Karnataka High Court
State Of Karnataka vs Ramesh S/O. Dundavva Kamble on 16 October, 2017
Bench: L.Narayana Swamy, H.B.Prabhakara Sastry
Crl.A.No.100042/2014
1
THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 16TH DAY OF OCTOBER, 2017
PRESENT
THE HON'BLE Mr. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL NO.100042 OF 2014
BETWEEN:
State of Karnataka,
Represented by the
Circle Police Inspector,
Raibag, through the Addl,
State Public Prosecutor,
Advocate General Office,
High Court of Karnataka,
Dharwad Bench.
... APPELLANT
(By Sri. V.M. Banakar Addl. SPP)
AND:
1. Ramesh, S/o. Dundavva Kamble,
Aged about 30 years,
Occ: Tailor,
R/o: Bomanal, Taluk Raibag,
District Belgaum.
Crl.A.No.100042/2014
2
2. Shantu, S/o. Dundavva Kamble,
Aged about 34 years,
Occ: Agriculture,
R/o: Bomanal, Taluk Raibag,
District Belgaum.
3. Tammanna, S/o. Dundavva Kamble,
Aged about 37 years,
Occ: Agriculture,
R/o: Bomanal, Taluk Raibag,
District Belgaum.
4. Sadashiv Maruti Kamble,
Aged about 27 years,
Occ: Agriculture,
R/o: Bomanal,Taluk Raibag,
District Belgaum.
5. Vasant
S/o. Dundavva Kamble,
Aged about 21 years,
Occ: Student,
R/o: Bomanal, Taluk Raibag,
District Belgaum.
...RESPONDENTS
(By Sri. M.B. Gundawade & J. Basavaraj Adv. for R1-R5)
---
This Criminal Appeal is filed under Section 378(1) & (3)
of Cr.P.C., praying to grant Spl. Leave to appeal against the
judgment and order of acquittal dated 11.06.2013 passed by
the I-Addl. Dist & Sessions Judge, Belagavi, in S.C.No.51/2012
be set aside the judgment and order of acquittal and convict
the respondents/accused for the offence P/U/S 143, 147, 148,
341, 324, 376, 307, 504 & R/w 149 of IPC.
Crl.A.No.100042/2014
3
This Appeal having been heard and reserved for
judgment, coming on for pronouncement of the judgment this
day Dr.H B Prabhakara Sastry J. pronounced the following:
JUDGMENT
The State has filed this Criminal Appeal challenging the judgment and order of acquittal dated 11.06.2013 passed by the I Additional District and Sessions Judge, Belagavi (henceforth for brevity referred to as the Sessions Court) in Sessions Case No.51/2012 against the accused/respondents herein acquitting them for the offences punishable under Sections 143, 147, 341, 324, 376, 307 and 504 read with Section 149 of the Indian Penal Code.
2. The summary of the case of the prosecution in the Sessions Court is that the accused Nos.1, 2, 3 and 5 were the brothers of one Sri. Parashuram Kamble, a resident of Bomnal village. To the married daughter of said Parashuram Kamble by name Smt. Annapurna, the younger brother of the prosecutrix Sri. Maruti Kamble Crl.A.No.100042/2014 4 (CW.6) was writing love letter and sending messages through cell phone. After getting the knowledge about the same from the said Annapurna, the elders in the family including the accused had held a panchayath and also threatened that if the similar act has been done against the elder sister of Maruti Kamble what could be his reaction. In this connection a vengeance and animosity had been developed between the two families. That being the case on 12.09.2011, the prosecutrix who is the elder sister of CW.6 Maruti Kamble had been to Pattankodi village and after meeting her son Sunil there, had returned to Bomnal bus stop at 8 p.m. While she was returning to her home by walk in that night, near the lands of PW.9, all the present accused joined together with an intention to insult, assault, commit rape and to kill the prosecutrix, had formed an unlawful assembly and they restrained her from proceeding further and forcibly dragged her to a sugarcane field on the side of the road Crl.A.No.100042/2014 5 whereat accused No.5 committed rape on her and all the accused joined together, abused her in filthy language and assaulted her with sugarcane pieces and with a waist belt and also threw soil into her eyes, mouth, nose and ears and attempted to kill her by throttling. Thus, the accused have committed offences punishable under Sections 143, 147, 148, 341, 324, 376, 307 and 504 read with Section 149 of the Indian Penal Code.
At the time of committing the alleged acts the accused had also undressed the prosecutrix and using the very same clothes which were removed from the person of the prosecutrix after tearing the clothes they had tied the hands and legs of the prosecutrix. Due to the sexual assault and physical assault the prosecutrix fell unconscious and after gaining her conscious in the next morning at 5.00 a.m. i.e., on 13.09.2011 in a naked condition she went to her home and narrated the incident to the family members. The family members took her to Crl.A.No.100042/2014 6 Government Hospital, Raibag for treatment. She filed a complaint in the hospital itself to the police which was registered in Crime No.239/2011.
The accused were charged for the alleged offences. Since they pleaded not guilty they were tried for those offences. In support of its case the prosecution examined 25 witnesses from P.W.1 to P.W.25, got marked documents EX.P1 to EX.P48 and material objects at MO.1 to MO.17 and closed its side. None of the witnesses were examined from the accused side. However, a portion of the statement in a document was marked as EX.D1 in the cross examination of PW.4 Maruti Kamble. The Sessions Court in its judgment dated 11.6.2013 acquitted all the five accused for the alleged offences. It is against the said judgment and order of acquittal the prosecution has preferred this appeal.
3. In its memorandum of appeal the appellant/prosecution has contended that PW.1, the Crl.A.No.100042/2014 7 prosecutrix, has specifically and categorically narrated the entire incident in her evidence which the Sessions Court did not believe for no reasons. The evidence of the prosecutrix is further corroborated by the evidence of her relatives who were examined as PWs.4, 6, 8, 10 and 12 who have spoken about the earlier quarrel taken place between the two families. Regarding a part of the incident PW.9 the owner of the land has also stated that there was damage to the sugarcane crop for about 25 sq. foot in his land. Thus the place of the offence is also proved which the Sessions Court did not notice. Further stating that the medical evidence was also not properly appreciated by the Sessions Court. The appellant has prayed for setting aside the judgment of the acquittal and to convict the respondents/accused for the alleged offences.
4. The respondents/accused are represented by their counsels. The lower court records are called for and the same are placed before this Court.
Crl.A.No.100042/20148
5. Heard arguments from both sides. Leave granted.
6. Learned Additional State Public Prosecutor in his arguments vehemently submitted that it is a settled principle that the evidence of the prosecutrix/victim in a case filed under Section 376 of the Indian Penal Code need not necessarily require corroboration by other witnesses in all cases, but the said principle was not recognized by the Sessions Court. He further submitted that the medical evidence also proves the occurrence of sexual assault upon the prosecutrix which further corroborates the evidence of PW.1, the prosecutrix.
Learned Additional State Public Prosecutor further submitted that the motive behind the crime is not in dispute since the accused themselves have suggested in the cross examination of the witnesses that CW.6 (PW.4) Maruti Kamble the brother of the prosecutrix had written love letters and sent SMS messages through cell phone to Crl.A.No.100042/2014 9 one Smt. Annapurna who was the niece of accused Nos.1, 2, 3 and 5 and that in that connection a panchayath was also held wherein the accused had threatened of doing similar act to the elder sister of said CW.6.
Learned Additional State Public Prosecutor concluded his arguments submitting that if at all for any reasons this Court does not find reason to convict the accused for the offences punishable under Sections 376 and 307 read with Section 149 of the Indian Penal Code, there are ample material to hold the accused guilty for the remaining offences for which they were charged with.
7. Learned counsel for the accused/respondents in his arguments submitted that the evidence of prosecutrix is not trustworthy and contains several contradictions and improvements. The clothing said to have been worn by the prosecutrix at the time of incident has not been chemically examined by the Forensic Science Laboratory. He further submitted that undisputedly the Crl.A.No.100042/2014 10 petticoat said to have been worn by the prosecutrix at the time of alleged incident was not the same petticoat which was examined by the Forensic Science Laboratory authorities in which they have reported the presence of seminal stains. He also submitted that the prosecution has failed to establish nexus between the alleged seminal stains said to have been found in the garment of the prosecutrix to the accused No.5 who was charged with the offences punishable under Section 376 of the Indian Penal Code.
Learned counsel further submitted that admittedly accused were known people to the prosecutrix and her family. As such when she could be able to identify the accused Nos.1 to 4 alleged to have been participated in the crime, there is no reason for she not identifying the 5th accused. This itself creates a serious doubt in the case of prosecution. Further stating that the place of the alleged offence is also not proved and that attempt and intention Crl.A.No.100042/2014 11 to commit murder of the prosecutrix is also not proved, learned counsel submitted that the impugned judgment does not warrant any interference at the hands of this Court.
8. Perused the materials placed before this Court. In the light of the above, the points that arise for our consideration are, i. Whether the prosecution has proved beyond reasonable doubts that on the date 12.09.2011 at about 8.00 p.m. in the land of PW.9 Siddappa Satigouda Patil of Bomnal village the accused/respondents formed an unlawful assembly with a wrongful intention to restrain, obstruct, assault and injure the prosecutrix and to commit rape on her and also to cause her death and in that regard accused assaulted, insulted and abused the prosecutrix and also attempted to murder her. In addition accused No.5 (Respondent No.5) Crl.A.No.100042/2014 12 also in furtherance of common intention of their unlawful assembly committed rape on the prosecutrix. Thus the accused committed the offence punishable under Sections 143, 147, 148, 341, 324, 376, 307 and 504 R/w.
Sec. 149 of the Indian Penal Code?
ii. Whether the impugned judgment passed
by the Sessions Court deserves
interference at the hands of this Court?
9. From the evidence of the prosecution witnesses it is an undisputed fact that both the accused and the family of prosecutrix are the residents of Bomnal village, taluk Raibag in Belagavi district. The prosecutrix is a widow having a son by name Sunil who is aged 15 years and a daughter by name Shruti (PW.3/CW.3) aged 13 years as on the date of incident and that after the death of her husband the prosecutrix returned to her matrimonial home at Bomnal village and was residing with her parents. PW.4 (CW.6) Maruti Kamble is the younger brother of the Crl.A.No.100042/2014 13 prosecutrix. PW.5 (CW.8) Kallawwa Devappa Kamble and PW.8(CW.5) Devappa Maruti Kamble are the parents of the prosecutrix and PW.4.
10. Among the 25 witnesses examined from the prosecution side the most important and material witness who has also supported the case of the prosecution is none else than the prosecutrix/victim lady who was examined as PW.1. Regarding the incident, the prosecutrix (PW.1) in her examination-in-chief has stated that, on 12.09.2011 she had been to Pattankodi and visited her son Sunil who was staying in the said place in his Aunt's house (¸ÉÆÃzÀgÀvÉÛ). In her return journey she got down at Bomnal in a jeep. It was at about 8.00 p.m. on that night. From the bus stand at Bomnal she was going to her house by walk. At that time all the accused Nos.1 to 5 restrained her on the way and dragged her to a roadside sugarcane field and abused her in filthy language. They also told her that what her brother had Crl.A.No.100042/2014 14 done to their daughter they would do the same thing to her and by stating so they assaulted her with waist belt and sugarcane pieces. Thereafter accused No.5 committed rape on her. Accused also tore the clothes worn by her and tied her hands and legs. They threw soil in her eyes and put soil in her mouth. Accused No.1 throttled her, she fell unconscious, at that time the accused left the place. Next day morning at about 5.00 a.m. after gaining conscious she untied herself and in a naked state went to her home. It was 5.30 in the morning. She narrated the incident to her daughter, parents and younger brother who were in home. They provided her different clothes. She was taken to Raibag Government Hospital in an ambulance. In the said hospital the doctor gave her the first aid treatment and sent her to Belagavi for higher treatment. The prosecutrix has also stated that, at the time of incident there was moonlight and since the accused were known to her she Crl.A.No.100042/2014 15 had identified them. While she was in Belagavi hospital,, through PW.10 (CW.14) she got a complaint written and gave it to police. She has also identified her complaint at EX.P1 and her thumb mark therein at EX.P1(a). The witness also identified material objects at MO.1 to MO.10.
PW-1 was subjected to a detailed cross-examination from the accused side. In her cross-examination she has admitted that there was rivalry between the families of accused and her parents. However, the denial suggestions made to her regarding the alleged incident were not admitted as true by her. On the other hand, she has given some more details regarding the incident. A suggestion made to this witness which she admitted as true reads as below:
"£Á£ÀÄ D ¢£À ¥ÀlÖtPÉÆÃrUÉ ºÉÆÃVzÀÄÝ £ÀªÀÄä ªÀÄ£É ªÀÄA¢UÉ ªÀiÁvÀæ UÉÆwÛzÉ JAzÀgÉ ¸Àj."
By making that suggestion the accused have admitted that on the date of alleged incident the Crl.A.No.100042/2014 16 prosecutrix had been to Pattankodi. Though in the very next sentence she has also admitted a suggestion as true to the effect that it was only the members of her family who knew her returning time to home, but by that itself it cannot be inferred that there was no possibility for the accused either to know or to guess the probable returning time of the prosecutrix to her village in the evening.
11. After PW.1 has given more details in her cross- examination an attempt was made from the accused side to establish that the name of accused No.5 was not shown at the earliest point of time in the complaint. No doubt the witness has admitted that she has not mentioned the name of the accused in the complaint who subjected her to rape. But by that itself it cannot be inferred that alleged incident has not taken place. In that regard the evidence in its entirety along with the evidence of other witnesses is required to be analysed. However, from the accused side, after eliciting more details from PW.1 in her Crl.A.No.100042/2014 17 cross-examination, only denial suggestions in a couple of sentences were made at the end denying the alleged incident.
12. PW.3 Smt. Shruti, the daughter of the prosecutrix, a minor girl in her age was examined by the Sessions Court. After putting some court questions to her, the Court was satisfied that the witness was capable of understanding the questions put to her. The said witness in her evidence has stated about her mother leaving for Pattankodi in the morning on the date 12.09.2011 and not returning home on that night. She has stated that on the next day morning her mother came home in a naked state, when her face was swelling and had sustained injury on the lips and soil was found in her eyes. She has also stated that her mother narrated about the incident that she was restrained from returning home in the previous night at 8.00 p.m. by all the accused and that the accused dragged her to a nearby sugarcane field Crl.A.No.100042/2014 18 and among them accused No.5 subjected her to a forcible rape.
She was also subjected to cross-examination from the accused side, wherein she has admitted as true the denial suggestions made to her.
13. PW.4 (CW.6) Maruti Devappa Kamble, the younger brother of the prosecutrix, also stated in his evidence that about the alleged incident he came to know only through his sister (PW.1) who returned home in the morning on 13.09.2011. He has also stated that as told to him by the prosecutrix, she was restrained by the accused on the previous night and was dragged to a nearby sugarcane field wherein the accused assaulted her by forming an unlawful assembly. He has also stated that as told to him by the prosecutrix she was subjected to rape by accused No.5. He has further stated that, after hearing about the incident from the mouth of the prosecutrix they Crl.A.No.100042/2014 19 took her to Government Hospital at Raibag and admitted her for medical treatment.
He was also subjected to a thorough cross- examination from the accused side, wherein he adhered to his original version. Except making some denial suggestions, nothing more could be elicited in his cross- examination from the accused side.
14. The evidence of PW.5 (CW.8) Kallawwa Devappa Kamble and PW.8 (CW.5) Devappa Maruti Kamble is also on the similar lines as that of their son PW.4. Being the parents of the prosecutrix both these witnesses have uniformly stated about the incident in the same manner as their son PW.4 has narrated. According to these two witnesses also it is only through the prosecutrix they came to know about the incident when she returned to home in the early morning on 13.09.2011 and narrated about the incident. These witnesses also have stated that on the previous day the prosecutrix had Crl.A.No.100042/2014 20 been to Pattankodi to enquire about her widow pension and to see her son Sunil, but she did not return home on that night though these people waited for her. When she returned on the next day morning she was in a naked state of condition and was found having sustained injuries on her body. The denial suggestions made to these witnesses in their cross-examination were not admitted as true by them.
15. As already observed above, from the accused side it was not denied that on the date 12.09.2011 the prosecutrix had been to Pattankodi. Merely because PW.1 stated that it is only her family members who knew the time of her return to home village does not make one to believe that none except her family members would know about her possible time of return to her house. In a village setup it is not a difficult thing for the villagers to know at what time the public conveyance are available from neighboring towns to their village and normally at Crl.A.No.100042/2014 21 what time and through which available mode the people return to their homes in the evening. In such a situation if a person determines to know the details of the movement of a person in a village setup, it would not be difficult for him to get the knowledge of the same. As such, in the instant case merely because PW.1 has stated that her possible time of return was known only to her family members, it cannot be inferred that none else than her family members could ever be able to know the possible time of her return to home. It also cannot be ignored that PW.1 has clearly stated in her cross- examination that she was the only one person who got down at Bomnal stop and that she had to walk from Bomnal bus stand to her home for a distance of about 1 k.m. This rules out the possibility of any other co- villagers/passengers getting down in Bomnal bus stand along with her and accompanying her up to her village/house. Thus, at the time of incident PW.1 alone Crl.A.No.100042/2014 22 was on the road leading to her house which must have created a conducive situation for the culprits to execute their plan, if any, unabatedly.
16. Regarding the incident of she being wrongfully restrained by the accused and forcibly being taken to the neighboring sugarcane field and being subjected to assault and insult by the accused she has given a detailed count of the same both in her examination in chief and in her cross examination. The fact that the accused were the residents of the same village and the undisputed fact that the family of the accused had animosity towards the parental family of the prosecutrix also makes one to believe the evidence of PW.1 to the extent of the accused being present on the public road near the place of the incident and due to the rivalry restraining the prosecutrix and dragging her to the adjoining sugarcane field and assaulting her there. PW.1 has not only identified accused Nos.1 to 4 on the spot, but also has given their Crl.A.No.100042/2014 23 details at the earliest point of time in her complaint at EX.P.1. As such, without any further delay she has narrated the incident not only to her family members at home, but also to the police people through a written complaint.
17. The scribe of the said complaint was examined as PW.10 (CW.14). said witness Mahaveer Satteppa Sane @ Kamble has clearly stated that after the incident when the prosecutrix was taken to hospital he had met her in the hospital and at her request he has written down a complaint as narrated by the prosecutrix in the hospital itself which complaint he had identified as EX.P1 and his signature as a scribe at EX.P1(b). Merely because he has denied a suggestion in his cross examination that there was no mentioning of the name of the accused No.5 Vasant Kamble in the complaint and that the prosecutrix did not disclose the name of the said accused, by that itself the entire complaint at EX.P1 cannot be discarded or Crl.A.No.100042/2014 24 disbelieved. Thus the evidence of PW.1 to the effect of she lodging a police complaint getting it written through PW.10 can be believed.
18. While explaining about the incident the prosecutrix has stated that the accused who were all present on the public road leading to her village had first restrained her from proceeding further and then they dragged her to adjoining sugarcane field and then they abused her in filthy language and also told her the reason as to why she was intercepted and brought there and it is only thereafter they assaulted her followed by the alleged incident of rape and attempt to murder. As such, her narration gives a step by step picture of the incident which is said to have happened according to her. That narration of the sequence of incident and the manner of occurrence of those incidents as narrated by the prosecution could not be shaken or weaken in her cross examination made from the accused side. The prosecutrix in her evidence Crl.A.No.100042/2014 25 has also stated that the accused after dragging her to sugarcane field have also abused her in filthy language calling her as "ºÀqÀ¸ÀÄ ¨ÉÆøÀÄr". The very same narration she has also stated in her complaint at EX.P1 which she has lodged before the police at the earliest point of time. She has further stated that the accused while abusing her in filthy language made her to fall down and assaulted her making use of a waist belt and sugarcane pieces. She has identified the said waist belt at MO.10. She also stated that at the time of incident the accused have also thrown soil (mud) into her eyes and put some mud into her mouth. In her cross examination neither it was denied nor any suggestion was made denying the identification of the belt at MO.10 by her and also her statement that the said object was used in the commission of crime.
19. After eliciting many more details regarding the crime of incident a mere suggestion in the form of denial from the accused side in couple of sentences that the Crl.A.No.100042/2014 26 incident has not occurred as narrated by the prosecutrix would not take away the evidentiary value of the evidence of PW.1, particularly what are all the acts that have been committed by the accused and the manner how they were committed. As such, her evidence that the accused were present together near the place of incident on the night of the date 12.09.2011 and that they wrongfully restrained her and also that they dragged her to neighboring agricultural field (sugarcane field) where after abusing her in filthy language they have assaulted her even by using sugarcane pieces and waist belt all deserve to be trustworthy and believable. However, her statement that the accused No.5 committed rape and accused No.1 committed an attempt to murder her would require some more analysis to arrive at a conclusion to whether the details of the act given by her with respect to those two alleged offences would really constitute such offences. Crl.A.No.100042/2014 27
20. The prosecutrix in her evidence has also stated that due to assault made by the accused upon her person she sustained some abrasions on different parts of the body. The evidence of PWs.3, 4, 5 and 8 who were her family members also go to show that when the prosecutrix/victim returned home next day morning i.e., on 13.09.2011 at about 5.30 a.m. she had a swollen face, injuries on her body and some soil in her eyes. That description of the appearance of the victim after the incident matches the evidence of the victim herself as to what happened to her due to the alleged act of assault upon her by the accused. The said details of the appearance of the prosecutrix after the incident and immediately when she returned to home on the next day morning has come uniformly in the evidence of PWs.3, 4, 5 and 8.
21. PW.18 (CW.25), Dr.Srimant S Bane in his evidence has stated that he has been working as a Medical Crl.A.No.100042/2014 28 Officer at Raibag General Hospital. That on 13.09.2011 at about 7.05 a.m. he has examined the prosecutrix who had been brought there with the history of assault and rape. The said witness has stated that when he examined the prosecutrix he has noticed the prosecutrix having swelling face, redness of eyes. He has also stated that after giving first aid treatment to her he referred her to the District Hospital, Belgaum for further medical examination. He has also identified a wound certificate said to have been issued by him in this regard at EX.P.25. The said witness has also stated that there is possibility of those injuries being caused with sugarcane pieces and when soil is thrown on the face and parts of a person.
In his cross-examination a suggestion was made to the effect that when this witness examined the prosecutrix on 13.09.2011 she was in conscious and was capable of understanding all the questions put to her. The witness has admitted the said suggestion as true. By this the Crl.A.No.100042/2014 29 accused have admitted that this doctor has examined the prosecutrix on 13.09.2011 at 7.05 a.m. Though this witness has also admitted a suggestion as true that the injuries found on the face of the prosecutrix which were simple in nature could also be possible to be occurred when a person slips and falls down on the soil or mud while walking, but by such an admission itself it cannot be deduced that injury has happened while the injured is said to have fallen on the mud while walking. Apart from making such a suggestion it would be on the shoulder of the suggestor to prove that the injured had fallen down on the mud or soil while she was walking. Otherwise the suggestion made to the doctor which was admitted by him as true would only show as one of the manner in which a similar injury can occur on a person. As such, in the instant case since the accused have not established that the injury has happened only because the prosecutrix had fallen down while she was walking, the details of the Crl.A.No.100042/2014 30 occurrence of the incident has given by none else than the injured herself remains to be believable.
22. In this regard, Hon'ble Supreme Court in Abdul Sayeed vs. State of Madhya Pradesh reported in 2010 (10) SCC 259 was pleased to hold that where witness to occurrence was himself injured in the incident, testimony of such witness is generally considered to be very reliable, as he is a witness that comes with an inbuilt guarantee of his presence at the scene of offence to falsely implicate someone.
23. Thus the evidence of PW.1/prosecutrix who is none else than the victim in the case and her complaint lodged with no delay is also corroborated by the medical evidence of PW.18 and supported by the evidence of PWs.3, 4, 5 and 8 go to establish that the prosecutrix was wrongfully restrained while she was returning home on the night of 12.09.2011 and was taken to adjoining sugarcane field and was insulted, abused in filthy Crl.A.No.100042/2014 31 language and assaulted by the accused. Even though the name of the accused No.5 was not mentioned specifically in the complaint at EX.P1 at the earliest point of time, but the prosecutrix has stated that as at the time of the incident she was not knowing the name of the said accused, as such immediately after she coming to know the name of the said accused she has disclosed his name also in the form of a further statement to the police. There is no reason to disbelieve the said explanation given by the witness regarding the belated disclosure of the name of the said accused. The said explanation given by the prosecutrix could not be shaken in her cross examination done by the accused.
24. Regarding the spot of the offence the prosecutrix has stated that it was in a sugarcane field on the side of the road leading from Bomnal bus stand to Bomnal village. She has stated that it was the sugarcane land of one Maruti Kamtadara. However, PW.2(CW.2) Crl.A.No.100042/2014 32 Pratap Punnappa Rabakavi, the pancha to the alleged scene of offence panchanama has stated that the place shown to him as the scene of offence was an agricultural land belonging to one Siddappa Satigouda Patil at Bomnal village. The place is shown by none else than the father of the prosecutrix. Since the said father of the prosecutrix was one among the family members who immediately after the incident has heard about the details of the incident including the place of the offence from the mouth of none else than the victim herself, the spot shown by the said witness as the place of the offence cannot be disbelieved. Furthermore, PW.2 the pancha has also stated that in the said place shown to them as the place of offence was in a sugarcane field wherein they noticed that several sugarcane crops have found destroyed and scattered here and there and in that place they also noticed a torn saree and a petticoat, a pair of slippers, blouse, water bottle and a carry bag. He has identified those articles at MOs.1 to 9 Crl.A.No.100042/2014 33 and the scene of offence panchanama at EX.P2 and his signature in the said panchanama at EX.P2(a). Further stating that at the time of drawing scene of offence panchanama photographs were also taken. The witness was identified by the photographs at EX.P3 to P7 were the photographs taken in the spot. Those photographs which have remained undisputed shows that the alleged place of offence is a sugarcane field wherein grown up sugarcane crops can be found. Amidst sugarcane crop some portion of the land is shown to be vacant with broken sugarcane remainings.
25. The owner of the said land Siddappa Satigouda Patil was examined as PW.9 (CW.13). Though he has admitted that he owns 5 acres of land bearing Sy.No.46/2 in the limits of Bomnal village and that there is a public road adjoining to his land and also that at the time of alleged incident he had grown sugarcane crop in the said field, he has stated that he does not know as to who Crl.A.No.100042/2014 34 committed offence and when it was committed. However, he has stated that about a year back from the date of his evidence several people had gathered near his land and he noticed that some portion of his land i.e., about 20 ft. x 25 ft. in a rectangle shape the sugarcane crop had been destroyed. Though this witness was treated as hostile since he did not specifically stated about drawing the scene of offence panchanama in the said place, but his evidence given in examination in chief itself is suffice to show as on the date of alleged incident he had grown sugarcane crop and some portion of the crop was shown destroyed which according to PW.2, the pancha was the place of offence as shown to them by PW.8 and it was at that place a scene of offence panchanama as per EX.P2 was drawn. Thus the narration about the place of incident as given by the prosecutrix corroborated by the evidence of PW.2 and PW.9 and also the Investigating Crl.A.No.100042/2014 35 Officer (PW.24) (CW.27) proves the place of offence as alleged in the case by the prosecution.
26. Regarding the alleged offence punishable under Section 376 of the Indian Penal Code is concerned, the prosecutrix as PW.1 has stated that after the accused made her to fall and assaulted her, 5th accused committed forcible rape upon her. Thereafter accused tearing her clothes had tied her hands and legs. She has also stated in the same evidence that she fell unconscious and regained conscious only at about 5.00 a.m. on the next day morning. Thereafter getting herself untied went home in a naked position. In her house her parents, younger brother Maruti and daughter who were present gave her alternate clothes which she worn. She also narrated the details of the incident to them. Thereafter they took her to Raibag Government Hospital in a 108 ambulance. The doctor examined her in the hospital.
Crl.A.No.100042/201436
27. It is to be noticed that in her complaint given at the first instance the prosecutrix has not given the name of the accused who is said to have subjected her to rape. It is her case that accused Nos.1 to 4 did not commit rape on her, but it was only another accused who was with them has committed rape on her. She has also stated in her complaint at EX.P1 that she does not know the name of that other person who subjected her to rape. However, in her evidence she has stated that at the time of giving complaint to the police she did not know the name of accused No.5 who committed rape on her, but after her discharge from the hospital she came to know the name of that person as Vasant Kamble. As such she has given a further statement to the police disclosing the name of accused No.5 as the person who committed rape upon her. However, in the very same examination in chief she has also stated that since she knew the accused she has seen them clearly at the time of the offence. If this Crl.A.No.100042/2014 37 statement that the accused were known to her even prior to the incident is to be believed then it is difficult to believe her statement that she did not know the name of the accused No.5 as at the time of accident, as such she disclosed his name belatedly after knowing his name.
28. If accused No.5 was known to her even prior to the accident, though not by name then at least she could have stated in her complaint about the description of that accused who is said to have committed rape on her by giving his physical description or explaining his relationship with other accused or by some such means. This she has not done. Even in her alleged further statement before the police also she has not given details as to how and through whom she came to know about the identity of the accused No.5. In the circumstances of the present case where the prosecutrix at one stretch has stated that she has identified all the accused since they were known to her even prior to the incident and in the Crl.A.No.100042/2014 38 same breath at another stretch she says that she did not know accused No.5 who is said to have committed rape upon her. Even the prosecution has also not taken any pain in eliciting the details from the witness as to how come she came to know about the identity of accused No.5 at a subsequent stage. Admittedly, no test identification parade has been conducted in the matter. Even the Investigating Officer in his evidence also has not given any details as to how the identity of accused No.5 was confirmed and it was concluded in the investigation as he was the one who is said to have subjected the prosecutrix to rape. Thus at the very threshold itself a serious doubt has crept in regarding the identity of the person who is said to have committed rape on the prosecutrix.
29. Secondly, according to prosecutrix and her family members who were examined as PWs.1, 3, 4, 5 and 8 on the very next morning of the alleged offence the prosecutrix reached her home in a naked position. None Crl.A.No.100042/2014 39 of them have whispered that any piece of cloth or other things were held by the prosecutrix while reaching home as at least a partial cover to the private parts of her body. Even according to the prosecutrix the clothes she was said to have worn at the time of incident were torn by the accused and by using the very same clothes they had tied her hands and legs. It is also her case that on the very next morning of the alleged incident after regaining conscious she untied herself. It means the clothes worn by her though were not in their entirety, but at least in torn conditions were present in the spot and were available to the victim. She could have at least partially covered her portions of the body while walking from the place of incident to her house which was nearly about 500 meter in the early morning hours. This also gives rise to a suspicion that all that PW.1 stated about the alleged incident of rape whether worth to be believed on its facial value.
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30. Regarding the medical evidence the first medical doctor who examined the prosecutrix as well as the accused Nos.1 to 4 is PW.18 (CW.25) Dr. Srimant S Bane. The said witness has stated when the prosecutrix was brought before him on the date 13.09.2011 at 7.05 a.m. he noticed that the clothes worn by the prosecutrix were all soiled (§mÉÖUÀ¼É¯Áè ªÀÄuÁÚV PÉƼÉAiÀiÁVzÀݪÀÅ). If according to the prosecutrix as well PWs.3, 4, 5 and 8 had they given alternate clothes in the house and taken her to hospital in 108 ambulance then a doubt arises as to how come this alternate clothes get completely soiled. At least at that juncture the prosecution could have elicited from doctor or at least from any of the witnesses among PWs.1, 3, 4, 5 and 8 the reason for the second set of clothes also getting soiled which the prosecution has not done. This further thickens the suspicion regarding the alleged act of rape by accused No.5. No doubt the same doctor (PW.18) has also stated that in his examination he noticed that accused Crl.A.No.100042/2014 41 Nos.1 to 4 were found to be fit to have sexual intercourse the said statement has not been denied from the accused side. Still merely because accused Nos.1 to 4 were found to be fit to have sexual intercourse by that itself it cannot be inferred that the prosecutrix was subjected to rape by accused No.5.
31. The second doctor who claims to have examined the prosecutrix is Dr. Deepak D G (PW.20/CW.32) who in his evidence has stated that on 13.09.2011 when he was casualty Medical Officer at District Hospital, Belgaum, the prosecutrix was brought by a woman police constable and other police staff. After noticing in their memo produced before him that it was a case of rape and that he was requested to examine the victim he subjected the victim for medical examination. He also got the victim examined by psychiatrist, pathologist, biologist and gynecologist and as per their opinion he has issued a wound certificate as per EX.P33. Crl.A.No.100042/2014 42
Except stating that he has examined the prosecutrix/victim and issued a wound certificate as per EX.P33 this witness has nowhere stated in his evidence as to whether by his examination he noticed that the victim was subjected to any sexual assault including rape. The prosecution with respect to this witness also did not take any pain to elicit necessary details that was required to prove its case. On the other hand in his cross examination this witness admitted a suggestion as true that in case a person while walking falls on a ground or on a hard surface there is possibility of fracture of nasal bone.
32. PW.22 (CW.34) Dr. Shalini Huddar, an ENT specialist at BIMS Hospital, Belagavi though had stated that she also has examined the prosecutrix/victim on 13.09.2011, but her examination was only on reference from surgery department and that she was requested to examine regarding swelling of the face and about presence Crl.A.No.100042/2014 43 of soil in the nose and the injuries on the neck. Accordingly she has examined and noticed swelling of the face, particularly around both the eyes, on cheek and found presence of soil like substance in her nostrils. She also found several abrasions on the neck. She noticed that her ears were healthy. As such, she gave her report as per EX.P.34. The evidence of this doctor also at the best could show that the injured had sustained some abrasion on the neck and there was presence of soil in her nose, but does not in any manner leads anyone to infer that the victim was subjected to rape.
33. PW.23 (CW.30) Dr. Irappa Basappa Sasalatti has stated that he has examined accused No.5 Vasant Kamble about his potentiality and has opined that the accused was found to be fit to have sexual intercourse. He was not cross examined from the accused side. The evidence of the said doctor could only help to arrive at a Crl.A.No.100042/2014 44 conclusion that accused No.5 was competent to have sexual intercourse and nothing more.
34. PW.18 the doctor who examined the victim at the first instance has also stated that based on the report of the Forensic Science laboratory he has issued a wound certificate as per EX.P.25 stating that presence of seminal stain was positive in petticoat. By that itself it cannot be concluded that prosecutrix was subjected to rape and more particularly by accused No.5. However, evidence of PW.21 (CW.33) Dr. Laxmi K S is of some assistance in arriving at a conclusion in this regard. The said witness has stated that on 13.09.2011 as a specialized lady medical officer with respect to the women diseases at BIMS hospital, Belagavi she has examined the prosecutrix at 11.00 p.m. on 13.09.2011. She has also stated that she was given the history of rape upon the victim. It is in that background she has examined the victim. The doctor/witness has stated that during the examination Crl.A.No.100042/2014 45 she has also collected cervix and vaginal smears and suggested for their examination by the Forensic Science Laboratory. However medical examination revealed that the prosecutrix/patient was subjected to a recent sexual intercourse. The said evidence of the doctor at the maximum would only go to show that the prosecutrix had sexual intercourse, but by that itself it cannot be inferred that the prosecutrix was subjected to rape.
35. PW.19 (CW.31) Radha S, a Scientific Officer at Regional Forensic Science Laboratory, Mysuru in her evidence has stated that 7 articles sent to their laboratory by the complainant police in this case which were (1) pubic hair, (2) nail scrapping, (3) axillary hair, (4) vaginal smear (5) one petticoat, (6) one saree and (7) one blouse were chemically examined and tested by her. Among those 7 articles in article No.5 which was a petticoat seminal stains were found. In article Nos.1 to 3 and 6 and 7 no seminal stains were found. No sperms were found in Crl.A.No.100042/2014 46 article No.4 which was vaginal smear. It is in this regard she has issued a report through the head of their laboratory as per EX.P.26 and also returned the articles. She has identified those articles at MO.11 to MO.17, among which petticoat was at MO.15. Her evidence could not be shaken in her cross examination from the accused side. Thus from the evidence of the scientific analysis of the articles it can only be believed that upon the petticoat at article No.5 seminal stains were found.
36. PW.24 (CW.27) Sripada Dasharatha Jalde the main Investigating Officer in this case in his evidence has stated that during the investigation while drawing scene of offence panchanama (spot panchanama) as per EX.P2 he has also seized the articles at MO.1 to MO.9 from the spot. The father of the prosecutrix who shown them the spot had also shown them few articles including a saree, a petticoat, a blouse broken, glass bangle pieces, hand kerchief, a plastic bag and a plastic chappal stating that Crl.A.No.100042/2014 47 those were of the prosecutrix. The Investigating Officer has also identified those articles at MO.1 to MO.4, 6, 7 and 9. He has further stated that apart from these he has also seized a sugarcane piece (PÀ©â£À ªÀÄqÀÄØ) at MO.5 and a 7 up soft drink bottle at MO.8. He has also stated that he drew a scene of offence sketch as per EX.P.37 and got the photographs taken by a photographer as per EXs.P3 to P7. Further this witness has also stated that on 17.09.2011 lady constable 715 produced before him a report as per EX.P19 and also the sealed articles at MO.11 to MO.17 which were collected from the prosecutrix by the doctor while medically examining the prosecutrix. He sent those articles for their examination to the Regional Forensic Science Laboratory along with his request letter as per EX.P.41. Though he has spoken about he receiving the wound certificate as per EX.P25 and EX.P33, but nowhere in his evidence he has stated about he receiving the Forensic Science Laboratory report as per EX.P.26. Crl.A.No.100042/2014 48 Thus it is clear that without the Forensic Science Laboratory report he has arrived at a conclusion of alleged rape upon the prosecutrix by none else than the accused No.5 and has filed charge sheet against the accused for the alleged offences.
37. It is interesting to note that according to PW.2, the pancha for scene of offence panchanama, while drawing the scene of offence panchanama as per EX.P2 articles found in that place which are at MOs.1 to 9 were recovered. Even according to the Investigating Officer (PW.24) those MOs.1 to 9 were seized from the place of the incident. According to both these witnesses, more importantly according to the Investigating Officer, the clothes said to have been worn by the prosecutrix/victim at the time of accident are at MO.1 to MO.6. Among these a petticoat said to have been worn by the prosecutrix is at MO.2. According to the prosecutrix/victim the accused had torn the clothes worn by her and using the same Crl.A.No.100042/2014 49 clothes had tied her hands and legs. That being the case in order to detect the offence punishable under Section 376 of the Indian Penal Code it was incumbent upon the Investigating Officer to send those articles i.e., the dress materials worn by the prosecutrix at the time of incident for their chemical examination to the Forensic Science Laboratory. Admittedly, in the instant case, for the reasons best known to him the Investigating Officer has not sent those articles to the Forensic Science Laboratory. On the other hand he has sent articles at MO.11 to MO.17 for their chemical examination to the Forensic Science Laboratory. Even according to the prosecution those articles at MO.11 to MO.17 were the articles collected by the doctor at the time of examination of the prosecutrix in the hospital. Admittedly, none of these articles at MO.11 to MO.17 were in position or contact with the prosecutrix at the time of the incident. On the other hand it was only MO.1 to MO.9 were the articles belonging to the Crl.A.No.100042/2014 50 prosecutrix and were with her at the time of the alleged offence. Among these articles the articles at MO.1, 2 and 3 were the clothes worn by her at the time of the alleged offence. Therefore even if it is admitted that the seminal stains were found on the petticoat at MO.15, but undisputedly the said petticoat was not the one worn by the prosecutrix at the time of the incident. It was very much necessary for the Investigating Officer at the first phase to send articles at MO.1 to MO.9 for their chemical examination and analysis which, as observed above, he did not do.
38. Secondly, when he has sent MO.11 to MO.17 for chemical examination to Forensic Science Laboratory, it was required to him to receive the scientific report and once it is found in the report at EX.P.26 that presence of seminal stains were found on the petticoat at MO.15 he should have conducted investigation to establish the nexus between the alleged culprit/accused No.5 and the Crl.A.No.100042/2014 51 seminal stains found on MO.15, the petticoat (second petticoat). At least if he could able to establish that the seminal stains that were found on MO.15 were of none else than the accused No.5 alone then there were some material to think in the line of establishing nexus of alleged rape and accused No.5. Once again for the reasons best known to him the Investigating Officer has not made any effort in that regard. Therefore even after taking that presence of seminal stains were found on MO.15, but due to the lack of any material to establish the nexus between the alleged offence, the accused No.5 and the petticoat at MO.15 it cannot be believed that the seminal stains found on MO.15 were of accused No.5 only.
39. Learned Additional State Public Prosecutor in his argument relied upon a judgment of the Hon'ble Supreme Court in State of Haryana vs. Basti Ram reported in 2013(4) SCC 200 and submitted that if the evidence of the prosecutrix is found to be trustworthy and Crl.A.No.100042/2014 52 reliable conviction can be based upon her sole testimony without anticipating any corroborative evidence. No doubt the Hon'ble Supreme Court in the said case after relying upon its previous judgments in Vijay vs. State of M.P. reported in 2010 (8) SCC 191 and judgment of State of Rajasthan vs. Babu Meena reported in (2013) 4 SCC 206 observed that the statement of the prosecutrix if found to be worth of credence and reliable requires no corroboration and conviction can be based initially on the statement of raped victim. But in the instant case as observed above the very statement of the prosecutrix regarding the commission of offence of rape upon her by none else than accused No.5 is not devoid of serious doubts. As already observed even after stating that the accused were known persons to her the prosecutrix could only able to disclose the name of accused Nos.1 to 4 said to be the participants in the offence. However, she did not Crl.A.No.100042/2014 53 or could not identify and disclose the identity of the alleged rapist.
40. The Sessions Court in its reasoning has arrived at a conclusion that the statement of the prosecutrix/victim that after the alleged incident she came home naked was highly unbelievable. It made an observation that, the material objects No.1 to 3 though stated to be torn by the accused, still they were readily available to the prosecutrix when she regained conscious. As such, she could have worn them to protect her modesty and proceeded. Thus, her statement that she proceeded to her house in a naked condition appears to be quite improper and not acceptable one. However, the Sessions Court failed to notice the situation in which the alleged incident is said to have occurred. When a widow nearing middle age was returning home in the late evening hours by walk in a lonely place, when she is attacked by a mob, assaulted and according to her version, she is raped by Crl.A.No.100042/2014 54 one among them, in such a situation, we cannot expect that lady to maintain a prudent man's thinking and behavior in a normal circumstance. The mental shock the victim undergoes at that time would temporarily paralyze them to take any decision. As could be seen in Ex.P33, the injury certificate, the psychiatrist who examined the victim next day of the incident has opined that the patient was under depression secondary to incident. Thus, even after several hours of the alleged incident, she could not have come out of the shock of incident and was under
depression. In such a situation, being sexually assaulted, it is not totally uncommon of a victim to go home in the condition as she was left after the incident.
At the same time, it also cannot be ignored of the fact that the saree, petticoat and the blouse said to have been worn by her were found to be fallen in the spot of the offence though in a torn condition, and were seized by the Investigating Officer under a panchanama next day after Crl.A.No.100042/2014 55 the incident in the presence of panchas as per Ex.P2. Pancha to the said panchanama, who was examined as PW.2 has deposed to that effect. There being no reason for totally discarding or suspecting his evidence, once again the Court below, without attributing any reasons, has held that those articles were implanted. Thus, even after believing the statements of the prosecutrix, PW.3, PW.4, PW.5 and PW.8 that the prosecutrix returned home after the incident in a naked condition, and the statement of the prosecutrix that she was subjected to rape by one of the accused, still it has to be carefully examined as to whether the accused No.5 can be held as guilty of committing the said rape against the prosecutrix.
41. As observed above, the prosecutrix even after stating that all the accused were known to her even prior to the incident, has not disclosed the name of the rapist at the earliest point of time in her complaint. She has not even given the description of the identity of the accused or Crl.A.No.100042/2014 56 his identity in relation with the other accused like stating that he was the younger brother of the remaining accused. This depraves (stand) as a strongest suspicion about the alleged role of accused No.5 in the commission of rape against the prosecutrix.
42. For these reasons though her statement to the effect that she was subjected to assault and was insulted by an unlawful assembly can be believed, but her statement that she was also subjected to rape by one among the accused particularly accused No.5 cannot be believed on its facial value. As such, the judgment in Basti Ram's case (supra) relied upon by the State Public Prosecutor would not be of much help to the prosecution. Therefore, it has to be held that though the prosecution could only able to establish that the prosecutrix/victim was subjected to rape, but by that itself it cannot be held that she was subjected to rape by none else than accused No.5 only.
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43. It is also the case of the prosecution that at the time of the alleged offence of rape, the accused also attempted to kill the prosecutrix by throwing mud into her eyes and nose assaulting her with belt, sugarcane pieces and also by throttling her. The evidence of prosecutrix has also come on the similar line as observed above. As already observed the medical evidence, more particularly of PW.21 and PW.22 the doctors have also revealed that in their examination of the prosecutrix conducted on the very next day of the incident i.e., on 13.09.2011 they noticed swelling in the face of the prosecutrix. The eyes had turned black, there were several abrasions on her left hand as well on the neck. These aspects proves that the prosecutrix was subjected to assault. The place of offence has been established is a sugarcane field where grown up sugarcane crop was there and some part of the said field got destroyed, sugarcanes broken due to the incident. Thus atleast few of the abrasions including the abrasions Crl.A.No.100042/2014 58 on the neck must have been caused due to pricking of the remains of the sugarcane crop in the field also, in addition to the assault by the accused.
44. The statement of the doctor (PW.22) that when a person is assaulted with sugarcane piece on the face and assaulted with mud blocks the injuries, found on the prosecutrix, could happen and when the person is assaulted with soil, the soil entering the nose also is possible, has not been specifically denied in the cross examination of the said witness. Though the defence taken from the accused side that the injuries on the face, neck and hand as found in the instant case could also happen when a person falls on a hard surface was admitted as true by PW.21 the another doctor, but, as observed above, the defence could not establish that in the instant case it is in that act of falling on the ground only those injures have happened. As such, the injuries of abrasion and finding soil in the nostrils and in the eyes of Crl.A.No.100042/2014 59 the prosecutrix were an intention act of human being done by none else than the accused itself is established. However, those acts cannot go to establish that the accused had any intention to kill the prosecutrix and that they did any attempt in killing her.
45. Even according to the prosecution as in the evidence of PWs.1, 4, 5 and 8 the accused in the panchayath said to have been held prior to the incident regarding PW.4 misbehaving with daughter of the brother of accused Nos. 1 and 2 the threat was only to do act as against the sister of PW.4, but not to cause death of any one including the prosecutrix. Secondly, even according to the evidence of PW.1 as well the charge sheet, at the time of incident there were five accused who were present in the case and the victim was only one i.e., PW.1. No other persons were there at that point of time in the place of offence. Among them the accused were male whereas the lone victim was female. As such also in their number and Crl.A.No.100042/2014 60 cumulative physical strength the accused were more powerful, had they really determined to take away the life of the prosecutrix it was not impossible or difficult for them since they have only assaulted the prosecutrix and the injury found on the neck, face and hand of the injured were also mere abrasions, it cannot be believed that the accused were determined to take away the life of the prosecutrix and that they attempted in that regard. As such, it has to be held that the prosecution could not prove the alleged offence punishable under Section 307 against the accused.
46. Learned counsel for the accused in his argument relied upon two judgments of Hon'ble Supreme Court in Baby @ Sebastian and another vs. Circle Inspector of Police, Adimaly, reported in 2016 AIAR (Criminal) 867 in a case falling under Section 378 of the Criminal Procedure Code the Supreme Court was pleased to observe that appellate court should not ordinarily set Crl.A.No.100042/2014 61 aside the judgment of acquittal in a case where two views are possible, that the view of the appellate court may be the more probable one. It was further pleased to observe that appellate court could bear in mind the presumption of innocence of the accused and further that the trial court's order of acquittal bolsters the presumption of his innocence. It is now beyond dispute that interference in appeal against acquittal should be made sparingly in a situation where the findings of the trial court recorded for acquittal are perverse.
47. In Pavan Kumar vs. State of Himachal Pradesh reported in 2017 AIAR (Criminal) 720 the Hon'ble Supreme Court again was pleased to observe with respect to an appeal under Section 378 of the Cr.P.C., 1973 that an appellate court must bear in mind that in case of acquittal there is total presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of Crl.A.No.100042/2014 62 criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
48. Following the above guidelines of Hon'ble Supreme Court in the case on hand as already observed the prosecution could not prove beyond reasonable doubt that the accused have committed the alleged offence punishable under Section 376 and under Section 307 of the Indian Penal Code. However, the appeal of the State is also challenging the judgment of acquittal against the accused for the offence punishable under Sections 143, 147, 341, 324 and 504 read with Section 149 of the Indian Crl.A.No.100042/2014 63 Penal Code also. The accused are to be presumed to be innocent unless and until the guilt against them are proved beyond reasonable doubt. It is also to be borne in mind that the accused have already secured their acquittal by the Sessions Court even with respect to the alleged offences. However, the evidence led by the parties, more particularly of PWs.1, 3, 4, 5 and 8 coupled with medical evidence though could not prove beyond reasonable doubt the alleged offence punishable under Sections 376 and 307 of the Indian Penal Code, but the evidence are sufficient to prove beyond reasonable doubt the guilt of the accused punishable under Sections 143, 147, 341, 324 and 504 of the Indian Penal Code. The Sessions Court while analyzing the evidence has concentrated mainly on the offence punishable under Section 376 of the Indian Penal Code.
49. Having found the materials placed before it and evidence led were not suffice to hold that the Crl.A.No.100042/2014 64 prosecution has proved the said offence beyond reasonable doubt, has en masse, fallen to a conclusion that prosecution could not able to prove in all the offences that are charged against the accused. It is at this point the Sessions Court ought to have appreciated the evidence as to whether they prove each of the offences alleged against the accused. It cannot be lost sight that offence punishable under Section 376 of the IPC was because of interception of some serious doubt only with regard to the identity of the alleged culprit. It is at this point the Sessions Court skipped which led to an erroneous conclusion of acquittal of the accused from all the offences charged against them.
50. As observed above the evidence of none else than the victim/injured herself about the presence of the accused in forming the unlawful assembly and in wrongfully restraining her on the night of 12.09.2011 in a public place itself shows that the accused hatched a plan Crl.A.No.100042/2014 65 and with that they had formed an unlawful assembly. The evidence of PW.1 is reliable, trustworthy to a partial extent, which further goes to show that the accused in furtherance of their common object dragged the prosecutrix to adjoining sugarcane field, insulted her by abusing her in filthy language intentionally and knowing that it would lead to any other offence. The evidence has further clearly established that the accused in furtherance of their common object have also assaulted PW.1 using sugarcane pieces and waist belt. Though the sugarcane pieces or the belt by itself cannot be called as an instrument for shooting, stabbing or cutting, but when those two articles are used as weapon of offence there was all the likelihood of those instruments causing death. The evidence of material witnesses and more particularly the injured (PW.1) herself on these aspects of wrongful restraint insult and assault have withstood the thorough and scorching cross examination from the accused side. Crl.A.No.100042/2014 66
51. Further, the motive behind the alleged acts of the accused have also clearly established in the evidence of PWs.1, 3, 4, 5 and 8 who have uniformly stated that with respect to the alleged act of PW.4 of the said witness misbehaving with the daughter of one Parashuram who is said to be the brother of accused had made the accused to hold a panchayath and made them to declare that they would take revenge in that regard. Interestingly, apart from non-denial of the said aspect of motive in the cross examination of any one of the material witnesses the accused in their statement recorded by the Sessions Court under Section 313 Cr.P.C. as an answer to question No.33 voluntarily have stated that PW.4 Maruti Kamble had written love letter and telephoned to their sister Annapurna and had tried to spoil her life. As such they advised him. It is in that revenge a false case has been lodged.
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52. Though the accused had stated that complainant family had intended to take revenge, but the said statement of the accused shows that such an instance created rivalry among them. The evidence of the material witnesses clearly shows that the revenge has taken by the accused for the alleged past incident. As already observed above the defence put forth by the accused that the injuries sustained by the prosecutrix was accidental also could not be sustained. These aspects the Sessions Court has not appreciated while appreciating the evidence led before it. As such, though the Sessions Court has rightly acquitted the accused for the offence punishable under Sections 376 and 307 of the Indian Penal Code, but erred by passing similar order of acquittal even with respect to other offences i.e., punishable under Sections 143, 147, 341, 324 and 504 read with Section 149 of the Indian Penal Code. Thus, the appeal deserves to be allowed in part and the judgment of the acquittal Crl.A.No.100042/2014 68 under appeal passed by the Sessions Court requires an interference to the extent of setting aside the judgment of acquittal passed against the present respondents/accused for the offences punishable under Sections 143, 147, 341, 324 and 504 read with Section 149 of the Indian Penal Code and in view of the finding that the prosecution could able to prove those offences against the accused beyond reasonable doubt the judgment of conviction for those offence is required to be passed.
53. Before concluding this judgment, the circumstances of the case, more particularly regarding the manner how the investigation was conducted in this case requires some observation. As analysed above, at various places the main Investigating Officer, PW.24(CW.27) Sripad Dasharath Jalde, has throughout failed to conduct a proper and diligent investigation in the matter. His casual approach towards investigation in this case has been noticed in this judgment at relevant places above. Crl.A.No.100042/2014 69 However, to summarize, some of the latches on his part are as below:
i. The prosecutrix/victim in her complaint at Ex.P1 is shown to have stated that she was wrongfully restrained by the accused near the agricultural land of one Maruti Kamtadara and that she was dragged by the accused to a sugarcane filed, whereas the scene of offence panchanama at Ex.P2 is shown to have been drawn in the agricultural land/sugarcane field of one Siddappa Satigouda Patil at Bomnal village. The place of offence is said to have been shown by Devappa Maruti Kamble (PW.8), who is said to be the father of the prosecutrix. When the prosecutrix has not named the place of offence as the land belonging to Siddappa Satigouda Patil in her complaint, nor PW.8 - the father of the prosecutrix, who has shown the spot to the Crl.A.No.100042/2014 70 panchas and the police also has not stated in his statement, that his daughter shown him the place of offence as the land belonging to Siddappa Satigouda Patil, then it was incumbent upon the Investigating Officer to collect material or statement of any of the witnesses to show whether the land of Maruti Kamatadar and Siddappa Satigouda Patil were adjacent lands and why did not the complainant named the specific land with the name of its owner in her statement. Incidentally, the said Siddappa Satigouda Patil, who was examined as PW.9 also has not supported the case of the prosecution.
In this way in establishing the exact identity of the place of offence, the Investigating Officer who was required to show the adequate care during investigation has not shown. Incidentally, the prosecution also has not Crl.A.No.100042/2014 71 elicited the required details in the evidence of its witnesses. It could have put questions to any of the material witnesses including the prosecutrix and PW.9 regarding the location of the lands of said Maruti Kamatadar and Siddappa Satigouda Patil. Even the Court also did not put any court question though the situation was required to elicit the said necessary details in pin-pointing the exact place of occurrence of the incident. ii. Admittedly, in the complaint at Ex.P1, the complainant/prosecutrix has not disclosed the name of the 5th accused Vasant S/o. Dundavva Kamble, who is said to have committed the alleged heinous offence of rape upon the complainant. Though the complainant has stated along with four named accused one more person was there in that unlawful assembly, who committed rape upon her, but she has not Crl.A.No.100042/2014 72 disclosed his name in the complaint. However, the Investigating Officer has shown that the same lady has given her further statement naming the said alleged accused No.5. It is also shown in her further statement dated 18.09.2011 that because some soil was thrown into her eyes, nose and mouth and since she was assaulted at the time of incident, due to pain she could not give the name of 5th accused, who is said to have committed rape upon her, in her complaint. In a mechanical manner, the Investigating Officer has recorded her further statement and proceeded further in the investigation. Being an Investigating Officer, he could have investigated in the aspect of the complainant not disclosing the name of the alleged rapist at the first instance, when in fact with the same condition of allegedly being Crl.A.No.100042/2014 73 assaulted by the group of accused and with soil in her eyes, none and mouth, she could able to give clear and complete identity of the remaining four accused except the main accused, who is said to have committed rape. In this regard, the Investigating Officer should have conducted investigation and elicited clear and further details from the witness including the prosecutrix.
In addition to that, being an Investigating Officer, in his evidence also he was expected to and required to substantiate his investigation in coming to a conclusion that accused No.5, who was not named in the complaint, though was a known person to the prosecutrix even prior of the incident, was the accused who committed rape and none else. Without putting any effort in this regard, in a very causal and mechanical Crl.A.No.100042/2014 74 manner he has deposed in the Court giving only the chronological events of his investigation. Admittedly in this case no test identification parade has been conducted. As such, the Investigating Officer was expected to take more caution and care in establishing the exact identity of the culprit solely based upon the alleged further statement dated 18.09.2011 of the prosecutrix.
iii. Even according to PW.24, the Investigating Officer, there were two sets of clothes said to be belonging to the prosecutrix. The first set of clothes are marked as MO.1, MO.2 and MO.3, which are saree, petticoat and blouse said to have been worn by the prosecutrix at the time of incident and left by her in the spot itself while returning home after the incident. According to the Investigating Officer, in the scene of offence Crl.A.No.100042/2014 75 panchanama drawn by him under Ex.P2, among other articles, he has seized those three clothes also from the alleged scene of offence. The prosecutrix who claims to have returned to her home in a naked condition was provided with alternate clothes from her family members, she worn them and was taken to the hospital, where the specialist doctor who examined her is said to have collected those clothes worn by her while visiting the hospital on the next day of the incident i.e., on 13.09.2011. The Investigating Officer PW.24 has sent them to Regional Forensic Science Laboratory for necessary examination, inter alia only those three clothes given to the prosecutrix after the incident in her home and worn by her subsequent to the alleged incident and which were collected by the doctor, which are at MO.15, MO.16 and MO.17. For Crl.A.No.100042/2014 76 the reasons best known to him, the Investigating Officer (PW.24), did not send MO.1, MO.2 and MO.3, the clothes said to have been worn by the victim/prosecutrix at the time of offence. Even according to the victim, at the time of commission of offence upon her, particularly, the heinous offence of rape, she was undressed with those three clothes at MO.1, MO.2 and MO.3 which were worn by her. It is also her case that it is with those clothes only the accused had tied her hands and legs. That being the case, it was very much necessary for the Investigating Officer to send those clothes for their chemical examination to the Forensic Science Laboratory to find out the existence of any materials including seminal stains on any of those clothes. Had those clothes been sent, the scientific report that would have come upon the Crl.A.No.100042/2014 77 examination of those clothes would have played very important role in finding out the truth.
Thus, there is absolute negligence or carelessness or may be even an intentional omission on the part of the Investigating Officer. iv. Among the second set of clothes sent for FSL report by the Investigating Officer, the Forensic Science Laboratory vide its report at Ex.P26 has made an observation that presence of seminal stains was found positive in item No.5. The said item No.5 was the petticoat offered to the prosecutrix after the incident at her home and worn by her after the incident, but before proceeding to the hospital. The Investigating Officer even after receiving the said FSL report and noticing the finding given by the laboratory mentioning the presence of seminal stains on the said petticoat, did not bother to continue his Crl.A.No.100042/2014 78 investigation in establishing the nexus, if any, between the said seminal stains on the petticoat with that of accused No.5. Nothing had prevented the Investigating Officer to conduct his further investigation, rather Section 173(8) of the Code of Criminal Procedure, 1973 does not preclude further investigation in a matter even after the Investigating Officer forwards a report under Section 173(2) to the Magistrate. The said Investigating Officer once again exhibited his gross negligence or carelessness, and mechanically, in a routine manner submitted the FSL report to the Court and kept quite. The prosecution also did not elicit any details in this regard to find out the nexus, if any, between the seminal stains found on the petticoat at MO.15 (second petticoat) with accused No.5.
Crl.A.No.100042/201479 v. The FSL report at Ex.P26, though was received by the Investigating Officer (PW.24), was not placed by him before PW.21 (CW.33) Dr. Laxmi K.S., Gynaecologist, who had examined the prosecutrix/victim for the victim's alleged complaint of rape. On the contrary, the Investigating Officer has placed the said report before PW.18 (CW.25) Dr. Srimant S. Bane, who though had initially examined the prosecutrix, but without medically examining her for the alleged complaint of rape, referred her to Civil Hospital for expert opinion. As such, nothing material could be expected by him regarding the opinion upon FSL report. It was required of the Investigating Officer to place the report before that doctor who had medically examined the prosecutrix/victim for her alleged complaint of rape. Even though PW.20 (CW.32) - Dr.Deepak Crl.A.No.100042/2014 80 D.G. is shown to have seen the FSL report as could be inferred from referring to the injury certificate issued by him at Ex.P33, but admittedly, the said doctor has not given any opinion after going through the FSL report. Admittedly, even the said doctor (PW.20) has also not personally examined the victim, but has referred her to different experts in his hospital for their opinion. One among those experts was PW.21(CW.33)Dr.Laxmi K.S., who had examined the prosecutrix/victim for her alleged complaint of rape and given her opinion. As such, the said FSL report which has noticed the presence of seminal stains on the petticoat, which petticoat incidentally was collected by the said doctor, should have been placed before the very same doctor i.e.PW.21. Her opinion after going through the FSL report would have been of some Crl.A.No.100042/2014 81 help to the prosecution in making out its case. Thus, the Investigating Officer has shown his negligence or reluctance or carelessness even in not placing the FSL report before the appropriate doctor and obtaining a medical opinion.
54. In this way, throughout conducting investigation in this case, the Investigating Officer has shown his negligence or, if can be called so, inefficiency in conducting investigation. This has also played an important role in the acquittal of the accused in the alleged offence punishable under Section 376 of the IPC.
55. This Court before taking up the matter for final hearing, in its order dated 19.08.2014, observing that the said act of Investigating Officer (PW.24) i.e., non-sending of victim's apparels at MO.1 to MO.4 for FSL examination, has led to acquittal of the accused in a rape case of a 30 years old woman, had asked the learned Addl. SPP to ascertain as to what action was taken against that Crl.A.No.100042/2014 82 incompetent officer, who did not do his duty attached to his office as an Investigating Officer. In response, the learned Addl. SPP through his memorandum filed on 01.09.2014, had submitted a copy of a letter by the Superintendent of Police, Belagavi, addressed to his counter part at Gadag District, requesting him to take disciplinary action against the said Investigating Officer and to inform the Addl. SPP about the action taken. However, thereafter no documents are placed before this Court by the prosecution to show as to what action was taken against the said Investigating Officer. Thus, it is a fit case where the competent Authority of PW.24(CW.27) Sripad Dasharath Jalde, Circle Inspector of Police, to take stringent disciplinary action against the said Officer in accordance with law including, considering, not entrusting investigation of a serious and heinous crimes henceforth to him.
Crl.A.No.100042/201483
56. In addition to recommending the Police Authority to take action against the erring Investigating Officer (PW.24), it is also to be noticed that, due to the improper investigation and consequential acquittal of the accused from the alleged offence punishable under Section 376 of the IPC, it is a case where the victim - PW.1 is required to be compensated, who has suffered injury as a result of the crime. Any amount that may be imposed upon the accused as a fine for other proven offences against them and an order to pay the said fine to the victim as compensation under Section 357 Cr.P.C. would not be adequate for her rehabilitation. As such, a direction can be given to compensate the victim under Section 357A of the Code of Criminal Procedure, 1973. However, such a direction or recommendation to the State Legal Service Authority for award of compensation and quantification of the amount by such Authority by holding Crl.A.No.100042/2014 84 an enquiry and payment of the said compensation would all take lot more time to complete the process.
In Rachhpal Singh and Another Vs. State of Panjab reported in (2002)6 SCC 462, the Hon'ble Apex Court was pleased to observe that, where the Court does not award fine along with substantive sentence, Section 357(3) comes into play and it is open to the Court to award compensation to the victim or his family.
In Kamalanantha and Others Vs. State of T.N. reported in (2005) 5 SCC 194, the Hon'ble Apex Court while convicting the accused of rape and sentencing him to life imprisonment was also pleased to impose a fine of `60 lakhs and ordered the same to be distributed amongst 13 female victims of rape. To secure the ends of justice, it is much more than to decide the case on legal points. In the case on hand also, the prosecutrix (PW.1) is required to be adequately compensated. It is also necessary and deserving to secure the ends of justice. As such, this Crl.A.No.100042/2014 85 Court considers this as a fit case to invoke its inherent power under Section 482 of the Code of Criminal Procedure, 1973 to make an order to the State to compensate the prosecutrix PW.1 in order to secure the ends of justice.
Accordingly, considering the circumstance of the case and the fate of the young widow who is the victim in this case, we are of the view that a sum of `4,00,000/- be ordered to be paid to her as compensation.
57. Accordingly, we proceed to pass the following order.
ORDER The appeal is allowed in part.
The judgment dated 11.06.2013 passed in S.C. No.51/2012 by the I Additional District and Sessions Judge, Belagavi is set aside in part in acquitting the accused herein from the offences punishable under Sections 143, 147, 341, 324 and 504 read with Section 149 of the Indian Penal code.
Crl.A.No.100042/201486
The accused - respondents herein - (1) Ramesh, S/o. Dundavva Kamble (2) Shantu S/o. Dundavva Kamble, (3)Tammanna, S/o. Dundavva Kamble, (4) Sadashiv Maruti Kamble, (5) Vasant S/o. Dundavva Kamble are convicted for the offences punishable under Sections 143, 147, 341, 324 and 504 R/w. Section 149 of the Indian Penal Code.
The judgment under appeal passed by the Sessions Court acquitting the accused for the offences punishable under Sections 376 and 307 of the Indian Penal Code is confirmed. The bail bonds of accused Nos. 1 to 5 stand cancelled.
(For hearing on sentence) Sd/-
JUDGE Sd/-
JUDGE
ykl/gab
Crl.A.No.100042/2014
87
LNSJ & Dr.HBPSJ: CRL.A.100042/2014
17.10.2017
HEARING ON SENTENCE
Heard the learned counsel for the accused regarding sentence.
The learned counsel for the accused submitted that the accused are young persons having family commitments and social obligations. He also submitted that the accused have no criminal antecedents. As such, taking a lenient view they may be given the benefit of the Probation of Offenders Act, 1958 and be enlarged.
The learned Public Prosecutor in his argument submitted that, considering the nature of the alleged offences and the plight of the victim of the case, the accused does not deserve any mercy including the benefit under the Probation of Offenders Act, 1958. Crl.A.No.100042/2014 88
As observed above, the alleged offence has taken place against a woman in the late evening hours while she was returning home alone in a rural area. The offences alleged were heinous in nature. The accused in furtherance of their common object have committed offence against a woman in a village society. The accused and the victim being the residents of the same village, due to the social set up normally prevailing in the Society, it would be very embarrassing and difficult for the victim and her family to live amidst the accused. Since the accused and the prosecutrix/victim being the residents of the same village, the circumstance does not warrant the enlargement of the accused giving them the benefit under the Probation of Offenders Act, 1958. As such, it is not a fit case to grant the benefit of Probation of Offenders Act, 1958 or under Section 360 of the Code of Criminal Procedure, 1973.
Crl.A.No.100042/201489
It is the sentencing policy that the sentence imposed shall be neither exorbitant nor only for the name sake. It must be proportionate to the gravity of the offence proved. Considering these aspects, we proceed to pass the following order of sentence:
ORDER ON SENTENCE For the offence punishable under Section 143 of the IPC, each of the accused/respondents herein are sentenced to undergo a simple imprisonment of three months and shall pay a fine of `1,000/-, in default of payment of fine to undergo simple imprisonment for fifteen days.
For the offence punishable under Section 147 R/w. Section 149 of the IPC, each of the accused shall undergo a simple imprisonment of one year and shall pay a fine of `3,000/- in default of payment of fine to undergo simple imprisonment for a period of one month. Crl.A.No.100042/2014 90
For the offence punishable under Section 341 R/w. Section 149 of the IPC, each of the accused shall undergo a simple imprisonment for a period of 15 days and shall pay a fine of `300/-, in default of payment of fine to undergo simple imprisonment for a period of one week.
For the offence punishable under Section 324 R/w. Section 149 of the IPC, each of the accused shall undergo simple imprisonment for a period of two years and shall pay a fine of `4,000/-, in default of payment of fine to undergo simple imprisonment for a period of one month.
For the offence punishable under Section 504 R/w. Section 149 of the IPC, each of the accused shall undergo simple imprisonment for a period of one year and shall pay a fine of `1,000/-, in default of payment of fine to undergo simple imprisonment for a period of fifteen days.Crl.A.No.100042/2014
91
The accused/respondents are entitled for set off under Section 428 of the Criminal Procedure Code, 1973.
All sentences to run concurrently.
There are serious lapses on the part of Investigating Officer in investigating the case as observed by us above. Hence, this Court is of the prima facie view that the compensation amount, which is to be paid to the prosecutrix, will have to be recovered from out of his salary. However, before directing recovery of the compensation amount from out of his salary or to act upon the observations which may adversely affect his career, he has to be heard so that he may place his defence in respect of the observations by filing an affidavit. For this purpose, date is to be fixed to hear the investigating officer.
Further, in the light of the observations made above at paragraph No.56, the appellant-State is directed to pay a sum of `4,00,000 (Rupees Four Lakh Only) to the Crl.A.No.100042/2014 92 victim/prosecutrix PW.1(CW.1) as compensation for the victim, within four months from today without anticipating any request or application from her. The Director General of Police and Inspector General to look into the observation made regarding investigation and take suitable action, in this regard.
In addition to the compensation awarded to the victim/prosecutrix under Section 482 of the Code of Criminal Procedure, 1973, the fine amount now imposed upon the accused, when recovered be paid to the prosecutrix/victim as a part of compensation under Section 357 of Code of Criminal Procedure, 1973.
Registry shall forthwith transmit a copy of the entire judgment to the Principal Secretary, Department of Home, State of Karnataka, Bengaluru and the Director General of Police and Inspector General, Karnataka State Police, Bengaluru, drawing their attention to the directions given to them hereabove for their compliance. Crl.A.No.100042/2014 93
To hear the Investigating Officer, list on 31.10.2017. Prosecution to keep present PW.24 - the Investigating Officer on the said date, to enable him to file his affidavit.
Sd/-
JUDGE Sd/-
JUDGE gab