Karnataka High Court
Sunil S/O Shantappa Chawan vs State Of Karnataka on 29 July, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29th DAY OF JULY, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL APPEAL No.3610/2012
BETWEEN:
1. Sunil S/o Shantappa Chawan
Age: 25 years Occ: Agriculture
2. Somya S/o Seetya Rathod
Age: 32 years, Occ: Agriculture
3. Khamya S/o Keerya Rathod
Age: 21 years, Occ: Agriculture
All R/o Beerkal Tanda
Tq: Shahapur Dist: Yadgir
...APPELLANTS
(BY SHRI GANESH NAIK ADVOCATE)
AND:
The State of Karnataka
Through CPI Shahapur
... RESPONDENT
(BY SRI.G.V.HASILKAR HCGP)
This appeal is filed under section 374 (2) of
Criminal Procedure Code, praying to set aside the
impugned judgment of conviction and order of sentence
dated 06-07-2012 passed in S.C. No.87/2010 by the
District & Sessions Judge Yadgir by allowing this
appeal, consequently acquit the appellants /accused of
the charges leveled against them, in the interest of
justice.
This Criminal Appeal is coming on for final hearing
this day, the court delivered the following;
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JUDGMENT
This appeal arises out of the Judgment of conviction and sentence passed by the learned District and Sessions Judge, Yadgir in S.C.No.87/2010 dated 06-07-2012 convicting accused No.1 Sunil S/o Shantappa Chavan/appellant No.1 for the offences punishable under Sections 147, 323, 341, 366 and 376 read with Sec.149 of Indian Penal Code sentencing him to undergo simple imprisonment for a period of one year for the offences punishable under Sections 147, 323, 341 read with Sec.149 of Indian Penal Code and pay a fine of Rs.1,000/- for each offence.
02. The accused No.1 Sunil S/o Shantappa Chavan is sentenced to undergo simple imprisonment for a period of seven years and pay fine of Rs.1,000/- for the offence punishable under Section 376 read with Sec.149 of Indian Penal Code.
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03. The accused No.1 Sunil S/o Shantappa Chavan is sentenced to undergo simple imprisonment for a period of five years and pay fine of Rs.1,000/- for the offence punishable under Section 366 read with Sec.149 of Indian Penal Code.
04. The accused No.7 Somya S/o Seetya Rathod and accused No.8 Khemya S/o Keerya Rathod are sentenced to undergo simple imprisonment for a period of one year and pay a fine of Rs.1,000/- each for the offences punishable under Sections 147 and 341 read with Sec.149 of Indian Penal Code.
05. Further the accused No.7 Somya S/o Seetya Rathod and accused No.8 Khemya S/o Keerya Rathod are sentenced to undergo simple imprisonment for a period of seven years and pay a fine of Rs.1,000/- each for the offences punishable under Sections 376 punishable under Section 114 read with Sec.149 of Indian Penal Code.
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06. The brief case of the prosecution is that, the victim-prosecutrix is the daughter of the complainant Damalya s/o Deshya Rathod resident of Beerankall Tanda Tq: Sahahapur. It is further case of the prosecution that marriage of the said victim-girl was fixed on 02-12-2009 with one Tippya s/o Jayaram. It is further case of the prosecution that for purchasing the marriage items this complainant Damalya, his wife Devibai, his daughter-victim-girl and his elder sister Channama and Seetamma altogether on 28-11-2009 at about 10.00 a.m., went to the shop and their relatives from bridegroom side Jayaram and others have come to Yadgir. They made shopping up to 8.30 p.m., then their relatives from bridegroom side returned to Mundargi Tanda. These five persons along with marriage materials and items took a private Auto Rickshaw were returning to their Tanda.
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07. It is further case of the prosecution that, when they came near Karihall bridge at that time this appellant No.1/accused No.1-Sunil, his father Shantappa, Kishan, Manesh, Devaji and Mallappa, all came in a Cruiser Jeep and stopped the said Auto Rickshaw. At that time, accused No.1/appellant No.1 pulled out the victim-girl and put her in the Cruiser Jeep, the other accused persons Shantappa, Kishan, Manesh, Devaji and Mallappa all assaulted them with their hands. The accused Manesh and Devaji also assaulted the wife of the complainant on her back and also kicked her. The accused Mallappa also assaulted Channamma. The accused have also abused them stating that they are taking the daughter of the complainant and if they inform about this in Tanda they will take away their life. So, giving such threat they all took the victim-girl in a Cruiser Jeep and kidnapped her. The time was 10.00 p.m., at night. In the same Auto Rickshaw parents of victim-girl went to Yadgir and 6 informed their relatives about the incident. From bridegroom side Jayaram and victim family members searched for Cruiser Jeep then they returned to Tanda. There also they did not trace the said Cruiser Jeep. So, on the next day morning i.e., on 29-11-2009 at 10.00 a.m., father of victim went to Wadagera police station and gave complaint before the police as per Ex.P.1.
08. The P.S.I-PW.9-Maheshgouda who was Station House Officer, at that time has received the said complaint. On the basis of the same he registered a case in Crime No.126/2009 for the offences punishable under Sections 147, 341, 323, 504, 506 and 366 read with Sec.149 Indian Penal Code and sent the FIR to Court as per Ex.P.16. Then he sent the injured PW.1 and PW.6 to the Hospital. On the same day, he visited Beerankall Tanda, where he arrested the accused Nos.2, 3, 4, 5 and 6 and produced them before the Court. On the same day he visited the scene of offence and drawn 7 scene of offence panchnama as per Ex.P.7 in the presence of PW.5-Tejappa and PW.6-Mangalsingh. Then he recorded the statements of Devibai, Channamma and Seetamma. On 30-11-2009 he visited Mundargi Tanda and recorded the statement of CW.7-PW.4 Jayaram.
09. It is further case of the prosecution that, the police have received the intimation regarding filing of Habeas Corpus Petition in the High Court to trace the victim-girl. Accordingly, PW.9-Mahesh Gouda PSI went along with C.P.I in search of victim-girl. Then on 10-12- 2009 in the early morning the C.P.I produced accused No.1/appellant No.1 and the victim-girl before him. On the same day he recorded the statement of victim-girl and in her statement the victim-girl has stated that the accused No.1 has committed forcible sexual intercourse on her against her will and wish. So, based on her statement he sent requisition to the Court to include the offence under Section 376 of Indian Penal Code in the 8 F.I.R and he recorded the voluntary statement of accused No.1. Then he produced the victim-girl and also accused No.1 before the High Court Bench at Kalaburagi. CW.16 the C.P.I took further investigation in the matter. He has also stated that as per the order of Superintendent of Police he went to Bangalore. On 09- 12-2009 as per the information he traced the victim-girl and accused No.1 at Bangalore City Mahadevapuram near a room at vegetable shop. The brother of the victim-girl identified them. Then he took both of them and drawn panchnama of the said room as per Ex.P.7 and Ex.P.8 in the presence of PW.5 and PW.6 in the evening from 5.30 p.m., to 6.00 p.m. Then returned to Wadagera police station and produced them before the P.S.I. Then he took further investigation as the victim- girl has stated that, she was subjected to forcible sexual intercourse. As per the direction of the Court he sent the victim-girl and accused No.1 for medical examination and then he produced them before the 9 Court. Then he collected the scene of offence sketch map from the Engineer and also collected the cloths of the victim-girl and sent them for Forensic Science Laboratory examination. Thereafter words, he collected the wound certificate of other witnesses and also medical report of the victim-girl and accused No.1. After completion of investigation he filed charge sheet against the accused for the offences punishable under Sections 147, 341, 323, 366, 376, 504 and 506 read with Section 149 of Indian Penal Code.
10. Thereafter words the learned J.M.F.C., Shahapur after complying the provisions under section 207 of Code of Criminal Procedure has committed the case to the Court of Sessions Yadgir under Section 209 of Code of Criminal Procedure.
11. The learned District and Sessions Judge, Yadgir registered this case in S.C.No.87/2010. Thereafter framed the charges against accused Nos.1 to 10 8 for the offences under Sections 147, 341, 323, 366, 504, 506, 376 read with Section 149 of Indian Penal Code. The accused has pleaded not guilty and claims to be tried. Thereafter words, prosecution examined Ten witnesses as PW.1 to PW.10, got marked Twenty documents as Exs.P.1 to Ex.P.20 and identified four material objects as M.Os.1 to 4 and closed its side evidence.
12. The statement of accused as required under Sec.313 of Code of Criminal Procedure was recorded. Accused denied the incriminating circumstances appearing in the evidence of prosecution witnesses. The accused persons have not chosen to lead any defense evidence.
13. After hearing arguments, the learned District and Sessions Judge Yadgir has acquitted the accused Nos.2 to 6 for the offences punishable under Sections 147, 341, 323, 366, 504 and 506 read with Sec.149 of 11 Indian Penal Code. Further, acquitted the accused No.1 Sunil for the offences punishable under Sections 504 and 506 read with Section 149 of Indian Penal Code, but convicted the accused No.1/appellant No.1-Sunil for the offences punishable under sections 147, 323, 341, 366 and 376 read with Sec.149 of Indian Penal Code and also convicted the accused Nos.7 & 8 for the offences punishable under Sections 147, 341 and 376 which is punishable under Section 114 read with Sec.149 of Indian Penal Code and imposed the sentence as stated above.
14. Aggrieved by the said judgment and conviction order, the appellants have preferred this appeal on the following grounds:-
That the Trial Court has failed to consider the ingredients required for prove of offences. It is further contended that PW.1 - Damalya and PW.2 - Devibai, father and mother of the victim-girl have not supported 12 case of the prosecution. PW.3-Channamma elder sister of the complainant has also not supported case of the prosecution. PW.4-Jayaram who is father-in-law of victim-girl has also turned hostile. The panchas PW.5- Tejappa and PW.6-Mangalsing have also not supported the prosecution case. The FSL report clearly indicates that there was no a spermatozoa present in the private part of the victim-girl. So, neither rape nor attempt to rape can be inferred. There were no external injuries on the body. Even report of the doctor not clearly indicates that there was any recent sexual intercourse.
15. According to the prosecution evidence, the victim-girl went to Gundalli Tanda in Cruiser Jeep. Thereafter, she went in Bus with the accused to Raichur for 03 days. Thereafter, again they went to Bengaluru. But, she did not protest to anybody that she was being abducted. So, conduct of this act show that she was in love with accused No.1. She went along with accused 13 No.1 on her own will and wish. Therefore, the offences under Sections 366 and 341 of Indian Penal Code not attracted against the appellants. The Trial Court erred in convicting the appellants without following the ratio laid down by the Apex Court. The Trial Court erred in considering contradictions, omissions and non- examination of material witnesses, which was more important to this case. So, appellants with these main contentions prayed to acquit the appellants.
16. Heard Sri. Ganesh Naik, learned counsel for the appellants and Sri. Gururaj V. Hasilkar, the learned High Court Government Pleader for State.
17. Learned counsel for the appellants argued that witnesses PW.1 to 6 all have turned hostile. PW.8- Honnamma the victim-girl's evidence clearly indicates that there was no forcible sexual intercourse on her. There is lacuna in the investigation. After tracing out appellant No.1 and victim-girl, they were produced before 14 the Investigating Officer and Court. There is no evidence of kidnap or committing sexual intercourse against her will. There is a dispute in their family and a case was filed by the sister of appellant No.1-Sunil against brother of victim-girl and parents of victim-girl for harassing her, which is admitted by the victim-girl and others. So, there is possibility of falsely implicating the accused in this case, cannot be ruled-out. The medical evidence does not support the case. Her own parents have not supported the case of the prosecution. Further, he argued that there is absolutely no evidence against appellants No.2 and 3 i.e., accused Nos.7 and 8. Their involvement in this case according to prosecution is after lodging the complaint against them. In the absence of any medical evidence as there are no corroborative evidences, it is not safe to rely upon the evidence of victim-girl.
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18. In support of his arguments, he relied upon the decision of the Hon'ble Supreme Court reported in 2004 Crl. L. J Page 44 S.C. in the case of State of Karnataka vs. Mapilla P.P. Soopi. He also relied upon the decision reported in 2005 Crl. L.J. 2457 (Punjab and Haryana High Court) in the case of Sukhbir Kabul Singh vs. State of Haryana. He also relied upon the judgment of the Hon'ble Supreme Court reported in AIR 2000 S.C. Page 1608 in the case of Joseph s/o Kooveli Poulo vs State of Kerala. He also relied upon another decision of this Court reported in 2009 (5) KCCR 3529 in the case of F. Nataraja vs. The State by Hariyur Police. With these main contentions he prayed to acquit the accused.
19. Per contra, Sri. Gururaj V. Hasilkar, the learned High Court Government Pleader argued that the prosecutrix evidence is sufficient to convict the accused. It is evident that appellant No.1 and other have 16 kidnapped the victim-girl and took her to different places and appellant No.1 committed sexual intercourse on her against her will and they were only traced out at Bengaluru. Thereafter, she was threatened and criminally intimidated by appellants No.2 and 3. The Investigating Officer has supported the evidence of prosecutrix. The doctor evidence clearly supports that there is forcible sexual intercourse. Absolutely, there are no reason to disbelieve the evidence of PW.8-victim-girl. The evidence of victim-girl is to be believed in the absence of any inherent defect or improbabilities in her evidence. In the case of offence of rape, the Court can act on the basis of only evidence of prosecutrix, if it inspires the confidence. Here in this case, there are no reasons to falsely implicate these appellants. He further argued that, the learned Sessions Judge has considered all the points and rightly convicted these appellants. He supports the judgment of the Sessions Court and prayed to dismiss the appeal.
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20. From the above materials, evidence and arguments the points that would arise for my consideration are as under:-
1. Whether prosecution proved its case beyond the reasonable doubt that on 28-11-2009 at about 10.00 p.m., when the complainant and his family members were returning to their Tanda in a Auto Rickshaw, near Karihall bridge, accused Nos.1 to 8 having common object committed rioting in the process of kidnapping Honnamma (victim-girl) the daughter of complainant and thereby committed the offence punishable under Section 147 read with Sec.149 of Indian Penal Code?
2. Whether prosecution proved its case beyond the reasonable doubt that on the above said date, time and place accused No.1 voluntarily caused injuries to the complainant and his wife 18 by assaulting them with hands and thereby committed the offence punishable under Section 323 read with Sec.149 of Indian Penal Code?
3. Whether prosecution proved its case beyond the reasonable doubt that on the above said date, time and place all the accused wrongfully restrained the complainant and his family members from proceeding further and thereby committed the offence punishable under Section 341 read with Sec.149 of Indian Penal Code?
4. Whether prosecution proved its case beyond the reasonable doubt that accused No.1 committed rape on victim-girl continuously for three days by keeping her in a room at Bengaluru and thereby committed the offence punishable under Section 376 read with Sec.149 of Indian Penal Code?19
5. Whether prosecution proved its case beyond the reasonable doubt that on the above said date, time and place accused No.1 with the assistance of accused Nos.2 to 8 kidnapped the daughter (victim-girl) of the complainant in a Cruiser Jeep, with intent that she will be compelled to marry with him and thereby committed the offence punishable under Section 366 r/w Sec.149 of Indian Penal Code?
6. Whether prosecution proved its case beyond the reasonable doubt that on the above said date, time and place accused Nos.7 and 8 have instigated accused No.1 in committing sexual assault on victim-girl and thereby committed the offence under Section 376 punishable under Section 114 read with Sec.149 of Indian Penal Code?
7. Whether the Judgment of conviction of learned Sessions Judge is not based on sound principles regarding appreciation of evidence in criminal cases and needs interference of this Court?20
21. In order to prove its case the prosecution examined in all 10 witnesses PWs.1 to 10. PW.1 is the complainant and father of the victim-girl. His evidence is recorded in Camera. In his evidence he has stated that the victim-girl is his daughter and she aged about 22 years. He knows the accused. The other witnesses, PW.2-Devibai is the mother of the victim-girl, PW.3- Channamma is sister of the complainant and PW.4- Jayaram is the father-in-law of victim-girl.
22. PW.1-complainant has stated that about 02 years 04 months prior to he giving evidence, in connection with the marriage of his daughter-victim- girl, himself, PW.2 to 4 and PW.8-victim-girl all of them had gone to Yadgir for purchasing marriage materials. After purchasing the materials and items, they intend to return to their village, they found that the victim-girl is missing. They searched for her and they could not traced out the victim-girl and they returned to their 21 village. Then after 15 days the victim-girl came to their village. When they inquired she told that she had been to her relatives house. Then they lodged the complaint. But he has denied the suggestion about the kidnapping and committing rape on his daughter. The prosecution has treated this witness as hostile and cross-examined him. In the cross-examination he has denied the suggestion that accused No.1 had kidnapped her daughter and took her to Raichur and Benguluru and committed forcible sexual intercourse on the victim-girl against her will and wish. He has denied that he has given his statement as per Ex.P.2 before the Police. So, it appears from his evidence that the victim-girl was missing when her marriage date was fixed. But he denies any of the acts committed by these accused.
23. PW.2-Devibai is the wife of complainant and mother of the victim-girl. She has also given similar evidence. She has also stated that after purchasing 22 materials of marriage, they found that her daughter was missing. Then they searched for her and they could not traced out her. Then they returned to their village. After 15 days her daughter was returned to their village. So, they have lodged the complaint about missing of the victim-girl. But she has also denied any acts of the kidnap, sexual intercourse or assault by these accused. The prosecution has also treated this witness as hostile and cross-examined her, but nothing has been elicited from her evidence.
24. PW.3-Channamma is sister of the complainant. She has also not supported case of the prosecution.
25. PW.4-Jayaram is the father-in-law of victim- girl. He has stated that he knows all the accused. He further stated that on 28.11.2009 they had gone to purchase the materials of the marriage of victim-girl. Thereafter, they returned to home. But nobody informed 23 about any act or any atrocities of the victim-girl. The prosecution treated this witness as hostile. He further stated that he has not given statement before the police as per Ex.P.6.
26. PW.5-Tejappa and PW.6-Mangalsing, according to prosecution are panchas for the place of occurrence of kidnap i.e., on 29.11.2009. They are panchas for tracing accused No.1 and victim-girl at Bengaluru as per Ex.P.7 and Ex.P.8. But they have not supported both panchanama. These persons are resident of Beernakall Tanda.
27. So, this type evidence of parents of the victim-girl, sister of the complainant, father-in-law of victim-girl and panchas, clearly indicates that all is not well with prosecution case. But such evidence of blood relatives evidence i.e., parents of victim-girl in such heinous offence makes the prosecution case doubtful and allegation against accused at the very first stage itself.
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28. It is evident from the evidence of prosecuctrix-PW.8 that she was not able to understand the Kannada language, but she know the Hindi language. It appears that Court has appointed one K. Abdul Razak Advocate as translator. But either in the deposition or in the order sheet of the Trial Court dated 22.05.2012 there is no mention about whether sworn statement was interpret to her in the language known to her as required under Chapter 7 of the Karnataka Criminal Rules of Practice 1968. But anyway let us consider her evidence, as it is typed in Kannada language. She has stated that PW.1 and PW.2 are her parents. They are 4 brothers and 3 daughters. She has stated that she know all the accused. About 02 years 05 months her marriage was fixed with one Tippya of Mundaragi Tanda. She has further stated that accused before the Court are of her village. When her marriage was fixed, then accused No.1 told her that, he will marry her. But herself and her parents did not agree for 25 it. She further stated that about 03 days prior to the marriage herself, her parents and her relatives went to Yadgir for purchasing marriage items. Her husband's side relatives are came there. Then at about 09.00 p.m. when they were returning to their village in the Auto rickshaw, were near Kari Halla, in Cruiser vehicle, accused Nos.1, 7 and 8 and another came there and assaulted her parents and others. Then accused No.1- Sunil cought hold her hands and put her in his vehicle. Accused No.1-Sunil took her to Gundalli Tanda. He kept her in the house of one Bagya for about 02 days. Thereafter, he took her to Raichur in lodge for 03 days. But she cannot say the name of lodge. In Raichur lodge he undressed her and committed forcible sexual intercourse on her. Accused No.1 was alone in the said lodge. Accused No.8 was outside of the said room. Thereafter, they think that some persons may come in search of them, then they took her to Bengaluru. Then they kept her in one room at Bengaluru for a period of 26 03 days. Accused No.1 told that if she is ready to marry him, he will not touch her, otherwise he will not leave her and takes away her life and committed sexual intercourse. She refused to marry him. But he forced her to marry him and assaulted her. When he was assaulting her by locking room, at that time police came there and inquired them and then took them to Kalaburagi and recorded statement of victim-girl and accused No.1 sent to judicial custody. She was sent along with her parents and subjected to medical examination. Now, she was married with Tippya of Mundaragi Tanda and they have got two children. Now, they have gone to Puna for earning their livelihood. They came from Puna to depose the evidence. The Doctor has taken her cloths for examination and she could identify as MOs.1 to 4. She further stated that accused Nos.2 to 8 are the relative of accused No.1. So, this is her examination-in-chief.
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29. The examination-in-chief of PW.8 is totally contrary and inconsistent to the contents of written complaint as per Ex.P.1 dated 29.11.2009. Nowhere the presence of accused Nos.7 and 8 is mentioned as stated by complainant in his written complaint. PW.1 never stated the presence of accused Nos.7 and 8. According to him only this accused Nos.1 and 2 to 6 were there. So, question of kidnapping the victim-girl and assault to her parents and relatives does not arise at all. Of course, the learned Sessions Judge has acquitted accused Nos.2 to 6 from all the charges.
30. The prosecution case is that forcible sexual intercourse was committed by accused No.1. As per statement of prosecutrix the forcible sexual intercourse was at Raichur. There is no statement i.e., any witness in prosecution papers and in the charge that accused No.1 committed sexual intercourse forcibly, against her will and wish at Raichur in any lodge. So, the evidence 28 in this regard stated by PW.1 is totally inconstant with the prosecution case, charges and evidence of other witnesses. Again she has stated that at Bengaluru she was kept in a room by accused No.1 stating that he will not touch if she is ready to marry him. That means accused No.1 has not committed any sexual intercourse on her, unless and until they went in the lodge at Bengaluru and he told that he would not touch if she is ready to marry him. When he was assaulting her, the police came there. None of the police supported such assault when they found this accused No.1 and prosecutrix in the room. It is also evident that now she is married to some person viz., Tippya with whom her marriage was fixed and they have got two children and residing at Puna.
31. The victim-girl has stated that she has produced MO.1-Langa, MO.2-Langa, M.O.3-Odani and M.O.4-Blouse. But there is no any marks or evidence of 29 sexual intercourse or seminal stains on these cloths. So, mere production of cloths will not supports the case of the prosecution in any way that accused committed sexual intercourse at Raichur, is totally improvement and it is not the case of prosecution or statement of any of the witnesses from the prosecution side. Her only statement is that accused No.1 told her that if she did not marry him, he will not allow her to live, stating so he had forcible sexual intercourse. Of course, she stayed for 03 days in Bengaluru. In the cross-examination she has admitted that when the incident has taken place at 10.00 p.m. in the night there was darkness. As accused are known to her she identified them. When there was night and darkness, how can she identify them? She further stated that accused has brought one Cruiser vehicle belonging to the person who is known to accused. But here in this case, the Investigating Officer has not at all made any efforts to search any such Cruiser vehicle. No 30 efforts are made to find out to whom that Cruiser belongs. Because victim-girl herself stated that Cruiser is belongs to the person known to accused No.1. She has further stated that she knows all the accused. The said Cruiser in which according to the prosecution this victim-girl was kidnapped and took from the place of offence to Gundalli Tanda. But, there is no evidence to show any such Cruiser vehicle. If there is such Cruiser, which belongs to the appellants, nothing is forthcoming either in the evidence of Investigating Officer or there is any record to show about such Cruiser. So, the said vehicle, which is said to have been used, there is nothing about its existence. There is no iota of evidence in this regard.
32. Accordingly, PW8 - victim-girl has further stated that she stayed at Gundalli Tanda for 02 days. In the examination-in-chief she has stated that she was kept in the house of one Bagya in Tanda, but who is 31 that Bagya is not forthcoming. No inquiry has been made in the said Gundalli Tanda or any such Bagya is cited as witness, who is that Bagya, in what way he is concerned to accused No.1 is not forthcoming. She has further stated that from the said Tanda accused took her to Raichur in a Bus i.e., accused Nos.1, 7 and 8. She has not made efforts to lodge a complaint at Raichur, but she voluntarily stated that accused told that if she informed to anybody, they will not allow her live, but such threat is not forthcoming. So, there is no criminal intimidation by these accused Nos.1, 7 and 8, but there are charges as against these accused. In fact the learned Sessions Judge has acquitted accused Nos.1, 7 and 8 about charges under Sections 504 and 506 of Indian Penal Code and State has also not filed any appeal against such acquittal of the accused. So, question of criminal intimidation and threatening the prosecutrix stating that they will take away her life does not arise at all. She has further stated that whenever 32 she tried to inform the persons who are going on the road, accused Nos.1, 7 and 8 use to pull her and use to close her mouth. But, there is nothing about the same in her statement that accused were threatening her. She has further stated that when accused No.1 tried to commit the sexual intercourse on her, her bangles were broken and there was also injuries to her legs. Absolutely, there is no evidence either oral or medical evidences in this regard. She has further stated that accused No.1 has committed sexual intercourse forcibly on her at midnight 12.00 a.m.
33. She has further stated that she is an agriculturist coolie. They are having Bullock Cart. She used to travel in the Bullock Cart and she used to jump from the Bullock Cart.
34. She has further stated that she did not know after 03 days from Raichur, on what date and on which day, the accused brought her to Bengaluru. She did not 33 know in which area of Bengaluru they stayed. She has further stated that the accused brought the victim-girl by bus only. So, it is evident that accused has not taken her in any private Car or in any vehicle. The accused took her in Bus to Raichur lodge and then she was taken to Bengaluru by Bus. So, there is lot of opportunities to inform any persons or scream for help, but no such acts are forthcoming. Even to question, as to when she was entering into lodge at Raichur, whether the receptionist did not ask her, she has given answer that accused Nos.1, 7 and 8 told her that they will take to a room which is known to them and room was like a house. So, whether it was lodge or house is not forthcoming. Further, in the cross-examination she has stated that whenever she was going to attend the nature call, accused used to watch her and use to threatened her not to tell anybody. So, in Raichur there are lot of people, but she did not make any efforts to seek help from anybody. Even in the Bus there are so many 34 passengers, she did not tried to raise alarm by shouting, crying or screaming for help. She has stated that always the accused were watching her.
35. She has admitted that sister of accused No.1 was given in marriage to her brother. Their marriage was performed prior to this incident. So, they are close relatives. She has also admitted that her brother's wife i.e., sister of accused No.1 by name Kavita has left the house and they called her 2 to 3 times to return to their house, but she did not come back to their house. She has admitted that the said Kavita has lodged the complaint against the parents of the victim-girl and her brother alleging that they have demanded Rs.2,00,000/- as a dowry amount and the said case is filed in Shahapur Court. But she did not know whether the case is pending or not. She has admitted that on the day of she giving evidence his brother and her husband both have come to the Court. It is suggested to her that, because of pressure by them, she is giving false 35 evidence before the Court, but she has denied it. It is also suggested that, accused No.1's sister has lodged the complaint against her brother and her parents, about the cruelty and dowry harassment, just to pressurize them this false case has been came to be filed by her. She has denied it. This is her cross- examination.
36. But her oral evidence is not at all either corroborated by any of the witnesses' i.e., her parents, close relatives or father-in-law or any other oral; documentary or circumstantial evidence.
37. The medical examination report and report of FSL does not show anything about sexual intercourse on her. Ex.P.9 is the medical certificate issued by PW.7- Doctor N. Renukadevi Senior Specialist, GGH, District Hospital Gulbarga. It is evident from Ex.P.9 that the said victim-girl was examined by her on 10.12.2009 at 06.00 p.m. On examination the doctor found the following:-
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"No external injuries seen over the body, Breast well developed, Auxiliary hair normal distribution, Cardiovascular Respiratory:- System NAD, Per abdominal examination-NAD, Local Examination -
External genitalia- Normal - No external injuries, pubic hair - Normal distribution - No malting, Hymentorm -
Edges red and inflammation present, - Vagina admits one finger easily."
38. PW.7-Dr. N. Renukadevi has also stated that as per radiologist victim-girl is aged about 16 to 18 years. As per dental surgeon she aged about 15 to 16 years. She has collected smeared clothes and sent for chemical examination. So, opinion of chemical examination is pending for want of chemical examination report. So, Ex.P.9 clearly indicates that there were no external injuries found on the body of the prosecutrix. According to her evidence hymen torned. In the cross-examination she has stated that there is 37 possibility of rupturing hymen while playing and jumping. In the cross-examination of victim-girl, she has stated that they are agriculturists coolie worker and they are having Bullock Cart. She used to travel in the Bullock Cart and she used to jump from the Bullock Cart whenever she wants to get down from the Bullock Cart. So, the possibility of rupture of hymen while playing and jumping also cannot be ruled out. So, nothing indicating sexual intercourse is forthcoming. On the other hand, though the victim-girl stated that, there were injuries to her legs and her bangles were broken, but no injuries were found as per expert evidence. Even no opinion about the sexual intercourse was given. So, this certificate - Ex.P.11 is dated 10.08.2010 i.e., this certificate is issued on 10.08.2010 about the examination dated 10.12.2009. Ex.P.10 is report of the Regional Forensic Science Laboratory, Naganahally, Gulbarga (now Kalaburagi) dated 17.06.2010. This is issued by the Deputy Director and 38 report on seminal stains observations and tests conducted, the presence of spermatozoa was not detected in items Nos.1 and 2 and presence of seminal stains was not detected in items Nos.3, 4, 5 and 6.
39. The FSL report clearly indicates that, there is no evidence of presence of either spermatozoa or seminal stains in any of the cloths produced before the Investigating Officer. As per Ex.P.9 - medical certificate there were no injuries and doctor kept her opinion pending, for want of chemical examination report. It clearly indicates that there is nothing in any expert report about the sexual intercourse on the victim-girl. However, very strangely this PW.7-Doctor N. Renukadevi given report on 30.07.2010 said to be final report stating that there is an evidence of to the act similar to that of recent sexual intercourse. So, when FSL report indicates that there is no spermatozoa or seminal stains, how the doctor has opined that there is 39 an evidence of to the act similar to that of recent sexual intercourse, as her opinion is based on FSL report which shows contrary. It appears the word "recent" is subsequently added. There is some striking out in the second line of the document Ex.P.11 and there is no signature on it. Even below the Report given there was striking out of some lines. So, the doctor also cannot say that there is sexual intercourse and her evidence that there is an evidence of to that act similar to that of recent sexual intercourse has no basis at all. So, this type medical evidence of PW.7 further makes prosecution case doubtful. There is no corroboration evidence to the medical evidence and evidence of PW.8- victim-girl.
40. PW.9-Mahesh Gouda is the Police Sub Inspector. He has stated that he registered the case and recorded the statements of the prosecution witnesses. But none of them have supported his evidence. He has 40 further stated that as per order passed in Habeas Corpus Petition by this Court and as per order dated 08.12.2009 passed by the Superintendent of Police, Kalaburagi, himself and Circle Police Inspector, Shahapur along with complainant went to Bengaluru. On 10.12.2009 in the early morning at 05.00 a.m. the Circle Police Inspector, has produced the victim-girl and accused No.1. Then he recorded her statement on the same day. This witness has clearly stated that the victim-girl has given statement before him stating that her brother's wife has left their house, because parents of victim-girl are not looking well her and she is residing in her parents' house. He has also stated that PW.8- prosecutrix has not at all stated before him anything about she and accused stayed at Raichur in lodge. She has further stated that only accused No.1 was present along with her and other persons were not present. She has not given statement before him as to in which lodge and in which room, they stayed in Bengaluru. He 41 further stated that the victim-girl has not stated before him that when and where accused No.1 had forcible sexual intercourse with her. He has denied the suggestion that accused No.1 and PW.8-victim-girl were not arrested, but they were taken from their home.
41. PW.10-Rajkumar the Circle Police Inspector, given his evidence stating that as per direction of Superintendent of Police, Kalaburagi on 08.12.2009, himself along with his staff went to Bengaluru. Then on 09.12.2009 they came to know definite information about this victim-girl and accused. Then at Mahadevapur Extension Area, Navagrah Mandir near Vegetable Shop, at Bengaluru, in one room they found the victim-girl and accused No.1. The victim-girl's brother was with the police officials, he identified the victim-girl and accused No.1 and they took them to custody. Then they had drawn the panchanama as per Ex.P.8 in the presence of PW.5 -Tejappa and PW.6 - 42 Mangalsingh. So, how these PW.5 and PW.6 are there, is not forthcoming. PW.9-Mahesh Gouda the Police Sub Inspector stated that he took the complainant i.e., father of the victim-girl with him to Bengaluru, but this witness PW.10-CPI does not say presence of Police Sub Inspector or father of victim-girl, but he said brother of the victim-girl was with him. Though these PW.5 - Tejappa and PW.6 - Mangalsingh are in the village at Beerankall Tanda, how they can come to Bengaluru is not forthcoming. They are the panchas for the scene of offence - panchanama regarding kidnapping the victim- girl. So, both panchas are residing at Beerankall Tanda Tq: Shahapur Dist: Yadagir. So, how can they came to Bengaluru is not forthcoming. Therefore, the very place of offence become doubtful. No records were produced regarding the existing said room, or the number, area Ward etc., Whether there is forcible sexual intercourse alleged to has been taken place on the victim-girl at Bengaluru itself is doubtful. In the cross-examination 43 he has not stated as to whom the said room belongs. No persons are examined to show the possession or ownership of the said room or stay of these persons. How, this accused No.1 has got that room is also not forthcoming. Whether that is a lodge or room, is also not forthcoming.
42. PW.10-CPI admitted in his cross-
examination that he never inquired as to who is the owner of said room. But he has stated that he had been to Bengaluru alongwith the police officials and panchas. He further given explanation that nobody come forward to say that who is the owner of that lodge and as per order of High Court to produce the victim-girl, he did not inquire anything. Even, subsequently also he did not inquired about the same and not made any investigation. He has not recorded the statements of neighbors of room at Bengaluru.
44
43. So, there is no investigation in this regard. The victim-girl-PW.8 has stated that when accused No.1 was with her, at that time the police came there and took them. But this witness stated that her brother was with them. So, investigation of PW.10-CPI appears to be doubtful. Further he has stated that accused Nos.7 and 8 were absconding. According to prosecution case accused Nos.7 and 8 are present along with accused No.1. How, they are absconding is not forthcoming. Further, he has stated that as per complaint he came to know that the victim-girl was taken in Cruiser Jeep. But, he could not trace out the said vehicle. Even he has not recorded the statements of one Bagya and neighbours of Bagya, where the victim girl is stated to have been kept after kidnap. Even he could not find out that there is a house belongs to Bagya in Gundalli Tanda. This is all the evidence of prosecution case. 45
44. When there is allegation against the accused for the offence under Section 376 of Indian Penal Code or allegation about forcible sexual intercourse on woman against her will, then the Court has to consider the evidence of prosecutrix on par with the evidence of injured-witness. It is settled principles of law that the evidence of prosecutrix can be accepted if her evidence inspires confidence and if evidence of prosecutrix is supportive or corroborative by other evidences like, medical evidence, her relative evidence or other circumstantial evidence. In this regard there is a recent decision of Apex Court, as to how to appreciate the evidence of witnesses in such cases. The said case is Santosh Prasad @ Santosh Kumar vs. State of Bihar reported in Criminal Appeal No.264 of 2020 SCC Online SC 194, wherein the Hon'ble Apex Court, has discussed Sec.114-A of Evidence Act, with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. The Hon'ble 46 Supreme Court of India has also considered how the evidence of the victim in these type of cases has to be appreciated. When such a witness can be called as "sterling witness". The evidence of such witness must inspire the confidence of the Court. If the witness evidence suffers totally from inherent, inconsistent and contradictions, when there is no supportive or corroborative circumstances of evidence, which suggests the probabilities of the version of the prosecutrix, then under such circumstances it is not safe to rely only on the vague, inconsistent un-corroborative and doubtful evidence of the prosecutrix. The Hon'ble Supreme Court of India in the said case relied on its previous decision in case of Raju and others vs State of Madhya Pradesh reported in (2008) 15 SCC 133 wherein it is held as under:
47
"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 48 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 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 49 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 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.50
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 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 51 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 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 52 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 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 53 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, there is no scope to sustain the conviction and sentence imposed on the appellant and accused is to be given the benefit of doubt".
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45. So, in the light of the principles stated by the Hon'ble Apex Court in the above referred decision if the evidence of the prosecutrix in this case is considered it is evident that it does not inspire any confidence and it is not trust-worthy. It is not unblemished and it is not of a sterling quality, the manner in which she was taken cannot be believed. There is no medical evidence nor her evidence is supported by her own parents and relatives. Her version therefore cannot be taken as gospel truth on the face value.
46. Learned counsel for the appellants also relied upon the judgment of the Hon'ble Supreme Court in 2004 Crl. L. J Page 44 S.C. in the case of State of Karnataka vs. Mapilla P.P. Soopi, wherein the Hon'ble Supreme Court at paragraphs No.3 and 4 has held as under:-
"3. Coming to the evidence of PW-3 prosecutrix as noted by the High Court, we 55 see that she has stated that immediately after the respondent entered her house, she raised an alarm but from the material produced by the prosecutrix, even though there were children and other adults near- about the house of the victim, none responded to the said alarm though witnesses examined by the prosecution show they heard the alarm and by the time they went to the place of incident, they could only see the accused walking away. Thus indicates that if at all PW-3 raised an alarm it was only after the respondent went away from her house. This coupled with the fact that there were no injuries on the body of PW-3 to indicate any forceful assault on her, we are in agreement with the finding of the High Court that the prosecution has failed to establish its case.
4. Undue delay in lodging the complaint without acceptable evidence has also contributed to the doubt in the prosecution case. Hence the High Court was justified in allowing the appeal."56
47. So, in the light of above said decision, it is evident that even though according to prosecution this victim-girl was taken to Gundalli Tanda after her kidnapping for two days. She was kept there in the house of one Bagya. She did not made any efforts to inform anybody. It is not her case or evidence that she was confined in a room in that Tanda. She was taken by Bus to Raichur and they stayed there for three days. She has not made any efforts to inform any person there also or to her house. The prosecution case never indicates the forcible sexual intercourse was committed at Raichur. The victim-girl stated that the accused took her to Bengaluru in a Bus. In a Bus there will be 100's of people, but she did not scream for any help. So, totally she was with accused No.1 for all these days and she never tried to inform anybody, tried to call or escape from the accused. Her evidence is that accused Nos.7 and 8 have criminally intimidated and threatened her, has no base at all as the accused are acquitted for that 57 offences under Sections 504 and 506 read with Section 149 of Indian Penal Code. The names of these accused Nos.7 and 8 are not at all in the complaint given by her father and nobody has stated that these accused Nos.7 and 8 were along with accused No.1. There is no charge in criminally intimidation against these persons by the Sessions Court and it has acquitted accused Nos.1, 7 and 8 for the said charge.
48. Learned counsel for the accused relied upon another decision of the Hon'ble Supreme Court reported in AIR 2000 S.C. Page 1608 in the case of Joseph s/o Kooveli Poulo vs State of Kerala, wherein it is held as under:-
"C" - Penal Code (45 of 1860), S. 376 - Rape
- Factum sought to be proved from a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa - Chemical report, also showed that semen was detected in one of the under-58
skirts found on body of victim - But said chemical report specifically mentioning that dhoti of accused contained no stains of blood or semen - No injuries found on vagina/private parts of body or some other parts of victim, a grown up lady of about 26 years age - acts proved not irresistibly leading to only conclusion of guilt of accused in respect of an offence of rape - Accused acquitted for offence under S. 376 by giving benefit of doubt".
49. In Para No.15 the Hon'ble Supreme Court further held as under:-
"15. the charge under Section 376, IPC, is mainly fastened upon the appellant on the 'last seen together' theory. The factum of rape of the deceased is sought to be proved from Ex.P20, a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa, indicating that she should have had sexual intercourse before her death. Ex.P21, chemical report, also showed that semen was 59 detected in one of the under-skirts found on the body of the deceased. Ex.P8, certificate issued by PW-15, the doctor, also showed that the accused-appellant was potent. But in the Report, Ex.P21, it was specifically stated that the dhoti of the appellant, subjected to chemical examination contained no stains of blood or semen. If the4re had been any forcible sexual intercourse, the victim must have made some strong resistance being a grown up lady and in the process, some injuries would have been found on the vagina / private parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years age, when 60 she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376, IPC. Consequently, we are prepared to give the benefit of doubt to the appellant and acquit him of the offence under Section 376, IPC, and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside".
50. So, it is evident from the said decision that in this case also according to victim-girl she had resisted and there was injuries on her legs and her Bangles were broken. The doctor did not found any injuries. There is no injury on the private part of the body of the victim-girl. There is no presence of spermatozoa or seminal stains found. Therefore, the said decision is helpful to the accused case. 61
51. Learned counsel for the accused relied upon another decision of the this Court reported in 2009 (5) KCCR 3529 in the case of F. Nataraja vs. The State by Hariyur Police., wherein it is held as under:-
"B. INDIAN PENAL CODE, 1860-Section 376(1) - Admittedly the prosecutrix herein is less than 14 years of age. The lady doctor PW-5Deposed that when she examined her private parts she did not notice any injury and the hymen was found intact - She has further deposed that since the prosecutrix was not subjected to sexual intercourse during the past seven days from the date of her examination, she did not find any signs of recent intercourse on her - Parents of the prosecutrix besides being inconsistent, does not in any way establish that the prosecutrix was subjected to sexual intercourse at any time during the said period by the accused".62
52. So, if principles as stated above, which are relied upon by learned counsel for the appellants are considered, it is evident that the evidence of victim-girl when compared to the evidences of her parents, relatives, panchas and medical evidence, they are totally contradictory and inconsistence to each other. Her evidence is inconsistent with evidence of her parents and other witnesses. The possibility of exaggeration and embellishment also cannot be ruled-out. The evidence or testimony of prosecutrix appears to be improbable and thereby create doubt about the alleged incident. Regarding Section 90 of Indian Evidence Act, the Hon'ble Supreme Court in the recent judgment in the case of Pramod Suryabhan Pawar vs State of Maharashtra and another reported in AIR 2019 Supreme Court 4010 AIR Online 2019 SC 904 in Criminal Appeal No.1165 of 2019 (Arising out of SLP (Crl.) No.2712 of 2019 dated 21.08.2019) wherein it is held as under:-
63
"(A) Criminal P.C (2 of 19074), S.482 - Penal Code (45 of 1860), Ss. 375, 376, 417, 504, 506 - Quashing of FIR - Offence of rape, cheating and criminal intimidation -
Allegations in FIR that accused on promise of marriage established sexual relations with informant - No allegations in FIR that when accused promised to marry informant, it was done in bad faith or with intention to deceive her - Offences alleged not made out against accused - FIR quashed.
"Consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediately relevance, or bear a direct nexus to the woman's decision to engage in the sexual act. Where the promise 64 to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact"
that vitiates the woman's consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a misconception of fact" were such misconception was the basis for her choosing to engage in the said act. In the present case the allegations in the FIR indicate that the complainant initially refused to engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry 65 the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statement are accepted in totality, no offence under Section 375 of the IPC has occurred".
53. So, if the present case in the light of this principle considered, accused No.1 told earlier to the victim-girl that he will marry her, but her parents and 66 herself have refused. Even according to victim-girl, accused No.1 told her that he would not touch her body, if she is ready to marry with him. There is no false promise by accused No.1 to marry her. Even if her evidence is considered for a moment for the sake of argument, then there is no evidence of kidnap or abduction on the false promise of marry to her. Of course kidnap itself is not proved. On the other hand as per evidence of her parents she was missing and after 15 days they traced out her and then complaint came to be lodged. So, there is possibility that this accused No.1 and victim-girl went together on their own will and wish when marriage of victim-girl was fixed with other person, also cannot be ruled-out.
54. As already stated that it is not the case of prosecution or the evidence of victim-girl that she was forcibly made to sit in the Cruiser or then forcibly accused took her to Gundalli Tanda, from there Raichur 67 and Bengaluru in a Bus. However, all along it is a public transportation, auto rickshaw and Bus they traveled. There is no evidence of any confinement in any vehicle. Both victim-girl and accused No.1 together went to different places for a week. So, they were traced, because the order of Habeas Corpus Petition direction to trace out them. Her, own parents, relatives and her husband side, none of them have supported case of the prosecution. She is already married with another person and have two children.
55. Admittedly, a case was filed by sister of accused No.1 against parents of the victim-girl and brother of victim-girl about dowry and ill-treatment and that case is pending. The victim-girl has admitted about filing of such case by sister of accused No.1. Her brother was also present when victim-girl giving evidence before the Court, as it is evident from her deposition. So, there is possibility of she giving evidence at the instance of 68 her brother just to save her brother and parents from criminal case also cannot be ruled out. In this regard it appears there it is ill-will and enmity in between them.
56. It is settled principles of law that, in all criminal cases, the initial burden is always on the prosecution. It has to prove its case as alleged beyond all reasonable doubt. When the victim-girl deposes against a particular person regarding the offence of rape, it cannot be answered against the accused as the Hon'ble Supreme Court has stated that always the evidence of the prosecutrix cannot be taken as a gospel truth and the approach and caution, the Court has to take while appreciating such evidence is stated in the above referred decision. Particularly when her own parents, her relatives, all panchas and medical evidence does not supported her case. Moreso, when admittedly sister of accused No.1 has filed a case against parents of the victim-girl and brother, which is important factor. 69
57. So, when entire evidence of prosecution is considered in the light of oral and documentary evidence, it is evident that evidence of victim-girl or evidence of prosecution or evidence of Investigating Officer does not inspire any confidence. The evidence of prosecutrix is full of contradiction and inconsistencies about the material particulars. There is lot differences between may be true and must be true. It is not safe to base any conviction on such uncorroborated and not trustworthy evidence. Therefore, evidence placed before the Court is doubtful about prosecution allegations against these appellants. In view of these discussions, I hold that, the prosecution has failed to prove the guilt against the accused and the accused are entitled for benefit of doubt and acquittal from all the charges to which they were convicted.
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58. I have perused the impugned judgment of learned District and Sessions Judge at Yadgiri. The learned Sessions Judge has not considered the inconsistencies, inherent and improbabilities appearing in the evidence of PW.8-victim-girl. The learned Sessions Judge has not discussed the prosecution case in a proper perspective. The learned Sessions Judge has not assigned the reasons as to why her parents and relatives have not supported the case of prosecution. The learned Sessions Judge has not considered the medical evidence in a proper perspective. The learned Sessions Judge has not passed any sentence or order regarding either convicting or acquitting accused Nos.7 and 8 for the offence punishable under Section 366 of Indian Penal Code. The learned Sessions Judge has acquitted all the appellants for the offences punishable under Sections 504 and 506 of Indian Penal Code. So, how he believed that there is criminal intimidation and threat by accused Nos.7 and 8 or accused No.1 is not 71 forthcoming. There is no charge for the offences punishable under Sections 323 and 341 against accused Nos.1, 7 and 8. But very strangely the learned Sessions has convicted these accused for the offence punishable under Section 341 of Indian Penal Code. There is no iota of evidence against accused Nos.7 and 8 either in the complaint or nobody stated that they have restricted movement of the complainant and his family members. The injury certificate produced in respect of victim girl, which is marked as Ex.P.9, clearly indicate that there are no external injuries. So, how the learned Sessions Judge has convicted accused No.1 for the offence punishable under Section 323 is also not forthcoming. The learned Sessions Judge has convicted these appellants for the offence punishable under Section 147 of Indian Penal Code, but there is no proof of any unlawful assembly or question of rioting, does not arise at all. The learned Sessions Judge has convicted accused Nos.7 and 8 for the offence under 72 Section 376 punishable under Section 114 of Indian Penal Code and also convicted the accused No.1 for the offence punishable under Section 376 of Indian Penal Code. But the reasons given by the learned Sessions Judge have not attracted the offence under Section 376 punishable under Section 114 of Indian Penal Code against accused Nos.7 and 8 of Indian Penal Code, does not hold good. There is no any allegation against them that they were abetting the accused No.1 for committing any offence. Therefore, conviction for the offence under Section 376 punishable under Section 114 read with Section 149 of Indian Penal Code does not stand good, as per well settled principles regarding appreciation of convicting the accused.
59. There is no evidence with regard to restricting the family members of victim-girl and there is no criminal intimidation. Accused Nos.7 and 8 are acquitted by the learned Sessions Judge for the offences 73 punishable under Sections 504 and 506 of Indian Penal Code, but how they are considered for the offence punishable under Section 341 of Indian Penal Code is not forthcoming. The learned Sessions Judge though relied upon the decision of the Hon'ble Supreme Court reported in (2006) 1 SCC (Cri.) 78 in the case of State Rajasthan vs. Biram Lal, wherein the Hon'ble Supreme Court has clearly stated that based on the sole testimony of the prosecutrix, when the evidence of prosecutrix is alone believable and trustworthy, there need not be any corroboration to her evidence, if evidence of prosecutrix appears to be creditworthy and believable one. But, here the evidence of PW.8-victim- girl totally suffers from inherent, improbable, embellishment and inconsistent, which is totally contrary to the prosecution case. The evidences of her own parents and relatives are also not supports her evidence. The medical evidence also does not support offence alleged in this case. Therefore, the reason given 74 by the learned Sessions Judge in this regard is not correct. At Page No.16 it is observed by the learned Sessions Judge that "PW.8 has stated that the accused No.1 did sexual intercourse with her against her will and when accused No.1 was having forcible sexual intercourse with her by putting cloth in her mouth, she had objected". But, nowhere such thing has been stated by PW.8-victim-girl. So, this observation made by the learned Sessions Judge is not based on the evidence of either PW.8-victim-girl or the prosecution witnesses. The reasons given by the learned Sessions Judge with regard to why PW.8-victim-girl did not scream for help or tried to escape though there is sufficient opportunities, is also not correct. The learned Sessions Judge has not passed any order with regarding default sentence for non-payment of fine. Therefore, there is no proper appreciation of evidence about prosecution case. The learned Sessions Judge has not considered the case on the basis of settled principles of law regarding 75 coming to the conclusion or proof of guilt in such type of cases, this has resulted in miscarriage of justice. The judgment is not based on settled principle regarding appreciation of evidence in this type of case. Accordingly, the judgment of the Trial Court needs interference by this Court. Therefore, I answered points No.1 to 6 in the Negative and point No.7 in the Affirmative. In the result, I pass the following:
ORDER The appeal is allowed.
The Judgment of conviction and sentence passed by the learned District and Sessions Judge at Yadgiri in S.C.No.87/2010 dated 06.07.2012, is hereby set-aside.
Accused Nos.1, 7 and 8/appellants No.1) Sunil s/o Shantappa Chawan, 2) Somya s/o Seetya Rathod and 3) Khamya s/o Keerya Rathod, are acquitted of the offences punishable under Sections 147, 323, 341, 376, 366 and 114 read with Section 149 of Indian Penal Code.76
The bail bonds of the accused and the bonds executed by the sureties, if any, are hereby cancelled.
If the fine amount is already deposited, the same is ordered to be refunded to the accused/appellants.
Send back the records of the Trial Court forthwith.
Sd/-
JUDGE MNS/KJJ