Bangalore District Court
Unknown vs Sunil Meharwade on 23 April, 2019
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 23rd DAY OF APRIL, 2019
: PRESENT :
SMT.SARASWATI V.KOSANDAR, B.Com.,LL.M,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
S.C.No. 1016/2018
COMPLAINANT :
The State of Karnataka by
Shankarapuram Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
1. Sunil Meharwade
S/o Javaharalal Meharwade
Aged about 25 years,
2. Javaharalal Meharwade
S/o Late Hanumanthsa,
Aged about 68 years,
Both A1 & A2 are R/at No.6677
1A2W13,
4th Cross, Vivekananda Road,
Near Chetana Canteen,
Masari, Gadag City.
[Reptd by Mr. VK Advocate]
***
2
S.C 1016/2018
1. Date of Commission : Since, November 2015
Of Offence
2. Date of Report :
13.01.2017
Of Offence
3. Date of arrest of accused : 18.1.2017
4 Date of release on Bail 27.1.2017
5 Period undergone in
Judicial Custody
6. Name of the complainant : Victim
7. Date of Commencement of :
20.2.2019
recording evidence
8. Date of Closing of Evidence : 12.4.2019
9. Offences complained of : Secs. 355, 3422, 406, 417, 420
and 376 r/w 34 of IPC.
10. Opinion of the Judge : Accused No.1 & 2 are found
not guilty
11. Order of the Court : As per final order
JUDGMENT
This is a charge sheet laid down by Shankarapuram Police station, Bangalore City against accused No.1 & 2 in Crime No. 2/2017 for the offences punishable under Sections 355, 342, 406, 417, 420 and 376 r/w 34 of IPC.
2. In brief the case of the prosecution reads as under:
The accused No.1 came in contact with prosecutrix during the year 2015 and they were loving each other. The 3 S.C 1016/2018 prosecutrix and the accused No.1 used to contact over phone and they used to meet in holidays and thereafter with an assurance to marry her, the accused developed physical relationship with prosecutrix and they were in liveinrelationship. It is alleged that accused No.1 started torturing her mentally telling that he cannot get marry her and thereafter prosecutrix visited the house of accused No.1 at Gadag and wherein, the father of accused No.1 i.e., accused No.2 abused and assaulted her and both accused No.1 and 2 with common intention wrongfully confined prosecutrix in a room and accordingly, the prosecutrix lodged a complaint against accused No.1 and 2. On the basis of the complaint, Investigating Officer registered the case in Crime No.2/2017 against the accused persons for the offences punishable u/S 355, 342, 406, 417, 420 and 376 r/w 34 of IPC and visited the spot of occurrence and drawn necessary mahazars, recorded statement of the prosecution witnesses. Accused persons were arrested.
After collecting necessary documents and by completing investigation the IO has submitted charge sheet against 4 S.C 1016/2018 the accused persons for the offences punishable u/s 355, 342, 406, 417, 420 and 376 r/w 34 of IPC.
3. Having received the said charge sheet in Crime No. 2/2017, the learned XXIV ACMM, by complying the provisions of Section 209 of Cr.P.C committed the matter to the Hon'ble Prl. City Civil & Sessions Judge against the accused by submitting the entire records in C.C. 2237/2018. Having received the committal records, the Hon'ble Prl. City Civil & Sessions Judge made over this case to this court for disposal in accordance with law.
4. After hearing the learned counsel for accused and the learned Public Prosecutor, the charges were framed against accused No.1 & 2 for the offences punishable under Sections 376, 504, 342, 323 and 417 of IPC. Since accused persons pleaded not guilty and claims to be tried, prosecution was called upon to prove the guilt against accused persons.
5
S.C 1016/2018
5. In order to prove the alleged offences, the prosecution has examined 5 witnesses as P.W.1 to P.W.5 and got marked 8 documents at Ex.P.1 to Ex.P.8. PW1 is the complainant/victim, PW2 & 3 are the seizer mahazar witnesses, PW4 is the Investigating Officer and PW5 is the spot mahazar witness. Inspite of issuance of summons to remaining witnesses concerned police returned the summons unexecuted and failed to produce them before the court. Considering the versions of prosecutrixPW1 to 5 and sufficient time granted to police, this court rejected the prayer of the Learned Public Prosecutor to reissue summons to remaining witnesses and closed the prosecution side evidence.
6. Thereafter accused persons have been examined u/s 313 of Cr.P.C. Accused No.1 and 2 denied the entire incriminating circumstances appearing against them and submitted that, they have no defence evidence to be adduced. Thereafter accused have furnished surety in 6 S.C 1016/2018 compliance of Sec. 437(A) of Cr.P.C. and matter was adjourned for arguments.
7. I have carefully scrutinized the entire documents placed before me. Heard arguments.
8. Now, the points that arise for my consideration are as under:
1)Whether the prosecution has proved beyond reasonable doubt that the accused No.1 came in contact with prosecutrix CW1 in the year 2015 and made her to believe that he would marry her and subsequently took her to Sai Suits Lodge room and had forcible sexual intercourse with her against her wish repeatedly on the guise of marrying her and thereby committed offence punishable under Section 376 of I.P.C?
2) Whether the prosecution has proved beyond reasonable doubt that accused No.1 after committing rape on CW1, when CW1 forced the accused No.1 to marry her, on 8.1.2017, accused No.1 took her to his father's i.e., accused No.2's house, there accused No.2 insulted her by abusing her in filthy language and thereby committed offence punishable under Section 504 of I.P.C
3) Whether the prosecution has proved beyond reasonable doubt that accused No.2 after abusing CW1 in filthy language, accused No.1 & 2 with common intention wrongfully confined CW1 in 7 S.C 1016/2018 the room at their house and thereby committed offence punishable under Section 342 r/w Sec. 34 of I.P.C
4) Whether the prosecution has proved beyond reasonable doubt that during the period of wrongfully confinement of CW1 the prosecutrix, accused No.2 caused simple hurt by slapping her by means of hands and thereby committed offence punishable under Section 323 of I.P.C
5) Whether the prosecution has proved beyond reasonable doubt that accused No.1 had cheated the prosecutrix by way of committing rape on her with assurance of marrying her and subsequently refused to marry her and thereby committed offence punishable under Section 417 of I.P.C?
6) What order?
9. My findings on the above points are as under: Point No.1 In the Negative Point No.2 In the Negative Point No.3 In the negative Point No.4 In the negative Point No.5 In the negative Point No.6 As per final orders for the following, REASONS
10. Point No.1 to 5: These five points are taken up together for discussions to avoid repetition of acts as they are interconnected to each other.
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S.C 1016/2018
11. The case of the prosecution as presented before the court through complaint and charge sheet filed by police Inspector, Shankarapuram Police Station, Bangalore is that, the accused got to know the prosecutrix who was residing at Sharada PG accommodation No.7/2, in Bull Temple Road, since 2015 and persuaded her to come with him under the pretext of marrying her and thereby roamed with her and took her to Sri Sai Suits Lodge at J P Nagar, Bannerghatta Main Road, Bangalore belonging to CW2 and had forcible sexual intercourse with her continuously and when CW1 forced him to marry her, the accused stated that he would inform accused No.2 his father about this and took her to the house of accused No.2 on 8.1.2017 at Gadag. At that time, accused No.2 abused prosecutrix in filthy language and assaulted her by means of hands and both the accused with a common intention wrongfully confined CW1 in a room and subjected her to both mental and physical harassment and thereby it is alleged that the accused have committed the offences punishable u/S 355, 342, 406, 417, 420 and 376 r/w 34 of IPC. On the basis 9 S.C 1016/2018 of the complaint, Investigating Officer registered the case in Crime No.2/2017 and visited the spot of occurrence and drawn necessary mahazars, recorded statement of the prosecution witnesses. Accused persons were arrested. After collecting necessary documents and by completing investigation the IO has submitted charge sheet against the accused persons for the offences punishable u/s 355, 342, 406, 417, 420 and 376 r/w 34 of IPC.
12. In order to prove the offences as alleged against the accused, the prosecution has to establish that the accused No.1 herein had sexual assault on the prosecutrix against her wish and without her consent and with a promise to marry her and later refused to marry her and thereby committed the offences of rape and cheating and and both the accused with common intention have committed the act of wrongfully confining CW1 in a room and accused No.2 abused and assaulted CW1 and thereby subjected her to both mental and physical harassment. 10
S.C 1016/2018
13. It is relevant to note here that in cases of this nature, the evidence of prosecutrix plays vital role. Her evidence can be accepted by the court even without insisting for corroboration, provided her evidence is free from doubt. In this case the prosecution has examined the prosecutrix CW1 as PW1 who in her evidence though stated that she knows accused persons and identified her signature in the complaint dt:31012017 marked as per Ex.P.1, but stated that she has not lodged complaint against accused persons. Further, PW1 admitted her signature in the spot mahazar and further statement given before police and statement recorded by learned Magistrate u/S 164 of Cr.P.C. and same are marked as per Ex.P.2 to 4, but she stated that she do not know the contents of said documents and turned hostile to the case of prosecution. During crossexamination by the learned public prosecutor PW1 has denied that the accused no.1 herein has committed rape on her in the guise of marrying her and to that effect she has given complaint against him as per Ex.P.1 and further statement as per Ex.P.3. She has 11 S.C 1016/2018 also denied that the police visited the spot of occurrence and drawn mahazar marked at Ex.P.2 and she signed on it after knowing its contents. She also denied that she has given statement before the Magistrate as per Ex.P.4 and further statement as per Ex.P.5 and thereby she has failed to support the case of prosecution.
14. The prosecution has examined both mahazar witnesses to Ex.P.5 seizure mahazar as PW2 and 3 respectively. These two witnesses in their respective evidence through identified their signatures in Ex.P.5 seizer mahazar, pleaded ignorance regarding its contents and thereby they have also turned hostile to the prosecution case. During the crossexamination by the learned public prosecutor PW2 and 3 have denied that on 20012017 the police drawn Ex.P.5 mahazar when CW1 produced her clothes and they have signed in it after knowing its contents. Prosecution also examined another mahazar witness CW7 as PW5 who in his evidence though admitted his signature in spot mahazar marked at Ex.P.8, 12 S.C 1016/2018 pleaded ignorance about its contents and turned hostile. During the crossexamination by the learned public prosecutor PW5 has denied that on 18012017 the police drawn Ex.P.8 mahazar behind Anuradha Photo Studio, Bangalore and he has signed in it after knowing its contents and thereby PW2, PW3 and PW5 have failed failed to support this aspect of prosecution case.
15. The prosecution has examined the P.S.I who has registered the case against the accused persons as PW4. In his evidence PW4 has stated that on 13012017 at 5.00 pm when he was in police station PW1 appeared and lodged complaint against the accused and he registered the same in Cr.No.2/2017 and sent FIR to the court. Thereafter he visited the spot of offence at Gadag along with his staff and drawn spot mahazar as per Ex.P.2 and handed over case file to police inspector for further investigation. During crossexamination PW4 has denied that CW1 has not lodged any complaint against the accused persons and he has not visited the spot of offence 13 S.C 1016/2018 nor drawn any mahazar. He denied that Ex.P.2 has been created in the police station and he is giving false evidence against the accused.
16. On perusal of both oral and documentary evidence placed by the prosecution it can be seen that according to prosecution the accused no.1 herein has committed sexual intercourse with prosecutrix with a promise to marry her and subsequently refused to marry her and accused no.2 abused and assaulted when she approached him and both the accused wrongfully confined her in a room and subjected her to both mental and physical harassment and thereby accused No.1 has committed offences punishable u/S 376 and 417 of IPC and both the accused have committed the offences punishable u/s 504, 323, 342 r/w Sec.34 of IPC. As noted above, in order to prove the allegations as levelled against the accused persons the prosecution examined the prosecutrix as PW1, Mahazar witnesses as PW2, 3 and 5 and police officer who registered the case as PW4. However, PW1 the very 14 S.C 1016/2018 complainant categorically deposed before this court that she has not given any complaint nor accused committed any such sexual assault or harassment on her. The mahazar witnesses have also not deposed anything against the accused persons. These versions of complainant and mahazer witnesses makes the entire case of the prosecution doubtful and therefore they cannot be convicted based on the evidence of PW4. As noted above, inspite of issuance of summons to remaining witnesses the concerned police failed to produce them before the court and considering the versions of PW1 to PW3 and PW5, this court rejected the prayer of the Learned Public Prosecutor to reissue summons to remaining witnesses, since no purpose would be served in examining other witnesses. The prosecutrix herself being the author of the complaint has not supported the case of prosecution.
17. The prosecution has produced the medical report pertaining to prosecutrix, wherein, it is noted that the hymen of prosecutrix not intact and she has been used to 15 S.C 1016/2018 act like that of sexual intercourse, but prosecution has failed to connect the accused No.1 to said act. It is relevant to note here that in the offences of this type it is well established principle that the prosecution need not prove all the ingredients of the offence as there are presumptions to shift the burden of proof to accused in some respect. But to raise that presumption the prosecution has to show some necessary facts, then only the question of proceeding with presumption arises. According to Section 114A of Indian Evidence Act, in a prosecution for rape under clause (a) to clause (m) or clause (n) of subsection (ii) of Section 376 of Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent. Hence, the presumption u/Sec.114 (A) of the Indian Evidence Act arises when the prosecution proves any of the acts mentioned in clauses (a) to (d) of Section 375 of IPC. 16
S.C 1016/2018 Once such act is proved the court has to mandatorily presume that the acts are without consent of the victim. In the instant case prosecution has not proved any of the acts mentioned in Sec.375 by placing any cogent and satisfactory evidence. It is an established principle of law relating to the presumption in cases of rape that the victim must make an incriminating statement against the accused in court. In the absence of such statement no provision of guilt is attracted. In the instant case, nowhere the victim, deposed that the accused subjected her to the sexual assault. She has also not deposed anything regarding wrongful confinement, insulting in filthy language or assault by accused No.2. Even the prosecutrix herself has deposed that no such acts are committed on her. The versions of prosecutrix recorded on oath before this court makes the entire case of prosecution doubtful and thereby enables the accused for acquittal. Considering the same, more particularly, the version of PW1 before this court, this court opines that prosecution has failed to prove the 17 S.C 1016/2018 guilt against accused persons beyond reasonable doubt. Accordingly, I hold points No.1 to 5 in the negative.
18. Point No.6: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused No.1 and 2 are hereby acquitted for the offence punishable under Sections 376, 504, 342, 323 and 417 of IPC .
(Dictated to the Stenographer online, corrected, signed and then pronounced by me in open court on this the 23rd day of April, 2019.) SMT.SARASWATI V.KOSANDAR ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW1 Prosecutrix PW2 Mahesha PW3 Raju PW4 D. Subbanna PW5 Ningappa Nalawade 18 S.C 1016/2018 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Complaint Ex.P1(a) Signature of victim Ex.P2 Spot mahazar Ex.P2(a) Signature of victim Ex.P3 Complaint Ex.P3(a) Signature of victim Ex.P4 164 statement of victim Ex.P5 Seizure mahazar Ex.P5(a) Signature of victim Ex.P5(b) Signature of PW2 Ex.P5( c) Signature of PW3 Ex.P6 Medical report of accused No.1 Ex.P7 FIR Ex.P8 Spot mahazar Ex.P8(a) Signature of PW5 LIST OF MATERIAL OBJECTS MARKED NIL LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE NIL LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE NIL (SMT.SARASWATI V.KOSANDAR) LIII A.C C & S JUDGE, BANGALORE 19 S.C 1016/2018 *** 23.04.2019 20 S.C 1016/2018 Judgment pronounced in the open court, operative portion of which reads as under: ORDER Acting under Section 235(1) of Cr.P.C accused No.1 and 2 are hereby acquitted for the offence punishable under Sections 376, 504, 342, 323 and 417 of IPC.
(SMT.SARASWATI V.KOSANDAR) LIII A.C C & S J, Bangalore.