Bangalore District Court
The State By vs Krishna Raja Varna on 30 October, 2019
IN THE COURT OF THE LXX ADDL. CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 30 th day of October, 2019
:PRESENT:
SRI. MOHAN PRABHU
M.A., L.L.M.,
LXX Addl. City Civil & Sessions & Special Judge,
Bengaluru.
S.C.NO. 1525/2014
COMPLAINANT: The State by
Kumaraswamy Layout Police Station,
BENGALURU
(By Special Public Prosecutor)
V/s
ACCUSED: Krishna Raja Varna,
S/o Ramachandra Varna.
25 years, R/at No. 177, Pooja Elite,
5-1, Vittala Nagara Main Road,
ISRO Layout, Bengaluru.
(By Sri V.K.J., Advocate)
1.Date of commission of offence: 01.05.2014 to 29.9.2014
2. Date of report of occurrence : 29.09.2014
3. Date of commencement of : 05.01.2018 recording of evidence
4. Date of closing of evidence : 03.06.2019
5. Name of the Complainant : xxxx 2 S.C.NO. 1525/2014
6. Offences Complained of : Sec. 376, 420, 506 of IPC. & Sec. 3(1)(xii) of S.C. & S.T. (P.A.) Act.
7. Opinion of the Judge : Accused is Acquitted.
J UD GM E N T The charge sheet is submitted by the Assistant Commissioner of Police, Banashankari Sub-Division, Bengaluru, Bangalore city against the accused for the offences punishable under Sections 376, 420, 506 of IPC, and u/s 3(1)(xii) of The Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act.
Based upon the first information lodged by C.W. 1 on 29-09-2014 at 5.30 p.m. Kumaraswamy layout Police have registered the first information report bearing Crime No. 358/2014. After completion of investigation charge sheet is submitted directly before the designated II Addl. City Civil and Sessions Court and Special Court Bengaluru. After establishing this exclusive special court, this case transferred 3 S.C.NO. 1525/2014 to this court as per notification ADM I( A) 599/2017 dated 29- 07-2017.
2. The case of the prosecution briefly stated as follows:
CW.1 complainant and accused were working in ITC Fortune Hotel in Bangalore. Complainant was working as team leader. Accused was employed in the said Hotel in the Finance Department. Accused proposed the complainant for marriage. Though complainant was hesitant in the beginning the constant wooing of the accused had persuaded her to reciprocate and they had started loving each other. The complainant belongs to scheduled Caste. Accused belongs to Brahmin Caste. The accused was assured the complainant that he would talk to her parents as well as his parents and will marry her. That on 03/08/2014 accused took the complainant to his sisters house in ISRO layout telling that he will introduce the complainant to his sister and brother
-in-law but none of them were there. Hence complainant returned back. On 10/03/2014 at 2.30 pm the accused had taken the complainant to his sisters house in the pretext of introducing her to his father and sister for marriage talks. 4 S.C.NO. 1525/2014 But when the complainant visited the house No.177 Pooja Alite S-1; Vittal Nagar Main road, ISRO Layout no one was there at home. The accused forcibly made her to stay for 3 hours by telling that his parents will be coming soon. The accused had persuaded her to have sex with him and sexual assaulted her by committing sexual intercourse. Accused promised her that he will marry her. On 22/08/2014 at 4.pm accused again took the complainant to his sisters house situated at ISRO Layout and had sex with the complainant and assured her that he will marry her. That on 29/08/2014 accused started to avoid complainant. When the complainant asked him about the marriage he said that he will talk to parents soon and not to worry nothing will happen. There after on 13/09/2014 at about 5.pm the accused came to the house of the complainant and accepted everything in front of her parents and also told that he will get the registered marriage done. On 14/09/2014 at about 10.00 am in Nagarabhavi Coffee Day accused assured the complainant that he will convince his parents and get marriage done. On 15/09/2014 at about 10.30 am accused along with his father 5 S.C.NO. 1525/2014 and his brother came to the house of complainant. At that time father of the accused threatened that he will commit suicide if this marriage happens. That on 19/09/2014 the accused came to the complainants house and told in front of everybody in her house that he is ready to get marry the complainant and he will bring his parents on 25/09/2014 and saying so he went away. There after on 23/09/2014 at about 7.30 pm when the complainant along with her brother went to the accused sister house at that time the accused sister and brother-in-law quarrelled with the complainant and insulted her and given life threat to her. There after the accused did not turn up and all his mobile phone numbers were switched off. On the basis of first information statement lodged by complainant on 29/09/2014 the case came to be registered against accused No.1 to 6. The investigation officer after completion of investigation has filed charge sheet only against accused No.1. Remaining accused No.2 to 6 are left out in the charge sheet.6 S.C.NO. 1525/2014
3. Accused released on bail. Charge sheet copies furnished to the accused and thereby the provision u/s 207 of CrPC is duly complied with.
4. On 13/09/2017 charge came to be framed for the offence punishable u/s 376, 420, 506 of CPC and u/s 3(1)
(xii) of SC/ST (POA) Act for which accused pleaded not guilty and claimed for trial.
5. During the trial, the prosecution has examined 9 witnesses as P.W. 1 to 9 and documents Ex.P.1 to Ex.P.16 are marked. MO.1 to MO.5 are marked.
6 On 20/09/2017 statement of accused as required u/s 313 of Cr.PC., is recorded. Accused has denied all the incriminating evidence. Accused stated that " ನನನ ಮಮಲ ಸಸಳಸ ಳ ಕಮಸಸ ಹಕದರ ". Accused has not lead any defence evidence.
7. I have heard the arguments of the learned Spl. PP and learned counsel for the accused.
8. The learned Spl. Public Prosecutor submitted that evidence of PW.1 would clearly establish that the accused had sexually assaulted her by committing sexual intercourse in 7 S.C.NO. 1525/2014 the promise of marriage. She submitted that PW.2 Doctor who assessed the age of PW.1, PW.9 Doctor who examined PW.1 have supported the case of the prosecution. PW.3 on Doctor who examined the accused has given opinion report as per Ex. P.6, PW.4 Tahasildar has issued Ex.P.7 report regarding the caste of accused. PW.5 who took the PW.1 victim to the hospital for medical examination, PW.6 Police Constable who apprehended the accused and produced before I.O. PW.7 Head constable who who carried MO.1 to MO.5 to FSL Madivala, PW.8 ACP investigation officer who deposed about conducting investigation and submitted charge sheet. She submitted that the oral evidence of PW.1 does not requires corroboration. She submits that since the prosecution has established charges framed against the accused beyond all reasonable doubt the accused is liable to be convicted for the said charges.
9. The learned Spl.PP relied upon the decision of Hon'ble Supreme Court reported in AIR 2019 Supreme Court 1857 in Anurag Soni V/s State of Chhattisgarh. 8 S.C.NO. 1525/2014
10. The learned counsel for the accused submitted that the document Ex.P1 does not bear the signature of PW.1. He submitted as per section 154 of CR.P.C complaint must be signed. But Ex.P.1 does not contain signature of PW.1 . Hence it is not to be treated as complaint. He further argued that in this case the investigation officer has not made any efforts to get record the statement of PW.1 under section 164 of Cr.PC which in fatal to the case of the prosecution. He submitted that PW.1 has deposed that 1 week prior to lodging of complaint as per Ex.P.1 she firstly went to Jnanabharathi Police Station then went to Subramanyapura Police Station and then to Kumaraswamy Layout Police Station. PW.1 has deposed that she has given the same complaint to Kumaraswamy layout police station which carried to Jnanabharathi Police Station. He argued that PW.1 has clearly admitted that the accused has not misbehaved with her at any 9 S.C.NO. 1525/2014 time. She has admitted that she was kissing the accused in public place and hugging in public place in front of public. He argued that PW.1 had experience by working in different international hotels including Buj-All-Arab and Burj Kalifa of Dubai and Shangrila Hotel at Palace Road, Bengaluru. He argued that the oral evidence of PW.1 is full of contradictions to the document Ex.P.1 complaint. PW.1 has deposed that she was deeply in love with the accused. He submitted that PW.1 admitted the suggestion that even after accused remanded to Judicial custody she meet the accused in jail. He argued that from the oral evidence of PW.1 it can be said that it is consensual sex rather than rape. PW.8 doctor has deposed no external injuries found on body of PW.1. He submitted that the alleged incident dated 10/08/2014 and 22/08/2014 in the sisters house of accused is not proved by the prosecution. PW.1 has deposed that she has given the underwear and cloths worn as on the date 10 S.C.NO. 1525/2014 of incident to the police. He argued that the investigation officer has not seized any cloths. He submitted that in Ex.P1 it in mentioned that "details attached". The investigation officer has not produced any such documents before the court. The very first information statement is not forth coming in this case. He further argued that according to PW.1 accused assured her that he will bring his parents on 25/09/2014 for marriage talks. He submitted that on perusal of oral evidence of PW.1 who deposed that one week prior to 29/09/2014 she went to Jnanabharathi Police Station to lodge complaint itself indicates that even PW.1 has not waited till 25/09/2014. He argued that in Ex.P.1 it is mentioned that on 10/08/2014 accused forcefully made her to have an intercourse with him without taking any precautions but quite contrary to that PW.1 has deposed that at the time of sexual intercourse accused gave her I.pill which he brought purchased in medical shop near his house. 11 S.C.NO. 1525/2014 He submitted that even in Ex. P.5 report PW.9 doctor mentioned that victim stated before her about use of I pill on 10/08/2014 and 22/08/2014. He argued that CW.2, CW.3 mahazar witnesses have not examined on the side of prosecution. No independent witnesses have examined on the side of prosecution. He argued that the uncorroborated oral evidence of PW.1 created doubt about her version. PW.1 who was working in Shangrilla Hotel fell love with on Vimlash Giri and married him. The learned counsel for the accused argued that the investigation officer has not collected the phone call details, whatsapp call details and text message details. He argued that the ingredients of section 376,420, 506 of IPC and section 3(1) (xii) of SC/ST (POA) Act is not proved by the evidence of PW.1 to PW.9. The prosecution has failed to establish the charges framed against the accused beyond all reasonable doubt. He thus prays to acquit the accused.
12 S.C.NO. 1525/2014
11. The learned counsel for the accused relied upon following citations:-
1. 2014 (6) SCC (Cri) 420 state of Karnataka by Nonavinakere Police V/s Shivanna @ Tarkari Shivanna.
2. 2018(1) RCR (Criminal) 256 Doongar Singh V/s State of Rajasthan. (SC).
3. 2013 ILR (Karnataka) 2537. Anjinappa V/s State of Karnataka , Halavagalu P.S. Davanagere.
4. 2005 AIR (SC) 203, Deelip Singh@ Dilip Kumar V/s State of Bihar.
5. 2016 (1) JT 141. Tilak Raj V/s State of Himachal Pradesh(SC).
6. 2013 (3) Air kar. R. 176 Mallesh Khemanna V/s State of Karnataka.
7. 2011(14) SCC 475 K.P Thimmappa Gowda V/s State of Karnataka.
8. 2016(1) Kant LJ 128 State by Konanur Police V/s K.M. Lokesh.13 S.C.NO. 1525/2014
9. (2018) 0 Supreme (SC) 838 Sham Singh V/s State of Haryana.
10. 1983 Cr. LJ 934 Gujarath High Court.
11. Crl. L.P. 532/2019 High Court of Delhi in State V/s Sandeep.
12. Upon hearing the following points arise for my consideration :-
POINTS Point No.1:- Whether the prosecution has proved beyond all reasonable doubt that on 10th August 2014 and 22nd August 2014 the accused took the complainant to his sisters house No. 177 Pooja Alits S-1 Vittal Nagar ISRO Layout and in the promise of marriage the accused sexually assaulted CW.1/PW.1 complainant by committing sexual intercourse and there by the accused committed the offence punishable u/s 376 of IPC?
Point No.2:- Whether the prosecution proves beyond all reasonable doubt that the accused in the promise of marriage sexually assaulted C.W. 1/PW.1 complainant and there after he refused to marry her and thereby accused deceived CW.1 and thereby committed the offence punishable u/s 420 of IPC?14 S.C.NO. 1525/2014
Point No.3:- Whether the prosecution proves beyond all reasonable doubt that accused Criminally intimidated by giving life threat to C.W.1/PW.1 and thereby committed the offence punishable u/s 506 of IPC?
Point No.4:- Whether the prosecution proves beyond all reasonable doubt that the accused who belongs to Brahmin Caste knowing very well that CW-1 /PW.1 belongs to Schedule Caste. Committed sexual assault on CW.1/PW.1 and thereby the accused has committed the offence punishable u/s 3(1) (xii) of the Schedule Castes and Scheduled Tribes (Prevention of Atrocity) Act?
Point No.5:- What Order?
13. My findings on the above points are as follows:
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:- As per final order for the following 15 S.C.NO. 1525/2014 REASONS
14. POINTS No.1 to 4:- These points are taken up together for common discussion in order to avoid repetition of facts and evidence.
PW.1 is the complainant and victim. PW.2 is the doctor who assessed the age of PW.1 and issued Ex. P.3 report. PW.3 is the Doctor who examined the accused and issued report as per Ex.P.6, PW.4 Tahasildar has issued Ex.P.7 report regarding caste of accused. PW.5-WPC who took PW.1 to the hospital for medical examination. PW.6 Police Constable who apprehended the accused and produced before I.O. PW.7 Head constable who carried MO.1 to MO.5 to FSL. PW.8 ACP is the investigation officer conducted further investigation and submitted charge sheet. PW.9 doctor who examined PW.1 and issued Ex.P5 examination report.
15. In this case despite of sufficient opportunity given to the prosecution the prosecution has not examined CW.2, CW.3 Mahazar witnesses and CW.5 brother of PW.1. The prosecution could not examined CW.4, CW.6, mother and father of PW.1 since they are dead. The prosecution could not Examined 16 S.C.NO. 1525/2014 CW.14 Head constable and CW.16 Police Inspector who registered case since they are dead. The prosecution has not examined any independent witnesses in this case except PW.1 complainant.
16. Prior to proceed to discuss about the oral and documentary evidence of the prosecution it is important to note some of the undisputed facts in this case. Regarding the caste of PW.1 and accused there is no dispute. The document Ex.P.8 report of Tahsildar regarding caste of PW.1 marked by consent on side of counsel for accused. The oral evidence of PW.4 Tahsildar and so also the document Ex.P7 report regarding the caste of accused not disputed by the accused. Thus there is no dispute that PW.1 is belongs to Adi Karnataka Scheduled Caste and accused is belongs to Brahmin caste. It is not in dispute that complainant was working as Team leader in food and Beverage Section and accused was working in Finance Department in the year 2014 in ITC. Myfortune Hotel situated near Hosmat Hospital, Bengaluru. It is not in dispute that while there were working in the said hotel they were loving each other and used to go tea-coffee shop, movie, park. 17 S.C.NO. 1525/2014 Keeping in mind these admitted facts I would like to discuss the oral and documentary evidence on record.
17. PW.1 is the complainant in her examination in chief almost reiterated the complaint averments Ex.P.1.
18. PW.1 has deposed that as she was working as Team Leader. She used to take the bills to Finance Section and there she got acquaintance with the accused. Then they exchanged their mobile numbers. The accused used to send forward messages to her almost daily. She too used to respond. She used to go with her colleagues and accused the tea-coffee shop. After 2-3 days she received message from accused as " I love you chinni". She did not respond for about 2 days. She later told accused that she belongs to scheduled caste and from his side there may be no acceptance. Then accused told her that there is no problem and he can ensure acceptance from his family side. On saying this she accepted his proposal and both of them started going movies, hotels etc and they used to talk late night and exchange lots of messages. PW.1 has deposed that on 03/08/2014 as accused called her to his house to speak about marriage with his family member. She had been to 18 S.C.NO. 1525/2014 house of accused but no one was there, hence she afraid and after staying there for about 5 minutes came back. The accused later sent her 'sorry' message. PW.1 deposed that on 10/08/2014 between 2.00 pm to 2.30 pm accused took her to his house saying that his father will come to talk about marriage. After reaching his house accused told her that his parents are on the way and will reach in 2 to 3 hours and asked her to wait. The accused during that time tried to come near her, kissed her and forcibly took her to bed room and committed sexual intercourse. After that she wept and returned to her house. She has deposed that she told the accused that you have to first get the acceptance from your parents and I take the responsibility of acceptance from my parents side. There after accused calling her as 'wife'. On 22/08/2014 the accused asked her to come to his house to go to movie. On that day also between 4.00 pm to 4.30 pm the accused assuring her that he will marry her committed forceful sexual intercourse in the bedroom of his house. She has deposed that the accused slowly started avoiding her. From 50 messages a day, it got reduced to 5 messages a day. On 19 S.C.NO. 1525/2014 13/09/2014 she went to see him personally to his office at that time he told he will meet her in the evening. On the same day night accused came to her house and told her parents that he will marry her and get the marriage registered. On 14/10/2014 near coffee day at Nagarbhavi the accused told her that he will call his parents and then marry her. On 15/10/2014 accused came to her house along with his father and cousin Aravind at 10.00 am. Then the father of the accused said that she belongs to dirty caste and if the marriage takes place he and his wife will commit suicide. Even though her mother tried to convince the father of accused he did not agreed and went away. On 19/09/2014 the accused said that he will bring his mother also on 25/09/2014 to speak about the marriage. However on 23/09/2014 all the contact numbers of accused were answered as switched off. So they got worried and she along with her mother and her cousin Niranjan went to the house of elder sister of accused at ISRO layout. The sister of accused and her husband who took them to terrace of the house scolded them. She has also received call form unknown number where in one Prakash given threat to her. They 20 S.C.NO. 1525/2014 returned to the house. There after she lodged complaint to police as per Ex.P.1. In the police station the accused said that he was just doing drama with her. On 30/09/2014 the police visited to the house of elder sister of accused and conducted the panchanama as per Ex.P.2. The police took her to KIMS Hospital, the doctor took her underwear MO.1 and also collected nails. She has also signed on Ex.P.3 to Ex.P5 in the hospital.
19. During the course of cross examination by the learned counsel for accused PW.1 admitted the suggestion that she was worked in number of hotels like ITC Gardeniya, ITC Myfortune, Shangrila Hotels at Bengaluru and Burj Al-Arab, and Burj -Kalifa Hotels at Dubai.
20. She has deposed that her marriage with Vimalesh performed on 06/10/2016. She admitted the suggestion that while she working at Shangrila Hotel she and Vimalesh who also working in same hotel loved each other and there after married. She has admitted the suggestion that while she was working in ITC Myfortune hotel as team leader 8 worker working under her. She states that her working hours in 21 S.C.NO. 1525/2014 Myfortune hotel was between 5 am to 11 pm. She admits that there is biometric electronic records to mark attendance in the hotel. She admitted the suggestion that the accused good behaving with her. She admitted the suggestion that she and accused both loving each other. They started to love each other in the month of July 2014. She admitted the suggestion that she and accused exchanging more than 100 messages through whatsapp a day . She admits that her sisters husband G.H. Lohith Kumar is practising advocate. She admitted the suggestion that as she and accused loving each other they used to go movie, hotel, temple and to different places. She admitted the suggestion that she used to hug the accused in the public place in the presence of public. She also admitted the suggestion that she used to kiss the accused in public place. She has admitted the suggestion that when she was loving accused she was not informed the same to her family members. She admits that while they were loving each other they were not bothered about the caste. PW.1 has deposed that one week prior to lodging complaint as per Ex.P.1. She went to Jnanabharathi police station to lodge complaint. She firstly 22 S.C.NO. 1525/2014 went to Jnanabharathi Police station, then to Subramanyapura Police station and then to Kumaraswamy layout police station. She states that when she went to the house of accused for first time she did not entered house. She was waited the accused from out side. She do not remembers to say the floor where the house is situated. She has admitted the suggestion that she was told before the doctor that she consumed I pill on 10/08/2014 and 22/08/2014. She has deposed that on first time and second time when she had sexual intercourse with accused her cloth and cloth of the accused became dirt. The bed sheet also became dirt. She has deposed that she had given the said dirt cloths to the police. She has admitted the suggestion that Ex.P.1 does not contain her signature. She admits the suggestion that in order to marry accused she has lodged Ex.P.1 complaint. She further deposed that since accused assuring her that he will marry her committed the act hence in order to marry his she lodged the complaint. She admitted the suggestion that after arrest of accused when accused was in jail one day she visited to the jail and met the accused. She has admitted the suggestion that she has not 23 S.C.NO. 1525/2014 waited the accused till 25/09/2014. PW.1 admitted the suggestion that the accused has not misused her caste. She states that she has been love with her husband for 8 months when they were working in Sangrilla Hotel prior to their marriage. She has denied all other suggestions made to her.
21. PW.2 Dr. Naveen Kumar has deposed that he has examined PW.1 on 13/09/2014 and on the basis of physical and dental examination he assessed her age as 18 to 25 years and issued Ex.P3 report. The oral evidence of PW.2 in formal in nature.
22. P.W. 3 Dr. S.R. Jagannath has deposed that on 30/09/2014 at 10.15 pm he examined the accused. There were no external injuries present over body of the accused. He opined that there is nothing to suggest that the accused is incapable of performing sexual intercourse. He has issued Ex.P.6 report.
23. PW.4 then Tahsildar of Bengaluru south issued Ex.P.7 report regarding caste of accused. The oral evidence of PW.4 and document Ex.P.7 remained unchallenged. 24 S.C.NO. 1525/2014
24. PW.5 Mythra K.T woman police has deposed that on 29/09/2014 she took PW.1 to KIMS hospital for medical examination. She brought MO.1 to MO.5 collected by doctor from PW.1 to the police station and produced before I.O. During the course of cross examination by the defence nothing is elicited from the month to discard her chief examination version.
25. PW.6 Police Constable has deposed that on 30/09/2014 police inspector deputed him to trace out and produce the accused hence he went to ISRO layout and apprehended the accused in house No. 177 and produced the accused at 3.55 pm before I.O and submitted his report as per Ex.P.9. In his cross examination by the defence he has denied all the suggestions made to him.
26. PW.7 Govardhan Rao. Head Constable deposed that on 29/10/2014 he carried MO.1 to MO.5 to FSL Madivala.
27. PW.8/5 Suresh Babu, ACP is the investigation officer deposed that on 02/10/2014 he took up the case file from CW.16 for further investigation and collected MO.1 to MO.5 from hospital and subjected them for Ex.P.13 PF. He has 25 S.C.NO. 1525/2014 received Ex.P.3, Ex.P.5, Ex.P.6 reports. He has received Ex.P7, Ex.P8 reports of Tahsildar. He on 25/12/2014 after completion of investigation has filed the charge sheet against the accused. During the course of his cross-examination by the learned counsel for accused PW.8 denied all the suggestions made to him.
28. PW.9 /Dr. Rajitha has deposed that on 29/09/2014 she examined PW.1 victim at 8.00 pm. Victim given her history by stating that accused has promised her getting married and had sexual intercourse with her on 10/08/2014 and 22/08/2014 at his sisters house at Uttarahalli, ISRO layout. PW.9 has deposed that on vaginal examination it was admitting one finger. Hymen was not intact. No external injuries were found. She collected MO.1 to MO.5 in order to send the same to FSL. PW.9 has given opinion that there is evidence of previous sexual intercourse. PW.9 during the course of cross- examination by the defence admitted the suggestion that no external injuries were found on the private part of surrounding the private part.
26 S.C.NO. 1525/2014
29. Based on the above evidence it has to be seen if he prosecution has established the charges against the accused beyond all reasonable doubt. Regarding caste of PW.1 and accused there is no dispute. PW.1 is belongs to Adi Karnataka Scheduled caste. Accused is belongs to Brahmin caste. PW.1 in her cross-examination clearly admitted that accused has not misused her caste. Since there is no dispute about the caste and no dispute that accused and PW.1 were loving each other and decided to marry and they were used to go to movie, coffee-tea shop, hotel and different places and also having physical relation only point to be decided is whether the accused with intends to deceive the complainant from inception in the promise of marriage committed sexual intercourse with her to be considered.
30. The learned counsel for the accused relied upon the decision reported in 2014 (6) SCC (Cri) 420 to contend that the investigation officer shall produce the victim before Magistrate with in 24 hours to record statement u/s 164 CrPC . In the present case CW.16 police inspector 27 S.C.NO. 1525/2014 (deceased) who registered the case and started investigation has not made efforts to sent PW.1 before Magistrate to record statement u/s 164 CR.PC. Non recording of statement u/s 164 Cr.P.C comes under defective investigation. PW.8 who conducted further investigation also not made efforts to make arrangement to record 164 Cr.P.C statement of PW.1 No doubt defective investigation if self cannot be sole ground to throw out entire case of the prosecution. But fact remains that in this case I.O has not made any effort to get record the 164 Cr.P.C statement of PW.1.
31. The learned counsel for the accused relied upon the decision of our own Hon'ble High Court reported in 2013 ILR (Karnataka) 2537 to contend that when there is relationship between two co-worker who were intimately known to each other in circumstances that they had spent time together for long period and that it is also possible that desire to have sex was mutual and consensual-hence 28 S.C.NO. 1525/2014 given circumstances of case it is possible to hold in favour of appellant that there was consensual sex between complainant and accused.
32. The learned counsel for the accused relied upon the decision reported in 2005 AIR (SC) 203 where in held that accused made a genuine promise to marry and committed intercourse with consent of prosecutrix- accused could not marry due to family pressure-accused not guilty of rape-it is breach of promise and not a case of false promise - Accused would be guilty of offence of rape if from very inception he had fraudulent intention. Further held that Evidence Act Section 114A-Rape with consent burden is on the prosecution to prove that there was absence of consent of course, the position is different if the case is covered by section 114A of Evidence Act- consent of absence of it could be gathered from the attendant circumstances the previous or contemporaneous acts or the subsequent conduct can be legitimate guides. 29 S.C.NO. 1525/2014
33. The learned counsel for the accused also relied upon the decision reported in 2016(1) JT 141 with regarding to section 415, 417, 420 of IPC and section 376 of IPC. He relied upon the judgement reported in 2013(3) Air Kar. R.176 where in it is held that the victim herself had stated that when accused first proposed her, she had expressed that he should speak to her parents for such proposal if he was interested in her there was distinct belief that there would be marriage and they bring related, there was strong possibility of such marriage- Thus continued relationship over period of time would indicate that victim-complainant had consented to have sexual intercourse with accused consciously. Finally and voluntarily as there was possibility of marriage with appellant-There was no evidence to establish beyond reasonable doubt that appellant made a false or fraudulent promise to marry.
30 S.C.NO. 1525/2014
34. The learned counsel for the accused also relied upon the decision reported in 2011(14) SCC 475, 2016(1) Kant LJ 128, (2018) 0 Supreme (SC) 838, 1983 Cri. LJ 934, Crl. LP. 532/2019 High Court of Delhi.
35. The learned Special PP relied upon the decision of Hon'ble Supreme Court reported in AIR 2019 Supreme Court 1857 to contend that accused allegedly establishing physical relation with prosecutrix on pretext of marriage - prosecutrix gave consent relying upon false promise of marriage by accused and hence amount to consent on misconception of fact-such consent cannot excuse accused from charge of rape.
36. The learned counsel for the accused submitted that decision cited by the learned Spl.PP not applicable to the facts of the case. He submitted that the decisions cited by him are aptly applicable to the present case. On the other hand learned Spl.PP submitted that PW.1 has 31 S.C.NO. 1525/2014 clearly deposed that the accused assuring her that he will marry her had sexual intercourse with her.
37. I have appreciated rival contentions and gone through the decision cited by the learned counsel for the accused and learned Spl. PP. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be consent obtained on a misconception of fact as per section 90 of the IPC and in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under section 375 of IPC. The Hon'ble Supreme Court in para No.12 of the cited decision reported in AIR 2019 Supreme Court 1857 held as such.
32 S.C.NO. 1525/2014
38. Applying the law laid down by the aforesaid decisions to the present case what in emerging from evidence of PW.1 is that she started to love to accused in the month of July 2014. It in the evidence of PW.1 that she and accused used to go to movie, hotels, parks, coffee and tea shop etc. PW.1 has deposed that she also hugging the accused in the public in front of public and also kissing the accused in public place. It is come in the evidence of PW.1 that accused promise her that he will bring his parents on 25/09/2014 for marriage talks. PW.1 has admitted in her cross-examination that she has not waited the accused till 25/09/2014 even before that on 23/09/2014 she along with her mother visited to the sister house of accused. It is not the evidence of PW.1 that when she visited to the house of the accused sister the accused was present. It is the evidence of PW.1 is that the sister and brother-in-law of the accused quarrelled with her. In the present case the investigation officer has not 33 S.C.NO. 1525/2014 collected any documents, such as call detail records of mobile phone of the accused and PW.1. The prosecution has not produced call detail records of the mobile phone of the accused and PW.1 to show that in the month of September 2014 the accused switched off his mobile phone or unanswered the call of PW.1.
39. It is the evidence of PW.1 is that on 13/09/2014 that in after alleged incidents dated 10/08/2014 and 22/08/2014 the accused visited to the house of the complainant on 13/09/2014 and spoke to her parents saying that he will marry her. PW.1 has also deposed that on 14/09/2014 near coffee day at Nagarabhavi accused told her that he will call his parents and then marry her. PW.1 has deposed that on very next day on 15/09/2014 the accused came to her house along with his father. It is her evidence that the father of accused who came to her house not convinced and he refused to give accused in marriage with her and also threatened her that if the 34 S.C.NO. 1525/2014 marriage takes place he and his wife commit suicide. It is not the evidence of PW.1 is that when accused came along with his father to her house accused scolded her or refused to marry her. PW.1 has deposed that on 19/09/2014 the accused said her that he will bring his mother also on 25/09/2014 to speak about marriage. PW.1 has not waited for marriage talks till 25/09/2014. It in her evidence is that as on 23/09/2014 all the contact numbers of the accused were unanswered as switched off . She and her mother and cousin went to the sisters house at that time the sister of he accused and brother-in-law of the accused quarrelled with them. It is not the case of the prosecution is that accused was quarrelled with PW.1 on 23/09/2014. PW.1 without waiting till 25/09/2014 went to police station to lodge the complaint.
40. PW.1 in her cross-examination clearly stated that one week earlier to lodging complaint as per Ex.P.1 to Kumaraswamy Layout Police Station she was taken the 35 S.C.NO. 1525/2014 same complaint to the Jnanabharathi Police Station. Accordingly to the case of prosecution ExP.1 lodged to Kumaraswamy Layout Police Station on 29/09/2014. One week prior to lodging this complaint means. 22 nd or 23rd of September 2014. The oral evidence of PW.1 would goes to show that she was went to the police station on 22 nd or 23rd of September 2014. She was not waited till 25/09/2014 on which date the accused assured her that he will bring his parents for marriage talks. According to PW.1 she had been to police stations since one week prior to registering the case. She had been to Jnanabharathi Police Station, then to Subramanyapura Police Station and then to Kumaraswamy Layout Police Station. There is sufficient time for deliberations. There is delay in lodging the complaint. Which is also fatal to the case of the prosecution. Ex.P.1 does not contain signature of PW.1. However Ex.P.1 is in the hand writing of PW.1. 36 S.C.NO. 1525/2014
41. Regarding the alleged incidents dated 10/08/2014 and 22/08/2014 there is not independent eye witnesses who seen the PW.1 within vicinity of the sisters house of accused. PW.1 has deposed that she has handed over the cloths worn by her on dated 10/08/2014 and 22/08/2014 to the police. But in this case the investigation officer has not produced any such cloths before the court. PW.8 has deposed that he has not made any efforts to seize the cloths worn by the complainant and accused on the alleged date of incident. PW.8 has deposed that he has not made any efforts to record the statements of witnesses residing the Pooja Elite Flats. There is no independent witness evidence on the side of proceeds to show that PW.1 had been to the sisters house of the accused on 10/08/2014 and 22/08/2014. No doubt we cannot expect any eye witness in commission of rape. But we can expect the eye witnesses to say accused and PW.1 together went to the alleged place of incident. In this 37 S.C.NO. 1525/2014 case there is no independent witnesses to say that PW.1 went to the sisters house of accused on 10/08/2014 and 22/08/2014.
42. PW.1 has deposed that on 10/08/2014 she reached the house of accused. Accused told her that his parents are on the way and will reach in 2 to 3 hours and asked her to wait. During that time the accused tried to come near her and kiss her, forcibly the accused took her to bed room and committed sexual intercourse. PW.1 has deposed that on 22/08/2014 the accused asked her to come to his house to go to movie and on that day also between 4.00 pm to 4.30 pm the accused assuring her that he will marry her committed forceful sexual intercourse in the bed room. It is pertinent to note that in Ex.P.1 complaint it is mentioned that the accused without taking any precautions had intercourse with her. But in the cross-examination of PW.1 she has deposed that at the time of intercourse on these two days the accused gave her 38 S.C.NO. 1525/2014 I-pill and she was taken the I-pill. PW.1 has deposed that accused purchased the I-pill near by medical shop. PW.1 has admitted the suggestion that she has told before the doctor about consumption of I pill on 10/08/2014 and 22/08/2014. PW.9 doctor in Ex.P.5 report also mentioned that victim stated about use of I-pill on 10/08/2014 and 22/08/2014. This version of PW.1 it self indicates that she has taken precautionary measures by consuming I-pill. Admittedly accused and PW.1 were loving each other and they used to go movies, hotels, tea-coffee shops and other places. PW.1 has also admitted the suggestion that she used to kiss the accused in public place and used to hug accused in public places that too infront of public. Under such circumstances the oral evidence of PW.1 is that accused committed forceful sexual intercourse in the house of his sister is not believable.
43. It is not the case of prosecution is that accused used to go to the house of PW.1 and had sexual 39 S.C.NO. 1525/2014 intercourse with her. It is the case of the prosecution is that PW.1 had been to the house of sisters house of accused on 10/08/2014 and 22/08/2014 at that time accused had sexual intercourse with her by making a false promise to marry. PW.1 in her cross-examination deposed that when she went to the house of accused first time she was no fear that some one would see her. But when she went to the house of accused for second and third time she had fear of seeing by some one. There is no cogent evidence to show that accused at the inception intended to deceive PW.1. When the entire evidence of PW.1 taken into consideration it would goes to show that both she and accused loving each other and had consensual physical relationship. PW.1 in her cross-examination admitted the suggestion that both she and accused willingly loving each other. PW.1 admitted the suggestion that on 19/09/2014 when accused went to his native place he told her that he will bring his parents by convincing them for marriage. 40 S.C.NO. 1525/2014 PW.1 has also admitted the suggestion that accused told her on 19/09/2014 that he will bring his parents on 25/09/2014. It is admitted by PW.1 that accused voluntarily came to her house on 19/09/2014 and told to her mother that he will marry. Under such circumstances it cannot be held that accused at inception intended to deceive the PW.1/Complainant and thereby had sexual intercourse with her. PW.1 has clearly admitted that she was not waited till 25/09/2014. It is not the version of PW.1 that accused quarrelled with her on 23/09/2014 or refused to marry her on 23/09/2014. In the entire oral evidence of PW.1 she had not stated accused refused her to marry. PW.1 in her chief examination page No.5 deposed that in the police station, the accused said that he was just doing drama with her. It is not clear when she was met the accused in the police station and in whose presence accused told her that he was just doing drama with her. In this case no charge sheet has been filed 41 S.C.NO. 1525/2014 against father and sister of the accused. No doubt PW.1 has deposed that father of accused and sister of accused refused to give marriage accused with her. But PW.1 has not deposed prior to lodging the complaint accused refused to marry her. PW.1 in her cross-examination admitted that she has filed complaint as per Ex.P.1 in order to marry accused. PW.1 has also admitted the suggestion that even when accused was in judicial custody she met the accused in jail. No doubt there is evidence that willingness of PW.1 to marry accused. But there is no cogent evidence to show that the accused refused to marry PW.1. On perusal of oral evidence of PW.1 there is no cogent evidence to show that accused intended to deceive PW.1 from incept. The oral evidence of PW.1 is not sufficient to hold that accused has committed the offences punishable under section 376, 420 of IPC.
44. With regarding to section 506 of IPC and Section3(1)
(xii) of SC/ST (POA) Act is concerned there is absolutely no evidence to attract these two provisions. PW.1 has not deposed 42 S.C.NO. 1525/2014 any thing about criminal intimidation by giving life threat to her by the accused. PW.1 in her cross-examination clearly admitted that the accused has not misused her caste. Under such circumstances there is nothing on record to show that accused has committed the offence u/s 3(1) (xii) of SC/ST(POA) Act. PW.2 to PW.9 are the official witnesses deposed about the investigation procedures after registering the case. PW.2 doctor has issued Ex.P.3 age estimation report of PW.1 PW.3 Doctor deposed that he examined accused and issued Ex.P.6 report. PW.3 has not collected accused any sample to send the same to FSL. The oral evidence of PW.4, PW.5, PW.6, PW.7 are formal in nature. PW.8 investigation officer has conducted further investigation from 02/10/2014. PW.9 Dr. Rajitha has opined that there in evidence of previous sexual intercourse. The document Ex.P15 FSL report is clear that seminal stain was not detected in item No.1, 3, 4 and 5 and the presence of spermatozoa was not detected in Article No.2. Thus, it is very clear that in the seized articles M.O.1 to M.O.5 no seminal stain or spermatozoa was detected by the expert. No doubt it is settled principle of law is that 43 S.C.NO. 1525/2014 corroboration is not sine quo non for conviction for rape. But in this case the oral evidence of PW.1 is not inspiring confidence and not believable that the accused committed sexual assault on her in the promise of marriage. The oral evidence of PW.1 shows that she was loving the accused and accused was also loving her and they were loving so deep that they even kissing in public place and hugging in public place. There is no cogent evidence on the side of the prosecution to show that from the inception the accused had intention to deceive the PW.1 in promise of marriage. The oral evidence of PW.1 is not sufficient to hold that the accused has committed the offences punishable under Sec. 376, 420, 506 of IPC and u/s 3(1)(xii) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. The benefit of doubt shall be given to the accused. The prosecution has failed to prove the case against the accused for the offences punishable under Sec. 376, 420, 506 of IPC and u/s 3(1)(xii) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act beyond all reasonable doubt. Hence, I answered points no.1 to 4 in the negative.
44 S.C.NO. 1525/2014
45. Point No.5:- In view of my findings on points no.1 to 4 and for the foregoing reasons and discussions, I proceeds to pass the following:-
O R DE R Acting under Section 235(1) of Cr.P.C., the Accused Krishnaraja Verna is hereby acquitted of the offences punishable under Sec. 376, 420, 506 of IPC and u/s 3(1)(xii) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.
The bail bond of the accused and his surety bond stands cancelled. However the bond executed in compliance of Sec.437A of Cr.P.C., shall be in force till statutory period.
M.O.1 to M.O.5 are ordered to be destroyed after completion of appeal period. (Dictated to the Judgment Writer, transcribed by him, transcript corrected, some of the paragraphs are directly inserted in the computer, signed and then pronounced by me in open Court on this the 30th day of October, 2019.) (MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.45 S.C.NO. 1525/2014
A N NE X U R E
1.WITNESSES EXAMINED FOR THE PROSECUTION:
PW.1 : Complainant
PW.2 : Dr. Naveen Kumar
PW.3 : Dr. Jagannath
PW.4 : Sriram
PW.5 : Mytra
PW.6 : Kempegowda
PW.7 : Govardhana
PW.8 : S. Suresh Babu
PW.9 : Rajitha Yalagudda
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P1 : Complaint
Ex.P1(a) : Signature of PW.1
Ex.P2 : Panchanama
Ex.P2(a) : Signature of PW.1
Ex.P3 : Age Estimation Certificate
Ex.P3(a) : Signature of PW.1
Ex.P3(b) : Signature of PW.2
Ex.P3(c) : Signature of PW.2
Ex.P4 : Out Patient Card
Ex.P4(a) : Signature of PW.1
Ex.P4(b) : Signature of PW.5
Ex.P4(c) : Signature of PW.9
Ex.P5 : Medical Report
Ex.P5(a) : Signature of PW.1
Ex.P5(b) (c): Signatures of PW.5
Ex.P5(d) : Signature of PW.8
Ex.P5(e) : Signature of PW.9
Ex.P6 : Report
Ex.P6(a) (b): Signatures of PW.3
Ex.P6(c) : Signature of PW.8
Ex.P7 : Report of Tahasildar dt. 16.2.2014
Ex.P7(a) : Signature of PW.4
Ex.P7(b) : Signature of PW.8
Ex.P8 : Report of Tahasildar dt. 18.12.2014
46 S.C.NO. 1525/2014
Ex.P8(a) : Signature of PW.8
Ex.P9 : Report of PW.6
Ex.P9(a) : Signature of PW.6
Ex.P10 : Report of PW.7
Ex.P10(a) : Signature of PW.7
Ex.P11 : DCP Order
Ex.P11(a) : Signature of PW.8
Ex.P12 : FIR
Ex.P13 : PF NO.178/2014
Ex.P13(a)(b): Signatures of PW.8
Ex.P14 : Requisition of PW.8
Ex.P14(a) : Signature of PW.8
Ex.P15 : FSL Report
Ex.P15(a) : Signature of PW.8
Ex.P16 : Sample Seal
Ex.P16(a) : Signature of PW.8
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil
4. DOCUMENTS MARKED FOR THE DEFENCE:
Nil
5. LIST OF MATERIAL OBJECTS:
M.O.1 : Blue design colour underwear
M.O.2 : Vaginal Swab
M.O.3 : Vaginal Smear
M.O.4 : Pubic Hair
M.O.5 : Nail Clippings
(MOHAN PRABHU)
LXX Addl. City Civil & Sessions Judge
& Special Judge, Bangalore.
47 S.C.NO. 1525/2014
Judgment pronounced in the open
court vide separate judgment.
O R DE R
Acting under Section 235(1) of
Cr.P.C., the Accused Krishnaraja Verna is hereby acquitted of the offences punishable under Sec. 376, 420, 506 of IPC and u/s 3(1)(xii) of The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act.
The bail bond of the accused and his surety bond stands cancelled.
However the bond executed in compliance of Sec.437A of Cr.P.C., shall be in force till statutory period.
M.O.1 to M.O.5 are ordered to be destroyed after completion of appeal period.
(MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.