Karnataka High Court
Tukaram And Ors vs The State on 12 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1 Crl.A.No.200010/2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200010 OF 2018 (374)
BETWEEN
1. TUKARAM S/O DEVALA CHAVAN,
AGE: 40 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
2. MAINABAI W/O DINESH RATHOD,
AGE: 20 YEARS, OCC: COOLIE WORK,
R/O ANADUNAYAK TANDA,
GADININGADALLI VILLAGE,
TQ. CHINCHOLI, DIST.KALABURAGI-585305.
3. PARIBAI @ PARVATIBI W/O TUKARAM CHAVAN,
AGE: 32 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
4. CHANDRAKANTH S/O DEVALA CHAVAN,
AGE: 35 YEARS, OCC: HELPER WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
5. MANIK S/O DEVALA CHAVAN,
AGE: 30 YEARS, OCC: DRIVER,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
6. ANIL S/O SOMLA RATHOD,
2 Crl.A.No.200010/2018
AGE:19 YEARS, OCC: HOTEL WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
7. BHADRU @ BADDU S/O JAYARAM,
AGE: 26 YEARS, OCC: HOTEL WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
8. SANTOSH S/O REKHU CHAVAN,
AGE: 25 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
9. UMESH S/O VITHAL CHAVAN,
AGE: 19 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
10. PANNU S/O DHANAJU CHAVAN,
AGE: 31 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
11. NEELKANTH S/O MANSINGH RATHOD
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
12. MUKHESH @ MAKHYA @ MUKUND
S/O TARASINGH CHAVAN
AGE: 23 YEARS, OCC: STUDNET,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
13. TARASINGH S/O DEVALA CHAVAN
AGE: 43 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
...APPELLANTS
(BY SRI NANDKISHORE BOOB, ADVOCATE)
3 Crl.A.No.200010/2018
AND
THE STATE THROUGH CHINCHOLI P S
NOW REPRESENTED BY ADDL. SPP,
HCKB AT KALABURAGI.
...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C. PRAYING TO
CALL FOR THE ENTIRE RECORDS, ALLOW THIS CRIMINAL APPEAL
BY SETTING ASIDE THE JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE WITH FINE FOR THE OFFENCES UNDER SECTIONS
143, 147, 323, 365, 342 AND 114 R/W 149 IPC, AGAINST
A.NOS.1 TO 10, 14 AND 16 (APPELLANT NOS.1 TO 10, 12 AND
13) AND FURTHER FOR THE OFFENCE UNDER SECTION 376 OF
IPC AGAINST A.NO.13, (APPELLANT NO.11), PASSED BY THE
LEARNED IIND ADDITIONAL SESSIONS JUDGE AT KALABURAGI,
IN SPECIAL CASE (SC/ST) NO. 35/2016 DATED 23.12.2017, IN
VIEW OF THE REASONS AS STATED ABOVE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.01.2024. COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
4 Crl.A.No.200010/2018
JUDGEMENT
This appeal is filed by the appellants who are arrayed as accused Nos.1 to 10, 13, 14 and 16 challenging the judgment of conviction and order of sentence passed by the II Additional Sessions Judge, Kalaburagi in Special Case (SC/ST) No.35/2016 dated 23.12.2017.
2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief factual matrix leading to the case are as under:
That P.W.1/prosecutrix has lodged a complaint alleging that her son i.e., P.W.3 was married to accused No.2 and accused Nos.1 and 3 are the parents of accused No.2 and the marriage was solemnized about 2 years 3 months earlier. It is further alleged that accused No.2 quarreled with P.W.3 for petty reasons and left for parental house at Malasapur Tanda and all the efforts made for reconciliation went in vain. 5 Crl.A.No.200010/2018 It is further asserted accused Nos.1 and 3 were quarreling with the complainant on that ground.
4. As per the case of the prosecution on 24.10.2015 at about 11-30 p.m. the complainant, her husband P.W.2, son Dinesh P.W.3 and daughter after dinner went to bed and at around 11-30 p.m., complainant heard the sound of knocking the door and on opening the door, she saw two jeeps and 16 accused. When she enquired with them, they trespassed in their house alleging that accused P.W.1 to P.W.3 have tortured accused No.2 Mainabai and she was slapped and they have abducted P.W.1 to P.W.3 in two jeeps and took them to Malasapur Tanda. It is further asserted that at about 02-00 a.m. they were confined on a Katta in front of the house of Tarasing by tying their legs and hands with ropes. It is further alleged that they were also assaulted by hands and were kicked with legs regularly and at about 03-00 a.m. accused No.12 came to her, untied and intimated her that Dalapati of her village made a call and asked her to speak to him and under said guise, he took her behind the 6 Crl.A.No.200010/2018 house in a open space and left there her with accused No.13. It is further alleged that there accused No.13 sought a sexual favour, but when she refuses, she was forced to lie on the ground and accused No.13 committed sexual assault by raping her against her will. Later, she escaped from there and returned to the spot wherein her son and her husband were confined and there accused No.14 in front of her husband, squeezed her breast and scratched and then she was again tied with rope. It is also alleged that subsequently, somebody passed message to the police and they rushed to the spot and set them free. In this regard, she lodged a complaint against the accused. On the basis of this complaint, the investigating officer registered the case and subsequently, investigated the crime and submitted the charge-sheet for the offences punishable under Sections 143, 147, 323, 342, 363, 376, 354A (1) and (2), 114 of Indian Penal Code, 1860 and Section 3(1) (xi) and 3(2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
7 Crl.A.No.200010/2018
5. After submission of the charge-sheet, the learned Sessions Judge has taken cognizance of the offences and the accused were produced before the learned Sessions Judge and they were subsequently enlarged on bail. The prosecution papers were furnished to them. The learned Sessions Judge has framed the charge against the accused for the aforesaid offences and the accused pleaded not guilty.
6. To prove the guilt of the accused, the prosecution has examined in all 24 witnesses as P.W.1 to P.W.24 and relied on 38 documents marked at Exs.P.1 to P.38 and 10 material objects. After conclusion of the evidence of the prosecution, the statements of the accused under Section 313 of Cr.P.C. are recorded to enable the accused to explain the incriminating evidence appearing against them in the case of the prosecution. The case of the accused is of total denial.
8 Crl.A.No.200010/2018
7. Then the learned Sessions Judge after hearing the arguments and after appreciating the oral and documentary evidence convicted accused Nos.1 to 10, 14 and 16 for the offences punishable under Sections 143, 147, 323, 365, 342 and 114 read with Section 149 of IPC while accused No.13 was convicted for the offence under Section 376 of IPC. He has also imposed the sentence of imprisonment as well as fine. The learned Sessions Judge has further acquitted accused Nos.11, 12 and 15 for the offences under Sections 143, 147, 504, 323, 365, 342 and 114 read with Section 149 of IPC and Section 3(i) (xi) and 3(i) (xv) of the SC/ST Act.
8. Being aggrieved by this judgment of conviction and order of sentence, accused Nos.1 to 10, 13, 14 and 16 are before this Court by way of this appeal. It is also important to note here that though accused Nos.11, 12 and 15 were acquitted, the said judgment of acquittal was not challenged by the State and it has reached finality. 9 Crl.A.No.200010/2018
9. Heard the arguments advanced by the learned counsel for the appellants/accused and the learned High Court Government Pleader for the respondent/State. Perused the records.
10. The learned counsel for the appellants/accused would contend that though 24 witnesses have been examined, but except P.W.1 and medical officer P.W.11, all other witnesses have turned hostile including victims P.W.2 and P.W.3. He would contend that the evidence of P.W.1 is also not trustworthy as she exaggerated the incident and improved her version and went on changing her stances in the examination-in-chief as well as the cross-examination. Hence, her evidence is not trustworthy and the injuries on her body were not corresponding to allegations made in the prosecution. He would also assert that though the police were alleged to have got released the victim, they have not registered any case and the complaint was lodged later on next day and this delay was not at all explained. He would contend that the learned Sessions Judge only on the basis of 10 Crl.A.No.200010/2018 uncorroborated and inconsistent statement of P.W.1 ignoring the other proof of evidence, proceeded to convict the accused which has resulted in miscarriage of justice. He would also contend that when the learned Magistrate has not accepted her evidence so far as it relates to accused Nos.11, 12 and 15 are concerned, what is the base for accepting her evidence only against these appellants is not forthcoming. Hence, he would seek for allowing the appeal by setting aside the impugned judgment of conviction.
11. Per contra, the learned High Court Government Pleader would support the judgment of conviction and order of sentence passed by the Sessions Judge. He would contend that the evidence of the complainant clearly establish individual overt act of the accused and further initially she has supported, but subsequently, she has turned hostile and again later on, she has given the verdict in favour of the prosecution and hence, her evidence cannot be ignored. He would assert that the Trial Court has appreciated the oral and documentary evidence in proper perspective and has 11 Crl.A.No.200010/2018 rightly, convicted the accused. Hence, he would seek for dismissal of the appeal.
12. Having heard the arguments and after perusing the oral and documentary evidence, now the following point would arise for my consideration:
"Whether the judgment of conviction and order of sentence passed by the learned II Additional Sessions Judge, Kalaburagi in Special Case (SC/ST) No.35/2016 dated 23.12.2017 is perverse, arbitrary and erroneous so as to call for any interference by this Court?"
13. At the outset, it is to be noted here that the alleged incident is said to have taken place on 24.10.2015 and continued upto 25.10.2015. The further allegation is that the police rushed to the post and got released the victims, but the complaint was lodged on 26.10.2015. There is a delay of more than 24 hours in lodging the complaint and there is no attempt made by the prosecution to explain this delay.
12 Crl.A.No.200010/2018
14. The records disclose that the complainant is a resident of Gadilingadalli Tanda. It is further admitted fact that accused No.2, the daughter-in-law of the complainant and accused Nos.1 and 3 are the parents of accused No.2. It is further evident that P.W.2 is the husband of the complainant and P.W.3 is the son of the complainant who has married to accused No.2. As per the allegations of the prosecution, on 24.10.2015 at 11-30 p.m., when she was sleeping in the house along with her husband, son and daughter, the accused came there and knocked the door and when she has opened the door, she was assaulted and she, her husband and son were abducted by the accused in two jeeps. It is further asserted that the accused were taken to Malasapur Tanda and were confined on a Katta in front of the house of accused No.16 by tying their hands and legs with ropes. It is further alleged that at 03-00 a.m., the complainant was untied and she was raped by accused No.13 and accused No.14 committed sexual assault on her in the presence of her husband. It is further asserted that the 13 Crl.A.No.200010/2018 police came to the spot and they were got released. Interestingly, when the police have rushed to the spot and got released the victims, there is no evidence as to why the victims were not sent to the medical examination on the same day. Further there is no explanation as to why the police have not registered the case.
15. P.W.1 to 10 and 12 are the eyewitnesses, but except P.W.1, all these material witnesses have turned hostile. They denied the entire case of the prosecution and the prosecution is now relying only on the evidence of P.W.1 and evidence of P.W.11 who is the doctor who has examined the victims. It is important to note here that pancha witnesses have also not supported the case of the prosecution.
16. The victim complainant is examined as P.W.1, in her evidence, she deposed that on the earlier year next day of the Dasara, she was sleeping in the house along with her husband, son and daughter and at about 12-30 in the mid- night somebody knocked the door by stumps and when she 14 Crl.A.No.200010/2018 opened the door, she found two jeeps and 16 accused and then she narrated regarding she being assaulted and abducted along with her husband and son and they have taken to Malasapur Tanda. She further deposed that she was tied in front of house of accused No.16 and she was assaulted by stick, hands and Chappal up to 03-00 O' clock. Her further evidence discloses that later on accused No.12 untied under the guise that she is required to attend a phone call of Dalapati and took her in an open space and left her with accused No.13 where she was raped.
17. The complaint is marked as Ex.P.1. It discloses that accused No.13 alone raped her who was present there, but in examination-in-chief, she has not only implicated accused No.13, but accused Nos.14 and 15 were also implicated and asserted that they all made her to lie on the ground and they committed sexual assault and then, she was raped by accused No.13. This is completely inconsistent and contrary evidence.
15 Crl.A.No.200010/2018
18. Her further evidence discloses that morning at 06-00 O' clock when she demanded water, accused Nos.5, 9, 14 and 16 and ladies have poured urine stored in a bottle on her head and accused Nos.2 and 3 were assaulted by fist. All these aspects stated in examination-in-chief were not found place in her complaint or further statement and there are lot of improvements in her evidence in this regard. Apart from that, it is the specific assertion of the prosecution that they were tied on Katta, but in her examination-in-chief, she deposed that they were tied to a tree in front of the house of accused No.16 which is again a new version put forward by the witness. Apart from that, she further deposed that evening at 04-00 O'clock Chincholi police called accused No.4 and asked them to produce the victims, but accused No.4 lied them asserting that they were already left, but they were shifted to different place and they were tied in land. She further asserted that when police have insisted for the produce of the victims, then P.W.1 to P.W.3 were taken on two bikes by accused No.4 and another person and produced 16 Crl.A.No.200010/2018 before the PSI and the PSI has taken them to police station, wherein she lodged a complaint. This version is completely inconsistent and contrary to the allegations made in the complaint marked at Ex.P.1. The evidence of the complainant clearly discloses that it consist lot of improvements and omissions. However, during cross-examination of P.W.1 by defence, she has given gobye to the case of the prosecution and stated that there was certain dispute between herself and accused Nos.1 to 3 and she was never raped and she was not abducted and she do not know who has raped her etc., and virtually she denied the entire case of the prosecution. She further admitted that she cannot identify accused No.13 regarding rape. Further in examination-in- chief, she asserted that her statement was recorded by the Magistrate, but further in the cross-examination she claims that the contents were not read over and explained to her. Again subsequently, in the cross-examination of the accused, she admitted the case and the defence of the accused and in the re-examination-in-chief, she further asserts that 17 Crl.A.No.200010/2018 whatever she has stated in her examination-in-chief is the fact. If this version of complainant-P.W.1 is taken into consideration, it is evident that she went on changing her stances as per the convenience. No doubt, initially, her examination-in-chief was deferred and subsequently, in the cross-examination by defence, later on she has turned hostile. The learned Sessions Judge has come to the conclusion that in this period she was won over. Even if this aspect can be taken note of, but there is no explanation as to lot of improvements and shifting the place of offence, involvement of other accused regarding rape etc., and these material improvements were not explained. Apart from that, she has further gone to the extent that they were produced before the police by accused No.4 and they were taken to police station, wherein she lodged a complaint, but the case of the prosecution is entirely different. Hence, it is evident that the complainant is not sticking on to a particular stand and went on changing her stances as per her convenience. 18 Crl.A.No.200010/2018
19. The prosecution has also placed reliance on the evidence of Dr.Kaveri P.W.11, who has deposed that there was an attempt on victim for rape. Her evidence discloses that she has given history before the doctor that on 26.10.2015 night the incident has occurred. But as per the case of the prosecution, the incident has occurred on the intervening night on 24/25.10.2015 and the history was given entirely different. She further given a history that some persons has committed sexual assault on her and she escaped from there and the police have set her free and she washed her private part. If this version is taken into consideration, the version given before the doctor is completely inconsistent and contrary. The complainant has given a different history before the doctor, in the complaint and in her examination-in-chief, but in the cross- examination, she gives a gobye to all these aspects.
20. Apart from that, the evidence discloses that she suffered certain injuries on knees, forehead, arms and scratch marks on the chest and abrasion over the left labia 19 Crl.A.No.200010/2018 majora measuring 0.25 cm. On the basis of this opinion, she gives an opinion that there is an attempt of rape. She also asserts that the injuries were more than three days. The witness was examined on 27.10.2015 and the alleged incident has taken place on 25.10.2015 early morning and the question of these injuries being three days old does not arise at all. The medical evidence does not support the case of the prosecution. Her cross-examination further discloses that she is not able to say the natures of the injuries and were tested by the other doctor, who was not cited as charge-sheet witness and examined. She admits that the entire history was not recorded by her and further admits that if a rustic villager fails to maintain hygiene, the injuries in labia majora are possible. If this evidence is taken into consideration, then, it is evident that her evidence is not a conclusive proof of rape on her. Further her own examination-in-chief discloses that accused No.5, 13 and 14 pressed her breast but accused No.5 was not prosecuted for 20 Crl.A.No.200010/2018 the offence under Section 354A of IPC and accused No.14 was acquitted.
21. The learned Sessions Judge only on the basis of the evidence of P.W.1 proceeded to convict the accused by taking the evidence of P.W.11 as corroborative evidence. In the instant case, spot mahazar is also not proved and the complainant herself tried to shift the place of offence to a land also. Apart from that, the specific allegation is that they were all fisted regularly for a considerable long period and were also assaulted by sticks and kicked, but no such corresponding injuries were found on their body. Even the allegations are that their legs and hands were tied, but no such injuries were found on the legs and tied hands. Though the learned Sessions Judge has opined that tying may be by soft rope with loose knot, but that cannot be accepted since they are being tied and intention of tying their hands and legs was to see that they should not escape and hence, the learned Sessions Judge did not appreciate the oral and documentary evidence in proper perspective. 21 Crl.A.No.200010/2018
22. The order of conviction passed by the learned Sessions Judge is based on the examination-in-chief of P.W.1, but the examination-in-chief of P.W.1 itself discloses that it consists lot of contradictions, omissions and her evidence is contrary to complaint allegations and case of the prosecution. She goes on changing her stances and improved her version, but in cross-examination, went on denying the case of the prosecution. Further, the medical evidence is also not supporting the case of the prosecution. The delay is also not properly explained and police having rushed to the spot, did not register a crime immediately and this aspect is also not explained. None of these aspects were taken note by the learned Sessions Judge and only accepting the portion of the evidence of the complainant, proceeded to convict the accused ignoring the other portion, improvements and contradictions. Hence, on perusal of these facts and circumstances, it is evident that the learned Sessions Judge is carried out with emotions and the judgment of conviction suffers from perversity as the 22 Crl.A.No.200010/2018 prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Considering these facts and circumstances, it is evident that the learned Sessions Judge has erred in convicting the accused and considering the evidence on record, the accused are entitled for acquittal. Since the judgment of conviction suffers from perversity, it calls for interference and as such, I am constrained to answer the point under consideration in the Affirmative. As such, the appeal needs to be allowed and accordingly I proceed to pass the following:
ORDER The Appeal is allowed.
The impugned judgment of conviction and order of sentence passed by the learned II Additional Sessions Judge, Kalaburagi in Special Case (SC/ST) No.35/2016 dated 23.12.2017 is set aside.
Accused Nos.1 to 10, 14 and 16/appellant No.1 to 10, 12 and 13 are acquitted for the 23 Crl.A.No.200010/2018 offences under Sections 143, 147, 323, 365, 342 and 114 read with Section 149 of Indian Penal Code.
Accused No.13/appellant No.11 is acquitted for the offence under Section 376 of Indian Penal Code.
The accused/appellants are set free. The bail bonds shall stand cancelled. The fine amount, if any, deposited by the accused shall be refunded to them.
Sd/-
JUDGE RSP