Bangalore District Court
Unknown vs T. Harish on 26 November, 2016
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 26th DAY OF NOVEMBER 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
S.C.NO. 695/2014
COMPLAINANT :
The State of Karnataka by
Mahadevapura Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
T. Harish,
S/o. Tangavelu,
Aged about 27 years,
R/at No.21, 1st Cross,
2nd Main Road,
Nandini Layout
P W D Road,
A. Narayanapura,
Bangalore City - 16.
[Reptd by Sri B. Manjunatha & Associates
Advocates]
2 SC 695/14
JUDGMENT
Mahadevapura Police, Bangalore City have charge sheeted the accused for offences punishable under Sections 376 and 420 of Indian Penal Code.
2. The case of the prosecution, in brief, is as under :
CW-1 the victim was of 26 years during the year 2013.
Accused was also residing in the next cross of her house.
Since 6 to 7 years prior to lodging the complaint she knows the accused. He used to visit her house. Since 2 years prior to lodging a complaint she started loving him, he was forcing her to have the sex, she did not agree to the same. But, in the absence of her family members two months prior to 13.1.2013 he had come to his house and assuring to marry her he forcibly had a sex with her against her will. Thereafter, he prolonged to marry her. On 13.1.2013 when she contacted his mobile was switched off. Thereafter, he was not available to PW-1. Hence, she had lodged a complaint on 15.1.2013 that he has cheated her though assured to marry and had sex 3 SC 695/14 with her. After registering of the case, Investigating Officer drew necessary mahazar, recorded the statement of prosecution witnesses. Accused was apprehended. Accused and the CW-1 were sent to hospital for medical examination.
By completing the investigation, Investigating Officer submitted charge sheet to the court for the aforesaid offences.
3. The charge sheet was submitted to X A.C.M.M Court, Bangalore city against accused and learned Magistrate after taking cognizance, committed this case to the Court of Sessions for trial as it is exclusively triable by Court of Sessions. On registering the case in S.C. it was made over to this court for trial. After hearing both sides, this court has framed the charge against accused for offences under Section 376 and 417 of Indian Penal Code. The same was read over to the accused. The accused pleaded not guilty and claimed to be tried. Hence, posted for prosecution evidence. 4 SC 695/14
4. On prosecution side got examined as many as 8 witnesses as P.W.1 to P.W.8 out of 14 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P.8. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused had forcibly intercourse with CW-1 against her will two months prior to 13.1.2013 in her house in the absence of her family 5 SC 695/14 members by assuring to marry her, punishable under Section 376 of I.P.C?
2) Whether the prosecution has proved beyond reasonable doubt that, accused had cheated CW-1 by assuring her to marry and thereafter not married her, punishable under Section 417 of I.P.C.?
3) What order?
7. My findings on the above points are as under:-
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : As per final orders for the
following
REASONS
8. Points No.1 & 2:- These two points are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
9. The prosecution has made several allegations against the accused that he had assured PW-1 the prosecutrix to 6 SC 695/14 marry her, on the pretext of marriage he forced her to have the sex, though she did not agree, under the inducement of the marriage made her to cooperate in having the physical relationship and thus he had sex with PW-1 two months prior to 13.1.2013 in her house and in the absence of her family members.
10. There is no dispute with respect to age of prosecutrix. According to prosecution she was of 26 years as on the date of incident. Accused was of 27 years on the date of occurrence. Admittedly, accused is not the stranger either to PW-1 prosecutrix or her family members. Accused is alleged to have had committed rape on her as he made her believe that he would marry her and on that pretext he had sex with her, but subsequently he disappeared, not available for contact of PW-1, then PW-1 had lodged a complaint making allegation that accused has cheated her by way of having physical relationship with her and though he assured to marry her, now failed to marry her.
7 SC 695/14
11. There are two charges against the accused. One is for offence of rape punishable under Section 376 of I.P.C and another is for offence of cheating punishable under Section 417 of I.P.C. The charge sheet was submitted for offences under Section 376 and under Section 420 of I.P.C. However, there is no property involved in the present case. Based on the allegation, the charge for offence under Section 417 has been framed.
"Section 375 of I.P.C defines the word rape and also provides under what circumstances it amounts to rape. As per the allegations made by the complainant PW-1 who is the prosecutrix he had forcibly sexual intercourse with her in other words against her will. This allegation falls under Section 375(d) :-
first - against her will.8 SC 695/14
Fourthly - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married".
Explanation to Section 375 read as under:
"Consent means an unequivocal voluntarily agreement when the woman by words, gestures or any form of verbal or non-
verbal commission, communicates willingness to participate in the specific sexual act".
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
13. On going through the aforesaid relevant portion of Section 375 of I.P.C As per allegation made by PW-1, the prosecutrix in her complaint as per Ex.P1 he was forcing her to have the sexual intercourse for the last one year prior to 13.1.2013, she did not agree to the same, however, on the 9 SC 695/14 fateful day, there were no persons in her house, he had come to her house and induced her that he will marry her, on that pretext he had sex with her, though it was against her will, she co-operated since he assured that he would marry her, but after that sexual activity, he disappeared from 13.1.2013, hence she had lodged a complaint on 15.1.2013.
14. Accused is the major, prosecutrix is also major. They are not strangers. Accused has also acquainted with the family members of the prosecutrix. He is residing in the next cross of her house. These are all admitted facts.
15. Initial burden is on the prosecution to establish its case beyond reasonable doubt, in other words, by putting forth the satisfactory, reliable and convincing evidence on the aspect of the physical relationship by the accused with prosecutrix against her will, on the promise of her marriage. Ultimately he failed to marry her and thereby cheated her. 10 SC 695/14
16. These are all the crucial points to be looked into to come to the just conclusion whether there was a rape committed by the accused and he had cheated the accused as laid down under Section 417 of I.P.C.
17. Section 376 and 417 are co-related. Section 417 provides the punishment for cheating. Section 415 defines cheating.
Section 415 reads as under:
"Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".11 SC 695/14
In view of aforesaid explanation a dishonest concealment of facts is a deception within the meaning of this section. According to case of the prosecution accused concealed his culpability that he wanted to have the sexual intercourse with her, no intention to marry, with that dishonest intention he forced her, made her believe that he would be going to marry her, she believed his version though having the sex is against her will, co-operated with him in his activities because of his promise. Thus she is deceived by the accused intentionally by way of inducing her to have the sexual intercourse of which also caused damage or harm to prosecutrix in body, mind, reputation.
18. In order to prove the aforesaid ingredients of Section 376 and 417, the prosecution has got examined as many as 8 witnesses. PW-1 is the complainant and prosecutrix. PW-2 is the mother of prosecutrix. PW-7 is elder brother of prosecutrix. PW-3 is the neighbour of prosecutrix. PW-6 and 5 are spot panchas to Ex.P2 spot mahazar. PW-4 is the Dr. B.M. Nagaraj who conducted 12 SC 695/14 medical examination of accused and also victim. PW-8 is the Investigating Officer. PW-1 to 3, 7 are the material witnesses at the first instance. PW-4 is another material witness.
19. Ex.P1 is the complaint lodged by PW-1 on 15.1.2013 by making allegation of rape and cheating against accused. As per allegation in the complaint she knows the accused for the last 7 to 8 years, for the last two years prior to the incident she started loving him. Accused used to visit her house. He was closely moving with her family members. For the last two years prior to the date of incident he was forcing her to have the sexual intercourse, for which she did not give her consent. But, two months prior to 13.1.2013 he had come to her house during day time. During that time PW-1 was residing with her elder brother PW-7, his wife, her mother. PW-2 Muniyamma was also not at home on that day. On that fateful day, accused made her believe to cooperate with him to have the sex. She did not disclose this fact before her family members. She was insisting him to marry her, he was prolonging, but on 13.1.2013 onwards he was not available to 13 SC 695/14 prosecutrix, though she made call to him, his cell phone was switched off. Though PW-1 had gone to the house of the accused and made an enquiry about his whereabouts, she could not get any particulars about him. She doubted the accused that he may marry another girl. Hence, she had lodged a complaint on 15.1.2013. This is the case of the prosecution.
20. As mentioned in supra, the burden is heavily on the prosecution to put forth credible and abundant evidence to prove the charge of rape an also offence of cheating. The evidence of PW-1 in the cases like this nature, assumes more importance, eye-witnesses may not be available in cases of rape. Hence, oral testimony of prosecutrix plays an vital role.
21. On gong through the oral testimony of PW-1, it suffers from material contradictions. There is contradictory version found in her evidence. Ofcourse, in the chief- examination she has supported the prosecution case. But, in the cross-examination she has wholly resiled from her 14 SC 695/14 statement in the chief-examination. Now the question arises whether her statement in the cross-examination has to be believed. With this background, on going through the evidence of other material witnesses PW-2 mother of Pw-1, PW-7 brother of Pw-1 and Pw-3 the neighbour of PW-1, their evidence are also found not corroborative. Ofcourse, PW-2 mother has stated that her daughter has stated before her that accused had sex with her forcibly, assured her to marry, but not married. According to prosecution case itself PW-2, 3 and 7 are the here say witnesses. They heard these aspects from PW-1 only.
22. PW-7 is another material witness and probable witness. His evidence does not suggest the offence of rape or cheating committed by the accused. He has not supported the prosecution case. He is none other than the elder brother of PW-1 with whom she has been residing. Therefore, he is one of the material witness and probable witness to disclose the true facts. But, his evidence does not support the prosecution. Under the circumstance, it is very difficult to 15 SC 695/14 hold the guilt of the accused based on the oral testimony of PW-2. PW-2 and 7 are the family members of Pw-1. But, evidence of PW-2 and 7 are contrary to each other.
23. PW-3 Susheela is the neighbour of PW-1. As per prosecution PW-1 disclosed the incident before her. Ofcourse she has stated the same in the chief-examination she has not been cross-examined. But, when Pw-7 who is the family member of PW-1 and PW-1 herself has come up with statements, contrary to prosecution case it is not safe to connect the accused with alleged charges.
24. PW-2 and 3 are the hearsay witnesses as mentioned in supra. Except their evidence there is no other convincing and clinching evidence to draw the conviction against the accused either for offence of rape or for offence of cheating. PW-1 was of 26 years. She knows the pros and cons of her case. Her statement in the cross-examination has wholly taken away her statement in the chief-examination. It is also doubtful to say whether she was won over by the otherside, 16 SC 695/14 because evidence of her elder brother who is the custodian of PW-1 does not throw any light upon the case of the prosecution. He has not given any incriminating statement against the accused. In the absence of reliable and consistent evidence on the part of the prosecution it is not proper to go for convicting the accused for alleged charges.
25. In the chief examination, at page No.1 PW-1 has stated that accused promised her for marriage since 2 years. It is pertinent to note though statement of PW-1 in the chief examination is taken into consideration, the aforesaid version of PW-1 is accused promised her for marriage since 2 years, even otherwise she had consented to cooperate him to have the sex believing him that he would marry her. It is very difficult to believe this version of PW-1. The statement of PW- 1 in the chief-examination itself and cross-examination are read together, she herself is not sure whether accused had the intention of marrying her or not. Her version that accused promised her for marriage since 2 years itself shows that he 17 SC 695/14 was prolonging. As per the case of the prosecution even under the circumstance also she agreed to have sex with him.
26. It is very difficult to say that he cheated by way of assuring her to marry and induced her to believe him. As per statement in the chief-examination after committing rape only she came to know that he had cheated her. In the back drop of her inconsistent evidence in the chief examination, her whole cross-examination is taken into consideration she has completely resiled from her statement in the chief- examination. As per her statement in the cross-examination done on defence side she went on denying the physical relationship with accused, accused had never visited her house when she was alone, he had no physical relationship with her. She has also further stated that she does not know to read and write the Kannada language, that was prepared by the police. As per her version in the chief-examination the complaint was prepared by her friend, she does not know the Kananda language. When these two versions are taken together it becomes very clear she does not know the 18 SC 695/14 Kannada language to read and write. Ex.P1, the complaint is in English language as per her chief-examination she had put her signature in Tamil language. PW-1 has also further stated in the cross-examination done on defence side she does not know the contents of the mahazar, she had put her signature to the mahazar in the police station itself, no such incident occurred, whatever she has stated in the chief-examination has been tutored by the police. Under these circumstances, based on unreliable evidence of PW-1 it is not safe to convict the accused either for offence of rape or for offence of cheating.
27. PW-6 Srinivas and PW-5 Narayanaswamy are spot panchas to Ex.P2 said to have been drawn in the house of Pw- 1 shown by the complainant. But, PW-1 herself has not supported on this aspect. PW-5 and 6 have also not given the evidence supporting the prosecution. Their evidence are of no avail to the prosecution.
19 SC 695/14
28. So far as concerned to the offence of rape, the evidence of doctor is also material. PW-4 is the doctor, who conducted genitalia examination of the victim and the accused and issued reports as per Ex.P2 and 4 respectively. According to evidence of PW-4 there are no signs of recent sexual intercourse by victim, but there are signs of involving into sexual activities prior to that period, he is not sure of specifying the period during which the sexual activities taken place. As per Ex.P4 medical report of the accused, lugol iodine test is negative. Even as per Ex.P2 neither stains nor spermatozoa was found when examination on genitalia of the victim was conducted. Ofcourse, as per case of the prosecution, the incident occurred two months prior to lodging the complaint by PW-1. Hence, it is quite natural that such tests are not positive. Therefore, in the case on hand, the medical evidence is not much helpful to the case of the prosecution. In the absence of reliable evidence of the prosecution, in the absence of corroborative and satisfactory evidence the indefinite opinion formed in Ex.P2 cannot be 20 SC 695/14 based to believe the case of the prosecution that there is offence of rape committed by the accused.
29. PW-8 K.S. Nagaraj is Investigating Officer. He has reiterated the case of the prosecution. But, evidence of PW-1 is found un-reliable, her statement in the cross-examination is entirely different from her version in the chief-examination, as per her cross-examination done on defence side no offence of rape committed on her. I have already discussed in supra about the ingredients of Section 376 and 417 of I.P.C. When as per her version in the cross-examination on defence side there was no physical relationship, the question of consent or no consent does not arise. Even if it is taken positively, there is no evidence to show that it was against her will. Thirdly, as per her statement in the cross-examination accused had never promised her to marry. Therefore, based on the here say evidence of PW-2 and PW-3 accused cannot be convicted either for offence of rape or for charge of 417. The prosecution has miserably failed to place trustworthy evidence, corroborative, satisfactory and abundant evidence to 21 SC 695/14 establish its case beyond reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold points No.1 and 2 in the negative.
30. Point No.3: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offence punishable under Sections 376 and 417 of I.P.C.
(Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 26th day of November, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Prosecutrix PW.2 Muniyamma 22 SC 695/14 PW.3 Susheela PW.4 Dr. B.M. Nagaraj PW.5 Narayanaswamy PW.6 Srinivas PW.7 Hari PW.8 K.S. Nagaraj LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Complaint Ex.P 1(a) Signature of PW-1 Ex.P 2 Medical report of victim Ex.P 2(a) Signature of PW-1 Ex.P 3 Mahazar Ex.P 3(a) Signature of PW-1 Ex.P 3(b) Signature of PW-4 Ex.P 3 (c) Signature of PW-1 Ex.P 3(d) Signature of PW-8 Ex.P 4 Medical report of accused Ex.P 4(a) Signature of Pw-4 Ex.P 4(b) Signature of accused Ex.P 4(c) Signature of accused Ex.P 5 Statement of PW-6 Ex.P 6 Statement of PW-2 Ex.P 7 F.I.R.
Ex.P 7(a) Signature of PW-7
Ex.P 8 Requisition
23 SC 695/14
LIST OF MATERIAL OBJECTS MARKED
- NIL -
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
*** 24 SC 695/14 26.11.2016 Judgment pronounced in the open court, operative portion of which reads as under:-
Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offence punishable under Sections 376 and 417 of I.P.C. (SHUBHA GOWDAR)
LIII Addl.City Civil & Sessions Judge, Bangalore.