall also pay fine amount of Rs.
10,000/- for the offence punishable U/Sec.376 IPC.
2. Further, the accused-1 above stated shall undergo rigorous imprisonment for a period of one years and shall also pay fine amount of Rs.5,000/- for the offence punishable U/S.417 of IPC.
3. Further, the Accused-(2) Ashok S/o Late Eshwarappa, Age: 34 years, accused-(3) Shivu S/o.Late Eshwarappa, Age: 27 years and accused-(4) Yashodamma W/o. Late Eshwarappa, Age: 54 years who are all R/o. Labour colony, Behind KSRTC Bus- Stand, Bhagath Singh Nagara, Davanagere Town shall undergo simple imprisonment for a period of one year and shall also pay fine amount of Rs.3,000/- each for the offence punishable U/S.417 r/w. Sec.114 r/w. Sec. 34 of IPC.
4. In default to pay the fine amount, the accused-1 stated above shall undergo simple imprisonment for further period of one year and accused-2 to 4 stated above shall undergo simple imprisonment for further period of two months.
5. All the substantive sentences shall run concurrently.
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6. The accused-1 to 4 are entitled benefit of set-off of imprisonment as per Sec.428 of Cr.P.C.,
7. M.Os.1 to 4 are ordered to be destroyed after completion of limitation period of preferring appeal, as they are worthless.
8. Further the accused-1 to 4 are directed to give compensation of Rs.1,00,000/- (Rupees one lakh only) to the victim-
prosecutrix, resident of Upparigenahalli, Holalkere Taluk as per Sec.357 of Cr.P.C.
9. The Deputy Commissioner, Chitradurga is directed to take all recourse to execute the order of compensation of Rs.1,00,000/- as ordered above to the victim from the accused as if arrears of land revenue by the accused by making use of property of the accused. The Deputy Commissioner, Chitradurga is directed to get create charge over the land of the accused until the payment of compensation made to the victim by making use of the property of the accused.
10. The Chief Administrative Officer of this Court is directed to send certified copy of the Judgment of Conviction and Order on Sentence to the District Magistrate/Deputy Commissioner in compliance with Sec.365 of code of Criminal Procedure by highlighting the order passed by this court while ordering sentence above.
11. The Deputy Commissioner is directed to submit report to this court regarding the action taken as above stated within a period of 6 months from to-day.
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12. C.A.O. is directed to furnish free copy of Judgment and order on sentence to the accused forthwith.
13. The bail band and surety bond of A2 to 4 shall stand cancelled.
12. So far as accused Nos. 5 and 6 are concerned, they were acquitted by the trial Court. This is how now accused Nos.1 to 4 by preferring these appeals as stated supra are before this Court challenging the judgments so impugned in these appeals.
13. Sri Mohammed Shaikh, learned counsel for the appellant-accused with all force submits by reading the charge so framed by the trial Court, the very framing of the charge under Section 420 of IPC itself is wrong. According to him, only when accused no1 has not married the complainant, it cannot be stated that a charge is to be framed for cheating under Section 420 of IPC. There is no fraud as such in the manner alleged by the complainant. According to him, the alleged incident of rape has taken place on 20.10.2008 and 04.04.2009. He took the Court through the examination-in-chief as well as cross-
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 examination directed to this PW.1 being the victim lady. According to his submission, no such offence has been committed by accused No.1 or any other accused persons in the manner alleged by the prosecution. It is the case of the prosecution that, this accused No.1 had given a tablet to the complainant and by consuming the said tablet she fell asleep at that time, he has committed rape on her and when she woke up she was undressed and she suspected foul play of accused that, he has committed the rape on her. But, she never disclosed the said fact to anybody right from 20.10.2008 till filing of the complaint. Even according to her complaint on 4.4.2009, also when nobody was in Upparigenahally, accused committed rape on her forcibly but, her evidence is quite otherwise. According to his submission, except self-serving evidence of PW.1 complainant lady there is no evidence placed on record by the prosecution to prove the offence so alleged against the accused No.1. The story so projected by the prosecution is nothing but, black mailing the accused persons. She has not whispered about the said fact to anybody, much less
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 to her parents when alleged that accused No.1 has committed rape on her when she fell asleep on 20.10.2008 and even thereafter, on 04.04.2009. According to his submission, the engagement was in subsistence according to the case of the prosecution. In fact, no engagement has taken place. It is his submission, there is no medical evidence to prove the offence against the accused. Whatever the evidence spoken to by the witnesses in this case do not attract the provisions of Section 376 of IPC against accused No.1 or Section 420 or 113 against other accused persons in the manner stated. The other witnesses are all hearsay witnesses. It is a deliberate complaint filed just to harass the accused persons. So called complaint was filed after 7 months of the alleged incident which cannot be accepted at all. The story so spoken to by the witnesses in this case cannot be believed at all at any stretch of imagination. There were two incidents according to the case of the prosecution but, these incidents are not duly proved in accordance with law. The evidence of the witnesses so examined in this
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 case, create a doubt about the very genesis of the case of the prosecution. According to his submission, the learned trial Court just by reading the police papers which have been prepared at the instance of the complainant and her family members believed the story of the complainant and passed the impugned judgment of conviction and order of sentence. There were no marriage negotiations. But, the Court accepted the fact that, there were marriage negotiations. Right from beginning, there is no contact at all. No deception has taken place in the manner stated by the complainant. It is his submission that, as there is no cogent and acceptable evidence not only against accused No.1 but also against other accused persons, it is submitted that, the prosecution has utterly failed to prove its case beyond all reasonable doubt. Therefore, in view of fabrication of a case against accused persons, the accused Nos.1 to 4 who are appellants in both these appeals are entitled for acquittal.
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14. In support of his submission, learned counsel for the appellants-accused relied upon various evidence spoken to by the witnesses as well as the decisions of Hon'ble Apex Court in Criminal Appeal No.2276/2014 decided on 30th October 2023 in the case of Manak Chand alias Mani vs. State of Haryana.
15. As against this submission, the learned HCGP with all force supported the reasons assigned by the trial Court in coming to the conclusion that, accused No.1 has committed the offence against complainant-lady as well as these accused persons 1 to 4 have abetted to commit the offence as well all of them have committed the abetment and as well as cheating. It was a deception being committed by the accused persons. He submits that, the evidence of PW.1 itself is sufficient to prove the guilt of the accused. No lady in India speaks falsehood and say that she has been raped by the accused No.1. It is his submission that, the very genesis of the case has been spoken to by PW.1 in material particulars, the evidence of
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 PW.1 is corroborated by evidence of PW.2 and other witnesses. Therefore, in view of factual features so stated by the witness in this case as well as reasons assigned by the trial Court, according to his submission, no interference is required in the impugned judgment. He submits to dismiss the appeal.
16. I have given my anxious consideration to the argument of both the side. Meticulously perused the records.
17. In view of the rival submissions of both the side and on perusal of the records placed on record, the following points arise for my consideration:
i) Whether the trial Court has committed error in convicting and sentencing the accused persons for the alleged offences under Section 376, 420 read with Section 114 of IPC without properly appreciating the evidence lead by the prosecution?
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ii) If so, whether the judgment of conviction and order of sentence passed by the trial Court require interference by this Court:
Point Nos. 1 and 2 are discussed together:
18. Before adverting to the other aspects of the case, let me analyze certain factual features so narrated in the complaint so as to put a foundation to the prosecution case as narrated in the complaint.
19. As per the complaint allegations, this complainant lady is the daughter of one Eshwarappa and was working at Bengaluru at the relevant time. She was residing with her brother who was doing vegetable business. According to the complaint allegations, her brother Mahesha used to be at Bengaluru and used to do his business from morning till evening. She was working in ICICI bank at Vasanthanagara Branch. Her marriage talks were conducted in between her parents and family members of accused No.1. It is specifically stated by the complainant that, in the said marriage talks,
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 it was agreed by the father of the complainant to give a dowry of Rs.2 lakhs and also 150 grams of gold to the groom. So also, 50 grams of gold to be given to the complainant. It is further stated by the complainant that, marriage of the complainant and accused No.1 was fixed on 18th - 19th February 2009 at Tulasi B Narayana Kalyana Mantapa at Hiriyuru. It is the further case of the prosecution that, towards the dowry, father of the complainant gave Rs.2 lakhs to the father of the accused No.1 in the house of his brother at Hiriyuru. So this is all having stated by the complainant in her complaint Ex.P1.
20. A specific allegation has been made by the complainant that, the father of the accused No.1 committed suicide before the marriage, therefore, the marriage was postponed. Therefore, the family of the accused No.1 were not happy about the marriage talks in between the family of the complainant and the accused persons. It is the specific averment in the complaint that, at the time of marriage talks, the elderly members of the
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 family of complainant's father as well as elderly members of the family of accused No.1, including the relatives of both the families had discussion about performing her marriage with accused No.1.
21. According to the allegation made in the complaint, because of the death of the father of the accused No.1 the marriage was postponed. But even then, the accused No.1 used to visit the house of the complainant at Upparigenahally. He used to call her over telephone. One year prior to the said marriage talks, this complainant was working in Bengaluru. She was working at Vasanthanagara Bank Branch. It is specifically alleged by the complainant that, on 20th October 2009 accused No.1 came to the house of the complainant at Bengaluru and asked her to come to Mysuru for the purpose of purchasing a ring. When she refused, he insisted her. He telephoned to his mother and her mother told to accompany accused No.1 to Mysuru as already marriage has been scheduled. Forcibly accused No.1 took
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 complainant with him in a car stating that already the Kalyana Mantapa is fixed. They started from Bengaluru at 9.00 p.m. on that day. They reached Mandya at about 11.00 a.m. As the complainant was suffering from headache, she asked the accused No.1 to provide a medicine for her. Accordingly, he bought a tablet to her. Thereafter, they went to the house belonging to his father at Mandya near Harsihchandra Circle. He told that, let us take rest in the said house and proceed. When they went to the house at Mandya, his father had gone to Kollegala. Nobody was there in the house. Neighbours saw these two persons at that time. Accused No.1 gave a painkiller tablet to her. When she took the tablet, she fell asleep. When she woke up, she noticed that she was fully undressed (naked). It is specifically alleged by the complainant that, this accused No.1 taking undue advantage of her innocence, forcibly had sexual intercourse. When she asked him that, why he has done such a wrong act, and told that, she will inform the same to her parents, at that time, he told that already he had
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 decided to marry her. He told not to fear for the act and if she want he is ready to get her married by performing register marriage. He also gave a threat stating that, if she inform this to anybody he will cancel the marriage itself. Therefore, as she was very much concerned about the reputation and dignity of her family, therefore, she kept mum. It is specifically stated by the complainant that, on 04.04.2009 accused No.1 came to her house and stayed there for two days. The neighbours like Manjunatha, Hema, etc., have seen the presence of the accused No.1 in her house at that time.
22. On 04.04.2009, taking advantage of the absence of the members of the family, it is alleged by the complainant that, accused asked her to have a sexual intercourse with her. At that time, complainant told that, he had cheated her, etc., She alleges that even then accused forcibly had a sexual inter course with her stating that, he is going to marry her. Even he gave a threat that this fact should not be informed to any other person. In
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 the meantime, her parents wanted to fix the marriage date and went along with the elderly members and relations to the house of the accused No.1 at Davanagere. They refused to perform the marriage etc., As the accused No.1 and his family members refused to perform the marriage, therefore, on 25.05.2009 she lodged the complaint as per Ex.P.1.
23. This PW.1 being the complainant has reiterated all these assertions, allegations made in the complaint in her evidence. According to her evidence, if looked into, spoken in examination in chief, even more than what is alleged in the complaint have been stated in her examine in chief. According to her evidence, the amount of Rs.2 lakhs was given to the father of the accused No.1 in the presence of Chandranna, the resident of her village and PW.9. According to her, on 20.10.2008 when accused No.1 called her on phone stating that, he is going to take her to Mysuru, at that time, she was working in Bengaluru. She further states that forcibly he took her to Mysuru. But
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 he has not informed his father about his going to Mysuru on that day. In page No.3 of the cross-examination she states that, when accused No.1 called accused No.4 over telephone to accused No.4, it was accused No.4 informed the complainant to accompany accused No.1. She reiterates all the aforesaid facts in her evidence. She states that, when she woke up in the house at Mandya, she noticed that she has become naked. she says that, accused No.1 has spoiled her. According to her evidence, she was raped by the accused. She started weeping. At that time accused No.1 told that, already engagement is over and he is ready to marry her and even he is ready to perform register marriage with her. She abused him. Thereafter, he consoled her and brought her to Bengaluru. When they reached Bengauru it was about 8.30 p.m. Altogether a different evidence has been spoken to by PW.1 in her evidence on oath.
24. She further states that, father of the accused No.1 died by committing suicide in the month of
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 December. Accused No.1 father was knowing about that this incident of committing rape on her by the accused No.1. But, went on postponing the marriage.
25. It is further stated by her that, during 2009 Ugadi time, accused No.1 came to her house. At that time complainant was also at Upparigenahally in her parents house. He stayed for 1 or 2 days. The neighbours have seen the presence of the accused No.1 in the house of the complainant at that time. In the house at Upparigenahally herself, her younger brother, her parents used to reside. One day her parents had been to their landed property. Her brother had been to school. In the afternoon accused No.1 came to her when she was alone and asked to her that, he wants to have a sexual intercourse with her. He spoke very cheap words with her. By that time, one Hemanna, Manjanna came to her house in search of her father. By the time parents of the complainant came to the house, accused left to his village. He gave a threat while going that, if she informs the said fact to anybody,
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 he will not marry her. Therefore, she did not inform the same to any body.
26. If the evidence spoken to by PW.1 in para 5 of the complaint is compared with the contents of the compliant, there, she says that when accused No.1 came to the house during Ugadi time, he committed rape on her forcibly when nobody was in the house but, in para 5 of her examination-in-chief, she never says about committing of rape by accused No.1. According to her complaint, accused No.1 has not married complainant. Therefore, the complaint is filed
27. She states with regard to the visiting of the Police to the scene of offence. She has shown the scene of offence to the Police and she was taken to Mandya, Bangalore and their panchanama was conducted etc. But, in Mandya, where the alleged first offence has taken place, no panchanama was conducted as door of the said house was locked.
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28. She has been directed with severe and intensive cross-examination by the counsel for the accused. She states about arrival of accused Nos.2, 3 and 4 etc., in her evidence. But, no evidence is spoken by her about role of these accused in the commission of crime as alleged by her.
29. She states that, in the month of February- March 2008, the family members of accused No.4 came and saw this complainant to perform her marriage with accused No.1. So also on 09.10.2010 `Vijayadashami' day, one Eshwarappa, i.e., father of accused No.1, Harsha accused No.2, his brother Narayanappa and his wife and others came to the house of the complainant. Thereafter, some other persons came along with the accused No.1. That means, there were marriage talks of accused No.1 and the complainant as per the evidence of PW.1.
30. With regard to the so called incident of forcible sexual intercourse on 20.10.2008, in paragraph-24 of her cross-examination, she says that, on 20.10.2008 at
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 6.00 a.m accused No.1 called her over phone. He told that he is going to Mysore on that day. To that effect, it is not informed to her parents as well as her brother. When accused No.1 came to the house of the complainant at Vasanthanagar along with accused No.3, it was about 8.45 a.m. Accused No.1 called the complainant. She told that, she is not willing to come. They had talks for 5 to 10 minutes. There were people moving on the road at the time. But, forcibly he tooks her to Mysore. According to her evidence, at Mandya, house of accused No.1 is situated near Harishchandra Circle. When they were moving near Mandya, she was found suffering from headache. She sat in the car and accused No.1 went to medical shop and brought a tablet. She saw the medical shop's name at that time. She told the Police that, she showed the said medical shop to the Police when she was taken to Mandya. She does not know what was the time at that time, when they went to the house at Mandya. Near the said house, other houses are also situated. The neighbours saw them entering the house. But, they did not
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 talk with them. Accused No.1 brought some snacks for her. She slept. She woke up at about 2.00-3.00 p.m. She was wearing the wrist watch. According to her evidence, when she fell asleep, accused No.1 had committed rape on her. She was not aware of the same. When she woke up, she was undressed. According to her, accused might have committed sexual intercourse forcibly with her for about half an hour or one hour. When she woke up, she was fully angry and abused the accused No.1 and started weeping. Because of this, already 30 minutes was over. No neighbour came and enquired the complainant that, why she was weeping.
31. She further states that, even after return to Bengaluru, she has not informed the said fact to her parents or to her brother Mahesha. She has not applied for a leave to bank on the following day. She denied the suggestion that, she is speaking falsehood before the Court.
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32. It is further stated by her that, after the death of father of the accused No.1, she left the job but did not resign for the job and she told the employer that, she wants to leave her job etc., She admits that, all the accused persons are the distant relatives of her mother.
33. On reading the entire evidence of complainant, though she says so many facts in her examination-in-chief but, in the cross-examination she has given a clear go by. The very alleged incident of rape is not properly stated by the complainant. No doubt in such a cases, the evidence of the prosecutrix plays an important role. In an offence of the present nature, when offence of rape is alleged against the accused No.1, it is the duty of prosecution to bring certain concrete evidence so as to believe the contents of the complaint as well as evidence spoken to by the prosecutrix. According to her evidence, once she was raped at Mandya in a rented house, when she was asleep. When she woke up she noticed that she was in a naked position. There, she suspected that she was raped by the
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 accused No.1. Thereafter, once again as per complaint allegations, she was raped at her native place when nobody was in the house. But, that committing of rape for the second time during Ugadi time is not stated by her in her examination-in-chief. So the very genesis of case of the prosecution through evidence of PW.1 is quite contrary to the case made out by the prosecution. If one fact is believed, then the other fact cannot be believed at all.
34. In a case of present nature, no doubt, it is a heinous offence against the human body. But this offence has to be proved in accordance with law. She is a young lady having good understanding. She was working in a bank. She must know the consequences. But, she has simply stated throughout her complaint, as well as in her evidence that, she has been ravished by the accused No.1. But such an evidence, if led by the prosecution, it shall be supported by the other acceptable connecting evidence.
35. The alleged incident has taken place in the month of October 2008 and another incident has taken
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 place in the month of April 2009, but the complaint was filed in the month of May 2009. There was a delay of more than 7 months from the initial alleged rape and there was delay of more than 2 months from the second incident of alleged sexual assault on her. This delay is not properly explained by the complainant either in the compliant or in her evidence or both. Even the case made out by the complainant throughout her complaint allegation as well as her examination-in-chief shows that, as there was a marriage talk and immediately after fixing the date of marriage, in the month of December 2008, father of the accused No.1 died. Thereafter, the marriage was cancelled. When the complainant's family and elderly members went to the house of accused No.1 at Davanagere, they refused to perform the marriage by saying that, on account of this engagement, they lost the accused No.1's father. The whole story putforth appears to be a cooked up story so as to see that, some harassment is done as per the submission of the counsel for the accused-appellant. This possibility cannot be ruled
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 out. So, if such an evidence is placed on record by the prosecution through the PW.1, it requires some concrete connecting evidence.
36. PW.2 Megharaj is the father of the complainant- lady and evidently he is a hearsay witness. He speaks with regard to the marriage talks of accused No.1 and complainant and fixation of marriage to be performed at Tulasi Narayana Kalyana Mantapa at Hiriyur and payment of Rs.2 lakhs etc., With regard to the payment of Rs.2 lakhs except the evidence of PW.2 and the evidence of PW.1, there is no evidence at all. There is no further corroborative evidence. How this PW.2 collected Rs.2 lakhs and paid the same to the father of accused No.1 is not made clear. Evidently complainant's father was an agriculturist and he was also doing some minor contract work. How he generated Rs.2 lakhs and how he collected the said amount is not properly stated by him also. He says that, he has paid the amount. When the marriage talks failed and when it was informed to the complainant
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 that marriage talks failed, thereafter, the complainant told about the incident of sexual assault on her by accused No.1. The story so stated by PW.2 appears to be a cooked up story and cannot be accepted as a truthful one. That means, no credence can be given to the evidence of the PW.2 as he being hearsay witness of the said incident of sexual assault on his daughter. PW.2 was also thoroughly cross-examined but, he being hearsay witness, much value cannot be attached to the evidence of PW.2
37. PW.3 T.Venkatagiriyappa and PW.4 Rangaswamy are the panchas to EX.P2. They put their signatures on panchanama as per the directions of Police when Police came to the house of the PW.2 and conducted the panchanama. To the extent of their presence and putting signature on the said Ex.P2, their evidence is to be accepted. As per their evidence, at the instance of Police, they put their signatures.
38. PW.5 Manjunath Kuchelappa is a resident of Gollarahalli, wherein, he knows father of the accused and
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 he does not know the other accused persons. He is a relative of the complainant and he has married the sister of PW.2. He is also one of the elderly member who participated in the marriage talks. So far as marriage talks is concerned, defence is not disputing about the same seriously. His evidence is to be accepted to the extent that, he participated in the marriage talks. He is a hearsay witness to the alleged sexual assault on the complainant. Likewise, PW.6 Meenakshi is none other than the sister of the PW.2. She is also hearsay witness. In her examination-in-chief itself, she has stated that, as PW.1 wanted to marry accused No.1, therefore, she lodged a complaint. A strange evidence has been spoken to by this PW.6. With regard to the sexual assault as she is a hearsay witness and hence much value cannot be attached to the evidence of this PW.6. She has also participated in the marriage talks according to her evidence and also giving of Rs.2 lakhs to the father of the accused No.1. She has not stated before the Police as spoken to by her in the cross-examination. The statements
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 are being marked in this case on behalf of defence. To the extent of she participating in the marriage talks, her evidence is to be accepted.
39. PW.7 Hemanna, is a resident of Davanagere and he too has participated in the marriage talks. In the said talks, it was agreed that the bride's father has to give Rs.2 lakhs as a dowry and 50 grams of gold etc., According to his evidence, accused No.1 used to visit the house of PW.2 often and he has seen him 2 -3 times in the house of PW.2. This itself will not prove the case of the complainant as alleged by her. The evidence of PW.7 can be believed to the extent that, he knows about the marriage talks. He deposed ignorance of the date of fixing the marriage date etc.,
40. PW.8 Aswathnarayana Kumar, is the person who has issued the receipt for having received Rs.5000/- as advance with regard to the booking of the Kalyana Mantapa on 26.10.2008. He admits about corrections with regard to the date on the said receipt i.e., Ex.P4. His
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 evidence can be believed to the extent that, he has taken advance of Rs.5,000/- for booking the Kalyana Mantapa at Hiriyur.
41. PW.9 Appaji Mayagowda, is a vital witness in this case. According to the case of prosecution, in the house of PW.9 Appajigowda, father of the accused No.1 was residing as a tenant. To the said rented house itself accused No.1 took complainant and there he committed sexual assault for the first time in the said house. But, quite strangely, this PW.9 Appajigowda has turned hostile. According to him, he has hired a house to one Shivakumara in the year 2008. In the year 2009, he vacated and went away. That means, he never says that, accused No.1 was a tenant or the father of the accused no.1 to the said house owned by him. He has been cross- examined by the prosecution but, nothing worth elicited from him. So, when PW.9 being the owner of the house at Mandya situated near Harishchandra Circle has not hired his house to the accused No.1's father, then, the
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 question of accused No.1 taking complainant to the said rented house does not arise at all. So this evidence of PW.9 falsifies the very case of the complainant that, she was taken by accused No.1 to a rented house at Mandya owned by this PW.9. Therefore, the story put forth by the prosecution is falsified from the evidence of this PW.9.
42. PW.10 M.H. Gurunath is brother of father of the complainant. He states with regard to the marriage talks and giving for Rs.2 lakhs to the father of the accused in his house etc., He is also a hearsay witness and he came to know about the sexual assault, only when complainant disclosed i.e, when family of the accused refused to perform the marriage of complainant with accused No.1. Much credence cannot be attached to the evidence of this PW.10.
43. PW.11 Dr. Thyagaraja K, has medically examined accused No.1 and has stated that, he is capable of doing sexual intercourse and to that effect he has issued Ex.P6. With regard to contents of Ex.P6, defence is
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 not disputing the same. So one thing is clear that, accused No.1 is capable of doing sexual intercourse. To that extent, evidence of PW.11 Dr. Thyagaraja is to be believed.
44. PW.12 Prabhulinganna is the Police Constable, who took the accused No.1 to the Chitradurga Hospital for medical examination. This fact is not disputed by the defence.
45. PW.13 Chandrappa Ningappa is the carrier of the FIR to the Court and reached the same at 3.10 p.m on that day, i.e. 25.05.2009. There is no cross-examination directed to PW.13 by the defence.
46. PW.14 Azamthulla Khan is a Police Official who has received the complaint, registered the same and set the criminal law in motion. To the extent of registering the crime, his evidence is to be believed.
47. As per the case of complainant, to lodge a complainant herself and her parents went to the Police
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 station. But, this PW.14 says that, he does not know whether complainant alone came to the Police station or others accompanied her etc.
48. PW.15 S.Panduranga is an investigation officer who conducted the investigation. He collected the documents. According to him, his evidence, at page 14 of the cross-examination, no panchanama was conducted in the house of Appajigowda as Appajigowda did not agree for the same. Even, he has not agreed to open the key put to the said house. That means, no panchanma was conducted at the place where the first alleged sexual assault has taken place. According to him, the witnesses have stated as per their statement recorded at Ex.D1 to D4.
49. PW.16 Dr.Nagamani is the lady doctor who has conducted the medical examination of victim lady. According to her, on 25.05.2009, PW.1 was brought before her with Hollalkere police lady Constable and she examined her. According to her opinion, there was no
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 fresh evidence of rape on the above person. Accordingly, issued Ex.P16. On the reading of the evidence of this PW.16, she has not noticed any injury on her person. No doubt, alleged incident has taken place in the month of October 2008 and April 2009. The evidence of this PW.16 can be believed to the extent of, she medically examining the complainant on 25.05.2009. Whether this complainant used to have sexual intercourse or not, there is no evidence at all.
50. PW.17 Wodeyar is the charge-sheeting officer and after collecting necessary documents, he has filed the charge sheet.
51. As per the compliant allegation the complaint was filed at 1.00 pm. It was registered immediately. Thereafter, the Police went to the seen of offence and conducted the panchanama. The victim was taken to the Chitradurga Hospital for medical examination. It has come in the evidence of this PW.17 that, from Upparigenahally to Hollalkere, it is about 38 kms. To
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 reach Hollalkere in a Departmental vehicle, it requires one hour. There are no buses plying on the said road, because of that, vehicle may reach late to Hollalkere. From Hollalkere to Chitradurga is about 35 kms. From Hollalkere to Chitradurga, it takes about 45 minutes. By bus, it takes one hour. If the time so mentioned in the panchanamas are perused, they specifically show that, Ex.P2 panchanama was prepared in between 3.00 pm and 3.45 pm. The victim was taken to the hospital at about 4.00 pm on 25.05.2009 itself. So immediately after conducting the panchamana as per the evidence of IO, he has recorded the further statements of the complainant. As rightly submitted by the counsel for the accused- appellant, is it possible to reach Chitradurga at 4.00 pm is not properly answered by the prosecution. In view of the distance from Upparigenahally to Hollalkere possibility of reaching Chitradurga at the time stated in Ex.P16 is too remote and must have been created. If the time factor to reach Hollalkere to Chitradurga is reckoned, definitely there is some substance in the submission of the counsel
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 for the appellants-accused. So therefore, in the considered view of this Court, when there is no proper and acceptable evidence adduced by the prosecution so as to prove that, accused are responsible for the commission of the crime, the evidence spoken to by the witnesses pale into insignificance.
52. It is laid down by the Hon'ble Supreme Court in catena judgments that, in a case of present nature, it is bounden duty of the prosecution to prove the guilt of the accused beyond all reasonable doubts. Under the criminal jurisprudence, even if a slightest doubt arises in the case of prosecution, that benefit of doubt has to be extended to the accused.
53 . In the judgment relied upon by the counsel for the appellant-accused supra, it is held by the Hon'ble Apex Court in the said judgment in para-5 as under:
"5. The evidence of a prosecutrix in a case of rape is of the same value as that of an injured witness. It is again true that conviction can be made on the basis of the sole testimony of the prosecutrix. All the same, when a conviction can be based on the sole testimony
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 of the prosecutrix, the courts also have to be extremely careful while examining this sole testimony as cautioned in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384:
"If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
This was reiterated by this Court in Sadashiv Ramrao Hadbe v. State of Maharashtra and Another (2006) 10 SCC 92:
"It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix."
Both the prosecutrix as well as the accused have a right for a fair trial, and therefore when the statement of the prosecutrix does not inspire confidence and creates a doubt, the court must look for corroborative evidence. Relying upon the case of Gurmit
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 Singh (supra) this court in Raju and others v. State of Madhya Pradesh (2008) 15 SCC 133 held as under:
"10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.
11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration."
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54. Thus, if the aforesaid principles are applied to the present facts of the case, the testimony of the prosecutrix does not inspire any confidence. Though the first rape was alleged on 20.09.2008, the said fact of sexual assault on her at Mandya in a rented house of Appajigowda has not been disclosed by the complainant to any body immediately. So also, she again alleges that similar sexual assault was committed in the month of April 2009 in the house of Upparigenahally when nobody was there, she has not disclosed the same to anybody. When the family members of the complainant with elderly members returned from Davanagere and informed that the accused No.1 family is not ready for performing the marriage, then for the first time, she discloses the said fact to her parents. Even after the alleged incident of sexual assault on her, she attended the office and later she left the job. Thereafter she started residing at her native place. Ultimately, the FIR was filed on 25.05.2009. Initial proposal of marriage was turned down by the accused family as per the case of prosecution. So all
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 these facts do cast doubt on the story of the prosecution as rightly submitted by the counsel for the appellants- accused.
55. In this case as stated supra, the prosecution is relied upon the evidence of the doctor PW.16. The report given by the doctor shows that, she must have been raped. But, there were no symptoms of recent sexual inter course. When the complainant does not disclose the fact of the sexual assault on her initially in the month of October 2008 and thereafter in the month of April 2009, this creates a doubt. But however, the trial Court relied upon the evidence of the prosecutrix and also evidence of other witnesses and has believed the story of the prosecution. The evidence spoken to by the witnesses is not properly assessed by the trial Court. Thus, the finding of the trial Court is that, even if it is assumed for the sake of argument that, the prosecutrix was a consenting party, it is amounts to rape. There is no material placed on record by the prosecution that, it was accused No.1 who
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 committed the offence on the victim girl lady. So, the ingredients of the offences so stated under the provisions of Section 375 of IPC are missing in the present case.
56. Under these circumstances, weighing the evidence placed before the trial Court, I am of the considered opinion that, there is no definite evidence placed on the record by the prosecution, that it has successfully proved that the prosecutrix was really sexually assaulted by the accused No.1 in the manner stated in the complaint. I am not convinced that offence of rape is made out against the accused against the victim girl by the accused No.1. The evidence of PW.1 does not meet the ingredients of the rape as defined under Section 375 of IPC.
57. I do not find any cogent evidence placed on record by the prosecution to prove that accused has committed the said offence. So far as accused Nos.2 to 4 are concerned, they are no way in the picture. But, however, the trial Court has convicted them for the
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 commission of the alleged offence under Section 417 read with Section 114 of IPC. There is no abetment, there is no cheating etc. May be because, marriage is cancelled does not mean that, the fraud has been committed on the complainant. Therefore, if all these factual features coupled with the position of law is put together, the prosecution has utterly failed to prove its case beyond all reasonable doubt. The ingredients of the offence made out by the accused persons are not duly fulfilled by the prosecution in accordance with law. The evidence of PW.1 is full of contradictions, omissions and discrepancies and improvements. So therefore, a doubt arises in the case of prosecution and that benefit of doubt has to be extended to the accused persons. Therefore, the points raised supra have to be answered against the prosecution and in favour of accused Nos. 1 to 4.
58. In view of the discussion made out, the appeals succeed and deserves to be allowed.
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NC: 2024:KHC:24061 CRL.A No. 321 of 2014 C/W CRL.A No. 386 of 2014 Resultantly, I pass following:
ORDER
(i) Criminal Appeal No.321 of 2014 and Criminal Appeal No.386 of 2014 are allowed.
(ii) Consequentially, the judgment of conviction dated 11.04.2014 and order of sentence dated 19.04.2014 passed in S.C No.12/2010 by the learned Additional District and Session Judge, Chitradurga are hereby by set-aside.
(iii) Accused Nos.1 to 4 are acquitted of the charges for the offences punishable under Sections 326, 420 and read with Section 114 of IPC.
(iv) Their bail bonds stand cancelled. They are set at liberty.
(v) Registry is directed to send the records of this case along with a copy of the judgment forthwith.
Sd/-
JUDGE SK, List No.: 1 Sl No.: 1