Karnataka High Court
State Of Karnataka vs Anant Vishnu Koth on 12 April, 2023
Author: H.T.Narendra Prasad
Bench: H.T.Narendra Prasad
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CRL.A No. 100285 of 2020
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR JUSTICE H.T.NARENDRA PRASAD
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 100285 OF 2020
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE INSPECTOR,
YALLAPUR POLICE STATION
DIST: UTTARA KANNADA
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR
ADVOCATE GENERAL OFFICE
HIGH COURT OF KARNATAKA
DHARWAD BENCH. ...APPELLANT
VIJAYALAKSHMI
M KANKUPPI
High Court of
Karnataka,
(BY SRI.V.M.BANAKAR, ADDL.SPP.
Dharwad
SRI.S.P.KANDAGAL, ADV. FOR COMPLAINANT)
AND:
1. ANANT VISHNU KOTH
AGE : 31 YEARS
OCC : DRIVER
R/O . JAGARMANE
HITTLALLI VILLAGE
YELLAPUR-581 359.
2. RAJESH @ RAJAT MAHESH NAIK
AGE: 23 YEARS
OCC : JCB DRIVER
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CRL.A No. 100285 of 2020
R/O. KOPPADGADDE
HITTALLI VILLAGE
YELLAPUR-581 359. ...RESPONDENTS
(BY SRI.S.V.YAJI, ADVOCATE FOR R-1;
SMT.ANURADHA DESHPANDE, ADV.AMICUS CURIAE FOR R-2)
THIS CRIMINAL APPEAL IS FILED U/S 378 (1) AND (3)
OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 28.01.2020
PASSED BY THE SPECIAL JUDE, UTTARA KANNADA, KARWAR,
IN SPECIAL CASE NO.5/2017 AND TO SET ASIDE THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28.01.2020
PASSED BY THE SPECIAL JUDGE, UTTARA KANNADA, KARWAR,
IN SPECIAL CASE NO.5/2017 AND TO CONVICT THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTION 376(D) R/W SECTION 34 OF IPC AND 3(1) (E)
(R) (W) (I) (II) OF SCHEDULED CASTE AND SCHEDULED TRIBE
(PREVENTION OF ATROCITY) AMENDMENT ACT 2015, ETC.,.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, T.G. SHIVASHANKARE GOWDA J., DELIVERED THE
FOLLOWING:
JUDGMENT
The State has challenged the judgment and order of acquittal dated 28.01.2020 passed in Special Case No.5/2017, by the Court of Special Judge, Uttara Kannada, Karwar (for short 'the Trial Court'), acquitting accused Nos.1 and 2 of the offences punishable under Sections 376(D) read with Section 34 of IPC and Section 3(1)(e)(r)(w)(i)(ii) of the -3- CRL.A No. 100285 of 2020 Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 ('SC/ST Act' for short).
2. The respondents were the accused before the trial court. For the sake of convenience, the rank of the parties shall be referred to as per their status before the trial court.
3. The case pleaded by the prosecution is that, PW-1 is the complainant/victim. She is working in the house of PW-7/Ganapati Govind Hegde situated at Surebailu of Halasinakoppa village, Yellapur Taluk. PW-1 belongs to Scheduled Tribe. Both accused are drivers working under PW-12/Satish Narayan Hegde of Ummachagi village. Accused were known to PW-1 and they knew that she belongs to Scheduled Tribe. They also knew that PW-1 works in the house of PW-
7. On 28.10.2016 at about 02.15 p.m., the accused intended to have sexual intercourse with PW-1, in prosecution of their such intention, they came to Surebailu of Halasinakoppa village in their motor cycle -4- CRL.A No. 100285 of 2020 bearing No.KA-31/H-967. They concealed their motor cycle inside the bushes and were waiting for the arrival of PW-1 hiding behind the tree. When PW-1 was alone walking towards the house of PW-7 on the said road, both accused intervened and offered her that they will pay money of Rs.100-300/- per day and asked her to satisfy their sexual desire regularly. She denied the demand of the accused. Both accused enraged by her response, they gagged her mouth using towel and dragged her 300 meters inside the forest land in Sy.No.24, against her consent, both accused one by one committed sexual assault against her. Both the accused knew that PW-1 belongs to Scheduled Tribe and inspite of it, they committed sexual assault. PW-1 went to the house of PW-7, disclosed the act of the accused to him. She was advised to file police complaint, she was taken to Yellapur Police Station and set the law into motion by filing a complaint in Crime No.251/2016. The accused were arrested and subjected to judicial custody and -5- CRL.A No. 100285 of 2020 after investigation, PW-22/T.Nagesh Shetti, Dy.S.P. has filed the charge sheet.
4. On receipt of the final report, the learned Principal District and Sessions Judge, Uttara Kannada, Karwar, who is the Special Judge for trial of said offence registered a case in Special Case No.5/2017. The accused stood trial and pleaded not guilty of the charges under Sections 376(D) read with Section 34 of IPC and Section 3(1)(e)(r)(w)(i)(ii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
5. In order to bring home the guilt of the accused, prosecution has examined 25 witnesses as P.W.1 to P.W.25, relied upon 73 documents as per Exs.P1 to P73 and 39 material objects as M.Os.1 to
39. After questioning the accused under Section 313 of Cr.P.C. and after hearing the both sides, the impugned order came to be passed acquitting the accused and setting them at liberty from the judicial -6- CRL.A No. 100285 of 2020 custody. Aggrieved by the same, the State has filed this appeal on various grounds.
6. The trial court in the impugned order recorded that PW-1 has partly turned hostile, she did not support the prosecution to its full case, the panch witnesses have turned hostile. PW-7/Ganapathi Govind Hegde and his son PW-13/Vinayak Ganapathi Hegde are the chance witnesses, who turned hostile. FSL report is not suggestive of the alleged sexual assault against PW-1, though DNA report refers some evidence, in view of PW-1 not supporting the prosecution, much weight cannot be attached to it as it is only an opinion evidence and not a conclusive evidence. The evidence of the prosecution is not inspiring the confidence of the court. In the course of cross-examination, material contradictions have been elicited which are fatal to the prosecution. The medical evidence suggests that there is no recent sexual assault against PW-1. On the basis of DNA -7- CRL.A No. 100285 of 2020 report, accused cannot be held guilty. The victim/PW-1 has not sustained any injury on her body or on her genital region. Even if it is presumed that there was a sexual assault against PW-1, there is no material before the court that both accused have committed gang rape against her. The narration of the alleged incident is doubtful in nature and the ingredients of the offences have not been explained by the prosecution and for all these reasons, the trial court has extended the principle of 'golden thread of benefit of doubt' in favour of the accused.
7. We have heard the arguments of Sri V.M.Banakar, learned Additional S.P.P. appearing for the appellant/State, Sri.S.P.Kandagal, learned counsel for the defacto complainant, Sri.S.V.Yaji, learned Counsel for respondent No.1 and Smt.Anuradha Deshpande, learned Amicus Curiae for respondentNo.2 and perused the records. -8- CRL.A No. 100285 of 2020
8. It has been argued by the learned S.P.P. supported by the learned counsel for the defacto complainant that the evidence of PWs-7 and 13 shows that soon after the incident, PW-1 has divulged it to them and for this reason, PW-1 was sent to home, thereafter she was taken to Police Station to set the law into motion. The evidence of PW-1 though incomplete for the prosecution, she has admitted the medical examination conducted on her body and she has informed the Medical officer, the manner in which she has been subjected to sexual assault by the accused persons. The FSL experts have sampled the blood of the accused as well as PW-1 for DNA examination and the garments worn by the accused as well as PW-1 at the time of alleged incident have been safely without any delay seized, subjected to DNA, and the DNA report confirms the presence of semen of accused no.1 in the undergarment of PW-1 and the presence of semen of accused no.2 in the nighty and the inner-skirt of PW-1 for which when the -9- CRL.A No. 100285 of 2020 accused were questioned under Section 313 of Cr.P.C., there is no explanation as to how their semen found on the clothes of the victim. Hence, even though PW-1 has not fully supported the material evidence, speaks in support of the prosecution. The learned Trial Judge being a lady Judicial Officer has not appreciated the evidence sensitively and recorded that even after presumption that there was a sexual assault against PW-1 ignored the DNA report and recorded that there are no material to hold that accused Nos.1 and 2 have committed gang rape against PW-1. Hence, said finding is erroneous and calls for interference.
9. Per contra, learned counsel for accused No.1 has contended that accused were unknown to PW-1, they were not knowing which caste PW-1 belongs to. Merely on the ground that PW-1 belongs to Scheduled Tribe, the charges has been leveled against the accused persons. In order to explain the ingredients
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CRL.A No. 100285 of 2020of the offences under Section 3(1)(e)(r)(w)(i)(ii) of the SC/ST Act, the accused must know the victim prior to the incident, they must also know which caste she belongs to and they must have an intention to insult her in the name of her caste. The alleged incident is said to have been taken place in a deep forest, which is an isolated place and therefore, the ingredients of offence in order to attract the SC/ST Act are not complied with.
9.1. It is further contended that PW-1 herself has explained on oath before the court that on 28.10.2016 between 2.00 to 2.15 p.m., there was a quarrel between her son and the accused. She tried to pacify the quarrel, at that time, the accused pulled her and escaped from the spot in a motor cycle. She went and reported to PW-7, on whose advise filed the police complaint. Except this evidence, there is no iota of evidence from the mouth of PW-1 that the accused have committed sexual assault against her. The cross-examination on behalf of the accused
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CRL.A No. 100285 of 2020probabilizes the defence and the Police have not at all seized any of the clothes of PW-1. When her clothes were not at all seized by the Police and the DNA report explains the presence of semen stains of accused nos.1 and 2 on the clothes of PW-1 only after arrest of the accused, after sampling of semen, it has been sprinkled on the clothes of PW-1 so as to create an evidence and accordingly, DNA report has been made. There is no bodily injury on the victim, which facilitate the alleged gang rape, the medical evidence supports the prosecution and therefore, the quarrel between the son of PW-1 with the accused was given a colour of gang rape and therefore, the trial court has rightly recorded that even assuming that there is a sexual assault, there is no material evidence in support of the prosecution and for this reason, the order of acquittal was recorded and he supported the impugned judgment. Learned Amicus Curiae on behalf of accused No.2 supported the arguments of learned counsel for accused No.1.
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CRL.A No. 100285 of 2020
10. We have given our anxious consideration to the arguments addressed on both sides and perused the material on record.
11. The prosecution apart from examining the victim as PW-1 has examined PW-2/Suresha, PW- 3/Kamala and PW-6/Ramachandra as panch witnesses, PW-7/Ganapathi Govinda Hegde and PW- 13/Vinayaka Ganapathi Hegde as landlord of PW-1, PW-8/Nagaveni Siddi is the sister of PW-1, PW- 10/Parashuram Keshava Siddi is the son of PW-1; PW-11/Sujatha Suresh Siddi is the chance witness. PW-12/Sathish Narayana Hegde under whom the accused were working as drivers. PW-14/Raghupathi Bommanaika is the owner of the motor cycle; PW- 15/Mahesh Narasimha Naika is the farther of accused No.2; PWs-16 to 25 are the official witnesses including the Police Constables, Police Officers, Doctors, who examined the victim and accused and the FSL and DNA experts. Now let us examine the
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CRL.A No. 100285 of 2020weight of the evidence that the prosecution has relied upon.
12. The testimony of PW-1/Lalitha shows that she resides one kilometer away from the house of PW-7, she use to work in his house and she has to travel via forest plantation to reach his house. On 28.10.2016 between 2.00 and 2.15 p.m., she and her son PW-10 were going to the house of PW-7 in the forest plantation, when they traveled half-a- kilometer, the accused intervened and took up a quarrel against PW-10. She questioned the conduct of the accused for which they pulled her. When she raised hue and cry, accused escaped from the spot in their motor cycle. She went to the house of PW-7 and reported him the quarrel that took place. PW-7 suggested her to report the matter to the Police. Accordingly, she went to the Police Station along with her son PW-10 and her cousin PW-9/Santhosh and filed the Ex.P1/complaint. Police have scribed the
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CRL.A No. 100285 of 2020complaint, without knowing its contents, she has attested it. She has not whispered anything about sexual assault committed on her by the accused. She was sent to hospital for examination, some samples were collected including her clothes. She has also shown the place of incident to the Police and she has attested Exs.P2 and P3/mahazars in the Police Station. She identifies visit of the Police as per Exs.P4 to P7/photographs. She is not aware of contents of Exs.P2 and P3, one month later, she was taken to the court of Civil Judge at Sirsi where her statement was also recorded as per Ex.P8. She identifies that M.O.1 is the motor cycle in which the accused came and moved away. She has been cross- examined by the prosecution, but nothing has been elicited to explain that the accused have committed sexual assault against her on the alleged date of incident. The defence cross-examination has demonstrated that she resides along with her husband and children. The accused were friends of
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CRL.A No. 100285 of 2020her son, they together do some business and in connection with it, quarrel took place. According to her, neither the Police nor the medical officer have collected her clothes. When she was further cross- examined by the prosecution, she identified that M.Os.13, 14 and 15 are her nighty, frock and towel, which were seized by the Police. These are the clothes she might have worn on the date of alleged incident. She reiterates that the quarrel had taken place only in connection with business dispute and there was no sexual assault against her, she was not aware as to why the Police have collected her clothes. This is the weight of the evidence of PW-1 which we have to appreciate as she is very categorical that there was no sexual assault against her.
13. PW-2/Suresh Laxman Siddi and PW- 3/Kamala Krishna Siddi are the panch witnesses to Exs.P2 and P3/mahazars. The testimony of both of these witnesses point out that they were not called to
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CRL.A No. 100285 of 2020the alleged place of incident nor to the Police Station in connection with seizure of any of the material objects or spot inspection. While they were going on the road at Surebailu, one and a half years ago, they were made to attest these documents. Both have turned hostile, the cross-examination of these witnesses do not demonstrate anything incriminating from their mouth.
14. PW-4/Anthon Munwal D'Souza is a panch witness regarding seizure of M.O.1/motor cycle at Yellapur Police Station produced by accused No.1 under Ex.P9/mahazar and Ex.P10 is the photograph. The testimony of PW-4 speaks in support of the same and the defence cross-examination brought out that he is a regular visitor to the Police Station and the Forest Department. He being a carpenter without knowing the contents of Ex.P9, has attested the said document at the instance of the Police. Even though his cross-examination speaks innocence, but it is
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CRL.A No. 100285 of 2020clear that at Yellapura Police Station, M.O.1/motor cycle was seized under Ex.P9/mahazar.
15. PW-5/Suresha Somu Marathi is another panch witness to Ex.P11. His testimony shows that two years ago, when he was going at Ummachagi road of Halasinakoppa, he was asked by the Police to attest Ex.P11 and he was not aware why photograph was taken by the Police. He was also not aware of seizure of any of the clothes. His cross-examination on behalf of the prosecution does not yield any result.
16. PW-6/Ramachandra Hanumantha Naika is another panch witness regarding seizure of M.O.2/Jerkin produced by one Mahesha/PW-15 in the office of Dy.S.P., Sirsi. His testimony shows that one and a half years ago, he had been to the office of the Dy.S.P., Sirsi, he was asked by the Police to attest Ex.P12/panchanama. A photograph was also taken by the Police under Ex.P13. Though defence cross- examination speaks that he is not aware of the
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CRL.A No. 100285 of 2020contents of Ex.P12 nor M.O.2 was seized in his presence, the totality of his evidence explains seizure of M.O.2/jerkin by the Police produced by one Mahesha, who is none other than father of accused No.2.
17. The testimony of PW-15/Mahesha Narasimha Naika shows that he was called to the office of the Dy.s.P., Sirsi where M.O.2/Jerkin was put into his hands and the Police have taken photographs at Ex.P13 and asked him to attest Ex.P12. According to him, he was not in a possession of M.O.2/jerkin nor has he tendered the same to the Investigating Officer under Ex.P12/mahazar. Having regard to the weight of his evidence and also the evidence of PW-6, we can safely accept that M.O.2 was seized by the Police in the office of Dy.S.P. at Sirsi under Ex.P12/mahazar.
18. PW-7/Ganapathi Govinda Hegde is a chance witness and the landlord in whose house PW-1 does coolie work. The testimony of PW-7 shows that two
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CRL.A No. 100285 of 2020years ago at about 2.30 p.m., PW-1 came to his house and reported that while coming to his house, some persons have stopped her, she was pulled. Hence, he advised her to file the Police complaint. Thereafter, he was called to Sirsi Court where he gave Ex.P14/statement. He turned hostile, did not stand in support of the prosecution. Much apart, when PW-1 herself has not supported the prosecution, even the hostile evidence of PW-7 stands corroborated to the hostile statement of PW-1 that somebody have pulled her on the way and there was no allegation of sexual assault against her.
19. PW-13/Vinayaka Ganapathi Hegde is the son of PW-7. His testimony shows that on the alleged date of incident, when he returned home at 5.15 p.m., his parents asked him to accompany PW-1 to till her house. Hence, he took her and dropped near her house, when he came back, he was informed by his parents that somebody have pulled the hands of PW-1
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CRL.A No. 100285 of 2020while she was coming to their house. For this reason, they asked him to accompany her to her house. The cross-examination of PW-13 demonstrates that while taking PW-1 to her house, he observed that she was very normal, but she was little fearful, except that, he has not observed any abnormality in the behaviour of PW-1. The testimony of this witness stands corroborated to the testimonies of PWs-1 and 7 as to their hostile statements and not to the prosecution version.
20. PW-8/Nagaveni Siddi is the elder sister of PW-1. Her testimony shows that she was not aware of the alleged incident nor PW-1 reported to her that the accused have committed sexual assault against her. In this regard, she has not given any statement to the Police and she resiled from her previous statement as per Ex.P15.
21. PW-9/Santhosh Siddi is the cousin of PW-1. He follows the very same statement of PW-8 and had
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CRL.A No. 100285 of 2020resiled from his previous statement as per Ex.P16. Hence, it is clear from the above evidence that the close relatives of PW-1 did not support the prosecution version. They plead that they were not aware of anything about the alleged incident.
22. PW-10/Parashurama Siddi is the son of PW-
1. His testimony shows that on 28.10.2016, he was in the hospital along with PW-9. At that time, his mother called him over the phone and informed him that the accused have subjected her to sexual assault. When he went back home, his mother took him and PW-9 to the Police Station, where a complaint was filed. The testimony of PW-10 did not point out about the particulars but he contravenes the evidence of PW-1 that at the time of alleged incident, he was also present along with PW-1. For what reason he and PW-9 went to the hospital is not explained.
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CRL.A No. 100285 of 2020
23. It is interesting to note from the evidence of PW-18/Dr.Deepak Bhat, Gynecologist in Taluka Hospital, Yellapura that on 28.10.2016, PW-1 was brought before him by a lady Constable W.P.C.1624 along with requisition at Ex.P30, he examined PW-1, treated her and sent her back along with lady constable, who brought her. This shows that on 28.10.2016, PW-1 was brought to the Doctor by the lady constable and got examined by him, she was treated and sent back.
24. It is pertinent to note from Ex.P1/complaint that on 28.10.2016 at 8.45 p.m., it was recorded in the Police Station and thereupon the case in Crime No.251/2016 was registered. Immediately PW-1 was sent to the hospital where she was treated and sent back and there was no allegation or report to PW- 18/Doctor that PW-1 was subjected to sexual assault or anything to support the prosecution. In this background, we have to appreciate the evidence of
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CRL.A No. 100285 of 2020the prosecution. Though PW-10 asserts that his mother informed him about the sexual assault, he is not aware of the details; the conduct of the Police clearly explains that on the very day itself, PW-1 was provided with treatment by PW-18/Dr.Deepak Bhat where there was no report of alleged sexual assault.
25. PW-11/Sujata Suresh Siddi is the Vice President of Taluk Panchayat, Yellapura. She was also a chance witness to the incident and she has given her statement before the Investigating Officer as per Ex.P17. But her testimony shows that though she knew PW-1, she is not aware of alleged incident nor has she stated before the Police that she had the knowledge of alleged incident. She retracted from her previous statement and did not support the prosecution.
26. PW-12/Satish Narayana Hegde is the landlord resides at Ummachagi of Yellapura taluk. His testimony shows that he knew both PW-1 and
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CRL.A No. 100285 of 2020accused. Both the accused were working under him as drivers. On 28.10.2016, he has not received any phone call from PW-1 informing him about the alleged incident. According to him, on that day, both accused had come to work. However, on the next day morning, they had not come to work for the reason that they have been called to the Police Station. The prosecution cross-examination of this witness demonstrated that he received a call from PW-1 at 6.00 p.m. on 28.10.2016, but she did not reveal the alleged sexual assault committed on her by the accused persons. He has retracted from his previous statement as per Ex.P18 and his testimony is of no consequence to prove the case of the prosecution.
27. PW-14/Raghupathi Bommanaika is the previous owner of M.O.1/motor cycle. His testimony shows that M.O.1 was owned by him, he has sold the same to a third party, he is not aware of their details, he was called to the Police Station, he informed the
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CRL.A No. 100285 of 2020same to them. He has not given any statement under Ex.P19, but Ex.P10 is the photograph of M.O.1. The evidence of this witness will not stand in support of the prosecution that any of the accused are owning the said motor cycle nor the motor cycle is seized at the instance of the accused persons.
28. PW-16/Ramesh S.Kole, the Police Constable and PW-19/Harish G.Naika is the Head Constable of Yellapura Police Station. Their testimony shows that they have assisted the Investigating Officer on 29.10.2016 in connection with seizure of M.O.1/motor cycle and taking of Ex.P10/photographs and video- graphs by a digital camera, seizure of motor cycle and issuing Ex.P20/certificate by PW-16 and video- graphing the statements of PWs-7 to 10 and 12 recorded by the Investigating Officer, so also the mahazars under Exs.P2 and P3 and taking of the photographs as per Exs.P4 to P7. According to him, it
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CRL.A No. 100285 of 2020is he, who traced the motor cycle near Ummachagi. Their testimony is formal in nature.
29. PW-17/Dr.Sowmya K.V. is the Specialist in Taluka Hospital, Yellapura. Her testimony shows that on 29.10.2016 she has received Ex.P20/requisition with a history of alleged incident. PW-1 was brought before her. By taking consent, she has examined her at about 12.30 p.m. assisted by her Staff Nurse Smt.Sugandha. During examination, she has noticed that PW-1 was sober and she gave the history that on the previous day between 2-2.15 p.m. to 2.45 p.m., two men forcibly subjected her to intercourse by gagging her mouth with towel. She lost her conscious for about ten minutes. This history so referred by PW-17 being controverted as we see from the evidence of PW-7 that PW-1 was in his house at 2.30 p.m., then how could the history can be able to explain that alleged incident took place till 2.45 p.m. and she was unconscious for about ten minutes and
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CRL.A No. 100285 of 2020thereafter she reaching the house of PW-7 which is half a kilometer away from the alleged place of incident. This goes to show that something is missing from the actual facts. When the actual facts fond some missing links, it is because of lack of information furnished by the victim. As we have already observed and analysed the evidence of PW-1, no such information is available. PW-1 did not reveal the names of the accused as assailants even though she knew them. Keeping this in mind, if we examine the evidence of PW-17 that she has collected the clothes of the victim such as, Bra and Nicker at M.Os.4 and 5 and gave them to Police for RFSL and opinion report. With reference to the same, she was of the opinion that:
"(i) Presence of seminal stain was detected in labia majoea, labiaminoea, vagina, cervix, nicker, nighty, skirt indicating recent sexual intercourse which is consistent with the history given by the victim.
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CRL.A No. 100285 of 2020
ii) Absent hymen may be a sign of old sexual intercourse.
iii) Fresh abrasion 1/2*1/2c.m. on the back of the right side and no injuries seen on genitalia. FSL report neither refusal nor confirm the forceful sexual intercourse."
29.1. On 20.07.2018, PW-17 has examined Ex.P28/DNA report, which speaks that the presence of semen of accused no.1 in the nicker of the victim and presence of seminal stains of accused no.1 in the skirt and nighty of the victim and also saliva stains in the towel. This is only the piece of evidence that the prosecution is banking upon inspite of hostility of PW-1. Admittedly, PW-1 is a married woman having children and she resides along with her husband and there is no dispute in her family life. In what way the accused Nos.1 and 2 have contributed seminal stains on the clothes of victim has to be analysed.
29.2. As deposed by PW-17, she has collected swab and also pubic hairs, but nowhere, as we could
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CRL.A No. 100285 of 2020see from the FSL report, it is mentioned about the presence of seminal stains, but only on the clothes, seminal stains were found. It is interesting to note that according to prosecution, the accused removed the entire clothes of PW-1 and committed gang rape and it is not the case that at the time of alleged incident, PW-1 was wearing all these clothes. In the absence of complete evidence, the opinion of DNA remains as an opinion and it is not able to connect the accused to the alleged incident for want of corroboration.
29.3. It is pertinent to note from the cross- examination of PW-17, that there was no sexual assault against PW-1, if PW-1 has to suffer gang rape, she might have suffered injury on the face or any marks on her body. Though it was alleged that she suffered forcible sexual intercourse, but all these aspects were not found on the body of PW-1 and there were no injuries nor bloodstains were noticed
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CRL.A No. 100285 of 2020when PW-1 was examined by PW-17. If a person is subjected to sexual intercourse forcibly, there is every possibility of corresponding injuries on the assailants also, but the medical officer did not find any forcible intercourse on PW-1 nor we found from the evidence of PW-18 that there were any corresponding injuries on the body of accused nos.1 and 2. Very interestingly, PW-17 makes a very categorical statement that she has not noticed that PW-1 was under any such trauma or shock, but she was sober, calm and composed. This explains that PW-1 was very normal when she was brought to the hospital. PW-17 admits that samples of semen can be collected in any form. This question has been asked to probabalise the defence that the Police must have artificially sprinkled semen of accused nos.1 and 2 on the clothes of PW-1 to project the alleged incident. Hence, the defence has drawn a cloud of doubt on the veracity of prosecution evidence and in our opinion,
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CRL.A No. 100285 of 2020the testimony of PW-17 is more probable to the defence rather than to the prosecution.
30. PW-18/Dr.Deepak Bhat is the Gynaecologist in Taluka hosplital, Yellapura. Apart from examining PW-1 on 28.10.2016, he also examined accused Nos.1 and 2 on 29.10.2016. His testimony shows that both the accused were brought before him under Ex.P31/report with a history of alleged incident. He examined them, collected the clothes worn by the accused and gives them to Police. He gave an opinion that both accused are capable to do sexual intercourse and he has not noticed any clinical evidence of general physical injuries including on genitals and bloodstains were detected either in vest, underwear and pant collected during examination. Seminal stains were detected in the underwear of accused no.1 which was collected and he gave the opinion that DNA profiling is required for detecting the individuality of the stains. M.Os.6 to 9 are the clothes
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CRL.A No. 100285 of 2020which were collected from the accused No.1 and similarly M.Os.10 to 12 are the clothes of accused No.2. When he examined accused No.2, he had observed bloodstains in the half pant and underwear. Seminal stains were detected on the underwear collected during examination. Now coming back to DNA examination, we do not find any report that the seminal stains so noticed by PW-18 on the inner garments of the accused were of same stains found on the panty and skirt of PW-1. Instead, blood samples of the accused was examined and therefore, the DNA report is inconclusive.
30.1. The cross-examination of PW-18 has demonstrated that he has not noticed any corresponding injuries. When a person is involved in a gang rape, he must have also sustained injuries. As we could see from the evidence of PW-18, there are no injuries at all on the accused. The alleged incident took place in a forest plantation area and PW-1 was
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CRL.A No. 100285 of 2020completely conscious at the time of alleged incident. Under such circumstances, the corresponding injuries on the body of both accused is expected, but in the absence of the same, we must be very cautious, careful and little guard in appreciating the prosecution evidence.
31. PW-20/Vinay Gowda is the Police Constable, who assisted the Investigating Officer by taking photographs and videographing the statements recorded by PW-13 on 31.12.2016 and PW-14 on 09.01.2017. On 10.12.2016 he took photographs of seizure of clothes under Ex.P11/mahazar and the said photograph is at Ex.P45. On 12.12.2016 he photographed the jerkin at Ex.P13 and mahazar drawn at Ex.P12 in connection with seizure of M.O.2/jerkin. We have already referred to the evidence of father of accused No.2 regarding Ex.P12/mahazar and seizure of M.O.2. Hence, the testimony of this witness is of no impact as we have
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CRL.A No. 100285 of 2020already discussed about the seizure of M.O.2 by the Investigating Officer.
32. PW-21/Dr.Geetalaxmi is the Senior Scientific officer of RFSL, Mangalore. Her testimony shows that on 15.12.2016, she has received 39 sealed articles in connection with Crime No.251/2016 of Yellapura Police Station. She has opened it and verified all the 39 articles, which are all clothes, cervical swab and sampling done on PW-1 and accused Nos.1 and 2 on the clothes seized at the time of alleged incident. As we noticed, the following are the articles:
"1) Head hair combings.
2) Pubic hair combings. 3 Nail scrapings and cuttings.
4) Swab from Labia Majora.
5) Swab from Labia minora.
6)(a) Vaginal swabs and
(b) Vaginal smear (on a glass slide)
7) (a) Cervical swab and
(b) Cervical smear (on a glass slide)
8) Control swab.
9) Head hair combings.
10) Pubic hair combings.
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CRL.A No. 100285 of 2020
11) Nail scrapings and cuttings.
12) Swab from prepuce.
13) Swab from coronal sulcus.
14) Swab from shaft of the penis.
15) Swab from urethral orifice.
16) Semen.
17) Control swab.
18) Head hair combings.
19) Pubic hair combings.
20) Nail scrapings and cuttings.
21) Swab from prepuce.
22) Swab from coronal sulcus.
23) Swab from shaft of the penis.
24) Swab from urethral orifice.
25) Semen.
26) Control swab.
27) One bra.
28) One nikker.
29) One shirt.
30) One vest.
31) One underwear.
32) One pant.
33) One underwear.
34) One T-shirt.
35) One half pant.
36) One towel.
37) One nighty.
38) One skirt.
39) One overcoat."
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CRL.A No. 100285 of 202032.1. All these 39 articles were subjected to scientific examination regarding presence of bloodstains, seminal stains, spermatozoa and saliva and the results were that bloodstains were detected in Articles No.6a, 28, 30 to 33, 35 to 38, seminal stains were detected in Articles No.4, 5, 6a, 7a, 28, 31, 33, 37 and 38, the presence of saliva stains in article No.36. She has recommended for DNA examination of article Nos.4, 5, 6a, 7a, 28, 31, 33 and 37 to detect the individuality of seminal stains and saliva stains. According to her, the samples of cut hair were unfit for examination. The samples of semen were disintegrated, not fit for examination. In this regard, she gave her reports at Exs.P25 and P47. The evidence of PW-21 explains to detect the individuality of semen stains, the DNA report is only an alternative.
33. PW-24/Dr.Shahanaj Fatima is a DNA expert working at DNA Centre, Bangalore. Her testimony
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CRL.A No. 100285 of 2020shows that on 31.01.2017, in connection with Crime No.251/2016 of Yellapura Police Station, she received 13 sealed articles in the said case for DNA profiling. The articles are:
"1) Labia majora swabs.
2) Labia minora swabs.
3) Swab and smear from vagina.
4) Swab and smear from cervix.
5) One nikker.
6) One underwear.
7) One underwear.
8) One nighty.
9) One skirt.
10) One towel.
11) Sample blood collected from the victim.
12) Sample blood of one Ananth.
13) Sample blood of one Rajesh @ Rajath."
33.1. She has identified the said articles individually and DNA profiling was carried out by utilizing the articles found in item Nos.1 to 4 and 11 to 13 and taking DNA profiling. The results were noted that the blood samples of accused No.1 shows that he is the contributor of seminal stains detected in articles 5 and 6/nicker and underwear. The blood samples of accused No.2 explains that he is contributor of seminal stains detected in article Nos.7,
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CRL.A No. 100285 of 20208 and 9 and accused No.2 is also a contributor of saliva detected in towel at item No.10. In this regard, she gave report at Ex.P29. Hence, DNA report clearly explains that semen stains of the accused were not detected either in any of the articles of PW-1, only semen stains of accused No.2 and also saliva stains on the towel and nighty of the victim/PW-1. If really there was a gang rape, both accused must have contributed their seminal stains. As we have discussed above, during the alleged incident, the accused derobed the victim. In what way, the clothes of victim or the accused carried the seminal stains has to be explained, but we do not find any explanation as some of the witnesses have turned hostile. Hence, DNA report is not a conclusive proof, without any corroboration, it will be very difficult to accept it.
34. PW-23/Dr.Guruprasad Achary is the ENT Surgeon at Taluka Hospital, Haliyal. His testimony shows that on 30.01.2017, he has drawn the blood
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CRL.A No. 100285 of 2020samples of accused Nos.1 and 2 in the presence of Civil Judge and JMFC., Haliyal in the said court and it has been sent for FSL examination. As we examined the evidence of PW-24, seminal stains of accused have been utilized for DNA report. Hence, the evidence of PW-23 supports the blood sampling of the accused.
35. PW-25/Vijaya is the Police Inspector of Yellapura Police Station. His testimony shows registration of Ex.P73/FIR on the basis of Ex.P1/statement of PW-1 on 28.10.2016 at 7.30 p.m. in Crime No.251/2016. He has sent PW-1 to Yellapura hospital along with Ex.P30/requisition. On the next day, he apprehended both the accused at Ummachagi bus stand and produced before PW-22. So his evidence takes support from PW-18 that PW-1 was subjected to medical examination on the very day.
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CRL.A No. 100285 of 2020
36. PW-22/T.Nagesh Shetti is the Dy.S.P. of Sirsi. On 28.10.2016, by receiving the copy of FIR at Ex.P73. He received the orders from the Superintendent of Police, Karwar on 29.10.2016 for taking up the investigation. He visited the house of PW-1, collected the information from her and she has produced M.Os.13 and 14/clothes and same were seized under Ex.P2 in the presence of PWs-2 and 3 by taking photograph at Ex.P4. On the very day, he has inspected the spot at 1.00 p.m. shown to him by PW- 1, which is a forest plantation area 70 meter inside the main road and traced the towel at M.O.15 and same was seized under Ex.P3/mahazar in the presence of PWs-2 and 3 by taking Exs.P5 to P7/photographs.
37. On the very day, accused were produced before him under Ex.P51/report and he has arrested them, subjected them to medical examination at Yellapur hospital. He has also recorded the
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CRL.A No. 100285 of 2020statements of PWs-7 to 12 and also obtained undertaking under Section 172 from them and taken the photographs and videographs of recording of their statements. He has also requested the Forest Department to furnish details of place of incident and on the very day, he ahs seized M.O.2/jerkin and also M.O.1/motor cycle. Same was seized under mahazar in the presence of PW-3 and PW-4 and the same was recorded by taking photograph. He also seized the articles and subjected them to FSL examination and also article received from the FSL sent to DNA report. After receiving the FSL report, DNA report, medical opinion and the report of place of incident from the Forest Department, he has filed the charge sheet.
38. The defence cross-examination attacked him that there was no alleged incident, there was a quarrel between the son of PW-1 and accused, they were knowing to each other, in connection with some business, in order to make the case more serious, the
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CRL.A No. 100285 of 2020case of alleged gang rape has been created against the accused and for this reason, none of the prosecution witnesses have supported the version of the prosecution including the panch witnesses. Even it is suggested that PWs-7 to 12 have not at all given statement before him as per Exs.P14 to P18. The evidence of Investigating Officers is attributed to be new story which has been concocted without any basis. Even the investigation has brought out the alleged quarrel between the son of PW-1 and the accused and not the alleged incident. In this background, the prosecution is banking upon the evidence of PWs-1 to 25 to bring home the guilt of the accused. This is the weight of the evidence that the prosecution is relying upon and asking this Court to accept it for reversal of impugned judgment.
39. In view of the above evidence and also the arguments addressed by both parties, the points that arise for our consideration are:
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(i) Whether the trial court has wrongly appreciated the prosecution evidence?
(ii) Whether the impugned judgment is perverse, illegal and calls for interference?
Reg. Point No.1:
40. As we have discussed above, the entire case of the prosecution rests upon the evidence of PW-1, PW-7 and the medical evidence PW-17 and 18. The specific overt act against the accused is that they have committed gang rape against PW-1. In doing so, PW-1 has sustained injuries and the DNA report stands in support of the prosecution regarding presence of seminal stains of accused in the clothes of PW-1. As we have analyzed from the evidence of PW- 1, she did not stand in support of the prosecution version except that accused Nos.1 and 2 pulled her down when she tried to pacify the quarrel between the accused and her son and this was reported to PW-
7. The testimony of PW-7 confirms this and other
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CRL.A No. 100285 of 2020witnesses did not reveal anything about the alleged incident.
40.1. It is only PW-10/Parashuram Siddi, son of PW-1 to whom PW-1 informed him over the phone about the sexual assault. Contrarily PW-1 says that when the alleged incident took place, PW-10 was present with her and because of the quarrel between PW-10 and the accused, PW-1 was made to interfere, where she was pulled holding her hands. Except this, nothing is available in support of the prosecution.
40.2. Though medical evidence speaks of some attack on the back of PW-1, in a case of gang rape, the nature of injuries the victim could sustain and also corresponding injuries that might have been sustained by accused No.1 is permanently absent in this case. Though DNA report states the presence of seminal stains of accused No.2 in the nighty and saliva in the
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CRL.A No. 100285 of 2020towel, in what way it will be going to connect and support the evidence of PW-1 is not explained.
40.3. While appreciating the evidence, the court is required to appreciate the evidence in its entirety and it cannot pick and choose and accept it as it is a complete evidence to hold that the positive inference can be drawn out of it to accept that the case of the prosecution is proved beyond reasonable doubt or not, rather the evidence explains the defence more probable.
40.4. There was some incident of quarrel between PW-10 and accused in which PW-1 has been pulled down where she has sustained injury on her back. There is no proof of alleged sexual assault or gang rape and we are not fully convinced that the prosecution evidence has satisfied the ingredients of the offences alleged against the accused.
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CRL.A No. 100285 of 202040.5. The trial court has rightly observed that the evidence of the prosecution is unreliable and the golden thread of benefit of doubt has been extended. Hence, the trial court has rightly recorded its finding with proper and legal reasoning that the prosecution evidence is not bringing home the guilt of the accused and it creates a secondary view that has to benefit the accused. Hence, we answer point No.1 in the negative.
Reg: Point No.2:
41. We have carefully perused the impugned judgment. We have already referred above the reasons recorded by the trial court in extending the benefit of doubt in favour of the accused. We have re-appreciated the prosecution evidence as above and we do not find any ground in support of the prosecution nor we find any error committed by the trial court in appreciating the prosecution evidence. The reasons assigned by the trial court is based on
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CRL.A No. 100285 of 2020the legal evidence and proper appreciation of the prosecution evidence has been done. When the victim herself has retracted from the version of the prosecution, which is supported by other two witnesses, it is very difficult to hold that the ingredients of the charges have been explained. There is no quality in the evidence of the prosecution. Hence, we find that there is no infirmity or illegality in the impugned judgment passed by the trial court. Accordingly, point No.2 is answered in the negative.
42. In view of the discussion made above, we find that the appeal is devoid of merit and is liable to be dismissed. In the result, we proceed to pass the following:
ORDER
i) The appeal filed by the State is hereby dismissed.
ii) The judgment and order of acquittal dated 28.01.2020 passed in Special Case No.5/2017,
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by the Court of Special Judge, Uttara Kannada, Karwar, acquitting accused Nos.1 and 2 of the offences punishable under Sections 376(D) read with Section 34 of IPC and Section 3(1)(e)(r)(w)(i)(ii) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, is hereby confirmed.
We appreciate the assistance given by Smt.Anuradha Deshpande, learned Amicus Curiae for respondent No.2/accused No.2. We fix her remuneration at Rs.5,000/- (five thousand rupees) to be paid by the High Court Legal Services Committee.
SD/-
JUDGE SD/-
JUDGE KNM/-
List No.: 1 Sl No.: 48`