Karnataka High Court
Sri Vinay @ Vinay Kumar vs State Of Karnataka on 9 April, 2018
Equivalent citations: 2018 (3) AKR 218, (2018) 4 KCCR 3764
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF APRIL, 2018
BEFORE
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 414 OF 2010
BETWEEN
SRI. VINAY @ VINAY KUMAR,
AGED ABOUT 27 YEARS,
S/O VENKATESHAPPA,
GUYYALAHALLI VILLAGE,
POSHETTY HALLI (POST),
MANCHENAHALLI HOBLI,
GOWRIBIDANUR (TQ.),
KOLAR DISTRICT.
... APPELLANT
(BY SRI. C.V. NAGESH, SENIOR COUNSEL)
AND
STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER,
PARAPPANA AGRAHARA POLICE STATION,
BENGALURU.
... RESPONDENT
(BY SRI. K. NAGESHWARAPPA, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO REVERSE AND SET ASIDE THE
JUDGMENT DATED 09.04.2010 PASSED BY THE
PRESIDING OFFICER AND ADDITIONAL SESSIONS
JDUGE, FAST TRACT COURT - XV, BENGALURU IN
S.C.NO. 885/2008 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE
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PUNISHABLE UNDER SECTION 448, 376 R/W 511 OF
IPC. THE APPELLANT/ACCUSED SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD OF 6
MONTHS AND SHALL PAY FINE OF RS. 1,000/- FOR THE
OFFENCE PUNISHABLE UNDER 448 OF IPC, IN
DEFAULT TO UNDERGO SIMPLE IMPRISONMENT FOR
ONE MONTH. THE APPELLANT/ACCUSED SENTENCED
TO UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD
OF 2 YEARS AND SHALL PAY FINE OF RS. 1,000/- FOR
THE OFFENCE PUNISHABLE UNDER SECTION 376 R/W
511 OF IPC. IN DEFAULT TO UNDERGO SIMPLE
IMPRISONMENT FOR ONE MONTH.
THIS CRL.A. COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment of conviction and sentence held by the Court of the Additional Sessions Judge, Fast Track Court-XV, Bangalore, in S.C.No.885/2008 dated 9.4.2010. By the said judgment, the accused has been convicted for the offences under Sections 448, 376 read with Section 511 of the IPC and has been sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- for the offence punishable under Section 448 IPC and in default to undergo simple imprisonment for one month. Further, the accused has been sentenced to :3: undergo simple imprisonment for two years and to pay a fine of Rs.5,000/- for the offence punishable under Section 376 read with Section 511 IPC and in default to undergo simple imprisonment for one month. The said judgment has been challenged in this appeal urging various grounds.
2. Brief facts of the case are as under:
On 11/8/2007 at about 21.35 hours, PW-1 Narasimha had given a complaint as per Exhibit P-1 to the Parappana Agrahara police station stating that he had married PW-4 Suma and he was residing in a rented house along with his wife and a female child, at Kudlu village, Bangalore. It transpires that on 10/8/2007 he left his house at 10 p.m. for duty and since he came to know that he did not have duty, unexpectedly he returned home at around 11 p.m. Though he knocked the door repeatedly, his wife had opened the door only after sometime. When the complainant went inside the house, he was shocked to see that some unknown man was inside the house and when he enquired about him with suspicion, his wife did not answer him properly. But the :4: complainant got suspicious and brought the house owner and other neighbours in order to enquire about a third person's presence at home. Seeing everyone, his wife went inside the room and bolted herself inside and had tried to commit suicide by hanging. Sensing the situation, the complainant had immediately pushed the door and opened it and forcibly took his wife to the Rajashekar Hospital by cutting the saree which was used for hanging. It is stated in the complaint that accused was having an illicit relationship with the complainant's wife and he had trespassed into the house of the complainant on the night of 10.08.2007 and hence suitable action be taken against the accused.
On filing of a complaint by the complainant, the crime came to be registered before the police and thereafter the case was proceeded for investigation, wherein the Investigating Officer investigated the case and laid a charge-sheet against the accused. Subsequently, charges were framed by the Trial Court against the accused in respect of which the accused did not plead guilty but claimed to be tried. Thereafter, the prosecution :5: in all examined six witnesses PW-1 to PW-6 and got marked Exhibits P-1 to P-6. On behalf of the defence, the contradictory statement was got marked as Exhibits D-1 to D-3. Subsequent to the closure of the evidence of the prosecution, the incriminating statement of the accused under Section 313 Cr.P.C. was recorded where accused had denied the truth of the prosecution adduced so far. Subsequently, the accused did not come forward to adduce any defence evidence as contemplated under Section 232 Cr.P.C.
Subsequently, the court below heard the arguments advanced by the learned Prosecutor and the learned defence counsel for the accused, and thereby convicted the accused for the offences under Sections 448 and 376 read with Section 511 of IPC. It is this judgment which is under challenge in this appeal.
3. Heard the learned Senior counsel Shri C.V. Nagesh for the appellant and Shri K. Nageshwarappa, the learned Government Pleader for the State and perused the records.
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4. Keeping in view the arguments advanced by the learned counsel for the parties in this appeal, the point that arises for consideration is, "Whether the judgment of conviction and sentence held by the court below in S.C.No.885/2008 dated 9.4.2010 is justified in law?".
5. Learned counsel for the appellant, during the course of his argument has taken me through the evidence of PW-1 being the author of the complaint at Exhibit P-1 and so also the evidence of PW-4 the victim who is the wife of PW-1. His contention is that the court below has convicted the accused even without examining several witnesses including the Doctor, Investigating Officer, and also neighbourers in the locality. The accused is alleged to have committed a heinous offence of rape under Section 376 IPC and so also trespassed into the house of the victim on 10.08.2007 at about 11.00 p.m. in the night. The panch witnesses examined in the case of the prosecution as PW-5 and PW-6 did not support the :7: case of the prosecution to any extent and the same has been seen in their evidence itself. Moreover, the evidence of PW-1, the author of the complaint at Exhibit P-1 and PW-4 victim, runs contrary to each other and the same has been seen in their evidence itself.
The learned Senior counsel contends that the trial Judge ought to have taken into consideration the fact which was disclosed by the victim PW-4 in her cross- examination. It reveals that appellant/accused who was in her house was in fact her childhood friend who had been in touch with her after her marriage and since if she revealed it to her husband it would affect her matrimonial life, it is for the said reason that she did not disclose the events that took place on that night to anyone including her husband.
It is his further contention that the evidence brought on record in the case through the mouth of P.W.1 Narasimha and P.W.4 Suma would manifestly indicate that the complaint Ex.P.1 has not come into existence first in point of time and the information that was given before the police at the earliest point of time is not brought on :8: record in the case. The trial Judge, despite of this vital admission given by P.Ws. 1 and 4, has not chosen to advert to the same before coming to the conclusion that the prosecution had succeeded in establishing the guilt of the accused.
Further, the belated information given by P.W.1 Narasimha has been treated as first information report in the case, which does not even remotely indicate the commission of an offence under Section 376 read with Section 511 of the Indian Penal Code. Narasimha, in his complaint, on the basis of which the Crime came to be registered had alleged that the events which took place on the fateful night, would give credence to his suspicion that his wife Suma was having an extra-marital affair with the accused. The trial Judge, without even reading the complaint of P.W.1 Narasimha which has been marked as Ex.P.1 in the case in its proper perspective, had come to the conclusion that the prosecution was successful in establishing the guilt of the accused for offences under Sections 448 and 376 read with Section 511 of the Indian Penal Code.
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P.W.4 Suma has fairly admitted that the accused was her childhood friend and that they were class-mates at a point of time when they were pursuing their studies in the High School in their native and that on more than one occasion they interacted with each other on telephone and that subsequent to her marriage, she had shifted her residence to Bangalore. Further, since the accused had left his village and joined services in the Defence Department, he was not knowing the place of her residence in Bangalore and that a day prior to 10.08.2007, the accused called her on her husband's mobile. When the accused had knocked the door on 10.08.2007, although the dog which she had tethered in her house would bark on seeing a stranger and chase him out, it did not bark and that upon tapping of the door, she had opened the door and let her friend inside and had bolted the door from inside. After some time she again heard tapping sound of the door and on opening the door, she found that it was her husband who then had entered inside the house. At that point of time, her husband noticed the accused coming out of the bed room. PW-4 at : 10 : once went into the bed room and attempted to commit suicide and that despite of her husband Narasimha questioning her, she did not reveal anything about the offence attributed to the appellant at that point of time for the fear that if she disclosed the same, her matrimonial life would come to an end. However, few days later to that date, she disclosed the incident in question to her husband and questioned her husband as to how and on what basis he would file a complaint before the police even before she could disclose to him what all had transpired on that day. This being the evidence brought on record in the case through the mouth of P.W.4 Suma, the trial Judge ought not to have come to the conclusion that the prosecution has proved the guilt of the accused for the alleged offences under Sections 448 and 376 read with Section 511 of the Indian Penal Code.
PW.4, during the course of her cross-examination, with impunity, stated that she came to be raped by the accused. When that part of the evidence was put into a further test in her cross-examination, P.W.4 stated that there was nothing for the Doctor to have examined her : 11 : body for any reason whatsoever since nothing had happened to her person at the instance of the accused. This would manifestly indicate that P.W.4 Suma on whose testimony, the trial Judge has chosen to have implicit faith, trust, confidence and reliance to hold the accused guilty, has no regard for truth.
If really P.W.4 Suma was taken to the Hospital for treatment and if really PW.4 took treatment at the Hospital, be it, Government Hospital or a Private Hospital, be it out-door patient or indoor patient and if really the Investigator has collected the certificate from the Hospital where P.W.4 is said to have been treated, that part of the evidence ought to have brought on record in the case by the prosecution. Neither the Medical Certificate nor the say of the Doctor is brought on record in the case. This would manifestly indicate that P.W.4 Suma has built up a story later to lug the accused in the crime, presumably, to overcome the lapses, if any, on her part and to save her skin and to continue to keep the matrimonial institution intact. The trial Court, without adverting to this part of the evidence brought on record in the case, has chosen to : 12 : accept the false testimony of P.W.4 and has thereby convicted the appellant/accused. Thus, it is his submission that the improper appreciation of evidence brought on record by the trial Judge has resulted in a serious miscarriage of justice.
The narration regarding the place of incident as spoken to by P.W.4 would manifestly indicate that P.W.4 was dwelling in a crowded locality by occupying a tenement in the building in which several other persons were making a dwelling and that if an incident of the type spoken by P.W.4 had really happened, that would have certainly drawn the attention of the neighbours in the locality. Even otherwise, the say of P.W.4 Suma, who has stated in unequivocal terms that her mouth, hands and legs were totally free at the point of time when the appellant/accused is said to have made an attempt to commit rape on her and despite of she having all the freedom that was needed, did not scream out for help or resist the attempt of the appellant/accused. Hence, it is his contention that this would certainly belie the case of the prosecution and would give credence to the say of the : 13 : accused that he has been falsely implicated in the case just to overcome the affair she is said to have had with the accused and to keep her matrimonial institution intact. The trial Judge, while not taking into account this part of the evidence which is available on record in the case, has chosen to place reliance on the testimony of P.W.4, under a misconception that what P.W.4 had stated in her examination-in-chief alone is the evidence in the case and what is stated in her cross-examination cannot be read as evidence in the case. His contention is that the manner in which the trial Judge has appreciated the evidence brought on record is unknown to law and has thus resulted in a serious miscarriage of justice.
6. The further contention of the learned Senior counsel is that the evidence on record would further indicate that the complaint Exhibit P-1 is obviously a fabricated document. On the strength of the fabricated document, a crime has been registered and investigation taken up. Despite the fact that the complaint being a fabricated one and did not disclose the commission of an offence under Section 376 read with Section 511 of the : 14 : Indian Penal Code, and though it disclosed only commission of an offence of adultery, in respect of the said offence, neither a policeman is competent to investigate nor the Court is permitted to take cognizance of the said offence on the basis of the police report. In order to overcome this serious legal infirmity, the Investigating Officer, obviously in collusion with P.W.4 had changed the track of the investigation of the case itself and proceeded to file a final report complaining commission of an offence under Section 376 read with Section 511 of the Indian Penal Code. Without adverting to this part of the evidence which is available on record in the case, and despite lack of essential ingredients to constitute the above offences, the trial Judge had come to the conclusion that the prosecution had succeeded in establishing the guilt of the accused and thereby has convicted the accused.
Even otherwise, that the sentence imposed upon the accused is certainly disproportionate to the nature of offence said to have been committed, since the : 15 : prosecution has not proved the guilt of the accused beyond all reasonable doubt.
On all these grounds urged, the learned Senior Counsel for the appellant prays for re-visiting the impugned judgment of conviction and sentence by re- appreciating the entire evidence in a proper perspective, since the Trial Judge has committed an error in arriving at the conclusion that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Hence, he prays that the impugned judgment of conviction and sentence held by the Trial Court in S.C.No.885/2008 be set aside by allowing this appeal.
7. Per contra, the learned Government Pleader Shri K. Nageshwarappa has taken me through the impugned judgment of conviction and sentence held by the Trial Court, particularly to the evidence of PW-1 and PW-4. He submits that the prosecution has appreciated the evidence on record in a proper perspective and had succeeded in proving the guilt of the accused, which is clear from the evidence itself. Exhibit P1 is the complaint said to be : 16 : lodged by PW-1 Narasimha on the allegation that the accused had trespassed into his house and had attempted to rape his wife by gagging her mouth with a piece of cloth. The same is disclosed from the evidence of PW-4, the victim. Hence, the learned Government Pleader seeks for dismissal of the appeal preferred by the appellant / accused as being devoid of merits. Merely because of non- examination of the Investigating Officer and the Doctor said to have given treatment to PW-4, it cannot be said that the accused had not committed the offence. The same has also been appreciated by the Trial Court by relying on the judgment of the Apex Court in the case of State of Punjab vs. Gurmit Singh and others (1996 AIR SCW 998). In the said judgment, it is held that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict the accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before : 17 : relying upon the same, as a rule, in such cases amounts to adding insult to injury. Hence, the learned HCGP submits that since PW-4 the victim in the present case has given evidence to the effect that the accused had attempted to rape her, as held by the Supreme Court, corroborative evidence is not an imperative component of judicial credence in every case of rape and corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. Further, it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Hence, on these grounds, the learned HCGP supports the judgment of the Trial Court and submits that the said judgment of conviction and sentence needs no interference.
8. Having regard to these strenuous contentions taken by the learned counsel for the appellant, it is : 18 : relevant to take note of the evidence of PW-4, said to be the victim. She has been examined with regard to the events that took place in her house on 10.08.2007 at about 11 p.m. On that day, it is stated in the complaint of PW-1 that he had left home at 10.00 p.m. in order to attend night duty. But since he did not have duty, unexpectedly he had returned home at 11.00 p.m. and had knocked the door. His wife had opened the door only after a few minutes. As soon as PW-1 entered home, he was shocked to find the accused, an unknown person coming out of their bedroom. He had at once secured the neighbourers and then enquired his wife PW-4 as to who that unknown person was. His wife had immediately went inside the bedroom and had locked herself and by means of a saree she had attempted to hang herself. However, PW-1 had acted quickly and had forcibly pushed the door and had managed to open it and entered inside and thereby had rescued her by cutting the saree which she had used for hanging herself. He had then got her admitted to hospital where she is said to have been unconscious for two days. It is only after two days that : 19 : she had regained consciousness. Though she did not tell anything about the incident, even without hearing her say, PW1 had first filed a complaint against the accused for trespassing into his house during the night hours under Sections 448 and 497 of the IPC. Later, after PW-4 his wife regained consciousness, on her say that the accused had attempted to commit rape on her, the offence under Section 376 IPC was included in the complaint. She was subjected to cross-examination by the defence counsel at length, wherein she had stated that the accused as well as herself were studying in the same school and also in PU College. The accused being a resident of Guyyalahalli that she was well acquainted with him from her childhood days. Subsequent to her marriage that she had left Guyyalahalli village and started residing in Bangalore. Further, that she did extend any marriage invitation card to the accused and that he did not attend their marriage. She had stated that the accused had proposed to her prior to her marriage by way of writing a letter to her expressing his love for her. She had further stated that in her husband's house, she did : 20 : not have any landline facility or she did not have any mobile phone. But her husband had a mobile phone and while he went to take bath, the accused had called on his mobile phone and that PW-4 had spoken with him for a few minutes. But however, she did not disclose the same to her husband.
During the course of her cross-examination, Exhibits D1 to D3 have been got marked for the defence side. The witness had further stated on the night of 10.08.2007 since the door was knocked at and the dog which usually barked on seeing strangers did not bark, that she had courageously opened the door at midnight without asking who it was. But that the accused had forcefully entered into the house and bolted the door and pushing her into the bedroom, had raped her. However, it is seen that the Doctor who had examined her had only examined her neck portion for strangulation marks and she had not been subjected to any examination to prove the rape or sexual activity alleged to have been committed by the accused. No records are forthcoming to prove that she had been subjected to examination by the Doctor with : 21 : regard to the alleged rape on her. Moreover, she had not at all supported her evidence in the cross-examination and she had turned hostile.
The further circumstance which requires consideration is that when her husband had knocked the door, it was PW-4 who had opened the door and when questioned regarding as to how she got rid of the clutches of the accused, she had stated in her cross-examination that the accused had not tied her hands or legs and hence when the door was knocked, she freed herself and had thus come forward and opened the door. On seeing her husband at the door, she had not even uttered to her husband about this accused forcibly having entered the house and about his alleged attempt of rape. The complainant PW-1 on seeing a stranger at home had then brought home his neighbours and had then informed the police and later lodged a complaint with the police. Since she had attempted to commit suicide when her husband and neighbours questioned about the presence of a stranger at home, she was rescued by her husband and for two days she was said to have been unconscious and : 22 : she did not know about the filing of a complaint by her husband. Later, on she informing her husband about the incident of rape, Section 376 IPC was included in the complaint. However, there are so many contradictions regarding the statement of PW-1 and the statement of PW- 4 is concerned. PW-1 has specifically stated in his evidence that the contents of Exhibit P-1 is not in his handwriting. He did not know who had written the complaint at Exhibit P-1. But he has mentioned the incidents taken place in his complaint as narrated by his wife. Though he saw that the accused was present in his house at midnight, he did not enquire his wife whether she had any illicit relationship with him.
The evidence of PW-4 runs contrary to the evidence of PW-1 relating to the contents of P-1 the complaint. She had stated that on 10.08.2007 at about 11.00 p.m., the accused had entered the house and made an attempt to commit rape on her by gagging her mouth by means of a cloth. If the evidence of PW-4 were to be accepted for the prosecution, it is contrary to the evidence of PW-1, the author of the complaint and the husband of the victim. : 23 : The statements of PW-1 and PW-4 and their cross- examinations are wholly inconsistent with each other and are not at all corroborated. The same ought to have been appreciated by the Trial Court in a proper perspective. However in order to save her marriage with her husband, she had alleged that the accused had trespassed her house and made an attempt to rape her.
PW-3 Leelavathi, is the landlady of the house where PW-1 Narasimha and PW-4 Suma were residing. She had stated that on 10.08.2007 at about 11.00 p.m., PW-1 Narasimha is said to have knocked the door. As soon as Suma opened the door, PW-1 on entering the house found that a stranger was present in the house along with his wife. Therefore, he had bolted the door and brought PW-3 the landlady to his house. Thereafter he had filed the complaint before the police about the incident of an unknown person being present in his house. PW-3 came to know that the accused was the person who had entered their house during night time since she had seen the accused in their house. She also knew that the accused was a friend of Suma. However, the said witness did not : 24 : know anything about the incident. Hence, she had been treated as hostile for the prosecution and thereafter she had been cross-examined thoroughly. But, nothing has been elicited worthwhile, as she had given a go-by to the contents at Exhibit P-4, the statement said to be given by her.
PW-5 is said to be the panch witness secured by the Investigating Officer during the course of investigation relating to Exhibit P-6, scene of offence and a panchanama said to be conducted. This witness did not support the case of the prosecution.
PW-6 is the panch witness in terms of Exhibit P-6. This witness has clearly stated in his evidence that he did not know whether his signature had been obtained in terms of Exhibit P-6. He did not know the contents as got written by the police in Exhibit P-6 of the scene of offence, panchanama conducted by the Investigating Officer during the course of investigation. However, the Investigating Officer has not been subjected to examination to prove the guilt of the accused as far as the evidence of PW-1 and PW-4 are concerned.
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9. The Trial Judge has convicted the accused relying on the judgment of the Apex Court in State of Punjab (supra), wherein it is held that corroborative evidence is not an imperative component of judicial credence in every case of rape. Whereas, this is a case where the victim herself is an accomplice who has perpetrated the crime, without whose assistance the accused could not have gained entry into the house. Hence, the said judgment ought not to have been relied upon by the court below to convict the accused.
It is seen that the material witnesses namely the Investigating Officer, the Doctor who treated PW-4 Suma have not been examined, which is fatal to the case of the prosecution. On going through the entire evidence of the prosecution, I find that the Trial Court has misdirected and misread the entire evidence of PW-1 and PW-4 and has erroneously come to the conclusion that the prosecution has proved the guilt of the accused by placing cogent, consistent and acceptable evidence in respect of the case put forth by the prosecution. In the absence of conclusive proof of the offences alleged against the : 26 : accused, the Trial Court has erred in convicting the accused under Sections 448, 376 read with Section 511 IPC and sentencing him to imprisonment for the alleged offences. Therefore, in view of several inconsistencies in the evidence and the guilt of the accused having not been proved by cogent and consistent evidence, the appeal requires to be allowed and the order of the trial court set aside.
10. Accordingly, the point framed by this court is answered in the negative for the aforesaid reasons. Consequently, the appeal is allowed and the impugned judgment dated 9.4.2010 passed by the Addl. Sessions Judge, Fast Track Court-XV, Bangalore in S.C.No.885/2008 is thereby set aside. The accused is acquitted of the charges levelled against him. Bail bonds shall stand cancelled.
Sd/-
JUDGE KS