Karnataka High Court
State Of Karnataka vs Hanamant Sadashiv Bhajantri on 18 March, 2013
Author: H S Kempanna
Bench: H S Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 18 T H DAY OF MARCH 2013
PRESENT
THE HON'BLE MR.JUSTICE B.V.PINTO
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL NO.2664/2011
BETWEEN:
State of Karnataka
Represented by
Circle Police Inspector
Jamkhandi through
The Addl. State Public Prosecutor
Advocate General Office
High Court Circuit Bench Unit
Dharwad. ...Appellant
(By Sri.Y.V.Raviraj, HCGP)
AND:
Hanamant Sadashiv Bhajantri
Age: 39 years
Occ: Coolie
R/o. Girish Nagar
Jamakhandi. ...Respondent
(By Sri. N.D.Gunde, Adv.,)
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This appeal is filed under Section 378 (1) and (3)
of Cr.P.C., praying to set aside the judgment and order
of acquittal dated 27.11.2010 passed by the Presiding
Officer, Fast Track Court, Jamkhandi, in
S.C.No.33/2010 and consequently, convict the accused
for the offences punishable under Sections 376 and 511
of IPC.
This appeal coming on for hearing this day,
B.V.Pinto J., delivered the following:
JUDGMENT
This appeal is filed challenging the judgment dated 27.11.2010 passed by the Fast Track Court, Jamakhandi, in S.C.33/2010 acquitting the respondent of the offence punishable under Sections 376 and 511 of IPC.
2. It is the case of the prosecution that, the accused was neighbour to PW.1 and PW.4 - the victim. The accused was married and was having four children. The victim was visiting the house of the accused for the purpose of watching TV. It is charged against the accused that on 12.12.2009 at about 11 a.m. in the house of the accused situated at Girish Nagar coming :3: within the jurisdiction of Jamkhandi police station, when his wife and children were away, he called the victim to his house for the purpose of watching TV and after she came to the house, by taking the advantage of the fact that there was nobody in the house with an intention to commit the rape on the victim, he attempted to commit the rape on the victim by sleeping over her and also squeezed her breasts, thereby he is alleged to have committed the offence under Section 376 r/w. Section 511 of IPC.
3. In order to prove the case, the prosecution has examined in all 13 witnesses as PWs.1 to 13 and got marked Exs.P.1 to P.17 and produced MOs.1 to 3. The defence of the accused is one of total denial. After hearing the prosecution and defence, the learned Sessions Judge was pleased to acquit the accused of the offences charged against him. Being aggrieved by the order of acquittal, the State has filed this appeal :4:
4. The facts of the case are as follows:
Smt. Rukmawwa is the complainant whose house is situated at Girish Nagar, Jamkhandi and the house of the accused is also situated in the vicinity of the house of the complainant at Girish Nagar, Jamkhandi in Sy.No.49 bearing Plot No.108, which was standing in the name of the wife of the accused by name Indrawwa. CW.4 - victim is the younger daughter of the complainant, aged about 30 years and she is a mentally retarded girl and was unmarried. The complainant was going for work and was also looking after her mentally retarded daughter - the victim. The complainant and her daughter - the victim were frequently visiting the house of the accused for watching serials telecast in the TV owned by the accused in his house. On 12.12.2009, PW.1 - mother of the victim after giving bath to the victim and after providing meals was occupied with her work in the house. The victim went to the house of the accused to watch TV and at that time, the accused was :5: in the house at about 11.00 a.m. About one hour thereafter, the complainant heard the hue and cry of the victim and the complainant leaving her cooking work went towards the house of the accused, so also 2 to 3 neighbours namely, CWs.6 and 9 went near the house of the accused in the area of Girish Nagar and there they observed that the accused had made the victim to lie on the floor of the house and he was lying on her. The complainant as well as CWs.6 to 9 saw that the accused was forcibly attempting to commit rape on the victim and he had also squeezed the breasts of the victim. Immediately, the complainant and other eyewitnesses caught hold of the victim and thereafter, they took the victim to the house of the complainant. However, the accused fled away from the scene of occurrence. The victim though was a mentally retarded girl, narrated the incident to her mother - complainant about the acts of the accused and she also told her mother that her breasts were paining and also there :6: was pain in her stomach due to the acts of the accused. On 14.12.2009, the complainant approached Jamkhandi Town Police Station and lodged the complaint at about 16.30 hours against the accused alleging the incident as heard through the victim. PW.12 received the complaint from the complainant and registered the same in Crime No.243/2009 against the accused and has conducted the investigation by drawing the panchanama of scene of the occurrence and also recorded the statement of the eyewitnesses namely, CWs.6 to 9 and sent the victim for medical examination to LMO, General Hospital, Jamkhandi through a woman police Constable. He also recorded the statement of the victim regarding the alleged offence of rape. PW.12 arrested the accused on 14.12.2009 at about 8.10 a.m. near Sajji Hanuman Temple at Jamkhandi and after interrogation, the accused was referred to the Medical Officer Government Hospital, Jamkhandi for examination to ascertain the potency of :7: the accused for committing the intercourse and thereafter, he was produced before the Court, which remanded him to Judicial Custody. After obtaining the medical opinion of the doctor in respect of alleged rape and also the opinion of the doctor in respect of potency of the accused to perform the actual intercourse, PW.13-CPI filed the charge sheet against the accused.
5. During the trial, the complainant has been examined as PW.1. She has narrated the facts mentioned by her in the complaint and also identified her signature in the complaint, which is marked as Ex.P.1. In the cross-examination, it is elicited from PW.1 that whatsoever she has deposed before the Court has not been stated by her while giving the complaint. She has further stated that a delay of 2 days was caused in filing the complaint since she was worried about the family honour. PW.2 - Mahantesh is a neighbour, who has attested the panchanama of the scene of the :8: occurrence as per Ex.P.4. However, he has been treated hostile regarding the facts of the case namely, the incident. PW.3 - Sanju Maruti Kalal and PW.5 - Ameena are also neighbours, who are examined by the prosecution as eyewitnesses. However, they have not supported the case of the prosecution. The victim has been examined by the prosecution as PW.4. She has stated that the accused is her neighbourer and that there is a TV in his house. She has stated that she used to go to the house of the accused for watching TV and when she went to the house of the accused, the accused was alone. She had slept in the house of the accused and the accused had spit on her nicker. It is stated by PW.4 that the accused squeezed her breasts and had removed her nicker and spit on her private part. At that time, she raised the voice and on hearing her voice, her mother and other persons came near the house of the accused. She has further stated that she has been examined by the Doctor and that she has stated about :9: this fact to the doctor. PW.8 is a Medical Officer at Jamkhandi Government Hospital, who has deposed before the Court that the victim Mahadevi was produced before her for medical examination on 14.12.2009 at about 9.00 a.m. On examination, she has stated that the victim had attained puberty 10 years prior to the date of her medical examination and that the victim has stated before her that on 12.12.2009 when she went to the house of the accused to watch TV, the accused has performed the act narrated by her. It is stated by the victim to the Doctor that the accused had squeezed her breasts and also committed force on her private parts. On examination, she has observed that the victim was aged about 30 years and that there were no external injury found on the person of the victim. There were no injury found even on her private part and that there were no external substance found on the pubic hair of the victim. Neither there was any injury nor swelling on her private part. The vegina of the victim was admitting : 10 : only one finger and that there was no injury on her vegina nor there was any swelling. On the basis of the above examination, she has opined that the victim was not subjected to any sexual intercourse. It is stated by PW.8 that the materials on her private parts were collected by her and sent for FSL examination. On receipt of the FSL report, PW.8 has stated that there were no seminal stains found on the clothes removed from the person of victim and there was no sexual intercourse performed on the victim as on the date of her medical examination. PW.9 is police constable who has carried the material to FSL office. PW.10 - Dr.Mahanandesh is medical officer at Government Hospital, Jamakhandi, who has stated that on 12.12.2009 at about 9.45 p.m. he has examined the accused on the request of the police officer of Jamkhandi police station. On examination, he has found that there is nothing suggesting that the accused is incapable of performing sexual intercourse and : 11 : therefore, he has given certificate as per Ex.P.13. PW.11 is Head Constable, who has seized the clothes worn by the victim from the hospital and produced before the Investigating Officer. PW.12 is PSI of Jamkhandi Police Station, who on receipt of the complaint lodged by PW.1, has registered the case in Crime No.243/2009 and subsequently, conducted the investigation in this case after visiting the scene of the occurrence, recording the statement of the victim and others, preparing spot panchanama and arresting the accused on 14.12.2009 and subjecting him to medical examination. Further investigation is conducted by PW.13 - Inspector of Police, who has concluded the investigation and filed the charge sheet against the accused for the aforesaid offences.
6. Heard Sri.Y.V.Raviraj, learned High Court Government Pleader and Sri.N.D.Gunde, learned counsel for the respondent -accused.
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7. Learned High Court Government Pleader fairly submits that though there is no case made out by the State for the offence under Section 376 of IPC, the material on record clearly establishes a case under Section 354 of IPC, which has been spoken to by PW.4- the victim and her mother - PW.1. The evidence in respect of offence under Section 354 of IPC is clear and cogent and therefore, the learned Sessions Judge ought to have convicted the accused for the offence under Section 354 IPC. He draws the attention of the Court to the evidence of PW.8 - Dr.Vijayalakshmi, who has stated that the victim has informed her that the accused had squeezed her breasts and the evidence of PWs.1 and 4 also corroborates with the evidence of PW.8. Therefore, he submits that the appeal may be allowed and the accused may be convicted for the offence under Section 354 of IPC.
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8. Sri. N.D.Gunde, learned counsel for the respondent submits that all that has been stated by PW.1 in her deposition before the Court is a clear improvement from the averment in the complaint and that the evidence of PW.1 is not corroborated by the evidence of PW.4, who has not at all stated that the accused has removed her undergarments, so as to constitute the offence under Section 354 and 511 of IPC. It is his further submission that the prosecution has not claimed any offence under Section 354 of IPC as having been committed and therefore, the accused cannot be convicted for the offence under Section 354 of IPC. He further submits that the complainant as well as the victim has not given clear and cogent reason as to why there is an inordinate delay of 2 days in filing the complaint. It is further submitted by him that PW.1 stated in her evidence before the Court that immediately after the incident she has gone to the police station and informed the police about the incident. However, the : 14 : complaint is dated 14.12.2009 and there is inordinate delay of 2 days in filing the complaint. Hence, he submits that this being the appeal against the order of acquittal reasoning given by the learned Sessions Judge being in accordance with the evidence on record, the judgment of acquittal may not be disturbed.
9. On a careful consideration of the evidence of the victim, we observe that the victim has not at all stated in her evidence that the accused has undressed himself or has attempted to have sexual intercourse with her. All that she says is that the accused had squeezed her breasts and that he has spit on her private part. Admittedly, this will not amount to the offence under Section 376 of IPC and the said fact is also not found in the first information report. The evidence tendered by PW.1 is also an improvement from what has been stated in the complaint. Further it is seen that the medical officer - PW.8 has also not supported the case : 15 : of the complainant in respect of the presence of the seminal stains in the clothes or pubic hair of the victim. In the circumstances, the offence under Section 376 of IPC is clearly ruled out. Having regard to the evidence of the witnesses, we find the said material is not sufficient to convict the accused for the offence under Section 376 of IPC. We have gone through the judgment of the trial Court. We find that the reasoning given by the trail Judge is based on the evidence on record and the conclusion arrived at is reasonable. It is neither perverse nor against settled principal of law. In that view of the matter, we do not find any ground to reverse the well-considered judgment passed by the trial Judge and hence, the appeal lacks merit. Hence, it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE SA