Karnataka High Court
The State Of Karnataka vs Sri Vishwanatha Moolya on 26 September, 2013
Bench: N.K.Patil, H.S.Kempanna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH OF SEPTEMBER, 2013
PRESENT
THE HON'BLE MR. JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL NO.1135/2008
BETWEEN:
THE STATE OF KARNATAKA
BY CIRCLE INSPECTOR OF POLICE
BANTWAL CIRCLE,
BANTWAL ... APPELLANT
(BY SRI.P.M.NAWAZ - ADL. SPP)
AND:
SRI VISHWANATHA MOOLYA
S/O MANKU MOOLYA
AGED ABOUT 34 YEARS,
R/O MANDIYURU HOUSE,
KANYANA VILLAGE,
BANTWAL TALUK ... RESPONDENT
(BY SRI.BIPIN HEGDE - ADV.)
THIS CRL.A. IS FILED U/S.378(1)&(3) CR.P.C,
PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST
THE JUDGMENT AND ORDER DATED 18.9.08 PASSED BY
THE PO, FAST TRACK COURT, MANGALORE, D.K.
DISTRICT, IN S.C.NO.120/2007 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE
P/U/S.366(A), 376 AND 392 OF IPC AND SET ASIDE THE
AFORESAID JUDGMENT AND ORDER OF ACQUITTAL AND
CONVICT AND SENTENCE THE RESPONDENT/ACCUSED.
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THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, KEMPANNA J., DELIVERED THE FOLLOWING:
JUDGEMENT
State has preferred this appeal challenging the judgment and order of acquittal of the respondent/ accused.
2. The respondent/accused was tried on the charges for the offences u/ss.366-A, 376 and 392 of IPC. It is alleged that on 12.7.2007 at about 5.00 p.m. when PW1 a minor girl aged about 14 years was returning to her house after attending to her school and was near Neerpage of Kanyana Village coming within the jurisdiction of Vitla police station, the accused forcibly took her to a nearby hillock, there in a bush he committed rape on her and also took away the gold chain and ear rings which were on her person and thereby he has committed the aforementioned offences.
3. It is the case of the prosecution PW1-Kumari Shamala is aged about 14 years and was prosecuting her studies in 9th standard in Pre-University Jr. College 3 situated at Kanyana. PW6 and PW3 are her mother and brother respectively. According to the prosecution they are residents of Saravu coming within the jurisdiction of Kasargod Taluk in Kerala State. She was coming to Kanyana to attend to her school which is situated within the jurisdiction of Bantwal Taluk in Karnataka State. She was leaving her house to the school in the morning at about 8.00 or 8.15 a.m. and was returning to the house in the evening at about 5.00 p.m.
4. It is the case of the prosecution on 12.7.2007 in the morning at about 8.00 or 8.15 a.m., PW1 left her house to the school as usual along with her bag, and umbrella. After attending the school on that day she was returning to her house. On the way at about 4.45 p.m. while she was near Nirpaje situated in Kanyana village, the accused came following her. On reaching her he asked her name and also asked whether they have any garden land. In response to the same she replied him stating that her name is Shamala and they have a garden land to an extent of 2 acres. The accused 4 thereafter went ahead and again came back and told her that he is loving her and so saying immediately he took her to a nearby hillock and there after undressing himself and PW1, had forcible sexual intercourse with her and thereafter took away the gold chain and ear rings which were on her person and left the said place. The accused did these acts despite PW1 resisting him.
5. It is further the case of the prosecution since PW1 did not return to the house as usual at 5.00 p.m., her brother PW3 came in search of her. On the way he noticed chudidar shawl having fallen on the road which PW1 used to wear regularly and seeing the same he went back to his house and revealed the same to his mother-PW6, father and uncle. Thereafter PW3 accompanied by his father, uncle and other relatives came to the place where he had noticed the chudidar shawl. At that point of time according to the prosecution, PW1 who was on the hillock came near them crying. She was having injuries on her face and her clothes had also been spoiled. On enquiry she 5 revealed that she was forcibly taken near the hillock, subjected to rape and relieved of her gold chain and ear rings. In the meantime PW4, the owner of the jeep, came on the said road driving the jeep and on seeing the same PW3 and others stopped the said jeep and requested him to take them to their place- Saravu. Accordingly, PW4 took the victim, PW3, father and uncle in his jeep to their house situated at Saravu which according to the prosecution is situated at a distance of about 1 km. from Nirpaje. After reaching the house, PW1 revealed what had transpired to her near Nirpage in detail to her mother. Immediately her father noticing her clothes having been soiled, directed his wife-PW6 to give bath to PW1. Thereafter, PW1 took her bath and also washed her clothes MOs 1 to 3 and 15 and spread them for drying.
6. Thereafter it is the case of the prosecution PW3, accompanied by his father, took PW1 in the jeep of PW4 to Puttur Government hospital. They reached the hospital by about 7.00 or 7.30 p.m. There, PW1 was 6 examined by PW8-the medical officer who issued the wound certificate in respect of her as per Ex.P4. He also sent an intimation to the Vitla police station as per Ex.P5. In the meantime it is the case of the prosecution some persons from Saravu informed PW15-PSI of Vitla police station over phone about PW1 having been subjected to rape and she having been shifted to the hospital at Puttur. PW15 on receipt of the said information informed to his higher ups and thereafter directed PW14-ASI to proceed to Puttur Government Hospital and record the statement of the victim. In response to the same, PW14 came to Puttur Govt. hospital at about 8.45 p.m. on 12.7.2007 and there in between 9.00 p.m. and 10.00 p.m. he recorded the complaint-Ex.P1 of PW1, returned to the police station and handed over the same to PW15-PSI. PW15 on the basis of Ex.P1 registered a case in Crime No.74/2007 for the offence u/ss.366-A, 376, 392 of IPC at about 10.45 p.m. against unknown person and issued FIR as per Ex.P12 to the jurisdictional Magistrate. Thereafter, 7 he handed over further investigation of the case to PW16 CPI. PW16 on taking over the investigation on 13.7.2007 proceeded to the scene of occurrence and there he drew up the scene of offence panchanama as per Ex.P3 in the presence of the panchas- PWs 2 and 5 as pointed out by PW1 and at that time, he seized MOs 4 to 9. After completing Ex.P3 he also prepared the rough sketch as per Ex.P15. Thereafter he came to the house of PW1 situated at Saravu and there he seized MOs 1 to 3 and 15, the clothes of the victim, under the panchanama Ex.P2 in the presence of the pancha-PW7. Thereafter, he recorded further statement of PW1 and also the statements of PWs 2, 3, 4 and other witnesses cited in the charge sheet. He also made efforts to trace the accused and deputed his staff to apprehend him. On 15.7.2007 his staff comprising of PW15 apprehended the accused at about 10.00 a.m. near Ponnangali Bus stand at Karpadi village and produced him before PW16-investigating officer at about 11.00 a.m. PW16 arrested him and recorded his voluntary 8 statement as per Ex.P16. Thereafter, he secured the panchas PWs 11, 14 and 24 and in their presence he seized MOs 10 to 14 under the panchanama- Ex.P10 at the instance of the accused pursuant to his statement- Ex.P16. After the seizure he also showed MOs 10 and 11 to PWs 1, 3 and 6 and they identified as the one belonging to PW1.
PW16 after completing Ex.P16 also got the accused subjected for medical examination at the hands of PW9 by issuing requisition. In response to which PW9 examined him and issued the medical certificate as per Ex.P6. Thereafter PW16 on completion of the arrest formalities got the accused remanded to judicial custody.
It is further the case of the prosecution PW16 continuing the investigation sent a requisition to the Taluka Executive Magistrate-PW10 to hold identification parade. In response to the same, PW10 after following due procedure of issuing notices to the Superintendent of Jail, Mangalore and to PW1 and taking all the 9 precautionary measure as contemplated under law held test identification parade in the District Prison at Mangalore on 10.8.2007 and submitted his report as per Ex.P9 to the investigating officer. Here itself we may mention that in the test identification parade held by PW10, PW1 identified the accused as the person who had taken her to the hillock, committed rape on her and had taken away her jewels.
Thereafter, PW16 forwarded all the seized articles in the case for being subjected to chemical examination to the FSL office and also recorded the statements of the witnesses not only examined on behalf of the prosecution, but also cited in the charge sheet. Further, he secured the relevant documents from the concerned authorities comprising of the medical certificates, the chemical examiner's report, test identification report. Thereafter, he handed over further investigation of the case to PW17, who on completion of the investigation submitted final report against the accused before the jurisdictional Magistrate. 10
7. The prosecution in support of its case in all examined PWs 1 to 19 and got marked exhibits P1 to P19 and MOs 1 to 15. The accused during the course of examination of PW1 got marked exhibits D1 and D2.
8. After the closure of the prosecution evidence, the accused denied all the incriminating circumstances in his statement recorded u/s.313 of Cr.P.C. He also submitted that he has no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.
9. The learned trial Judge on consideration of the oral and documentary evidence placed on record came to the conclusion that the prosecution has failed to establish the charges leveled against the accused and accordingly, by the impugned judgment and order acquitted the respondent/accused.
10. The State being aggrieved by the judgment and order of acquittal is in appeal before this Court. 11
11. The learned Addl. SPP assailing the impugned judgment and order contended the evidence of PW1 the prosecutrix coupled with the evidence of PWs 3 and 6 goes to show that as on the date of occurrence i.e. 12.7.2007 she was a minor aged about 14 years and was prosecuting her studies in 9th standard in pre- university Jr. College at Kanyana. This is not disputed to by the accused. He further submitted the evidence of PW1 clearly discloses that it was the accused who took her to a hillock near Nirpage on the evening of 12.7.2007 while she was returning from school to her house and after undressing her had forcible sexual intercourse with her despite she resisting the said act of the accused and after committing rape he has taken away MOs 10 and 11 - gold chain and the ear rings which were on her person. The fact of PW1 having been subjected to rape is also amply established from the evidence of PW8-medical officer who has examined her on the same day within about 3 to 3½ hours at Puttur Government hospital. The evidence of PW8 clearly 12 discloses that PW1 has been subjected to rape having regard to the nature of injuries which she has sustained not only on her person, but on her private parties. This testimony of PW1 is further corroborated from the testimony of PWs 3 and 6 who are none other than the brother and mother of the victim. He further submitted the evidence of PW1 further clinchingly establishes that it was the accused who had subjected her to rape and that is fortified from the evidence of PW9 who has examined the accused and has noticed that there is a tooth bite mark on the left ring finger of his hand which has been testified to by PW1 which she did it to the accused at the time the accused committed rape on her. He further submitted the evidence of PW11 coupled with the evidence of PW1 and PW16 clinchingly establishes the recoveries of MOs 10 & 11 belonging to PW1 under Ex.P10 from the house of the accused in pursuance of his statement Ex.P16. Since PW1 has identified MOs 10 and 11 which is also identified by PW3, her brother and father, it would clinchingly 13 establish that the accused on that day not only had subjected the victim to rape, but also had committed robbery of MOs 10 and 11 belonging to PW1. He further submitted PW1 has identified the accused as the culprit in the test identification parade held by PW10. Nothing has been elicited in the cross examination of these witnesses to discredit their testimonies. He further contended the testimony of PW1 by itself is sufficient to hold that the accused is guilty of the charges leveled against him. Despite the prosecution having placed clinching and cogent evidence through these witnesses, the trial Judge without appreciating the same in its right perspective and without assigning valid reasons has come to the erroneous conclusion that the prosecution has failed to establish the charge which finding being contrary to the evidence on record cannot be sustained. Therefore, it be set aside and the accused be dealt with in accordance with law.
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12. Per contra, the learned counsel appearing for the respondent/accused supporting the impugned judgment and order contended though the prosecution has established that the victim PW1 has been subjected to rape, it has failed to establish that the accused is responsible for the rape committed on PW1. He further contended there is no evidence also to show that the accused apart from committing rape had robbed PW1 of her jewels MOs 10 and 11. In this connection he submitted the complaint-Ex.P1 of PW1 does not disclose the accused as the person who had committed rape on her. He submitted the evidence on record reveals when PW1 was in the hospital along with her brother-PW3, by that time itself they had come to know that the accused is the culprit in the case. The evidence of PW8 also discloses that the history that was furnished was on account of the accused committing rape on her. If that is so, the complaint-Ex.P1 filed by PW1 in the hospital itself before PW14 - ASI should have disclosed the name of the accused as the culprit in the case. The absence 15 of the same would go to show that the name of the accused has been inducted subsequently which is not properly explained by the prosecution. He further submitted it is the case of the prosecution that Exs.P2 and P3 were drawn up in the house of PW1 and near the spot on 13.7.2007 in the morning between 9.00 a.m. and 10.00 a.m. and 1.00 p.m. and 2.00 p.m. The evidence of PW3, the brother, discloses that PW1 and himself were in the hospital in Puttur on 13.7.2007 till about 1.00 p.m. and that is fortified from the evidence of PW8-medical officer who has stated that PW1 was discharged from the hospital on 13.7.2007. If that is so, the claim of the investigating officer that Exs.P2 and P3 were drawn up in the house of PW1 and near the spot is doubtful and no reliance can be placed on it. He further submitted insofar as the recovery is concerned, according to the prosecution the accused was arrested by PW16 at about 11.00 a.m. on being apprehended by PW15 at about 10.00 a.m. near Ponnangali bus stand at Karpadi village. The evidence of PW1 and PW11 16 discloses that they had been summoned to the police station by PW16 on 15.7.2007 at about 9.00 or 9.30 a.m. and at that time, the accused was in the police station. PW1 has claimed in her evidence about two days after the occurrence her father and brother were informed about the accused having been apprehended and accordingly, she along with her father and brother went to the police station and there the police showed them MOs 10 and 11 which she identified them as the one belonging to her. This evidence of PWs 1 and 11 discloses that the recovery of MOs 10 and 11 at the instance of the accused is prior to the arrest of the accused itself and therefore, the recovery of MOs 10 and 11 does not inspire confidence to place any reliance on the same. The consequence of the same is that MOs 10 and 11 is planted and accused has been falsely implicated in the case. He further contended the evidence of PW15 reveals after he was informed over phone about the occurrence on 12.7.2007 he came near the spot and to Saravu village and after making enquiry 17 since he came to know that the accused was the suspect, he went to the house of the accused in the evening and from the house of the accused, from his wife he took the photograph of the accused. The test identification parade according to the prosecution has been conducted on 10.8.2007 at Mangalore Prison. Since the police were in possession of the photo of the accused, the identification of the accused in the test identification also cannot be believed. Even accepting if PW1 has identified the accused since she has been shown the photo much prior to the test identification parade, the said identification of the accused in the parade also does not lend any credence to point towards the guilt of the accused. He further submitted the evidence on record also reveals that the evidence of PW1 reveals that Vitla police have come to the hospital at Puttur at about 8.00 p.m. and made enquiries with her, but according to PW14 he came to the hospital at about 8.45 p.m. and recorded Ex.P1 between 9.00 p.m. and 10.00 p.m. What happened to the statement recorded 18 by Vitla police on their arrival at 8.00 p.m. is not explained and that has been suppressed in the case.
Insofar as the injury found on the ring finger of the accused as noticed by PW 9-medical officer, PW1 in her complaint-Ex.P1 has never whispered a word about she having bitten on the left ring finger of the accused at the time of committing the offence. He further contended the history recorded by PW9 that he had sustained the said injury while committing offence is recorded on the basis of the history that was sent in the requisition sent by the police at the time the accused was sent for medical examination. Since PW1 has not stated to about she having bitten the accused on the left ring finger of the accused in her complaint, her version before the Court about the same coupled with the evidence of PW9 does not inspire confidence and that does not point towards the guilt of the accused. The learned trial Judge on a close examination of the entire evidence on record has come to the right conclusion in holding that the prosecution has failed to establish the 19 charges leveled against the accused and the same does not suffer from any infirmity calling for interference in this appeal and hence it be dismissed.
13. In view of the aforementioned facts, rival contentions, the evidence and the documents on record, the point that arises for our consideration is, 'Whether the impugned judgment and order of acquittal calls for interference?'
14. PW1 being a minor aged about 14 years and prosecuting her studies in 9th standard in a pre- university Jr. College at Kanyana is not disputed before us. It is amply established not only from her evidence, but also from the evidence of PWs 3 and 6, brother and mother of PW1. PW1 having been subjected to rape is also amply established from the evidence of PW8, the medical officer, who has examined her on 12.7.2007 at Puttur Govt. hospital at about 7.30 p.m. or 7.45 p.m. about three hours after the occurrence. 20
15. A perusal of the evidence of PW8-medical officer clearly goes to show that the victim-PW1 has been subjected to an act of rape. The evidence of PW8 having regard to the nature of injuries that he has noticed on the person of PW1 clearly goes to show that she has been subjected to rape having regard to the nature of injuries that had been noticed by him on her private parts. Since the injuries were fresh at the time of his examination and the same has also been reflected in the wound certificate issued by him, in the circumstances, we have no hesitation to hold that PW1, the minor girl has been subjected to rape on the evening of 12.7.2007 at about 4.45 p.m. or 5.00 p.m.
16. It is the case of the prosecution that it is the accused who had subjected the victim-PW1 to rape and had also relieved off her jewels. In order to connect the accused with the rape committed on PW1 and accused having taken away the gold jewels belonging to PW1 have relied upon the testimony of PW1 herself. The learned Addl. SPP while commenting on the evidence of 21 PW1 vehemently contended, there are no reasons whatsoever to discard the evidence of PW1 which is cogent and consistent. He submitted that her evidence on record inspires confidence in the mind of the court to place reliance on her testimony since it is corroborated from the medical evidence and also other circumstances viz. recovery of MOs 10 and 11 belonging to her from the house of the accused and the identification of the accused in the test identification parade coupled with the injury found on the ring finger of the accused which is testified to by PW 9- medical officer.
17. We have gone through the evidence of PW1 carefully. She is the complainant in the case. But she has filed her complaint Ex.P1 before PW14 -ASI at Puttur Government hospital in between 9.00 a.m. and 10.00 a.m. In the said complaint the name of the accused is not mentioned. Only the description of the person who dragged her, committed rape and took away her jewels has been given in the last three sentences of her complaint on page No.2. The said complaint Ex.P1 22 is silent about she having bitten on the left middle finger of the person who had committed rape on her. But, in her evidence she has testified to that effect that she bit on the left middle finger of the accused. The medical officer - PW5 has testified to the effect that he has noticed a human bite mark on the left middle finger of the accused. The question is whether this could be believed. PW1 in her complaint Ex.P1 has not mentioned about she having bitten on the left middle finger of the accused. PW5 who has made entry in respect of the history that the accused sustained injury on his left middle finger while committing rape on the victim was on the basis of the history furnished sent by the police. In view of the fact that PW1 has not mentioned in the complaint Ex.P1 that she had bitten on the left middle finger of the accused and taking into account that PW5 has recorded the history of the accused sustaining injury on his left middle finger while committing rape on the victim on the basis of the history furnished in the requisition sent to him by the 23 police, we find it difficult to accept the testimony of PW1 in this connection. We have come to the conclusion for the reasons which we advert to later to disbelieve the testimony of PW1 in this judgment.
18. The next circumstance which does not inspire confidence to place reliance on the testimony of PW1 is the recovery of MOs 10 and 11 at the instance of the accused pursuant to his statement Ex.P16 made under Ex.P10. According to PW16 he arrested the accused on 15.7.2007 at 11.00 a.m. on being produced by his staff who apprehended him at about 10.00 a.m. near Ponnangali bus stand at Kanyana Village. The evidence of PWs 1 and 11 discloses that they were in the police station on 15.7.2007 at about 9.00 or 9.30 a.m. and at that point of time PW11 was in the police station. According to PW1 the police showed her MO's.10 and 11 and she along with her father and brother identified the same as the one belonging to her. This evidence of PWs 1 and PW11 cuts the theory of recovery as, at that time the accused had not at all been arrested by the 24 investigating officer. Therefore, the recovery at the instance of the accused of MOs 10 and 11 belonging to PW1 becomes doubtful.
19. The other aspect to doubt the veracity of PW1 is according to PW16 on 13.7.2007 in the morning he proceeded to the house of PW1 at Saravu and there he drew up Ex.P1 under which he seized the clothes of PW1 which are at MOs 1 to 3 and 15. This panchanama was drawn up in the presence of the pancha PW7. After completing Ex.P3 according to PW16 he drew up Ex.P2 near the spot of occurrence. This was also between 10.00 a.m. and 1.00 p.m. Under Ex.P2 according to PW16 he seized MOs 4 to 9. To test whether this panchanama was drawn up at the place and at the time as spoken to by PW16 and the panchas, if we advert to the evidence of PWs 1 and 3 that reveals that at that point of time they were in the hospital at Puttur. PW3 who is none other than the brother of PW1 has stated in his evidence that he and his sister were in the Puttur Govt. Hospital till about 1.00 p.m. on 25 13.7.2007. This is fortified from the evidence of PW8- medical officer who has stated that PW1 was discharged from the hospital on 13.7.2007. If the victim PW1 and PW3 were in the hospital and came back from the hospital at about 1.00 p.m. on 13.7.2007, the claim of PW16 that he drew up Exs.P2 and P3 on the morning of 13.7.2007 in between 9.00 a.m. to 1.00 p.m. is also doubtful and hence no reliance can be placed on the same.
20. Apart from the same, we find from the evidence of PW1 that while she was in the hospital, Vitla police had come to the hospital at about 8.00 p.m. and recorded her statement. The evidence of PW14 discloses that he recorded Ex.P1 of PW1 at the hospital between 9.00 p.m. and 10.00 p.m. Which police officer had come to the hospital at 8.00 p.m. and what was the statement of PW1 that was recorded by the said police is suppressed in the case. In that view of the matter, we may also hold that the information that was recorded by the police of Vitla police station is 26 suppressed and the complaint Ex.P1 has seen the light after much water has flown under the bridge. We are also of the view the words that have been used in preparing the complaint-Ex.P1 could not be the words which PW1 would have uttered before the police. It appears that the entire contents of Ex.P1 must have been recorded by the police and signature of PW1 must have been taken on the same. Taking from any angle we are of the view the testimony of PW1 on whose testimony alone in a case of this nature conviction could be based is not convincing and cogent for the reasons which we have adverted to above on account of the lapses which we have pointed out.
Apart from this we have also perused the evidence of other witnesses including the testimonies of Taluka Executive Magistrate who has conducted the test identification parade and the police officers. Insofar as the test identification parade is concerned, though PW1 has identified the accused in the test identification parade held by PW10 in the jail premises at Mangalore, 27 the same has no relevance in view of the evidence of PW15-PSI who has stated in his evidence that on 12.7.2007 he had been to the house of the accused and on that day he collected the photograph of the accused from his wife. This would go to show that the police had the identity of the accused with them and on 15.7.2007 the victim has gone to the police station to identify MOs 10 and 11 and she having seen the said photograph cannot be ruled out and in view of the matter, at any rate, PW1, her brother, mother and father having seen the photo of the accused cannot be earlier to the identification parade cannot be ruled out. Apart from this the evidence on record reveals on the evening of 12.7.2007 itself the family of PW1 had come to know that it is the accused who had committed rape on their daughter PW1, but since the complaint that is filed by PW1 is silent about not mentioning the name of the accused would go a long way to hold that it is the accused who has committed the offences as alleged by the prosecution.
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Insofar as PW3-brother and PW6-mother and PW2 on a close scrutiny on their testimonies in the light of the material which we have adverted to above also does not inspire confidence to place any reliance on the same. Therefore, taking from any angle the evidence on record does not inspire confidence to connect the accused with the alleged charge.
21. The learned trial Judge on an appreciation of the entire evidence on record in our view has come to the right conclusion in holding that the prosecution has failed to establish the charge leveled against the accused and as the said finding in our view having been based on facts and evidence on record does not suffer from any infirmity calling for interference in this appeal. Accordingly, we do not see any merit in the appeal and it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE rs