Bangalore District Court
State By Jnanabharathi Police vs Raja on 22 May, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS JUDGE AT
BANGALORE CITY (CCH-55)
Dated this the 22nd day of May, 2017.
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
SESSIONS CASE NO.29/2014
COMPLAINANT State by Jnanabharathi Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Raja,
[arrayed as Son of Muthuraja,
Accused No.3 in Aged 24 years,
the charge-sheet] Residing at Metare Doddi Village,
Kailancha Hobli,
Ramanagar Taluk and District.
[By Standing counsel Sri.T.Shivappa]
1. Date of commission of offence 13.10.2012
2. Date of report of occurrence 14.10.2012
3. Date of arrest of the accused 10.9.2013
4. Date of release of the accused Since 10.9.2013 this accused
is in judicial custody
2 SC No.29/2014
5. Period undergone in custody by this From 10.9.2013 till today i.e.,
accused till 22.5.2017 this accused
has been in judicial custody
for a period of 3 years,
8 months and 12 days
6. Date of commencement of evidence 30.3.2015
7. Date of closing of evidence 21.10.2016
8. Name of the complainant Victim woman
9. Offences complained of Secs. 427, 366, 323, 324, 395,
397, 506[B], 376[2][g] r/w
Sec.149 of IPC
10. Opinion of the Judge In exercise with the
powers conferred upon me
under Criminal Procedure
Code, this accused [arrayed
as accused No.3 in the
charge-sheet] is found
guilty of the offences
punishable under
Secs. 427, 366, 323, 324,
397, and 376[2][g] r/w
Sec.149 of IPC.
11. Order on Sentence As per final order on
Sentence
3 SC No.29/2014
JUDGMENT
Charge sheeted [Split up charge-sheet against this accused] by Jnanabharathi police and committed by IX ACMM, Bangalore, this accused is before this court facing trial for the offences punishable under Secs. 427, 366, 323, 324, 395, 397, 506[B] and 376[2][g] r/w Sec.149 of IPC. The accused herein is arrayed as accused No.3 in the charge-sheet.
2. The prosecution case in brief is that:
The complainant/Victim woman lodged a Complaint in the intervening night of 13/14-10-2012 alleging that, on 13.10.2012, at about 9.15 P.M., when she and CW2-Nirmal were sitting inside the car bearing Registration No.KL-02-AH-8100 and talking in front of National Law School of India University, Jnanabharathi, Bangalore, 8 accused persons including this accused with a common object of committing dacoity and rape, holding deadly weapons such as sickle [Macchu], rods, knives, draggers and ropes, surrounded the car wherein the complainant and CW2 were sitting and accused No.1 broke the glass of the car and pulled the complainant out of the car by holding her hairs and at that time, when CW2 came to rescue the complainant, they took the complainant and CW2 to nearby forest and snatched the mobile phone and I-Phod of CW2 and thereafter this made her to jump the compound and by showing the deadly weapons, made her to lie on the ground and all the accused persons including this accused committed rape on her one after another and later they freed her 4 SC No.29/2014 at about 00.30 A.M., early hours of 14.10.2012, near Gandhi Bhavan and fled away. Hence, the complaint.
3. After receipt of the complaint, the case is registered in Cr.No.401/2012 and held the investigation. During the investigation, out of 8 accused persons, accused Nos. 1, 2, 4 to 8 were secured. Accused No.1 was juvenile offender and tried before the Juvenile Justice Board, Bengaluru. As against accused Nos. 2, 4 to 8, the charge sheet was submitted before IX ACMM, Bangalore in CC No.2226/2013 showing this accused absconded. After committal of the case against accused No.2, 4 to 8 to the Sessions Court, it was numbered as SC No.487/2013 and tried before the FTC-II, Bengaluru, and accused Nos. 2, 4 to 8 were convicted for the offences punishable under Secs. 376 [2] (g), 323, 324, 366, 427, 506(B) and 397 r/w Sec.149 of IPC, vide Judgment dated: 4.9.2013 and sentenced to life imprisonment vide order of Sentence dated: 6.9.2013.
4. This accused later traced out and after committal to this court, numbered as SC No.29/2014 and thereby this accused is before this court facing trial.
5. This accused was arrested on 10.9.2013 and since then he has been in judicial custody. He is represented by learned Standing counsel Sri.T.Shivappa. After production of accused, copies of the prosecution papers [Charge-sheet] was given to the learned Standing counsel in-compliance with Sec.207 of Cr.P.C.
5 SC No.29/20146. After hearing learned Public Prosecutor and learned Standing counsel, my learned Predecessor-in-office has framed the Charge against this accused on 13.2.2015. At this stage, it is pertinent to note that though the charge-sheet is filed against this accused for the offence punishable under Secs. 427, 366, 323, 324, 395, 397, 506[B] and 376[2][g] r/w Sec.149 of IPC, my leared predecessor-in-office has framed the Charge only for the offences punishable Secs. 427, 366, 323, 324, 397, 376(2)(g) r/w Sec.149 of IPC and read over to him in the language known to him. As this accused denied the charge and claimed to be tried, the case was posted for trial.
7. The prosecution in order to bring home the guilt of this accused examined in all 33 witnesses as PWs-1 to 33, out of total 63 charge sheet witnesses and got marked 74 documents at Exs.P1 to P74 and also got marked 72 Material Objects as MOs-1 to 72 and got marked Exs.C1 to C3 documents.
8. At this stage, it is necessary to mention that, though in the charge-sheet there are 63 witnesses cited, the prosecution has examined only 33 witnesses. CW4, CW6, CW9, CW11, CW13, CW16, CW17, CW26, CW28, CW31 to CW36, CW38, CW41 to CW45, CW48, CW54 to CW58, were not examined by the prosecution. CW4-Witness to the spot mahazar, CW6-Seizure mahazar witness, CW9- Drawing artist, CW11- Panch witness to the arrest of the accused, CW13- friend and collegemate of the victim, CW16 and CW17-hearsay witnesses, CW26- FSL Officer, 6 SC No.29/2014 CW28- Home guard, who arrived at the spot of the incident after the alleged incident, CW31 to CW36, CW38, CW41 to CW45-Police officials of Jnanabharathi Police Station who arrested the accused persons, CW48-who conducted the test identification parade, CW54 to CW58- police officials of Jnanabharathi Police Station who arrested accused No.3, were not examined by the prosecution. All the aforesaid witnesses [CW4, CW6, CW9, CW11, CW13, CW16, CW17, CW26, CW28, CW31 to CW36, CW38, CW41 to CW45, CW48, CW54 to CW58,] were given up as repetition.
9. After completion of prosecution evidence, the statement of this accused as contemplated under Sec.313 of Cr.P.C is recorded. He has denied the incriminating materials found in the evidence of prosecution witnesses and his defence is that of total denial and he claimed that he is no way concerned with the alleged crime, he was not at all present at the time of the alleged incident, he did not know anything about the crime, the police arrested him when he was in his village. Further, he has also filed written submission wherein he stated that, when he had been to his in-laws house, that on 9.10.2013, the complainant police came there and arrested him without any warrant. However, he did not chose to lead any evidence in support of his defense.
10. Heard learned Public Prosecutor and learned Standing counsel for the accused. Perused the records. In support of his arguments, Learned Public Prosecutor has also relied upon the following decisions reported in:
7 SC No.29/2014(1) 2013 (2) SCC 358 [State of Haryana Vs. Basti Ram] (2) 2012 (3) SCC 1238 (3) 2003 (8) SCC 551 [Bhupindra Sharma Vs. State of HP] (4) 2004 SCC (Cri) 31[Bhupindra Sharma Vs. State of HP] (5) 2012 (3) SCC Cri.1321 (Om Prakash Vs. State of Haryana] (6) 2012 (3) SCC (Cri)1319 (Om Prakash Vs. State of Haryana] (7) 2012 Cril.L.J NOC 13 Del [Tasleem @ Pappu Vs. State of NTC, Delhi] (8) 2011 Cri.L.J 5020 M.P [Buddu @ Purushotham Vs. State of M.P] (9) AIR 2013 SC 3077 [Md.Iqbal & Anr. Vs. State of Jharkhand] (10) AIR 2013 SC 3008 [Ganga Singh Vs. State of MP] (11) AIR 2006 SC 381 [State of Himachal Pradesh Vs. Asha Ram] (12) (2010) 2 SCC 445 [Ramsingh @ Chhaju Vs. State of H.P] (13) 2011(1) SCC (Cri) 1191 (14) 2008 SAR (Criminal ) 264 SC (15) 2009 Cri.LJ 4133 [Rajindra @ Raju Vs. State of H.P]
11. On perusing the entire evidence, both oral and documentary, and considering the points of arguments, and as per the Charge leveled against this accused, the following Points arise for consideration:
(1) Whether the prosecution proves beyond reasonable doubt that, this accused being a member of unlawful assembly along with accused Nos. 1, 2 and 4 to 8 holding deadly weapons, on 13.10.2012 at 9.15 P.M., when the complainant and CW2 were sitting in the car, in front of old valuation building area, near Bangalore University 8 SC No.29/2014 main building and National Law School of India University, surrounded the car and by breaking the front door window glass of the car with iron rod, committed criminal mischief by causing loss or damage to the tune of Rs.1,000/- to CW2 and thereby committed an offence punishable under Sec.427 r/w Sec.149 of IPC?
(2) Whether the prosecution further proves beyond reasonable doubt that, this accused along with other accused persons forcibly opened the left front door of the car of CW2, dragged out the complainant by holding her hairs, abducted her in order to force or seduce her to illicit intercourse and thereby committed an offence punishable under Sec.366 r/w Sec.149 of IPC?
(3) Whether the prosecution further proves beyond reasonable doubt that, this accused along with accused Nos. 1, 2 and 4 to 8, assaulted CW1 and CW2 with hands, and also with weapons and thereby voluntarily caused hurt to them and thereby committed an offence punishable under Secs. 323 and 324 r/w Sec.149 of IPC?
(4) Whether the prosecution further proves beyond reasonable doubt that, this accused along with accused Nos. 1, 2 and 4 to 8, by holding deadly weapons gave threat to CW2 and complainant to do away with their lives, robbed I-Pod and Mobile phones of the complainant and CW2 and thereby committed an offence punishable under Sec.397 r/w Sec.149 of IPC?
(5) Whether the prosecution further proves beyond reasonable doubt that, accused No.3 along with accused Nos. 1, 2 and 4 to 8, dragged the complainant into forest area and committed rape on her one after another [gang rape] and thereby, 9 SC No.29/2014 committed an offence punishable under Sec. 376(2)(g) r/w Sec.149 of IPC?
(6) What Order?
12. My findings on the above Points are as under:
Point Nos.1 to 5: In the AFFIRMATIVE Point No.6: As per the final order for the following:
REASONS
13. Before discussing the Points for consideration, it is relevant to mention here that, all the original documents were marked in original SC No.487/2013. While recording the evidence in this case, my learned Predecessor-in-office has marked the documents pertaining to this case in the original SC No.487/2013, as an exhibit once again and the copies of the same exhibits also marked as exhibits. Thereby, same documents are marked twice. Thereby, while reading the evidence, along with the exhibits, it is confused and not at all tallying. Therefore, for the convenience reference, this court again re-marked those documents and therefore, there is slight differences in the exhibits got marked in the evidence of the witnesses. After re-marking the documents, though Serial Numbers of the exhibits changed, but, nature of the documents are same, as found in the evidence. Therefore, it is requested to read the documents which are marked afresh or re-marked, as per the List prepared on 27.4.2017 for convenience reference and easy understanding. The signatures of the witnesses 10 SC No.29/2014 found in the exhibits are not marked in this case, as the original documents are kept in original file in SC No.487/2013 and the documents in this case are all the true copies of the original documents.
14. Now, the case is taken up for discussion as per the Points raised for consideration.
15. POINT NOS. 1 TO 5:- Consideration of all these Five Points are based on the same facts and evidence and therefore, to avoid repetition, these Five points are taken together for discussion.
16. The case of the prosecution is that, the complainant/ Victim woman who hails from Kathmandu, Nepal came to Bengaluru for studying at National Law School of India University at Bengaluru and she was living in the hostel. That on 13.10.2012 at about 9.15 P.M., she was sitting in a car along with her friend Nirmal, within the area of Bengaluru University, at that time, this accused along with the other 7 accused who were convicted in the original Sessions Case, assaulted them [complainant and Nirmal], robbed them and gang-raped the complainant. Hence, the charge.
17. The initial burden is upon the prosecution to prove the guilt of this accused. In order to discharge the said burden, the prosecution has relied upon the evidences of PWs-1 to 33. The 11 SC No.29/2014 particulars of the witnesses examined by the prosecution are as under:
Pw.1 Nirmal- friend of the complainant, eyewitness and also one of the injured in the alleged incident and deposed about the identity of this accused as per Exs.P1 and P2.
Pw.2 Purushotham-witness to the seizure mahazar-Ex.P4 dated: 14.10.2012 drawn in the place of the alleged incident under which the MOs- 1, 2, 11 to 17 and car [Ex.P3] recovered Pw.3 Chinnappa- panch witness to Ex.P1 dated: 5.10.2012 under which Voters List [Ex.P2] seized and Ex.P5 dated: 21.10.2012 i.e., Seizure mahazar drawn in the sheet house situated at National Law School of India University compound under which MOs-3 to 10 and MO-18 recovered Pw.4 Dr.Raghupathy-Pathologist, deposes about blood test conducted on this accused and the other accused persons who are already tried, as per Exs.P6 to P14.
Pw.5 Dr.Chandrashekar-Scientific Officer-FSL, Bangalore, deposes about Ex.P15 dated: 18.10.2012 Pw.6 Dr.Shehnaz Fathima Scientific Officer-FSL, Bangalore deposes about Ex.P16 dated: 13.11.2012 and MO-19 to MO- 60 Pw.7 Dr.Pramila Devi.N deposes about conducting medical examination of the victim/complainant as per Ex.P17 to Ex.P21 Pw.8 R.Nithin-AEE, BBMP, Bengaluru deposes about drawing of sketch of place of incidence as per Exs.P22 to P24 12 SC No.29/2014 Pw.9 Venkatesh-Police constable deposes about apprehending this accused and producing him before the PI PW20 Upendra Gowda-Head Constable PW31 Imtiyaaz Patel-Sub Inspector PW10 Udaykumar- a worker in the Hotel deposes about the identity of this accused who used to come to his hotel Pw.11 Manjunath- panch witness to Ex.P25 i.e., a line drawing of this accused along with other accused persons.
PW12 Dr.Dileep Kumar.K.B deposes about the medical examination conducted on CW2 [Nirmal] about the injuries sustained in the alleged incident.
PW13 Dr.Vinod.J.Lakkappan deposes about examination of the articles, DNA Reports of the other accused persons along with sample seals i.e., Accused Nos. 1, 2, 4 to 8 as per Exs.P31 to P46.
PW14 Babu- Incharge of NLSU Ladies Hostel, wherein the victim was residing PW15 Srinivas-witness to the seizure mahazar-Ex.P47 and MO-61 to MO-66 PW16 Dr.Srividya-Scientific Officer-FSL deposes about Exs.P48 to P51 PW17 Shailesh-Drawing artist as per Exs.P26 to P30.
PW18 Syed Abdul Rehman-Police constable who was on duty in the night of 13.10.2012 near University Law School gate deposes about parking of car near Old Valuation building.13 SC No.29/2014
PW19 Srinivas.H.T.-Police Constable who deposes about taking the FIR-Ex.P52 PW21 M.Masila Mani- Head constable deposes about taking the articles to FSL for DNA test PW22 Smt.Geetha Kulkarni-Police Inspector deposes about the examination of the victim/complainant in the hostel PW23 Neha Rajpurohit- Friend and collegemate of the victim PW24 Chandrashekar Rao-witness to the seizure Mahazar-Sweater and plastic bag as per Ex.P53 dated: 17.9.2013 and MO-66(a) and MO-67 and Ex.P54 PW25 Dharmegowda-PSI, deposes about receipt of Complaint-Ex.P55 and registering of FIR-Ex.P52 PW26 Rodalf Ferera-Senior Civil Judge, Kadur, Chikkamagalur district, deposes about recording of Statements under Sec.164 of Cr.P.C as per Exs.C1 to C3.
PW27 Dr.S.Venkataraghavan deposes about medical examination conducted on this accused as per Ex.P59 PW28 Mahesh-witness to the seizure mahazar as per Ex.P53 dated: 17.9.2013 and MO-66(a) and MO-67 and Ex.P54.
PW29 Victim deposes about Ex.P4 and MO-68 to MO-72 PW30 Balaraju-Police Inspector deposes about receiving the information about the alleged incident and started investigation as perExs.P60 to P73 PW32 Ramalingaiah-Police constable deposes about taking the blood samples of this accused to Victoria hospital PW33 Ravish.C.R.-Dy.S.P- deposes about conducting further investigation of case and filing of charge-sheet as per Ex.P74.14 SC No.29/2014
18. As per the evidence of PW30-Balaraju- Police Inspector, in the night of 13.10.2012, he was on patrolling duty, he received the information at 9.30 P.M., stating that, within the premises of National Law School of India University, Jnanabharathi, Bengaluru, which is of nearly 1,400 Acres area, some unknown persons kidnapped the Victim woman/complainant[PW29], immediately, he rushed to the spot and saw that, a white coloured car was parked and the front door glass of the said car was broken and the glass pieces were scattered. He immediately sent wireless message to his higher officers and thereafter the other police officers along with police staff and the woman PSI came to the spot and they searched for the Victim woman. However, they could not trace out. Thereafter, at early hours [00.40 hours] of 14.10.2012, he came to know that, Victim woman came to the hostel. Immediately he deputed Smt.Geetha Kulkarni, PSI [PW22] along with ASI Smt.Latha to the hostel wherein PW22 enquired with the Victim woman and they accompanied the Victim woman to Jnanabharathi Police Station wherein she lodged the Complaint, as per Ex.P55, before the SHO-PSI-Dharmegowda-PW25. The Victim woman was sent for medical examination. Thereafter, they searched for the culprits, in the said University campus, but, could not trace out. On the next day i.e.. on 15.10.2012, PW30 formed groups of police officers with the leadership of Police Inspectors Kodandarama, Balegowda, Malatesha, M.N.Nagaraju, K.P.Sathyanarayana, Smt.Geetha Kulkarni to trace out the culprits. On the same day, they again called the Victim woman and PW1-Nirmal to the complainant Police Station and enquired 15 SC No.29/2014 about the identity/features of the culprits. They [PW29 and PW1] in their further statements have given the features of the accused persons stating that, they [accused persons] belong to tribals, possessing deadly weapons like draggers, saw, iron rods, knives with them and they wore faded clothes, some of them were very short and had curly hairs. After taking their further statements and as per the features told by PW29 and PW1, the Police Inspector suspected that, the culprits might be the thieves of sandal wood trees situated in the said University Forest area. Thereafter, they discussed themselves and they came to know that, at Ramanagar Taluk, there are persons belong to ERULIGA community who are identical to the features as narrated by PW29 and PW1. On suspicion, a police constable by name Nagaraju was sent to Ramanagar Tashildar office for collecting the information about the identity of the accused persons and also directed to bring the Voters List maintained in the Tashildar office at Ramanagar. The said police constable brought the Voters List as per Ex.P2 from Tashildar office at Ramanagar and the said Voters List was seized by drawing up of Seizure Mahazar as per Ex.P1 before the Panchas namely Purshotham-PW2 and Venkatesh [who is not examined as repetition]. On 15.10.2012, he [PW30] called the complainant to the Police Station and also summoned the Line Drawing artists by names Shailesh [PW17] and Prashanth [who is not examined as repetition] and also called Panchas by names Manjutha [PW11] and Raghu [who is not examined as repetition]. The complainant told about the identity/features of the accused persons, accordingly, PW17 and Prashanth drawn the 16 SC No.29/2014 Line Drawings of the accused persons as per Ex.P26 to P30. The said Drawings were seized by PW30 under Seizure Mahazar- Exs.P25 in the presence of panchas- Manjuanth [PW11] and Raghu. That on 15.10.2012, PW1-Nirmal was called to the complainant Police Station and shown the Voters list-Ex.P2 and asked him whether he can identify the culprits. PW1-Nirmal identified the photographs in Ex.P2 at Serial No.696 whose name is Shivanna who is accused No.5, Serial No.716 whose name is Ramu who is accused No.2, Serial No.718 whose name is Erraiah who is accused No.7, [who are tried in SC No.487/2013 and convicted] Serial No.779 whose name is Raja who is the accused herein. The Serial No.779 in Ex.P2 is marked as Ex.P2(d) against whom the present case is taken up for trial.
19. Learned Public Prosecutor submitted that, the prosecution by examining complainant-PW29, PW1-Nirmal who deposed about the incident, sketch artist-PW17 deposed about the drawing of the features of the culprits as per the documents at Exs.P26 to P30, PW3 panch witness deposed about the Voters List- Ex.P2 and the Panchanama-Ex.P1 and recovery of the incriminating articles as per the voluntary statement of this accused at MO-66(a) and MO-67 as deposed by PW24 and PW28- Panch witness as per Ex.P53. Added to it, the spot and seizure mahazar conducted as per Ex.P4 as deposed by PW2, another seizure mahazar-Ex.P5 as deposed by PW3, the medical examination of the Victim girl deposed by PW7 as per Ex.P17 to Ex.P21, another Seizure Mahazar as per Ex.P25 and sketch 17 SC No.29/2014 pertaining to the accused persons as per Exs.P26 to P30 as deposed by PW11 and PW17, another seizure mahazar-Ex.P53 as per the voluntary statement of this accused, as deposed by panch witnesses- PW24 and PW28, Complaint-Ex.P55 as deposed by PW29, FIR-Ex.P52, Statement under Sec.164 of Cr.P.C of PW1, PW10 and PW29 as per Exs.C1 to C3 deposed by PW26 and the evidence of PW10 who deposed that this accused used to come to his hotel, the evidence of Investigating Officer-PW30 who deposed about the conducting of Mahazars, recording the statements of the witnesses, recovery of incriminating articles, securing this accused and the evidence of PW33 who filed the charge-sheet proved the guilt of this accused. Therefore, learned Public Prosecutor argued that, this court by considering the evidence of the prosecution witnesses PW1 to PW33, the documents at Exs.P1 to P74, Material objects at MOs-1 to 72 may proceed to convict this accused.
20. On the other hand, the defence of this accused is that, he is no way concerned with the alleged crime, he was not at all present at the time of the alleged incident, he did not know anything about the crime, when he had been to his in-laws house, that on 9.10.2013, the complainant police came there and arrested him without any warrant.
21. Learned Standing Counsel argued that, though the prosecution examined the witnesses as PW1 to PW33, produced the documents at Exs.P1 to P74 and Material objects at MOs-1 18 SC No.29/2014 to 72, there are material contradictions, omissions, infirmities in the evidence of the Prosecution witnesses and therefore, the evidence of the Prosecution witnesses cannot be accepted, so to convict the accused. Learned Standing Counsel brought to the notice of this court with regard to the following contradictions and infirmities in the evidence of Prosecution witnesses:
. prosecution has not produced Log book entry of the hostel wherein the victim/complainant was staying;
. the DNA examination of this accused not conducted; . in the medical evidence pertaining to the Victim woman, no recent sexual intercourse found;
. no test identification parade is conducted pertaining to this accused, . in the evidence of PW29-complainant, with regard to the identification parade said to have been conducted in Central Jail, she [PW29] alone went to the Central Jail, PW1-Nirmal not accompanied with her. Similarly, while recording Statement under Sec.164 of Cr.P.C, she [PW29] alone went before the Learned Magistrate;
. the evidence of PW2-panch witness, he is the permanent witness of the Police Station and therefore his evidence cannot be relied.
.PW1 and PW29 not identified this accused directly and only on the basis of the line drawing and the photographs shown by the police in the Voters List, it is said that, this accused is also involved in the alleged crime. No direct evidence is available against this accused.19 SC No.29/2014
22. Further learned Standing Counsel argued that, this accused has been falsely implicated in this case and at the time of his arrest, there was no warrant at all. The complainant police created false story against this accused. He has not at all participated in the alleged incident. Hence, learned Standing Counsel prayed for an order of acquittal of this accused.
23. On the basis of the aforesaid arguments canvassed by learned Public Prosecutor and learned Standing Counsel, now this court has to scrutinize the evidence of the Prosecution witnesses as per the versions made in their cross-examination, whether their evidence can be accepted or not.
24. The material witness is the complainant/victim examined as PW29. The sum and substance of her evidence is that:
She came to Bengaluru in the year 2010 for studying at National Law School of India, and she was staying in a Hostel. PW2-Nirmal was her friend and that on 13.10.2012, she went along with Nirmal in his Volkswagen car and they parked their car near Valuation building centre, wherein there was street light and talking with each other by sitting in the car, it was 9.15 P.M., the hostel is about One Kilometer distance, all of a sudden, some unknown persons came there and surrounded them and among them, a person break front door glass with iron rod and opened the car door and dragged her out of the car and she was shocked and the other 3 accused persons held PW1-Nirmal and 5 persons held her and they dragged them [PW1 and PW29] towards the forest, she 20 SC No.29/2014 tried to escape from their clutches, but, she could not do it, as they were holding deadly weapons. They assaulted PW1-Nirmal with rope and snatched his Mobile phone and I-Pad and the said 3 persons who held PW1 proceeded towards the car and the other 5 persons who held her dragged her towards forest and while dragging her, her slippers were slipped, out of 5 persons, one person assaulted on her cheek for 2 to 3 times. She had mobile phone and she was wearing sweater and her mobile phone and sweater were snatched by them, she was pushed on ground and a person committed rape on her and thereafter again she was lifted from the ground and further dragged and proceeded towards inside the forest and the forest was slippery and she fell down and her trouser was torned. There is a river and the accused persons made her to cross the said river and the person who committed rape on her again raped her. He was holding garagasa [saw], there was compound and 2 persons lifted her from one side of the compound and 3 persons got her down from other side of the compound, there were glass pieces on the compound wall, by that time, the other 3 persons who held PW1-Nirmal also came there and in all there were 8 persons, there was big tree in that place and grass on the ground, they spread her sweater on the ground and pushed her on the ground and they removed her trouser and committed rape on her one after another with knife point, they threatened her to kill, if she cried, at that time, a person gave her kerchief to clean her private part. She suffered with pain and pleaded them to release her and they themselves talked with each other and brought her through another road and left her in a road situated near to Gandhi 21 SC No.29/2014 Bhavan, while she was brought back, as there was no slipper, a person gave her his slipper to wear and they also gave I-pad, mobile phone and Rs.10/- and she went to her hostel, it was early morning [i.e., 14.10.2012] 00.30 hours [12.30 midnight]. She further deposed that, as her body was dirty, she went to bathroom and cleaned herself, by that time, lady police came to her hostel and enquired with her and she narrated the incident and decided to lodged the complaint and she came to the Jnanabharathi Police Station and lodged handwritten complaint, as per Ex.P55 i.e., copy of the complaint. [The original complaint is marked as Ex.P48 in original SC No.487/2013]. It was 1.30 A.M. From Jnanabharathi Police Station the woman police took her to Vani Vilas hospital for medical examination and the doctor after taking her consent, examined her and at the time of medical examination, the doctor seized her clothes worn by her at the time of the incident i.e., pink coloured paijama, black bra, black simi, black top marked as MOs- 19 to 22 [In the original case SC No.487/2013 marked as MOs-20 to 23]. She further deposed that, she was also wearing sweater at the time of incident that was snatched by the accused persons and used for committing rape on her and she did not know what happened to that sweater. She further deposed that, she also sustained injuries on her body and shown before the doctor at the time of her medical examination. After her medical examination, she came to the hostel. On the same day evening [14.10.2012] at 5 P.M., the complainant police called her near Valuation Centre Building, there were police and 2 witnesses and she handed over Rs.10/- note, I-Pad, Nokia mobile belong to 22 SC No.29/2014 PW1-Nirmal and the mobile sim, the slippers belonged to one of the accused, who gave her to wear while brought her back, to the police. The said articles were seized by the complainant police by drawing mahazar in the presence of the witnesses. The said articles were marked as MO-12, MO-11, MO-13, MO-68 and MO-69.
[In the original SC No.487/2013, the said articles are marked as MO-13, MO-2, MO-1, MO-14 and MO-18]. The complainant police further collected the broken glass pieces of the car belonging to PW1-Nirmal and Mud from the said place, which are marked as MO-70 and MO-14 in this case [In the original SC No.487/2013, it was marked as MO-16 and MO-4]. She further deposed that, Police Inspector of the complainant Police Station asked her whether she would recognize the culprits and she told that, at the time of incident, there was street light and if she sees the faces of the culprits, she would certainly recognize them. Thereafter, she led the police officers to the forest area, i.e., the place where the accused persons dragged her and in that area, her slippers were found. The police collected the slippers, which are marked as MO-16, further she led the police officers to the place near river wherein she was raped and she also shown the compound wall and they crossed the said compound wall and there was big tree and she shown the place underneath the said tree, wherein she was again raped by the accused persons one after another, wherein the police collected the grass and mud, which are marked as MO-15 and MO-71[In the original SC No.487/2013, the same are marked as MO-5 and MO-74]. In the said place, the blue colour kerchief also found and collected by the police marked as MO-17 23 SC No.29/2014 [in the original SC No.487/2013 the same is marked as MO-17]. The complainant police drawn the Mahazar with regard to the recovery of those articles as per Ex.P4. [In the original SC No.487/2013 the same [Mahazar] is marked as Ex.P4].
25. PW29 further deposed that, on 15.10.2012, the complainant police called her to the Police Station and she went to the Police Station at about 1.30 P.M., along with her classmate by name Sachi. In the Police Station, there were 2 artists and a witness present and in their presence, as explained by her about the features of the accused persons, the artists drawn line drawing of the suspected 5 culprits, the said line drawing are marked as Exs.P26 to P30 [In original SC No.487/2013 the same are marked as Exs.P7 to P11]. She further deposed that, on 9.11.2012, she gave statement before the learned Magistrate as per Ex.C2, further she deposed that, on 17.11.2012, the complainant police asked her to come to Central jail for test identification parade and she went there and identification parade conducted, about 30-35 suspected persons were standing and she identified 7 persons among the said 30-35 persons and lists were prepared by the police officer with regard to the identification of the accused persons and took her signature in the said lists. The said Lists are marked as Exs.P60 and P61. Ex.P60 pertaining to the identification of the accused persons by PW29, Ex.P61 pertaining to the identification of the accused persons by PW1-Nirmal [In the original SC No.487/2013 it is marked as Exs.P56 and P57]. She [PW29] identified this accused at the time of recording the evidence.
24 SC No.29/201426. In support of the evidence of PW29-complainant about the alleged incident, PW1-Nirmal deposed. The sum and substance of evidence of PW1 is that:
On 13.10.2012, he and PW29 went in his Volkswagen Car by 8.00 P.M., and they parked their car near Old building, Bangalore University, it was 9.15 P.M., 8 persons suddenly came and surrounded their car and the broke the front door glass of the car with iron rod and dragged PW29 and 5 persons held him and 3 persons held him and they took PW29 to forest area and other 3 persons also dragged him to forest area and snatched his mobile phone and I- pad and asked for money and he told that his purse was in the car and they allowed him to come near to the car and when he was coming near to the car, the 2 police officials were seeing the car and thereby, said 3 accused persons ran away from the spot. Thereafter the police and PW1 went inside the forest to trace out the complainant, but, she could not secure. While they were searching for the complainant, in the midnight the police received a telephone call that the complainant returned to the hostel and thereafter, he went to the hostel along with the police and the police enquired her and she narrated the incident to the police. He further deposed that on the next day, the police asked him to identify the photographs in the voters list and he identified 4 persons. The voters list marked as Ex.P2 [in the original SC No.487/2013, the same is marked as Ex.P2] Ex.P2 was seized through Mahazar as per Ex.P1 before the Panchas [in the original SC No.487/2013 it is marked as Ex.P1]. He further deposed that, 25 SC No.29/2014 the complainant police took him to Parapanna Agrahara Police Station wherein he identified 7 accused persons among 20 to 25 persons shown to him. He identified the present accused before the court. He identified his nokia mobile, I-Pad and the iron rod used for breaking the window glass of the car marked as MOs-1 to 3. He also identified the plastic rope used to assault him, marked as MO-4 and 2 Saws marked as MOs-5 and 6, 2 sickles marked as MOs-7 and 8, 2 draggers marked as MOs-9 and 10, the photograph of his car is marked as Ex.P3. He further deposed that, he was taken before the Learned Magistrate and he identified 6 persons and he was also taken to Juvenile Court and identified a person.
27. PW18-Syed Abdul Rehman-Police constable of complainant Police Station deposed to the effect that, on 13.10.2012, he was deputed on night rounds within the jurisdiction of Nagarbhavi Circle, University Law school gate, when he was coming from Old Valuation road, he saw a white car parked and front door of the said car was opened and front left window glass was broken. He went back and saw that, no one was there in the said car and further he saw that, a person from 20 to 25 feet distance was running towards the said car and he enquired him what happened, he told that, his name is Nirmal [PW1] and told that, some unknown 8 persons came there and surrounded the car and broke the window glass of the car with iron rod and snatched his Mobile phone, I-pad and assaulted him with rope and drag his friend the Victim woman-PW29 towards forest. He further deposed that, he brought the home guard 26 SC No.29/2014 Puneeth and they all 3 [PW1, PW18 and said Puneeth] tried to search the Victim woman but, she could not be traced out and he telephoned to his higher officers and the police officers came to the spot and they were all searched for the Victim woman and later they received the information that the Victim woman had gone to the hostel.
28. Evidence of PW29, PW1, PW18 are corroborated with the evidence of PW30 the Police Inspector who conducted major part of the investigation. His [PW30] evidence is already discussed in Para No.18 of this Judgement. To avoid repetition of evidence of PW30, it is not discussed again.
29. The prosecution by examining the complainant-PW29, the eyewitness to the incident-PW1, the Police constable-PW18 who saw the car I the spot which was damaged, PW30- Police Inspector who rushed to the spot contended that the incident had happened. Added to it, the spot and seizure mahazar witness-PW2 by name Purushothma deposed about drawing up of panchanama in the place of incident and also recovery of MOs i.e. slippers, I-pod and car as per Mahazar-Ex.P4. However, he did not fully support the case of the prosecution and learned Public Prosecutor partly treated this witness and hostile and cross-examined him. During the course of cross-examination, PW2 had admitted the statements as stated by him under Sec.161 of Cr.P.C before the police officer of the complainant Police Station i.e., the complainant shown the place of incident and the accused persons raped her.
27 SC No.29/201430. Another panch witness-PW3 by name Chinnappa deposes with regard to the recovery of the weapons as per the voluntary statements by other accused persons in the shed house as per Ex.P5.
31. In so far as injury sustained by the Victim woman is concerned, the Doctor-PW7 deposes that, the Victim woman was sexually abused and Medical Certificates produced as per Exs.P17 to P21. In so far as identification of this accused is concerned, PW1-Nirmal identified him [this accused] in Voters list as per Ex.P2 and further as per the voluntary statement given by this accused, MOs-66(a) and 67 are recovered under Ex.P53. In so far as drawing up of panchnama as per Ex.P53 is concerned, PW24-Chandrashekar Rao and PW28-Mahesh depose that, on 17.9.2013, when they were sitting under a tree at Krishnapura Doddi in between 10 A.M., to 10.30 A.M., at that time the complainant police, the police took them in a jeep wherein this accused also present and the accused has led the police officials to Metare Doddi Village and this accused has shown his house and he took the police officers inside his house and shown a plastic bag, it was opened before the police, wherein he has picked a black colour sweater and the complainant police seized the said sweater along with the plastic bag in his [PW24] presence and drawn the Mahazar as per Ex.P53.
32. In so far as securing this accused is concerned, the police officials-PWs-9, 20 and 31 deposed that, stating that, on 28 SC No.29/2014 9.9.2013, they were deputed to trace out the absconding accused in Cr.No.401/2012, who is the accused in this case, and accordingly, they met the informant and as per the information received from the informant, they went to Kebbedoddi Village, Anekal Taluk and apprehended this accused and produced him before the Police Inspector of complainant Police Station on 10.9.2013.
33. In so far as securing this accused by the aforesaid 3 police officials is concerned, PW30 deposed to that effect stating that, on 10.9.2013, this accused was produced by the police officials before him on the same day, he enquired this accused and he gave voluntary statement and this accused was produced before the court and took police custody and on 15.9.2013, the police called PW1/CW2-Nirmal to the complainant Police Station and asked PW1/CW2-Nirmal whether he can identify the accused and he[CW2] has identified this accused and on 16.9.2013, this accused was sent for medical examination, his [this accused] Medical Report is marked as Ex.P59. PW27-Doctor deposes about conducting of medical examination of this accused.
34. In so far identification of this accused is concerned PW10-Uday Kumar a worker in a hotel has deposed that, since 10 to 12 years, he was running a hotel by name 'Vybhava Darshini' at Nayandanahalli Bus Stop, the accused persons in this crime number about 6 to 7 in a group used to come to his hotel for dinner in the night at about 8 P.M to 8.30 P.M. He further deposes 29 SC No.29/2014 that, he saw this accused in the group of 7 to 8 people, and on the alleged date of incident also 7 to 8 people came to his hotel for dinner.
35. In so far as receipt of the Complaint-Ex.P55 is concerned, PSI-PW25 deposed about receipt of the complaint and registering FIR-Ex.P52.
36. PW22-the Police Inspector deposed about enquiring the complainant in the hostel, PW26-Senior Civil Judge deposes about the recording of the statements of PW29 [complainant/Victim woman], PW1[Nirmal] and PW10 [Uday Kumar] under Sec.164 of Cr.P.C.
37. On perusal of the aforesaid evidence of the Prosecution witnesses , it discloses that, the prosecution has given evidence to the effect that, lodging of the complaint, securing this accused, recovery of the Material objects from this accused, as per the voluntary statement of this accused, conducting mahazar, evidence of the Doctors, evidence of the Investigating Officers, so as to connect the guilt of this accused to the alleged crime.
38. However, learned Standing Counsel argued that, the evidence of those witnesses cannot be accepted. His first argument is that, the incident not at all happened. He submitted that, the Victim woman is not having good character/conduct and if she was a good lady, why should she stayed late-night outside the hostel.
30 SC No.29/2014Further it is argued that, if really the incident had happened, the Investigating Officer could have produced the Log Book entry/Hostel Register, but, the same is not produced by the Investigating Officer. Apart from this argument, learned Standing Counsel has further argued that, Medical Report of the Victim woman-Ex.P17 did not reveal that, recent sexual intercourse has taken place. He argued that, if really the incident happened, that too, the gang-rape on the Victim woman, as alleged, obviously, in the Medical Report of the Victim it ought to have been mentioned that, there was recent sexual intercourse. Therefore, learned Standing Counsel argued the evidence of the Victim woman cannot be believed at all.
39. In the light of the above arguments, I have gone through the Medical Report of the Victim woman as per Ex.P17. It is true that, in Ex.P17, it is mentioned that, no injuries found over external genital area, no fresh tears or bleeding was noted and vaginal appears healthy, no injuries found at vaginal introitus perineum and anal area appeared normal.
40. As a reply to the said arguments, learned Public Prosecutor submitted that, though in the Medical Report-Ex.P17, it is not mentioned about recent sexual intercourse, but, during the course of evidence of the Doctor-PW7, it is elicited that, the Victim woman is used to act like that of sexual intercourse that is why, there was no injuries found in the vaginal introitus and vagina, because of this, there were no blood stains on the body and the 31 SC No.29/2014 clothes. She [PW7] further deposed that, because of fear of death, she [PW29] might not have resisted and no injuries and no blood stains are found on the body and clothes of Victim woman [PW29]. Added to it, Doctor [PW7] has given Clarification Letter dated: 18.11.2012 marked as Ex.P21 wherein the Doctor answered the Queries put by the Police Inspector, wherein it is stated that, ejaculation between thigs, slightest penetration of the penis without vulva, without emission of semen when Victim woman wiped her and washed her sexual parts after intercourse then also seminal stains may not present. When the Victim woman is used to an act like that of sexual intercourse, i.e., why there was no injuries in the vaginal introitus.
41. On going through the cross-examination of learned Standing Counsel made to this witness i.e., the Doctor [PW7], she answered to a question that, if 8 persons raped a girl, there is every possibility of bleeding, she answered that, it may or may not. Likewise, she [PW7] answered the question that, normally, if the victim was subjected to sexual intercourse, she will not be able to stand and walk. That is answered as, it may or may not. So on perusal of PW7-Doctor, though she was cross-examined by learned Standing Counsel, no contradictory evidence elicited from the Doctor[PW7] stating that, the Victim woman was not at all subjected to rape on that particular date.
42. Further learned Public Prosecutor argued that, the medical evidence is not a conclusive evidence and it is only 32 SC No.29/2014 corroborative in nature. In this case, the Victim woman herself stepped into the witness box and deposed about the incident. Learned Public Prosecutor has submitted that, in the decision reported in 2008 Crl.L. J 710 [SC] it is observed that:
"Normally, no false complaint will be filed because, rape leaves a permanent scar and has a serious psychological impact on victim and her family members".
Further learned Public Prosecutor submitted that, testimony of the prosecutrix has to be accepted, as reported in a decision in 2009 Cri.L.J 4133, 2010 Cri.L.J 1655, AIR 2013 SC 3077, wherein it is observed that:
"Testimony of prosecutrix sufficient to base conviction and it inspires confidence and uncorroborated testimony can be made basis for conviction".
In this case, the prosecutrix deposed about the incident and her evidence is supported with the evidence of PW1 and medical evidence also discloses that, she was subjected to sexual assault and there were injuries found on her body and the doctor opined that the injuries could have sustained while dragging the Victim woman.
43. In so far as conduct/characteristics of the prosecutrix is concerned, learned Public Prosecutor argued that, the prosecutrix was habitual to sexual intercourse is not a ground to 33 SC No.29/2014 deprive her privacy. In that regard, learned Public Prosecutor the decision reported in 2011 Cril.L.J 5020 M.P.
44. PW29 and PW1 were cross-examined by learned Standing Counsel in length. The arguments of learned Standing Counsel is that, in so far as identification of this accused is concerned, PW29 not at all identified this accused and no identification parade conducted by the complainant police and therefore, it is argued that, their [PW29 and PW1] evidence cannot be accepted. On going through the cross-examination of PW29 and PW1, though several questions put to them with regard to happening of the incident and identification of this accused, however, PW29-Victim woman stated that, when the accused persons surrounded them and dragged her from the car, there was street light and she could recognize the culprits. It is true that,. though Test identification parade is not conducted by the Investigating Officer, soon after the arrest of this accused, the Investigating Officer has called upon PW1-Nirmal to the complainant Police Station and he [PW1] identified the accused herein. Moreover, the other accused persons tried in SC No.487/2013 in their voluntary statements referred about this accused. Therefore, the arguments canvassed by learned Standing Counsel that, this accused not at all identified by PW29 and PW1 cannot be sustainable.
45. Relying on the principles laid down in the aforesaid decisions, and though lengthy cross-examination done to PW29 34 SC No.29/2014 and PW1, nothing worth is elicited to disbelieve their evidence and therefore, in so far as happening of the incident, identification of this accused, this court taking into consideration of the evidence of PW29, PW1 and the doctor evidence-PW7, accepted their evidence as trustworthy. Thereby the arguments canvassed by learned Standing Counsel that, the prosecution has not placed cogent evidence with respect to happening of the incident, identification of this accused is not sustainable.
46. Further, it is pertinent to note that, as per the voluntary statement given by this accused, the Material Objects i.e., Sweater and Plastic bag recovered by the Investigating Officer. To prove the said recovery, the prosecution has relied upon the evidence of PW24 and PW28. PW24 and PW28 were cross-examined by learned Standing Counsel. I have gone through the cross-examinations of PW24 and PW28. In the cross-examination of PW24, it is suggested that, as per the voluntary statement made by this accused, the Sweater and plastic bag not seized, the said suggestion denied by PW24. Further it also suggested to PW24 that, he does not know the contents of Mahazar-Ex.P53. However, the witness said that, the contents of Mahazr-Ex.P53 read over to him, thereby, in the cross-examination of PW24, nothing contrary evidence elicited as against the evidence of the prosecution. It is also not elicited that this PW24 is having any enmity against this accused so as to depose against him. Likewise, on perusal of cross-examination of PW28, who is another panch witness to Ex.P53, though he [PW28] has stated that he 35 SC No.29/2014 does not know the contents of Mahazar-Ex.P53, he stated that, in his presence, the Mahazar-Ex.P53 was done. During the course of his [PW28] cross-examination, no evidence elicited about the enmity against this accused by this witness. From the evidence of PW24 and PW28, the prosecution proved that, recovery of Material Objects on the basis of the voluntary statement of this accused as per Ex.P53. Thereby, the evidence of PW24 and PW28 are trustworthy to accept about the recovery of Material Objects.
47. Further, learned Standing Counsel argued that, this accused has not at all committed rape on the Victim woman. For that, learned Standing Counsel brought to the notice of this court that, no DNA test of this accused conducted. It is true that, DNA test of this accused is not conducted by the Investigating Officer. However, it is pertinent to note that, as per the evidence of PW29-Victim woman and PW1-Nirmal, this accused was very well present at the time of the alleged incident. This accused being the member of the unlawful assembly, though his DNA test was not conducted, this accused is held to be guilty of the offence, being a member of unlawful assembly, that is common object, as the charge framed against this accused as read with Sec.149 of IPC. In the evidence of PW29 [Victim woman] she deposed that, this accused also committed rape on her. This court has accepted the evidence of PW29 as trustworthy to believe. Therefore, though DNA test of this accused not conducted, it is not fatal to the case of the prosecution. In that regard, learned Public Prosecutor has relied 36 SC No.29/2014 upon the decisions reported in 2004 SCC Crimes 31 and 2012 (3) SCC Crimes 1319, wherein it is observed that:
" In case of gang rape, by each accused on the victim, is not required, essential ingredient is that, common object and it is not necessary to establish completed rape by each accused".
48. Further, learned Public Prosecutor submitted that, even if DNA Test is conducted, it is only an opinion evidence and it is not a substantive evidence. Learned Public Prosecutor further submitted that, investigating agency not conducted investigation properly cannot be ground to discredit the testimony of prosecutrix. In that regard, learned Public Prosecutor has relied upon the decisions reported in AIR 2013 SC 3008 and AIR 1996 SC 1393, wherein it is observed that:
"Appreciation of evidence-Defects in investigation- Unless they casts doubt on the prosecution case, cannot be a ground to acquit the accused and the Investigating Agency not conducting investigation properly or was negligent- cannot be a ground to discredit testimony of prosecutrix".
49. Further, learned Standing Counsel argued that, this accused has been falsely implicated in this case. In so far as false implication is concerned, no-where in the evidences of the Victim woman and Police officers, it is elicited about enmity against this accused either by the Victim woman or by the police officers. Therefore, the said arguments of learned Standing Counsel cannot be accepted, unless it should be specifically elicited 37 SC No.29/2014 from the evidences of the Prosecution witnesses during the course of cross-examination.
50. Further in this case, learned Public Prosecutor has argued that, this accused has taken the prosecutrix by extending the threat with knife, then the plea that the prosecutrix did not raise hue and cry [as per the decision reported in 2012 Cril.L.J NOC 13, Delhi,], the accused threatened the prosecutrix on the point of pistol, it was held that: it is a case of surrender and the prosecutrix could not held the consenting party[as observed in 2011 Cril.L.J 5020 M.P], rape is a crime, not only against the victim, but also against entire society, it is a crime against basic human rights, courts are expected to deal with cases of sexual crime against woman with utmost sensitivity-towards prosecutrix, [as observed in 2012 (3) SCC 1238 B] and further minor discrepancies and contradictions in the statement of the victim should not be a ground for throwing out or otherwise reliable prosecution case [as observed in AIR 2006 SC 381] and prayed for convicting this accused.
51. To sum in this case, the prosecution by examining the Victim woman-PW29, eye-witness-PW1, identification of this accused by PW1 with the supporting documents Exs.P1 and P2, seizure of the material objects as per the voluntary statement of this accused as per Ex.P53 and by examining panch witnesses-PW24 and PW28, in so far as sexual assault against the 38 SC No.29/2014 Victim woman, the Doctor-PW7 deposed and Medical reports- Exs.P17 to P21 are marked and further Investigating Officer-PW30 thoroughly deposed about conducting of investigation and further taking into consideration of the evidence of PW10 who identified this accused as he was one of the member of the gang of 7 to 8 persons who were already tried and convicted, and though all the witnesses cross-examined by learned Standing Counsel, nothing worth elicited to disbelieve their evidence, this court by accepting the evidence of Prosecution witnesses as trustworthy to believe, proceeded to say that, the prosecution has proved the guilt of this accused beyond reasonable doubt. Accordingly I answer POINTS-1 TO 5 in the AFFIRMATIVE.
52. POINT NO.6:- In view of my aforesaid discussions, I proceed to pass the following ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, this accused [arrayed as accused No.3 in the charge-sheet] is found guilty of the offences punishable under Secs. 427, 366, 323, 324, 397 and 376[2][g] r/w Sec.149 of IPC.
MOs-1, 2 and MOs-68 and 69 [ Nokia Phone and I-Pad belonging to PW1] are one and the same [marked twice by oversight] are ordered to be returned to PW1-Nirmal, MO-72-Mobile phone of PW29-Victim woman is ordered to be returned to PW29, after the appeal period is over.
39 SC No.29/2014MOs-3 to 12, MOs-61 to 66 are ordered to be confiscated to the Government after the appeal period is over.
MOs-13 to 22, 24 to 60, 66(a), 67, 70 and 71 being worthless, are ordered to be destroyed after the appeal period is over.
To hear regarding quantum of sentence by 3.00 P.M. (Dictated to the Stenographer directly on the computer, corrections carried out and then pronounced by me in the Open Court on this the 22nd day of May, 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
22.5.2017 Heard regarding sentence.
The accused is produced before me. Learned Public Prosecutor and learned Standing counsel are also present before this court. Heard the accused personally. He submitted that, he did not commit any offence, he is aged 24 years, he hails from a poor family, he is uneducated, he is having old aged parents, he took loan for performing his sister's marriage, his father could not do any work, because he is short of sight and the creditors with whom he borrowed the amount, demanding and harassing his aged father to repay the loan amount and he has been in judicial custody since 4 years and he is keeping well and taking treatment 40 SC No.29/2014 when he has been in judicial custody, he is married and having wife and children. For all these reasons, the accused prays for taking lenient view in imposing the sentence.
On the other hand, the learned public prosecutor has submitted that this accused has committed heinous crime against a woman. Further he has relied upon decision reported in AIR 2013 Supreme Court 3246 [State of Harayana Vs.Janak Singh] wherein it is observed that:
" Sentence bargaining not permissible in rape cases".
Therefore, learned Public Prosecutor submitted that, this accused does not deserve any leniency in imposing the sentence and prayed for imposing Capital Punishment.
In this case, this accused has been found guilty of the offences punishable under Secs. 427, 366, 323, 324, 397 and 376[2][g] r/w Sec.149 of IPC. The offence of gang rape is very heinous offence and the other accused persons being the members of the same gang were sentenced to Life Imprisonment. Having regard to the seriousness of the crime, which is a crime against the Society, this court is of the opinion that, this no lenient view can be taken against this accused in imposing the sentence. Accordingly, I proceed to pass the following:
ORDER ON SENTENCE The accused [arrayed as accused No.3 in the charge-sheet] shall undergo Simple Imprisonment for a period of Two Years for the offence punishable under Sec.427 r/w Sec.149 of IPC.41 SC No.29/2014
Secondly, he shall undergo Simple Imprisonment for a period of 10 years for the offence punishable under Sec.366 r/w Sec.149 of IPC.
Thirdly, he shall undergo Simple Imprisonment for a period of One Year for the offence punishable under Sec.323 r/w Sec.149 of IPC.
Fourthly, he shall undergo Simple Imprisonment for a period of Three Years for the offence punishable under Sec.324 r/w Sec.149 of IPC.
Fifthly, he shall undergo Simple Imprisonment for a period of Seven Years for the offence punishable under Sec.397 r/w Sec.149 of IPC.
Sixthly, he shall undergo Imprisonment For Life and to pay fine of Rs.1,000/- for the offence punishable under Sec.376(2)(g) r/w Sec.149 of IPC. In default of payment of fine amount, he shall undergo simple imprisonment for a period of Two Months.
The substantial sentence imposed shall run concurrently. However, the sentence imposed in default of payment shall run consecutively.42 SC No.29/2014
Further in so far as victim compensation is concerned, as provided under Sec.357(3) Cr.P.C, the Victim woman is entitled for adequate compensation, as provided under the Victim Compensation Scheme.
Office is directed to supply the free copy of this judgment to the accused forthwith.
(Dictated to the Stenographer directly on the Computer, corrections carried out, and then pronounced by me in the Open Court on this the 22nd day of May, 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURES Witnesses examined for the prosecution:
Pw.1 Nirmal CW2 30.3.2015
Pw.2 Purushotham CW3 31.3.2015
Pw.3 Chinnappa CW5 31.3.2015
Pw.4 Dr.Raghupathy CW25 7.4.2015
Pw.5 Dr.Chandrashekar CW19 7.4.2015
Pw.6 Dr.Shehnaz Fathima CW20 7.4.2015
Pw.7 Dr.Pramila Devi.N CW23 7.4.2015
Pw.8 R.Nithin CW27 8.4.2015
Pw.9 Venkatesh CW59 8.4.2015
PW10 Udaykumar CW18 29.4.2015
43 SC No.29/2014
Pw.11 Manjunath CW8 30.5.2015
PW12 Dr.Dileep Kumar.K.B CW24 25.6.2015
PW13 Dr.Vinod.J.Lakkappan CW22 25.6.2015
PW14 Babu CW15 6.7.2015
PW15 Srinivas CW12 21.7.2015
PW16 Srividya CW20 8.10.2015
PW17 Shailesh CW10 8.10.2015
PW18 Syed Abdul Rehman CW29 8.10.2015
PW19 Srinivas.H.T. CW30 8.10.2015
PW20 Upendragowda CW52 8.10.2015
PW21 M.Masila Mani CW53 8.10.2015
PW22 Smt.Geetha Kulkarni CW40 28.10.2015
PW23 Neha Rajpurohit CW14 13.11.2015
PW24 Chandrashekar Rao CW49 25.11.2015
PW25 Dharmegowda CW46 4.12.2015
PW26 Rodalf Ferera CW47 17.12.2015
PW27 Dr.S.Venkataraghavan CW51 17.12.2015
PW28 Mahesh CW50 17.12.2015
PW29 Victim woman CW1 31.12.2015
PW30 Balaraju CW49 9.2.2016
PW31 Imtiyaz Patel CW61 8.3.2016
PW32 Ramalingaiah CW60 2.5.2016
PW33 Ravish.C.R. CW63 21.10.2016
Documents marked for the prosecution:
Exhibits Particulars Exhibits
in SC Marked in
29/2014 SC 487 of
2013
(original
file) as
Ex.P1 The copy of Mahazar dated: 15.10.2012 Ex.P-1
regarding of Seizure of Voter's List, wherein the photographs of accused No. 3 is found.
Ex.P2 Copy of Voters List consisting of 19 pages Ex.P-2
(wherein accused No.3 is found at
Sl.No.779)
44 SC No.29/2014
Ex.P3 Copy of the photograph of the car of PW1 Ex.P-3
Ex.P4 Copy of Seizure Mahazar Ex.P-4
dated: 14.10.2012 regarding seizure of MOs Ex.P5 Copy of Seizure Mahazar dated Ex.P-5 21/10/2012 Exs.P6 to Copy of acknowledgements for having Ex. P-19 P12 taken blood from the accused before the to 25 doctor Ex.P-13 & Copies of letters from Police Inspector to Ex.P-26 Ex.P-14 Doctor at Victoria Hospital and 27 Ex.P-15 Copy of FSL report dt. 18/10/2012 with Ex.P-46 sample seal and Ex.P-
46(b)
Ex.P-16 Copy of FSL Report dt. 13/11/12 with Ex.P-47
sample seal and Ex.P-
47(b)
Ex.P-17 Copy of MLC Extract Ex.P-12
Ex.P-18 Copy of Letter dt. 14/10/2012 Ex.P-13
Ex.P-19 Copy of Final Report dt. 17/11/2012 of Dr. Ex.P-14
Prameela Devi
Ex.P-20 Copy of letter dt. 17/11/2012 of Dr. Ex.P-15
Prameela Devi with regard to opinion on
injuries
Ex.P-21 Clarification letter dt. 18/11/2012 Ex.P-16
Ex.P-22 Sketch prepared by Asst. Engineer Ex.P-43
(Drawing No. 1)
Ex.P-23 Sketch prepared by Asst. Engineer Ex.P-44
(Drawing No. 2)
Ex.P-24 Letter of AEE dt. 19/11/2012 Ex.P-45
Ex.P-25 Copy of Seizure Mahazar dt. 15/10/2012 Ex.P-6
with regard to drawing of Culprit
45 SC No.29/2014
Ex.P-26 to Sketch pertaining to five accused persons Ex.P-7 to
30 11
Ex.P-31 Copy of DNA Report dt. 20/06/2013 Ex.P-51
(DNA 164/12,Ref No. 306/13)
Ex.P-32 Copy of above document [Ex.P-31] is again Not
marked marked
Ex.P-33 to Copy of Medical Reports of accused- Ex.P-29 to
39 Mallesha, Ramu, Dodda Eraiah, Shivanna, 35
Maddura, Yeleyaiah, Eraiah(A-1,A-2, A-4 to A-8 in SC. 487/13) Ex.P-40 to Copy of Sample Seals Ex.P-36 to 46 42 Ex.P-47 Mahazar dt. 19/10/2012 regarding arrest Ex.P-50 of four accused persons and seizure of MOs Ex.P-48 Copy of FSL Report dt. 13/11/2012 Ex.P-76 Ex.P-49 Copy of FSL Report dt. 19/10/2012 Ex.P-79 Ex.P-50 Copy of FSL Report dt. 16/12/2013 Not (Original) marked Ex.P-51 Sample Seal (Original) Not marked Ex.P-52 Copy of FIR in Cr.No. 401/2012 dt. Ex.P-49 13/10/2012 Ex.P-53 Seizure Mahazar dt. 17/09/2013 Not conducted at Macheredoddi Village, marked Ramanagara as shown by accused by name Raja @ Mutturaja (Original) Ex.P-54 Seizure Mahazar dt. 17/09/2013 Not conducted at Ramanagara Town as shown marked by accused by name Raja @ Mutturaja(original) Ex.P-55 Complaint of victim dt. 13/14-10-2012 Ex.P-48 Ex.P-56 Copy of requisition of PI dt. 21/10/2012 Ex.P-52 with a request to record 164 Cr.P.C Statement(pertaining to victim) Ex.P-57 Copy of requisition of PI dt. 07/11/2012 Ex.P-53 with a request to record 164 Cr.P.C Statement(pertaining to victim) 46 SC No.29/2014 Ex.P-58 Copy of requisition of PI dt. 25/10/2012 Ex.P-54 with a request to record 164 Cr.P.C Statement(pertaining witness-Uday Kumar) Ex.P-59 Medical Report dt. 16/09/2013 pertaining Not to accused Mutturaja @ Raja(Original) marked Ex.P-60 Copy of Parade regarding identification of Ex.P-56 accused by victim Ex.P-61 Copy of Parade regarding identification of Ex.P-57 accused by Nirmal Ex.P-62 Copy of Report of Puttaswamy Gowda dt. Ex.P-60 15/10/12 Ex.P-63 Further Voluntary Statement of accused- Not Raja @ Mutturaj dt. 17/09/2013(Original) marked Ex.P-64 Notice dt. 09/09/2012 (Original) Not Marked Ex.P-65 Notice dt. 16/09/2012 (Original) Not marked Ex.P-66 Copy of complaint submitted to IO by the Ex.P-63 deputed staff Ex.P-67 FIR in Cr.No. 411/2012 dt. 20/10/2012 Ex.P-64 Ex.P-68 Copy of Report of Puttaswamygowda dt. Ex.P-75 03/11/2012 Ex.P-69 Copy of Letter dt. 19/11/2012 Ex.P-77 Ex.P-70 True Copy of RC Details of Vehicle bearing Ex.P-78 No. KL-02-AH-8100 Ex.P-71 Report of Kantharaje Urs dt. Not 16/09/2013(original) marked Ex.P-72 Copy of PF No. 210/2012 dt. 29/10/2012 Ex.P-72 Ex.P-73 Copy of Report of M. Puttaswamy Gowda Ex.P-73 dt. 29/10/2012 Ex.P-74 Requisition seeking permission to enclose Not FSL Report along with Chargesheet marked (original) Material objects marked for the prosecution:
MO1 Nokia mobile phone of PW1
47 SC No.29/2014
MO2 I-Pad of PW1
MO3 Iron rod used for breaking the window of the car
belonging to PW1
MO4 Plastic rope
MO5 Garagasa
MO6 Garagasa
MO7 Macchu
MO8 Another one Macchu
MO9 Dragger
MO10 Dragger
MO11 Mobile phone Sim
MO12 Rs.10/- note
MO13 Two paragon chappals
MO14 Mud
MO15 Grass
MO16 Chappals belonging to CW1
MO17 One Kerchief
MO18 Plastic bag containing MOs-3 to 10
MO19 One Pijama of pink, red and white flowers MO20 Black bra MO21 Black simmi MO22 Black top MO23 Skipped and next number marked as MO24 MO24 Kerchief MO25 Banian MO26 Pant MO27 Blue coloured underwear 48 SC No.29/2014 MO28 Brown-Yellow coloured shirt MO29 One Blue coloured [Hillman Semi] underwear MO30 Purple coloured long sleeved shirt MO31 One Banian MO32 One grey coloured pant MO33 Green coloured shorts [nicker] MO34 Blue coloured underwear MO35 Pubic hair MO36 Nail clippings MO37 One violet coloured shirt MO38 One pant MO39 One Shorts MO40 Pubic hair MO41 Nail clippings MO42 One T-shirt MO43 One Pant MO44 Banian MO45 Underwear MO46 Nail scrapping MO47 Pubic hair MO48 One Black and white Chaukali shirt MO49 Pubic hair MO50 Nail scrapping MO51 One shirt MO52 Pant MO53 Underwear MO54 Pubic hair 49 SC No.29/2014 MO55 Nail scrapings MO56 Banian MO57 Underwear MO58 Pubic hair MO56 Nail clippings MO57 Pubic hair MO58 Vaginal swab MO59 Vaginal smear MO60 Cervical smear MOs-61 Three Nokia Mobiles to 63 MO64 MTS Mobile MO65 Samsung mobile MO66 Selcon Mobile MO66(a) Black colour Sweater MO67 Plastic bag in which black colour sweater was kept MO68 Apple I-pad of PW1 MO69 Nokia mobile of PW1 MO70 Glass pieces MO71 Mud MO72 Mobile phone of the victim NOTE: MOs-1 and 2 and MOs-68 and 69 are same [Marked twice by oversight].50 SC No.29/2014
Documents marked for the court:
Ex.C1 Copy of Statement of PW1 under Sec.164 of Cr.P.C in Cr.No.401/2012 before the IX ACMM, Bangalore [Original Ex.C1 marked in SC No.487/2013] Ex.C2 Copy of Statement of PW29 [complainant in this case] under Sec.164 of Cr.P.C in Cr.No.401/2012 before the IX ACMM, Bangalore [Original Ex.C2 marked in SC No.487/2013] Ex.C3 Copy of Statement of PW10 under Sec.164 of Cr.P.C in Cr.No.401/2012 before the IX ACMM, Bangalore [Original Ex.C3 marked in SC No.487/2013] Witness examined, documents and MOs marked for this accused : NIL LIV Addl., City Civil & Sessions Judge, Bangalore.51 SC No.29/2014
22.5.2017 Accused produced from JC.
Judgment pronounced in open court:[ Vide separate detailed Judgment] In exercise with the powers conferred upon me under Criminal Procedure Code, this accused [arrayed as accused No.3 in the charge-sheet] is found guilty of the offences punishable under Secs. 427, 366, 323, 324, 397, and 376[2][g] r/w Sec.149 of IPC.
MOs-1, 2 and MOs-68 and 69 [Nokia Phone and I-Pad belonging to PW1] are one and the same [marked twice by oversight] are ordered to be returned to PW1-Nirmal, MO-72-Mobile phone of PW29-Victim woman is ordered to be returned to PW29, after the appeal period is over.
52 SC No.29/2014MOs-3 to 12, MOs-61 to 66 are ordered to be confiscated to the Government after the appeal period is over.
MOs-13 to 22, 24 to 60, 66(a), 67, 70 and 71 being worthless, are ordered to be destroyed after the appeal period is over.
To hear regarding quantum of sentence by 3.00 P.M. [RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
22.5.17 Heard and Order regarding sentence:
[vide separate detailed Sentence] The accused [arrayed as accused No.3 in the charge-sheet] shall undergo Simple Imprisonment for a period of Two Years for the offence punishable under Sec.427 r/w Sec.149 of IPC.53 SC No.29/2014
Secondly, he shall undergo Simple Imprisonment for a period of 10 years for the offence punishable under Sec.366 r/w Sec.149 of IPC.
Thirdly, he shall undergo Simple Imprisonment for a period of One Year for
the offence punishable under Sec.323 r/w Sec.149 of IPC.
Fourthly, he shall undergo Simple Imprisonment for a period of Three Years for the offence punishable under Sec.324 r/w Sec.149 of IPC.
Fifthly, he shall undergo Simple Imprisonment for a period of Seven Years for the offence punishable under Sec.397 r/w Sec.149 of IPC.
Sixthly, he shall undergo Imprisonment For Life and to pay fine of
Rs.1,000/- for the offence punishable under Sec.376(2)(g) r/w Sec.149 of IPC. In default 54 SC No.29/2014 of payment of fine amount, he shall undergo simple imprisonment for a period of Two Months.
The substantial sentence imposed shall run concurrently. However, the sentence imposed in default of payment shall run consecutively.
Further in so far as victim compensation is concerned, as provided
under Sec.357(3) Cr.P.C, the Victim woman is entitled for adequate compensation, as provided under the Victim Compensation Scheme.
Office is directed to supply the free copy of this judgment to the accused forthwith.
[RAJESHWARI.N.HEGDE] LIV ADDL.,CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.55 SC No.29/2014 56 SC No.29/2014