Karnataka High Court
State By Bannerghatta Police vs Sri Rama on 27 August, 2015
Bench: Mohan M. Shantanagoudar, R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF AUGUST 2015
PRESENT
THE HON'BLE MR. JUSTICE MOHAN M. SHANTANAGOUDAR
AND
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.1024/2011
BETWEEN:
State by Bannerghatta Police. .. APPELLANT
(By Sri K R Keshavamurthy, SPP-2)
AND:
Sri Rama
S/o Sri Krishnappa
Aged about 28 years
Tractor Driver
R/o Mahantalingapura
Jigani Hobli
Anekal Taluk
Bangalore Rural District. .. RESPONDENT
(By Sri Asim Malik, Amicus Curiae)
This Criminal Appeal is filed under Section 378(1) and
(3) CR.P.C. praying to grant leave to file an appeal against
the Judgment dated 06.09.2010 passed by the District and
Sessions Judge, and P.O., FTC, Anekal in S.C.NO.18/2010
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(Old No.99/2010) - acquitting the respondent for the
offence punishable under Sections 376 and 511 of IPC and
etc.
This Criminal Appeal coming on for Final Hearing this
day, MOHAN M. SHANTANAGOUDAR, J., delivered the
following:
JUDGMENT
The judgment and order dated 06.09.2010 passed by Fast Track Court, Anekal in S.C.No.18/2010 (Old No.99/2010) is called in question in this appeal by the State. By the impugned judgment and order, the Trial Court has acquitted the accused for the offences punishable under Sections 376 and 511 of IPC.
2. Case of the prosecution in brief is that victim/prosecutrix was aged about four years; she is the daughter of P.Ws.1 (complainant) and 2 (mother of the victim); P.Ws.1 and 2 were running a small restaurant at Mahantalingapura Village, Anekal Taluk. 3
The victim used to go to Anganawadi center everyday from 10.00 a.m. to 1.00 p.m.; on the date of incident, the victim had gone to the school and had come back; P.W.1 was in the house, whereas P.W.2 was in the restaurant; the child/victim (P.W.3) went to restaurant and started playing infront of the restaurant at about 1.00 p.m. on 30.12.2009; the accused, who was aged about 27 years, also came to the restaurant and started playing with the victim; when P.W.2 went inside the restaurant for preparing tea, the accused took the victim to a dilapidated house and committed sexual assault on her in the said dilapidated house. P.Ws.4 and 5 have seen the accused taking the victim towards the dilapidated house. Since the child was not being seen infront of the restaurant, P.W.2 alerted P.W.1 and consequently, both P.Ws.1 and 2 started searching for their child; when they came near the dilapidated house, they heard the cries of the child and entered the house and seen the accused sleeping on the victim/child; on seeing P.Ws.1 and 2, accused ran away 4 from the scene; the victim was pacified by P.Ws.1 and 2 and on being asked, the child revealed that accused took her on the pretext of getting chocolates for her and thereafter, he committed sexual assault on her.
A complaint came to be lodged on the next day i.e., on 31.12.2009 at 5.30 p.m. by P.W.1 as per Ex.P-1 before the Sub-Inspector, Bannerghatta Police Station, which came to be registered in Crime No.400/2009 by P.W.9-PSI; P.W.10, the Inspector of Police, has completed the investigation and laid the charge sheet.
3. In order to prove its case, prosecution in all, has examined 11 witnesses and got marked 11 exhibits. On behalf of the defence, no witness has been examined. The Trial Court, as aforementioned, on evaluation of the materials on record, acquitted the accused by concluding that prosecution has not proved its case beyond reasonable doubt.
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4. Sri Keshava Murthy, learned SPP-II, appearing on behalf of the State, taking us through the entire materials on record submits that the evidence of the victim (P.W.3) is sufficient to bring home guilt against the accused; the evidence of P.W.3 is fully corroborated by the evidence of P.Ws.1 and 2, who are the eye-witnesses to the incident; case of the prosecution is further supported by the evidence of P.Ws4 and 5, who had seen the accused taking the victim to dilapidated house; since all the aforementioned witnesses have supported the case of the prosecution, the Trial Court ought to have convicted the accused for the offences with which he was charged. According to him, the reasons assigned and the conclusion arrived at by the Trial Court are not proper and correct.
Per contra, Sri Asim Malik, learned Amicus Curiae, argued in support of the judgment and order of the Court below. He submits that neither the evidence of the victim nor the evidence of so-called eye-witnesses would help the prosecution to bring home guilt against the accused 6 inasmuch as none of these witnesses have practically supported the case of the prosecution in material particulars. He draws the attention of the Court to the number of material omissions/improvements found in the evidence of P.Ws.1 and 2 to contend that P.Ws.1 and 2 are not the eye-witnesses to the incident in question and the case is concocted against the accused. P.Ws.4 and 5 are close friends of P.W.1; they also accompanied P.W.1 while lodging the complaint; since P.Ws.4 and 5 are interested witnesses, their evidence is to be scrutinized accordingly and with due care and caution; the sum and substance of the arguments of the learned amicus curiae is that the Trial Court is justified in acquitting the accused.
5. P.Ws.1 and 2 are the parents of the victim; both of them are stated to be eye-witnesses to the incident in question; P.W.1 has lodged the complaint as per Ex.P-1 on 31.12.2009 before Bannerghatta Police Station. P.W.3 is the victim of the offences; she was aged about four years 7 at the time of incident. P.Ws.1, 2 and 3 have supported the case of the prosecution. P.Ws.4 and 5 have seen the accused taking the victim towards dilapidated house i.e., towards the scene of offence, during the relevant point of time. P.Ws.6 and 7 are the witnesses for the scene of offence panchanama Ex.P-2. P.W.8 is the Police Constable, who escorted the victim to the hospital. P.W.9 is the Sub- Inspector of Police, he received the complaint lodged by P.W.1 and registered the crime; he has conducted part of the investigation. P.W.10 is the Investigating Officer, who completed the investigation and laid the charge sheet. P.W.11 is the doctor, who examined the victim as well as the accused and issued the medical certificates as per Exs.P-8 and P-9.
6. The complaint Ex.P-1 lodged by the P.W.1 discloses that at about 1.00 p.m. on 30.12.2009 he was in the house, whereas P.W.2 was in the restaurant and at that point of time the victim was playing in the restaurant; 8 the accused was found talking with the victim; however, P.W.2 did not either see the accused or the victim after sometime; being frightened, she informed P.W.1 about missing of their child; immediately, P.Ws.1 and 2 started searching for the victim and when they came near the dilapidated house belonging to one Hosanna, they heard the cries of the child and went inside and saw the incident of accused lying on the victim; on seeing P.Ws.1 and 2, accused ran away from the scene. On being asked, the victim told her parents that she was sexually abused by the accused and she was taken to dilapidated house on the pretext of getting chocolates to her and she was sexually assaulted by the accused.
The reason assigned in the complaint in not lodging the same at an earlier point of time is that they waited for the elders to convene panchayat and as the accused failed to appear before panchayat, the complaint came to be lodged belatedly.
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As aforementioned, the complaint came to be lodged at 5.30 p.m. on 31.12.2009 though the incident has taken place at 1.00 p.m. on 30.12.2009.
7. The version as found in the complaint is deposed by P.Ws.1 and 2; P.W.1 in his examination-in- chief has deposed that the child/victim was playing infront of the restaurant and the accused was playing with the victim during the relevant point of time, however, P.W.2 did not either see the accused or the victim after sometime; thereafter, P.W.2 came to the house and informed P.W.1 about missing of their child; he has deposed about searching of the child as well as entering the dilapidated house of Hosanna and about seeing the incident. It is specified by P.W.1 that accused was sleeping on the victim and that the pant of the victim was open; on seeing P.Ws.1 and 2, the accused ran away from the scene; on being asked, the victim told P.W.1 that accused committed sexual assault on her by inserting his finger in 10 her vagina. The elders in the village told P.W.1 that they would convene the panchayat to resolve the matter, but the accused did not appear before the panchayat and thereafter, complaint came to be lodged as per Ex.P-1. He has also deposed about the scene of offence panchanama Ex.P-2 drawn by the Police during the course of investigation.
In the cross-examination P.W.1 has deposed that on the date of the incident the victim did not go to Anganwadi centre for learning, but was playing in the house itself since morning; he admits that the Anganwadi centre would run from 10.00 a.m. to 1.00 p.m. everyday and that the child used to go to Anganwadi centre everyday, but on that day, the child did not go to Anganwadi centre; number of houses are adjoining the dilapidated house (scene of offence). Just adjoining the dilapidated house wherein the incident has allegedly taken place, house of Rangamma, Manjamma and Sakamma are situated; in all the adjoining houses except in the house of Manjamma the people were 11 residing; P.Ws.4 and 5 are his close friends; P.Ws.1 and 2 heard cries of the child; when they went near the dilapidated house, none of the neighbours had gone to the scene after hearing the cries; even after P.Ws.1 and 2 went to the spot none of the neighbours came to the spot.
A specific question was asked to P.W.1 that the dilapidated house was having only one door and that P.Ws.1 and 2 could have apprehended the accused. The answer given by P.W.1 is that he did not see the actual incident of accused sleeping on the victim, but he came to know about the same from the victim after the incident. This specific answer given by P.W.1 clearly reveals that P.W.1 is not the eyewitness to the incident, so also P.W.2. We observe so because it is an undisputed case of the prosecution that P.Ws.1 and 2 together went in search of the victim and they together entered the house of Hosanna and allegedly saw the accused sleeping on the victim. The clear admission of P.W.1 as mentioned supra demolishes the evidence of both P.Ws.1 and 2 fully. In view of the 12 same, it can be safely concluded that P.Ws.1 and 2 are not the eyewitnesses to the incident in question.
It is also clear from the evidence of P.W.1 that P.Ws.4 and 5 are the close friends of P.W.1. In the cross- examination, number of omissions are elicited from the evidence of P.W.1. The important omission elicited by the defence is that the version of P.W.1 about the accused inserting the finger in the vagina of the victim was not stated by him before the police. Though, it is the deposition of P.W.1 that he did not lodge the complaint immediately after the incident since the elders in the village told him, in the further cross-examination, he has deposed that the accused was not found on that day and therefore, he did not lodge the complaint. It is specifically admitted by P.W.1 that the accused was also taken by him to police station at the time of lodging the complaint and after the accused was apprehended by the villagers, the villagers did not convene any panchayath. It is further admitted by the P.W.1 that at the time of lodging the 13 complaint himself (P.W.1), his wife P.W.2, the victim P.W.3 and his friends P.Ws.4 and 5 together went to police station along with accused on two motor cycles and after lodging the complaint, the accused stayed back in the police station. Even when the police came to the spot after registering the crime, none of the villagers including the neighbours came to the scene of offence. The only witnesses who allegedly came to the scene of offence are P.Ws.4 and 5 apart from P.Ws.1, 2 and 3.
8. Looking to the evidence of P.W.1, we are of the clear opinion that his version is highly unreliable. He is not the eyewitness to the incident in question. He has admitted so. There was no reason for him to lodge the complaint belatedly in as much as, it is not necessary for anybody to wait for the arrest of the accused for lodging the complaint. If really, the reason for not lodging the complaint within the reasonable time is the assurance given by the villagers of convening the panchayath, P.W.1 14 could have insisted the villagers to convene the panchayath after apprehension of the accused. P.W.1 has clearly admitted that no panchayath was convened even after the accused was apprehended. Thus, the learned Amicus Curiae is justified in arguing that the case as made out by the prosecution in the complaint Ex.P1 is a concocted story only to humiliate the accused for the best reasons known to P.Ws.1 and 2.
9. We have already mentioned supra that P.W.2 is not the eyewitness to the incident in question in as much as, P.W.1 has admitted that he has not seen the actual incident. Undisputedly, P.Ws.1 and 2 went together to the spot and entered the house and allegedly saw the incident together. But in view of clear admission of P.W.1 that he did not see the incident and that he came to know about the incident only through P.W.3, the evidence of P.W.2 that she has seen the incident is also unreliable. 15
P.W.2 in her examination-in-chief itself deposed that the child has gone to Anganwadi centre for learning and only after coming from Anganwadi centre, the child was playing in front of the restaurant. In the cross- examination, she also admits that herself (P.W.2) and her husband P.W.1 and P.Ws.4 and 5 together went for lodging the complaint; P.Ws.4 and 5 are the close friends of P.W.1; except these persons none of the other witnesses were present when the police came to the spot after registering the crime; number of houses are adjoining the dilapidated house wherein the alleged incident has taken place; the child was being taken to Anganwadi centre and the child would return from Anganwadi centre to house along with P.W.1; the accused came to the house of P.Ws.1 and 2 along with one Mr.Raju (friend of P.W.1) at 1.00 p.m. on 31.12.2009 and thereafter, the accused was taken to restaurant; since the accused was not found earlier, no panchayath was convened; even after the accused was secured panchayath was not convened. It is specifically 16 admitted by P.W.2 that P.Ws.1 and 2 did not insist for convening the panchayath and all the elders in the village told P.Ws.1 and 2 to lodge the complaint against the accused. However, none of the villagers came to the police station for lodging the complaint. She has also admitted that P.Ws.1 and 2 took the accused to the police station at the time of lodging the complaint. It is clearly admitted by P.W.2 that the victim did not inform before her that the accused inserted his finger in her vagina and such a fact is not told by P.W.2 before the police. Thus the improvement made by P.W.2 in her examination-in-chief is clarified by her in the cross-examination to the effect that whatever she has stated in the examination-in-chief is an improvement, which goes to the root of the matter and since it is the material omission, the same amounts to contradiction. In view of the above, in our considered opinion, the trial Court is justified in disbelieving the version of P.W.2 also, along with the version of P.W.1. 17
10. Most important evidence in the matter on hand is the evidence of P.W.3-victim. Though in the examination-in-chief the victim has fully supported the case of the prosecution, in the cross-examination P.W.3 has admitted that accused has not committed any crime on her; he has not committed sexual assault on her; she has deposed before the Court as was told to her by her parents. It is once again specified in the cross- examination by P.W.3 that whatever she has stated in the examination-in-chief is fully tutored version and her father (P.W.1) has tutored her. This evidence of the victim completely negatives the case of the prosecution.
11. The medical evidence on record is in the form of certificates Exs.P8 and P9 and the evidence of the Doctor P.W.11. Ex.P8 is the medical report relating to the victim. The relevant portion of the medical certificates are as under:
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"Manasa (victim) moderately built and nourished to her age with good mental activity, normal I.Q. There are no injures over the face, neck, lips, chest, back, abdomen, upper and lower limbs (thighs) and genitalia.
There are no injures, blood stain, seminal (Seminal) stains, no pubic hairs seen. Labia Major and minor Intact, hymen-Intact.
Opinion: I am of the opinion that the intercourse has not occurred.:
From the aforementioned, it is clear that there is no adverse report against the accused.
Ex.P9 is the medical certificate pertaining to accused. The relevant portion of the same reads thus:
"Male aged 27 years, moderately nourished and built for his age. Examination of scalp, face, neck, chest, abdomen, both upper and lower limb and genitalia, revealed no injures."19
P.W.11, the Doctor, who examined the accused as well as the victim has deposed in support of the medical certificates Exs.P8 and P9. Looking to the aforementioned medical evidence on record it is clear that even the medical evidence does not support the case of the prosecution. The doctor has also clearly admitted that, except that the child and the persons who were accompanying the child told that the accused had inserted his finger in vagina, he did not find any supporting material for such allegation.
12. We are well aware of the settled position of law that the prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the case of injured witness there is an injury in the physical form, while in the case of victim of rape, the injury is in the form of physical, psychological as well as emotional. It is also 20 well settled principle of law that the Court if finds itself difficult to accept the version of the prosecutrix on its face value, it may search for evidence direct or circumstantial, which would lend assurance to her testimony. Assurance short of corroboration as understood in the context of an accomplice would suffice.
13. In the matter on hand, we have already mentioned supra that the victim has herself admitted that whatever she has stated before the Court is a tutored version and that her father (P.W.1) has tutored her to depose before the Court in a particular manner. Therefore, the evidence of the victim is of no use to the case of the prosecution. P.Ws.1 and 2 being the parents of the victim are also not the real eyewitnesses, as explained supra. Medical evidence does not corroborate the case of the prosecution. Hence, it is clear that the trial Court is justified in acquitting the accused, in as much as, the prosecution has not proved its case at all. The view taken 21 by the trial Court is the only possible view under the facts and circumstances of the case. Hence, no interference is called for. Appeal fails. Accordingly, it is dismissed.
We place on record the valuable assistance rendered by Sri. Asim Malik, learned Amicus Curiae. Hence, the registry is directed to pay Rs.10,000/- to learned Amicus Curiae.
Sd/-
JUDGE Sd/-
JUDGE BSR/bkp