Karnataka High Court
Shivangouda S/O. Bhimashi @ ... vs The State Of Karnataka, on 19 August, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19th DAY OF AUGUST 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.APPEAL NO.2576/2011
BETWEEN:
SRI.SHIVANGOUDA S/O BHIMASHI
@ BHIMANGOUDA PATIL,
AGED ABOUT 52 YEARS,
OCC: AGRICULTURE NOW NIL,
R/O: SHIGIHALLI, TQ: BAILHONGAL,
DIST: BELAGAVI.
....APPELLANT
(BY SRI.ABHISHEK PATIL, ADV.)
AND:
THE STATE OF KARNATAKA,
THROUGH CPI BAILHONGAL POLICE STATION,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
SPP OFFICE, CIRCUIT BENCH,
DHARWAD.
... RESPONDENT
(By SRI. VINAYAK KULKARNI, AGA)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF Cr.P.C. SEEKING TO SET ASIDE
THE IMPUGNED JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 27.01.2011 PASSED IN
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S.C.NO.85/2009 BY THE V-ADDL. SESSIONS JUDGE,
BELAGAVI, BY ALLOWING THIS APPEAL,
CONSEQUENTLY ACQUIT THE APPELLANT/ACCUSED
OF THE CHARGES LEVELLED AGAINST HIM IN ABOVE
MENTIONED CASE.
THIS APPEAL COMING ON FOR HEARING
THIS DAY, THE COURT PASSED THE
FOLLOWING:
JUDGMENT
The appellant/accused preferred this appeal aggrieved by the impugned judgment of conviction and order of sentence dated 27.01.2011 passed in S.C.No.85/2009 on the file of learned V-Addl.Sessions Judge, Belagavi (for short referred to as 'the trial Court'), convicting the accused for the offences punishable under Sections 452, 376 and 506 of IPC.
2. Heard the learned counsel Sri.Abhishek Patil for the appellant and the learned AGA Sri.Vinayak Kulkarni for respondent-State.
3. It is the contention of the prosecution that on the intervening night of 1/2.01.2009 at 1.00 am, 3 the accused trespassed into the house of the victim and committed rape by criminally intimidating her and thereby committed the offences punishable under Sections 452, 376 and 506 of IPC.
4. PW3 the victim had lodged the first information as per Ex.P2 against the accused for having committed the offence. The same was registered in Crime No.2/2009 of Bailhongal police station. After investigation, the charge sheet was filed against the accused for the above said offences. The Jurisdictional Magistrate took cognizance of the offence and committed the case to the learned Principal District and Sessions Judge, Belagavi, who in turn made over the matter to the trial Court to try the accused.
5. The trial Court after securing the presence of the accused framed the charges. The accused 4 pleaded not guilty for the charges and claimed to be tried.
6. The prosecution examined 19 witnesses, got marked 18 documents and identified 4 material objects in support of its contention. Accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. but has not chosen to lead any evidence in support of his defence.
7. The trial Court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of the accused for the above said offences and proceeded to convict him.
8. Aggrieved by the said judgment of conviction and order of sentence by the trial Court, the accused has preferred this appeal on various grounds.
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9. The learned advocate for the appellant/accused submitted that the impugned judgment of conviction and order of sentence is perverse and illegal. The same is liable to be set aside. The spot mahazar-Ex.P1 is not proved as both PWs.1 and 2 who are examined as witnesses to the spot mahazar, have not supported the case of the prosecution. PW3 is the victim who lodged the first information against the accused belatedly. The inordinate delay in lodging the complaint is not explained. Moreover the version of PW3 cannot be believed and her version is not corroborated by any other material. Conviction cannot be based solely on the evidence of PW3, since there are material contradictions and inconsistencies in her evidence. Evidence of PWs.5 and 8 who are the close relatives of the victim is also not helpful to the prosecution. PW7 the brother of the complainant has not supported the 6 case of the prosecution. The elders in the village examined as PW6, 9 to 13 have not spoken to regarding the offences in question. He further submitted that even the medical record-Ex.P13 and the evidence of the doctor examined as PW14 are also not helpful to prove the guilt of the accused. He further submitted that the investigating officer who investigated and filed the charge sheet is not examined before the trial Court. Under such circumstances, it cannot be said that the prosecution has proved the guilt of the accused beyond reasonable doubt.
10. Learned counsel relied on the decisions in SANTOSH PRASAD ALIAS SANTOSH KUMAR Vs. 1 STATE OF BIHAR in support of his contention that since the prosecutrix failed to pass the test of 'sterling witness' her version alone is not sufficient to convict 1 (2020) 3 SCC 443 7 the accused. He relied on the decision in ABBAS 2 AHMAD CHOUDHARY Vs. STATE OF ASSAM to substantiate his contention that the version of the prosecutrix cannot always be believed as gospel truth. He also relied on the decision in SADASHIV RAMRAO HADBE Vs. STATE OF MAHARASHTRA AND 3 ANOTHER in support of his contention that when there are material contradictions in the case made out by the prosecutrix, benefit of doubt is to be extended to the accused and he is to be acquitted.
11. Relying on these decisions and on the facts and circumstances stated above, learned advocate for the appellant/accused prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence and acquitting the accused in the interest of justice.
2 (2010) 12 SCC 115 3 (2006) 10 SCC 92 8
12. Per contra the learned AGA Sri.Vinayak Kulkarni supporting the impugned judgment of conviction and order of sentence submitted that PW3 is the victim who fully supported the case of the prosecution. It is not disputed that the accused is the brother-in-law of the victim and there was dispute between the two in the matte of partition of the family properties. The evidence of PW3 is not shaken during cross examination and under such circumstances, her evidence is sufficient to record the conviction of the accused. Since the victim is a middle aged married lady, having two grown up children, might not have received any injuries when the offence was committed by the accused. She was subjected to examination after lapse of one day and therefore there might not be any traces of commission of the offence but these facts and circumstances will not falsify the evidence of PW3 deposed before the trial Court. Therefore he 9 prays for dismissal of the appeal as devoid of merits by confirming the conviction of the accused in the interest of justice.
13. I have perused the materials placed before the Court including the trial Court records.
14. The prosecution in order to prove its contention examined PWs.1 and 2 who are the spot mahazar witnesses. Both these witnesses have not supported the case of the prosecution. The spot mahazar is as per Ex.P1. The incident alleged to have taken place on the intervening night of 1/2.01.2009 at 1.00 am in the midnight and the spot mahazar was drawn between 3.00 to 4.00 pm on 03.01.2009. Broken bangle pieces were found at the scene of offence as per this mahazar.
15. PW3 is the victim who lodged the first information as per Ex.P2. Ex.P2 is a computer generated complaint lodged on 02.01.2009 at 8.45 10 pm. Witness stated in the complaint that there was ill- will between her and the accused who was her brother-in-law, in the matter of partition of the family properties and stated that the accused was demanding for sexual favour as a condition precedent to give share in the family properties. She also stated that on the date of the incident, when she was sleeping in her house, the accused gained entry from the portion of the house where the wall had fallen and forcibly committed sexual assault and thereafter criminally intimidated her to take away her life, if she informs this fact to others. The complainant stated that she was in the house till morning and thereafter went to her sister's house and informed her sister Nagavva and also to her cousin Somappa about the incident and subsequently gone to Bailhongal and lodged the complaint. While deposing before the 11 Court, the informant reiterated the contents of the first information.
16. During cross examination witness stated that since the accused was not wiling to give her share in the family properties, the elders in the village advised her to approach the Civil Court. Witness stated that there are houses by the side of her house and her neighbour is one Sri.Ashok and stated that if she raises her voice, the same will be heard by her neighbours. She stated that she had raised hue and cry when she saw the accused in her house but the accused high handedly committed the offence. At the time of the incident, she sustained scratch injuries on her neck and also near her mouth. She experienced pain on the back of her head. She also sustained bleeding injuries as her bangles were broken. Accused No.1 also sustained scratch on his face. Witness stated that the seminal stains were there on her 12 clothes, including her saree. Witness stated that she had not informed about the incident to her neighbour- Ashok or his family members. On the other hand, she went to the house of her sister, wearing the same clothes which was worn by her at the time of the incident. She had not taken bath even after going to the house of her sister. On the same day, she came back to Bailhongal and lodged the complaint and subsequently produced the clothes before the police. They are as per M.Os.3 and 4. Witness also stated that Ex.P1 the first information was got prepared by a Government advocate. She pleaded her ignorance about its contents. But denied the suggestion that she lodged a false complaint against the accused.
17. PW4 is the seizure mahazar pancha to Ex.P6 which was drawn for seizing M.Os.3 and 4 produced by the victim-PW3.
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18. PW5 is the sister of the victim and she has stated that even during the life time of the husband of the victim, some of the landed properties were allotted to his share and he was cultivating the same while residing separately with the victim. Witness stated that there are several houses nearby the house of the victim and even if any such incident takes place, the same will be known to the neighbors. She denied the suggestion that willfully PW3 lodged false complaint to pressurize him for granting the share in the landed properties.
19. PW6 and 9 are said to be the elders in the village, who have deposed before the Court that panchayat was held for partition of family properties. But both these witnesses have pleaded their ignorance regarding the incident in question.
20. PW7 is the brother of the victim and has not supported the case of the prosecution. PW8 the 14 cousin brother of the victim and stated about the incident as heard by him. PW10 to 13 are the circumstantial witnesses who have not supported the case of the prosecution.
21. PW14 is the doctor who examined the victim and issued medical certificate as per Ex.P13. This witness stated that he had not noticed any external injuries nor noticed any signs of sexual assault, when he examined her.
22. PW15 is the doctor who examined the accused and issued certificate as per Ex.P14. This witness stated that he had not noticed any external injuries while examining the accused and there was nothing to suggest that the accused was incapable of committing sexual act.
23. PW16 is the carrier of the FIR. PW17 is the woman ASI who registered the FIR as per Ex.P15. PW18 is the ASI who apprehended the accused on 15 12.01.2009 and PW19 is the WPC who accompanied the victim to the Government hospital.
24. Ex.P13 is the medical certificate issued by PW14 after examining the victim. As per this document, there were no external injuries on the body of the victim and there was no evidence of recent sexual intercourse within 24 hours. Presence of seminal stains or spermatozoa were not detected in the clothes that were sent for examination. However, PW14 opined that as the victim was aged 40 to 42 years, having two children, sexual act can occur before 24 hours without leaving any evidence.
25. If all these materials are taken into consideration, it is clear that there was ill-will between the victim and the accused who are the close relatives, in the matter of partition in the family properties. Even though PW3-the victim stated that the accused had not given her share in the family 16 properties, PW5 the sister of the victim states that the share of husband of the victim was already given and he was infact cultivating the land fallen to his share.
26. Regarding the incident, even though it is stated that there were several houses nearby the house of the victim, none of them have heard any noise and nobody from the neighbouring house were examined to speak about the offence committed by the accused. PW3 the victim states that she had sustained bleeding injuries due to breaking of bangles and also by the nails of the accused and even the accused had sustained some scratch marks. But the medical certificates show that there were no external injuries sustained by the victim and the accused. The victim stated that she had gone to her sister's house and from there she came back to the police station to lodge the complaint. Moreover PW3 stated that when the accused committed the offence, semen had fallen 17 on her saree and there were seminal stains. She also stated that she had been to the house of her sister and from there to the police station, by wearing the same saree. She had not taken bath after the incident. But inspite of that Ex.P12 the FSL report discloses that item Nos.2 an 3 i.e. pubic hairs and the cloth piece, tested negative for the presence of seminal stains and item No.1 i.e. the veginal smear on two glass slides was not detected with spermatozoa. Ex.P13 the medical examination report of the victim and Ex.P14 medical examination report concerning the accused show that they had not sustained any external injuries and there were no evidence of recent sexual intercourse.
27. The Hon'ble Apex Court in SANTOSH PRASAD ALIAS SANTOSH KUMAR (supra) while appreciating the evidence of the prosecutrix held in paragraphs 5.2 to 6 as under:
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"5.2 From the impugned judgments and orders passed by both the courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition of PW1, it has come on record that there was a land dispute going on between both the parties. Even in the cross-examination even the PW5 - prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr. Renu Singh - Medical Officer and PW7 - Dr. Renu Singh submitted injury report. In the injury report, no sperm as well as RBC and WBC were found. Dr. Renu Singh, PW7 - Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination- in-chief). However, in the cross-examination, she has stated that there was no physical or pathological evidence of rape.19
5.3 As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive. Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties.
5.4 Before considering the evidence of the prosecutrix, the decisions of this Court in the 4 5 cases of Raju and Rai Sandeep @ Deepu , relied upon by he learned Advocate appearing on behalf of the appellant-accused, are required to be referred to and considered.4
RAJU V. STATE OF M.P (2008) 15 SCC 133 5 RAI SANDEEP V. STATE (NCT OF DELHI), (2012) 8 SCC 21 20 5.4.1 In the case of Raju (supra), it is observed and held by this Court in paragraphs 11 and 12 as under:
"11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement of such a witness is always correct or without any embellishment or exaggeration.
12. Reference has been made in Gurmit Singh case [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with 21 regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in its applicability. This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."
5.4.2 In the case of Rai Sandeep alias Deepu (supra), this Court had an occasion to consider who can be said to be a "sterling witness". In paragraph 22, it is observed and held as under: 22
"22 In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence 23 committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him.
Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
5.4.3 In the case of Krishna Kumar Malik v. State of Haryana (2011) 7 SCC 130, it is observed and 24 held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
5.5 With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality?
6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination- in-chief, the prosecutrix has stated that after jumping the fallen compound wall accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even 25 nothing is on record that there was a broken compound wall. She has further stated that in the morning at 10 O'clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4:00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW5 -prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of "sterling witness". There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix - PW5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, 26 there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt."
28. The Hon'ble Apex Court in ABBAS AHMAD CHOUDHARY (supra) held in paragraph 11 as under:
"11. We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."
29. The Hon'ble Apex Court in SADASHIV RAMRAO HADBE (supra) held in paragraph 9, 10, 13 and 14 as under:
"9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and believe the case set 27 up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.
10.xxxx It is also highly improbable that the prosecutrix could not make any noise or get out of the room without being assaulted by the doctor as she was an able-bodied person of 20 years of age with ordinary physique. The absence of injuries on the body improbabilise the prosecution version.
13. The Sessions Court as well as the High court had not taken into consideration the absence of spermatozoa in the vaginal swab of the prosecutrix. It may also be noticed in the FI statement. In this case, the prosecutrix had not given the full description of the incident allegedly taken place but when she was examined in court she had improved her version.
14. On a consideration of the entire evidence in this case, we are of the view that there is a serious doubt regarding the sexual intercourse allegedly committed by the appellanat on the prosecutrix. The appellant is entitled to the benefit of those doubts and we are of the view that the high court and the sessions court erred 28 in finding the appellant guilty. We set aside the conviction and sentence of the appellant."
30. Thus the position of law is very well settled. Even though the evidence of the prosecutrix must be examined as that of an injured witness, unless her evidence is of sterling quality, the same cannot be accepted without any corroboration. Unless it has satisfied by the Court that the prosecutrix is a sterling witness, her version will be unassailable and it can be the basis for convicting the accused. In the instant case, the prosecution placed sufficient materials to prove the fact that there were long standing ill-will between the victim and the accused. Even though it could be said that motive was present for the accused to commit the offence, the motive is always a double edged weapon and can be made used of by the accused to contend that a false complaint was lodged against him. Except PW3 there are no other witnesses 29 or evidence regarding the commission of the offence. The version of the prosecutrix can be the basis for recording the conviction, provided her evidence is cogent and reliable. Conviction of the accused is legal even when the medical examination do not support the say of the victim. But in the present case, the version of PW3 suggests that either she exaggerating the situation or she is hiding something without disclosing the true fact. When she specifically stated during cross examination that her clothes were having seminal stains and both of them have sustained injuries no such material proof is available on record. Moreover when it is her say that she had sustained bleeding injuries due to breaking of bangles, the same was not supported by the medical evidence. Therefore it is not advisable to rely on the uncorroborated evidence of PW3 to record the conviction for the accused. The materials placed by the prosecution even 30 though sufficient to give rise to serious doubt about the conduct of the accused, it is not sufficient to prove his guilt beyond reasonable doubt. It is well settled proposition of law that suspicion however grave, it may be, is not sufficient to take the place of proof beyond reasonable doubt. Therefore, I am of the opinion that the accused is entitled for the benefit of doubt and is to be acquitted.
31. I have gone through the impugned judgment of conviction and order of sentence passed by the trial Court. It has ignored all these material facts and circumstances and proceeded to convict the accused on the uncorroborated evidence of the victim, which is not just and proper. Therefore I am of the opinion that the impugned judgment of conviction and order of sentence passed by the trial Court is liable to be set aside. Hence I proceed to pass the following: 31
ORDER The appeal is allowed.
The impugned judgment of conviction and order of sentence dated 27.01.2011 passed in S.C.No.85/2009 on the file of learned V-Addl.Sessions Judge, Belagavi is set aside.
Accused is acquitted for the offences punishable under Sections 452, 376 and 506 of IPC. Bail bonds of the accused and that of the sureties stand canceled.
Fine amount if any deposited by the accused is ordered to be refunded on due identification.
Send back the trial Court records along with the copy of the judgment.
SD/-
JUDGE KGK