Karnataka High Court
Venkatesha @ Venki vs State Of Karnataka on 24 January, 2018
Bench: Ravi Malimath, H.B.Prabhakara Sastry
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 24TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL NO.1042 OF 2012
C/W
CRIMINAL APPEAL NO.99 OF 2014
CRIMINAL APPEAL NO.1042 OF 2012:
BETWEEN:
1. VENKATESHA @ VENKI
S/O CHELUVARAJU,
AGED ABOUT 27 YEARS,
R/O 5TH CROSS,
VALLABAI ROAD,
HASSAN - 573 201.
2. ARAVINDA @ KULLA
S/O NANJEGOWDA,
AGED ABOUT 25 YEARS,
R/O BITTAGOWDANAHALLI VILLAGE,
HASSAN - 573 217.
3. LOKESHA @ KENCHA LOKI
S/O GURAPPA SHETTI,
AGED ABOUT 27 YEARS,
VALLABAI ROAD, 3RD CROSS,
HASSAN - 573 201. ... APPELLANTS
2
(BY SRI.HASHMATH PASHA, ADVOCATE)
AND:
STATE OF KARNATAKA
BY HASSAN CITY POLICE,
HASSAN - 573 201.
REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR. ... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
ORDERS OF CONVICTIONS AND SENTENCES DATED
23.07.2012 PASSED IN S.C.NO.127 OF 2010 BY THE
ADDITIONAL SESSIONS JUDGE, HASSAN - CONVICTING
THE APPELLANT-1/ ACCUSED -1 FOR OFFENCE
PUNISHABLE UNDER SECTION 366(A), 376(g) AND 506 OF
IPC AND CONVICTING APPELLANT-2 AND 3/ ACCUSED -2
AND 3 FOR OFFENCE PUNISHABLE UNDER SECTION
376(g) AND 506 READ WITH 34 OF IPC. APPELLANTS - 1,
2 & 3/ACCUSED-1, 2 & 3 ARE SENTENCED TO UNDERGO
LIFE IMPRISONMENT AND PAY FINE OF RS.5,000/- EACH
IN DEFAULT, SIMPLE IMPRISONMENT FOR SIX MONTHS,
FOR THE OFFENCE PUNISHABLE UNDER SECTION 376(g)
READ WITH SECTION 34 OF IPC. APPELLANT-1/ACCUSED-
1 IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT
FOR FIVE YEARS AND PAY FINE OF RS.5,000/-, IN
DEFAULT, SIMPLE IMPRISONMENT FOR SIX MONTHS FOR
THE OFFENCE PUNISHABLE UNDER SECTION 366(A) OF
IPC. APPELLANTS-1 TO 3/ACCUSED-1 TO 3 ARE
SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR
SIX MONTHS, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 506 READ WITH 34 OF IPC. ALL THE
3
SUBSTANTIVE SENTENCES OF ACCUSED SHALL RUN
CONCURRENTLY. THE APPELLANTS PRAY THAT HE MAY BE
ACQUITTED.
*****
CRIMINAL APPEAL NO.99 OF 2014
BETWEEN:
RAMESHA
S/O JAYARAMA,
AGED ABOUT 26 YEARS,
2ND CROSS, NORTHERN EXTENSION,
HASSAN - 573 201. ... APPELLANT
(BY SRI HASHMATH PASHA, ADVOCATE)
AND:
STATE BY HASSAN CITY
POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001. ... RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND
ORDERS OF CONVICTIONS AND SENTENCES DATED
23.7.2012 PASSED IN S.C.No.127 OF 2010 BY THE
ADDITIONAL SESSIONS JUDGE, HASSAN - CONVICTING
THE APPELLANT/ ACCUSED NO.4 FOR OFFENCE
PUNISHABLE UNDER SECTION 376(g) AND 506 READ
4
WITH 34 OF IPC. AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO LIFE IMPRISONMENT AND PAY
FINE OF RS.5,000/-, IN DEFAULT, SIMPLE IMPRISONMENT
FOR SIX MONTHS, FOR THE OFFENCE PUNISHABLE UNDER
SECTION 376(g) READ WITH SECTION 34 OF IPC. AND
THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
SIMPLE IMPRISONMENT FOR SIX MONTHS, FOR THE
OFFENCE PUNISHABLE UNDER SECTION 506 READ WITH
34 OF IPC. ALL THE SUBSTANTIVE SENTENCES OF
ACCUSED SHALL RUN CONCURRENTLY. THE
APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
*****
THESE CRIMINAL APPEALS COMING ON FOR FINAL
HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE
FOLLOWING:
JUDGMENT
The case of the prosecution is that on 20.03.2010, the complainant was informed by C.W.2 that on 19.03.2010, at around 10.00 a.m., she came to Hassan in a Tempo and contacted one Chandrashekar, whom she knew. That she did not get any money from him. Therefore, she was standing near Maharaja Park. At that time, accused No.1 came there in a scooter and took her 5 on the scooter, on the pretext of giving her a drop to her village. He took her near Hunisinakere area, a lonely place, secured the presence of accused Nos.2 to 4 and at about 5.30 p.m., each one of them committed forcible rape on her. When she shouted, all the accused persons threatened her with dire consequences. After committing the crime, one of the accused took her to the bus stand and dropped her. When she was standing alone at about 10.10 p.m., she was accosted by a Police Constable, who took her to the Child Welfare Committee and thereafter the Chairman of Child Welfare Committee, lodged a complaint, based on which a crime was registered against unknown persons. Thereafter, investigation was taken up and a charge-sheet was filed against four persons for the offences punishable under Section-366(A), 376 and 506, read with Section-34 of Indian Penal Code.
2. In order to prove its case, the prosecution examined 18 witnesses and marked 23 Exhibits, along with 6 15 material objects. By the impugned order, the trial court convicted accused Nos.1 to 4 and sentenced them to undergo life imprisonment and pay a fine of Rs.5,000/- each, and in default to undergo S/I for six months, for the offence punishable under Section-376(g), read with Section-34 of IPC. Further, Accused No.1 was sentenced to undergo S/I for five years, and pay fine of Rs.5,000/-, in default to undergo S/I for six months for the offence punishable under Section-366(A) of Indian Penal Code and accused Nos.1 to 4 are sentenced to undergo S/I for six months, for the offence punishable under Section-506, read with Section-34 of Indian Penal Code. Aggrieved by the same, accused Nos.1, 2 and 3 have filed Criminal Appeal No.1042 of 2012 and Accused No.4 has filed Criminal Appeal No.99 of 2014.
3. Sri.Hashmath Pasha, learned counsel for the appellants contends that the impugned order is bad in law and liable to be set-aside. That the trial court committed a 7 perversity in convicting the accused. That when the victim herself has turned hostile and not supported the case of the prosecution, no conviction could lie. Hence, he pleads that the appeals be allowed by acquitting the accused.
4. On the other hand, Sri.Vijayakumar Majage, learned Addl.SPP defends the impugned order. He contends that even though the victim has not supported the case of the prosecution, there are other material, based on which the trial court has rightly convicted the accused. Hence, he pleads that the appeals be dismissed.
5. Heard learned counsels and examined the records.
6. The key-witness in this case is the victim-PW-
5. The entire allegation in the complaint is that these four accused committed the offence punishable under Section- 376 of IPC and other offences on her. However, in her evidence she has denied the entire incident. She does not 8 identify the accused. She has stated that during March'2007 she did not come to Hassan and that one Chandrashekar had not informed her to come to Hassan. She has denied that when she came to Hassan, one of the accused took her in a bike and committed forcible rape alongwith the other accused and thereafter dropped her in the bus stand.
7. Therefore, PW-5 was treated as hostile and was cross-examined by the prosecutor. She admits her signature on Exhibit-P4, spot Mahazar and on Exhibit-P5, seizure mahazar and her signature marked as Exhibit- P4(a) and 5(a). She denied that she gave any statement before the Police, in terms of Exhibits-P6 and P7. She has denied the entire incident. She does not identify the accused.
8. The trial court on considering the evidence of PW-5 was of the view that she has intentionally given false 9 evidence before the Court. That even though the victim has not supported the case of the prosecution, the medical evidence shows that there are recent signs of forcible sexual intercourse on her. Therefore, the evidence of the Doctor, PW-13 was also considered by the trial court.
9. PW-13, on examining the victim-PW-5, on 21.03.2010 came to the conclusion that there are signs of recent forcible sexual intercourse on the victim. Therefore, the trial court was of the view that based on the medical evidence, the accused were guilty of the offence alleged against them.
10. Yet another reasoning assigned by the trial court is based on Exhibit-P23, which is a report of the Finger Print Expert. The same would indicate that the Finger Prints of accused No.1 was found on a Kingfisher Beer Bottle, which was recovered at the scene of the offence. Therefore, the trial court comes to the conclusion 10 that based on the Finger Print Expert's report, accused No.1 is guilty of the offence along with other accused.
11. We fail to understand the reasoning assigned by the trial court. Merely finding the fingerprint on the beer bottle at the scene of offence, would not indicate that it was that person alone who had committed the said offence on the victim. The presumption drawn by the trail Court is erroneous.
12. As narrated by the prosecution, the key- witness is the victim herself. She has denied the entire incident. She has stated that she has not even come to Hassan on the date of the incident. We find it rather surprising that the trial court opined contrary to the evidence on record. When the victim herself has narrated her evidence, the same requires to be accepted. The opinion of the Court by holding that the witness has intentionally given false evidence before the court, in our considered view cannot be accepted. The evidence as led- 11 in by the prosecution would necessarily have to be weighed by the court. However, the explanation by the court, by suspecting the veracity of the witness is uncalled for.
13. The entire case is one of the offence punishable under Section-366(A), 376 and 506, read with Section-34 of Indian Penal Code. The victim has not identified the accused. She does not state that she was at the place of the incident. She has stated that the offence was not committed on her. Therefore, we find that the trial court committed a perversity in convicting the accused.
14. On considering the entire evidences, we are of the view that the trial court has some how tried to ensure that the accused are convicted for the offence. The medical evidence is contrary to the evidence of the victim. The victim herself has not identified the accused. She has stated that she was not present at the scene of offence and has not supported the case of the prosecution. 12
14. For all the reasons stated above, we are of the view that the trial court has committed a perversity. Under these circumstances, we have no hesitation to hold that the trial court convicted the accused on misreading and wrongly appreciating the evidence of the victim, who does not support the case of the prosecution. Hence, we pass the following order:
Criminal Appeal No.1042 of 2012 and Criminal Appeal No.99 of 2014 are allowed.
The judgment of conviction and the order of sentence dated 23.07.2012 in S.C.No.127 of 2010 passed by the Additional Sessions Judge at Hassan for the offence punishable under Section-366(A), 376 and 506 read with Section - 34 of IPC, is set-aside.
The appellants - accused Nos.1 to 4, namely, Sri.Venkatesha @ Venki, Sri.Aravinda @ Kulla, Sri.Lokesha @ Kenchaloki and Sri.Ramesha, respectively, are acquitted 13 of the charges leveled against them. They shall be set at liberty, forthwith, if not required in any other case/s.
Registry to communicate the operative portion of this order to the concerned Jail Authorities, forthwith for necessary action.
SD/-
JUDGE SD/-
JUDGE JJ