Bangalore District Court
The State By vs P S. Mahesh S/O Shankare Gowda on 18 February, 2020
IN THE COURT OF THE LXX ADDL. CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 18 th day of February, 2020
:PRESENT:
SRI. MOHAN PRABHU
M.A., L.L.M.,
LXX Addl. City Civil & Sessions Judge &
Special Judge, Bengaluru.
S.C.NO. 1060/2016
COMPLAINANT: The State by
Banashankari Police Station,
BENGALURU
(By Special Public Prosecutor)
V/s
ACCUSED:
1.P S. Mahesh S/o Shankare Gowda, 27 years, R/at No.48, 8th Cross, Maheshwaramma Temple Road, Banashankari 2nd Stage, Bengaluru
2. Revathi W/o Shankare Gowda, 40 years,
3. Lokesh S/o Shankare Gowda, 25 years, A2 and A3 are R/at No.4.
Puttegowdadoddi village, Maddur Taluk, Mandya District.
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S.C.NO. 1060/2016
4. Prasanna Kumar, 35 years, S/o B.N. Puttalingaiah, No. 28/2, 5th cross, Byatarayanapura, Mysore Road, Bengaluru.
5. Cheluvaraj S/o Rangaiah, 31 years, No.204/A, 2nd Cross, Hanumanthanagara, Bengaluru.
(By Sri. DRN, Advocate for A1, Sri. P.H. for A2 & A3, Sri. MSR for A4 & A5)
1. Date of commission of offence: 01-04-2014 to 27-04-2016
2. Date of report of occurrence : 19-05-2016
3. Date of commencement of : 09-02-2018 recording of evidence
4. Date of closing of evidence : 27-09-2019
5. Name of the Complainant :
6. Offences Complained of : Sec. 376, 417, 506 r/w 34 of IPC & Sec. 3(1)(x) 3(2)(v) of S.C. & S.T. (P.A.) Act.
7. Opinion of the Judge : Accused are Acquitted.
J UD GM E N T The Assistant Commissioner of Police, Banashankari Sub-Division, Bengaluru city has submitted the Charge Sheet against the accused No.1 to 5 in Banashankari Police Station Crime No. 131/2016 for the offences punishable under 3 S.C.NO. 1060/2016 Sections 376, 417, 506 r/w 34 of IPC & Sec. 3(1) (x) 3(2)(v) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act.
2. The prosecution case in brief as under:
Based upon the first information statement lodged by CW.1/complainant and victim on 19.5.2016 at 8.40 PM the Banashankari Police registered the case bearing Crime No. 131/2016. In the first information statement at Ex.P1 lodged by CW.1/PW.1 it is stated that she was working as O.T. Technician in D.G. Hospital from the month of August 2013. Accused No.1 who obtained mobile phone number of CW.1/ Complainant through one Naveen started to call her over phone and telling that he is going to marry her. Accused No.1 also used to follow her in Swift Car. Even though she protesting for the same but accused No.1 made her and her parents to believe that his parents will agree for his marriage with her/CW.1 without looking her caste. In the month of April 2014 one day accused No.1 took the CW.1/ complainant with his friends accused No.4 Prasanna and Shilpa to 4 S.C.NO. 1060/2016 Mahadevaswamy temple and thereafter took her to Biligirirangana hills. When they were staying in the room of under constructing building at that time accused No.1 had forceful sexual intercourse with her and assured her that he will marry her. On next day morning they returned to the Bengaluru. Then she fell sick due to sexual assault and could not attend for her work for 3 days and she had taken treatment. Few days later accused No.1 again approached her and blackmailed her by stating that he will reveal to everybody regarding physical contact made with her if she do not co- operate for physical relation. By blackmailing her accused No.1 took her to his room situated at Kadirenahalli several times and sexually assaulted her. Thereafter when she asked accused No.1 to marry her at that time he refused to marry her. The accused No.1 goes on dodging the marriage on one or other pretext. On 18.9.2015 accused No.1 received her SSLC Marks card, PAN Card, Photos saying that he will marry her and get register marriage. But thereafter he goes on protracting the marriage by one or other pretext. He started to 5 S.C.NO. 1060/2016 avoid her phone calls. Accused No.3 Lokesh who is brother of A1, Accused No.4 Prasanna Kumar, A5 Cheluvaraj who are friends of accused No.1 abused CW.1/Complainant over phone. As accused No.1 avoiding phone calls of complainant she telephoned to the house of the accused. Coming to know about the same accused No.1 came near her hostel and picked up quarrel with her and abused her in the name of caste and assaulted her with chappal and snatched her mobile phone and distructed the memory card and destroyed the photos and recordings stored in mobile phone and also given life threat to her. Thereafter accused No.2 also abused her over phone and given life threat to her. Accused No.2 also abused the mother and brother of the complainant over phone. Thereafter the complainant went to the house of accused No.1 situated at Mandya and told about the incident to accused No.2 who is the mother of accused No.1. Then accused No.2 abused the complainant in the name of caste. On that day on 26.3.2016 while complainant returned to Bengaluru near Kengri Signal accused No.1 who came in Ambulance forcefully pulled her 6 S.C.NO. 1060/2016 inside the Ambulance. By seeing this incident the public informed the same to Byatarayanapura Police Station. Then the police stopped the Ambulance vehicle and took accused No.1 and complainant to Byatarayanapura Police Station where accused No.1 executed bond stating that he and complainant loving each other and going to marry. Thereafter accused No.1 who took the complainant in Ambulance abused her and left her on the road. In this regard complainant lodged the complaint to Banashankari Police Station. In this regard, Banashankari Police enquired accused No.1 and then he has given statement before police that he will marry complainant. He sought one month time to convince his parents, he assured that he will marry the complainant on 27.4.2016. But on 27.4.2016 accused No.1 not come forward to marry the complainant. Accused No.1 got Government Job 4 months back. The accused No.1 who assured that he will marry complainant in the promise of marriage had sexual intercourse with her. Thereafter he refused to marry the complainant, abused her in the name of caste. Based upon 7 S.C.NO. 1060/2016 the first information statement lodged by the complainant on 19.5.2016 the Banashankari Police registered the case and sent FIR to the court. The Investigation Officer who took up the further investigation visited to the place of incidents and conducted the mahazar. The IO recorded the statements of witnesses. I.O., after collecting all the materials on completion of investigation filed the charge sheet against the accused for the aforesaid offences.
3. All the accused obtained bail. I.O., filed the Charge Sheet directly before II Addl. City civil and Sessions Judge and Special Court. After establishing this Exclusive Special Court this case transferred to this court. Charge sheet copies duly furnished to the accused and thereby the provision u/s 207 of Cr.P.C. is duly complied with.
4. On 18.12.2017 charges are framed against the accused No.1 to 5 for the offences punishable under Sections 376, 417, 506 of IPC & Sec. 3(1) (x) 3(2)(v) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act for which accused pleaded not guilty and claimed for trial. 8
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5. In order to prove its case, the prosecution examined 24 witnesses as P.W.1 to P.W.24 and documents Ex.P.1 to Ex.P.29 are marked. M.O.1 to M.O.8 are marked. During the course of cross-examination of witnesses documents Ex.D1 to Ex.D3 are marked on side of defence.
6. After closure of prosecution evidence, the statements of the accused u/s 313 Cr.P.C., have been recorded on 10.10.2019. The accused denied the incriminating materials. They chose not to lead defence evidence.
7. I have heard the arguments of the Learned Spl. Public Prosecutor and the Learned Counsel for the accused and perused the entire records.
8. Upon hearing, the following points arise for my consideration :-
POINTS Point No.1:- Whether the prosecution proves beyond all reasonable doubt that 1st week of July 2014 on the promise of marriage accused No.1 took CW.1/complainant to Biligiri 9 S.C.NO. 1060/2016 Ranga Hills and sexually assaulted CW.1 at night in room by committing forceful sexual intercourse. Thereafter accused by blackmailing CW.1 took her to his room situated at Kadirenahalli and repeatedly committed sexual intercourse with her in the promise of marriage and thereby the accused No.1 has committed offences punishable u/s 376 of IPC ?
Point No.2:- Whether the prosecution proves beyond all reasonable doubt that accused No.1 who in the promise of marriage sexually assaulted C.W.1 by committing sexual intercourse with her thereafter refused to marry her and cheated her and thereby the accused has committed an offence punishable u/s 417 of IPC?
Point No.3:- Whether the prosecution proves beyond all reasonable doubt that the accused persons criminally intimidated by giving life threat to C.W.1 and thereby committed the offence punishable u/s 506 r/w 34 of IPC?10
S.C.NO. 1060/2016 Point No.4:- Whether the prosecution proves beyond all reasonable doubt that the accused persons abused CW.1/ complainant in the name of caste and humiliated and insulted her within public view and thereby committed the offence punishable u/s 3(1)(x) of the SC/ST (POA) Act?
Point No.5:- Whether the prosecution proves beyond all reasonable doubt that the accused persons have committed the offence punishable u/s 3(2)(v) of S.C. & S.T. (P.A.) Act?
Point No.6:- What order?
8. 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:- In the negative Point No.6:- As per final order for the 11 S.C.NO. 1060/2016 following REASONS
9. POINTS No.1 to 5:- These points are taken up together for discussion for the sake of convenience and to avoid repetition of facts and evidence.
P.W.1 is the first informant and victim. PW.2/Gowri Staff Nurse of D.G. Hospital turned hostile. PW.3/Smt. Shilpa was working in D.G. Hospital. She is the wife of accused No.4. PW.3 has not supported the case of the prosecution. PW.4/B. Krishna is the circumstantial witness, PW.5 Eshwara is the circumstantial witness have turned hostile to the case of the prosecution. PW.6 Vadiraj, PW.7. Mahesh, PW.8 v. Sudharshan, PW.24 Vinay who are all mahazar witnesses have turned hostile to the case of the prosecution. PW.9 Dr. S.R. Jagannath of KIMS Hospital examined the accused and issued Ex.P13 report. PW.10 Dr. Malathi T. examined PW.1/ prosecutrix and issued Ex.P14 report. PW.11 Shivakumar S.M. Tahsildar issued Ex.P15 report regarding caste of Accused No.5. PW.12 Shivashankar Gowda, Head Constable carried 12 S.C.NO. 1060/2016 M.O.1 to M.O.8 to RFSL Mysore. PW.13 Venkatesh, Police Constable deposed regarding arrest of accused No.1. PW.14 Krishna T.T. Police Inspector deposed about conducting part of investigation. PW.16 Chennabasava Kadeshwaranavar, Police Constable deposed he brought M.O.1 to M.O.8 from KIMS Hospital. PW.17 Jayachandra, Head Constable of Banashankari Police Station deposed about receiving Ex.D2 complaint of complainant and registered NCR On 27.3.2016 and recorded the statement of accused No.1. PW.18 Dr. Chaya Kumar, Assistant Director of RFSL, Mysore given her opinion after examining M.O.1 to M.O.8. Pw.19 K.H. Venkateshaiah, ASI of Byatarayanapura Police Station deposed about Ex.D1and Ex.P25. PW.20 H.N. Anusuya Devi, Tahsildar has deposed about issuing Ex.P26 report regarding caste of Accused No.1 to 3. PW.21 Shivanna, Tahasildar deposed that he has issued Ex.P27 report regarding caste of PW.1. pw.22 v. Hanumantharayappa has issued Ex.P28 report regarding caste of accused No.4. PW.23 M.H. Manjunath Chowdari, ACP 13 S.C.NO. 1060/2016 conducted further investigation and has filed the charge sheet against the accused.
10. In this case, the oral evidence of PW.1 regarding her caste and caste of accused No.1 not seriously disputed by the accused. In other words her chief-examination version that she belongs to Adi Karnataka caste comes under Scheduled Caste and accused No.1 belongs to Gowda community is not tested in her cross-examination. It is not in dispute that accused No.2 is the mother of Accused No.1 and 3. PW.20 Tahsildar who issued Ex.P26 report regarding the caste of Accused No.1 to 3 has clearly deposed that A1 to A3 are belongs to Vokkaliga caste. PW.11 Tahasildar who issued Ex.P15 report regarding caste of Accused No.5 has deposed that accused No.5 belongs to Vokkaliga caste. PW.22 Tahasildar has deposed that he has issued Ex.P28 report that accused No.4 belongs to Vokkaliga caste. PW.21 Tahasildar has deposed that he after receiving the report of the Revenue Inspector issued Ex.P27 report stating that PW.1/complainant belongs to Adi Karnataka Caste. Even though the learned 14 S.C.NO. 1060/2016 counsel for the accused cross-examined PW.11, PW.20, PW.21, PW.22 in detail nothing is elicited from their mouth to discard their version and documents issued by them. The oral evidence of PW.1 which is supported by the oral evidence of PW.11, PW.20, PW.21, PW.22 and documents Ex.P15, Ex.P28, Ex.P26, Ex.P27 are sufficient to hold that PW.1 is belongs to Adi Karnataka caste comes under Scheduled Caste and Accused No.1 to 5 are belongs to Vokkaliga community which does not comes under Scheduled Caste or Scheduled Tribes. Thus, the prosecution has proved that PW.1 is belongs to Scheduled Castes.
11. P.W.1/complainant has supported the case of the prosecution. All other independent witnesses examined on the side of the prosecution are not supported the case of the prosecution.
12. PW.1 has deposed that she was worked in D.G. Hospital as Operation Theatre Technician from 19.8.2013 till December 2015. In the month of November 2013 she started 15 S.C.NO. 1060/2016 receiving many wrong calls from 8884747666 and another number. She used to cut the calls. Once she received the call on enquiry accused No.1 told her that he is working in the same hospital and told that he has seen her and likes her. Then she told accused No.1 not to disturb her and also told that she will complain to the hospital authorities and parents. On the next day accused No.1 personally appeared before her and introduced himself to her and told about his caste as Gowda. Then she told him that she belongs to Adi Karnataka community. Accused No.1 told her that he and his family members have no problem about her caste. Thereafter she told about the same to her parents. Her parents did not agree for the same for which she told to accused No.1. Even though accused No.1 made video conference call to her parents, her parents did not agree. PW.1 has deposed that CW.4/PW.3 Shilpa who was working as Nurse was her friend and room- mate. She has deposed that CW.4 and accused No.4 Prasanna have decided to marry in July 2014. PW.4 asked her to come to Mahadeshwara Betta, at first she did not agree later as 16 S.C.NO. 1060/2016 accused No.4 Prasanna told her that they will return early, hence, she agreed. She along with accused No.1, accused No.4 and CW.4 went to Mahadeshwara Betta in 1 st week of July 2014. The accused No.1 said that he is ready to marry her in the temple itself but she did not agreed for the same. At about 4 PM they returned from Mahadeshwara Betta and on the way they decided to go to Biligiri Rangana Betta. She did not agreed but others persuaded her, so she agreed. They went to one under constructing house which is known to accused No.1 and accused No.4. There were two rooms inside, one hall and another room. As she was vomiting due to journey she took medicine and slept on the cot in the hall. CW.4 and Accused No.4 Prasanna slept in the another room. At about 10.30 PM she felt someone touching her, on seeing accused No.1 was by her side. The accused No.1 closed her mouth and locked her hands and forcefully committed sexual intercourse once. On the next morning accused No.4 told her that he will got her marriage done with the accused No.1 and asked her not to worry. Thereafter they returned to Bengaluru. She did not go 17 S.C.NO. 1060/2016 to job for 2-3 days as she was tired and upset. Thereafter accused No.1 started to blackmail her stating that accused No.4 Prasanna and CW.4 Shilpa have videographed sexual assault and he will circulate if she do not have sexual contact with him again. After 15 days from the returning Mahadeshwara and Biligiri Ranganatha Betta, the accused No.1 took her to his house at Kadirenahalli and accused No.1 tortured her by beating her and committed sexual intercourse with her. Accused No.1 also took her PAN Card, Aadhar Card, 2 passport size photographs and Voter ID Card for registration of marriage and told her that he will return the same after taking the xerox of it. On asking accused No.1 he said if you are urgent you may marry somebody else. After 4-5 months later accused No.1 returned her PAN Card, Aadhar Card and Voter ID. Accused No.1 went on postponing the marriage on the one pretext or other. The accused No.1 used to scold her over phone whenever she calls him over phone. The accused No.1 avoiding her phone calls. If he receives her phone call he used to give the phone to accused No.4 Prasanna and accused 18 S.C.NO. 1060/2016 No.5 Cheluvaraju. Accused No.5 used to abuse her as " ಬಬವರರ ಮಮಮಡ ಸಸಳ ಮಮಮಡ". Accused No.4 used to threaten her stating that he will tell in the department about the incident. Accused No.3 Lokesh, brother of the accused No.1 also abusing her over phone. She informed the same to the accused No.2 mother of the accused No.1. On 23.3.2015 accused No.1, 3 to 5 met her in the Hospital at Padmanabha Nagara and accused No.1 abused her stating that she belongs to lower caste where slippers are kept. Accused No.4 instigated the accused No.1 beat her with slippers. Accused No.3 told the accused No.1 to kill her. The accused No.1 snatched her mobile phone and number of persons witnessed this incident. Accused No.1 abused her friend CW.2 also in foul and filthy language. She has deposed that she along with her cousin CW.3 Eshwar went to the house of the accused No.1 where accused No.2 was there. Accused No.2 told her that accused No.1 was earlier loving a girl of scheduled caste by name Ranju and if he had to marry he would have married her only. Accused No.2 also abused her in the name of caste and told that if she want some 19 S.C.NO. 1060/2016 money they will give. She returned back. On the same day on 26.3.2012 the accused No.1, his friend Krishna stopped her on the way and forcefully catching her hair took her into the Ambulance. The accused No.1 beat her in the Ambulance and drove the same with siren. The Byatarayanpura police followed them and stopped the Ambulance, took her and accused No.1 to the police station. At that time the accused No.1 told her not to give complaint so she did not gave any complaint. After she went to the Banashankari Police Station she has lodged the complaint against the accused as per Ex.P1. On 21.5.2016 the police took her to Kadirenahalli House of accused No1. Where she showed the place of incident and the police conducted the panchanama as per Ex.P2. The police also took the photographs as per Ex.P3. She has deposed that the document Ex.P4 is the photograph of the house in Biligiri Rangana Hill. She has deposed that the police took her to KIMS Hospital for medical examination where the doctor conducted the medical examination and taken M.O.1 underwear. The police taken her to the court where she has 20 S.C.NO. 1060/2016 given statement u/s 164 of Cr.P.C. as per Ex.P5. The CD of her statement is marked at Ex.P5(b). She has deposed that she has stated before the Magistrate that on 25.3.2016 the accused No.1 told her that he will marry her and had asked her to come with Mangala Sutra to Uttarahalli Subramanya Temple, Bengaluru. Accused No.1 at about 10 AM came and took her to to his room and by giving full volume to TV and shouting at her burnt her right hand with cigarette butts and beat her and told her that if he marries her she should stay within four corners of house. Accused No.1 also committed forceful sexual intercourse.
13. During the course of her cross-examination by the learned counsel for the accused PW.1 has deposed that CW.3 Eshwara is her distant relative. She has not lodged any complaint to the police in the year 2013 when she received anonymous calls. She states that the accused No.1 appeared before her after 15 days from the date when she received the call. She came to know about the accused No.4 through CW.4 only thereafter she came to know about the accused No.1. She 21 S.C.NO. 1060/2016 states that accused No.1 met her for the first time in the month of November 2013. She states that CW.4 Shilpa called her in the month of July 2014 to the Mahadeshwara Betta. They went to Mahadeshwara Betta in Swift car belongs to accused No.4. On 14.7.2014 left Bengaluru at 8 AM and went to Mahadeshwara Betta. She states that in her house she told her parents that she is going to Mahadeshwara Betta along with CW.4 Shilpa. She has deposed that when they visited to Biligirirangana Betta it was 4 to 4.30 PM. She do not know who was booked the lodge at Biligirirngana Betta. She do not know the name of the building where they stayed Biligiri Rangana Betta it was under construction. She do not know the measurement of the building. There were no other persons present in that building. She do not know whether any people residing surrounding with building. There was supplier to supply the food but she do not know the name of that person. She was slept in the room at 7.30 PM. She do not know where the accused No.4 and CW.4 were sleeping. She states that she was shouted loud when accused No.1 touched her. But 22 S.C.NO. 1060/2016 nobody came to that place. Her dress were not torned at the time of incident. She has sustained injuries over her body but was not mentioned the same in her complaint. She states that CW.4 Shilpa has not came at the time of incident. When question asked her whether she informed the police over the phone, about the incident she answered that as the accused No.1 promised her that he will marry her, she has not made any attempt to inform the same to the police. They returned to the Bengaluru at about 5 AM to 6 AM. She has not taken any treatment in the hospital. She has not stated about this incident of sexual assault to her parents. She has not made any effort to lodge the complaint to the police. She has not seen any videos to say that accused No.4 and CW.4 video graphed about the incident of sexual assault. She contends that she has seen the weeping photos of Biligiri Rangana Betta taken in the mobile phone of the accused No.1. She has denied the suggestion that no such photos were taken in the mobile phone. She has deposed that 15 days after they return from Biligiri Rangana Betta, the accused No.1 took her to his 23 S.C.NO. 1060/2016 rented house situated at Kadirenahalli. She do not know whether other residential houses are situated by the side of the rented house of the accused. She has deposed that the accused took her to his house once in July 2014 and another time in the year 2016 in all he has took twice her to his house. She has deposed that in the month of July 2014, she went to the house of accused No.1 at about 5 to 6 PM and she was there in the house of the accused No.1 for one hour. She has deposed that when the accused No.1 assaulted her in his house she was screamed but nobody came to that house. She has not disclosed about the sexual assault made by the accused No.1 in his house to anybody. She has denied the suggestion that at no point of time the accused No.1 sexually assaulted her either in Biligiri Rangana Betta or in his house at Kadirenahalli. She has denied the suggestion that the accused No.1 has not received any document such as PAN Card, Voter ID Card, Aadhar Card. She has deposed that the accused No.2 cut the phone call on 23.3.2016. Thereafter she visited to the Mandya on 26.3.2016 and met the accused No.2. She has not 24 S.C.NO. 1060/2016 lodged any complaint against the accused to say that on 23.3.2016 the incident was occurred near the hospital gate. She has deposed that when she and CW.3 reached Mandya, it was 12 noon. She has denied the suggestion that at no point of time the accused persons abused her in the name of caste. She has admitted the suggestion that Ex.D1 is the copy of her complaint given to the Byatarayanapura Police. She contends that in Ex.D1 she has mentioned only about the incident on that date. She has deposed that when on 26.3.2019 she went to Banashankari Police Station at 10 PM the police not received her complaint. She has admitted the document Ex.D2 copy of complaint dated 27.3.2016 given to Banashankari Police Station. She has not written about all the incident in Ex.D2. She contends that as the accused No.1 assured that he will marry her, she has not mentioned about the incident in Ex.D2. She has denied the suggestion that even though no such incident was occurred, she has lodged the false complaint against accused as per Ex.P1. She has denied the suggestion that no such mahazar as per Ex.P2 conducted in her presence. 25
S.C.NO. 1060/2016 She has denied the suggestion that even though no such incident was occurred, she has given false statement before the Magistrate as per Ex.P5. She has denied the suggestion that as the accused No.1 not married her nor given harassment to the accused, she has filed false complaint against the accused. She has admitted the suggestion that on 9.5.2016 the accused No.3 lodged the complaint to Banashankari Police stating that due to harassment made by her to accused No.1, accused No.1 attempted to commit suicide. She has denied the suggestion that unbearable torture given by her, accused No.1 attempted to commit suicide. She has denied all other suggestions made to her.
14. PW.2 Gowri is the eye witness has completely turned hostile to the case of the prosecution. She has deposed that she and PW.1 were working in D.G. Hospital. Accused No.1 was working as Ambulance Driver in the same hospital. The accused No.1 and PW.1 were friends. PW.1 belongs to Scheduled Caste. The accused No.1 belongs to Vokkaliga caste. She do not know the accused No.2 to 5. She do not 26 S.C.NO. 1060/2016 know anything about the incident. One day her friend PW.1 told her over phone that the quarrel taken place between her and accused No.1 in respect of love affairs. PW.1 has not stated anything about any incident. She has deposed that in her presence the accused persons have not quarrelled with PW.1. In her presence no incident was occurred in the hospital premises. She has not given any statement before the police. Having turned hostile to the case of the prosecution the learned Spl.P.P. cross-examined PW.2 in detail. During the course of her cross-examination, PW.2 has denied all the suggestions made to her. She denied of giving any statement before the police as per Ex.P6. Nothing is elicited from the mouth of PW.2 to support the case of the prosecution.
15. P.W.3 Shilpa is the eye witness also turned hostile to the case of the prosecution. PW.3 has deposed that accused No.4 Prasanna Kumar is her husband. She knows PW.1, accused No.1 to 3 and 5. PW.1 was working as O.T. Technician in D.G. Hospital. She was also working in D.G. Hospital as Staff Nurse. She do not know anything about the incident. At 27 S.C.NO. 1060/2016 no point of time she along with PW.1 and accused No.1 and 4 visited to any place. She has not given any statement before the police. Having turned hostile to the case of the prosecution, learned Special Public Prosecutor cross-examined PW.3 in detail. During the course of her cross-examination P.W.3 has denied the suggestion that in the month of July 2014, she along with PW.1, accused No.1 and 4 went to Mahadeshwara Betta and Biligiri Rangana Betta. She has denied the suggestion that they have stayed in the house at Biligigirirangana Betta. She has denied the suggestion that the accused No.1 sexually assaulted PW.1 in Biligirirangana Betta. She has denied of giving any statement before the police as per Ex.P7. Nothing is elicited from the mouth of PW.3 to support the case of the prosecution.
16. P.W.4 B. Krishna has deposed that he knows the accused No.1. He do not know PW.1. he do not know anything about this case. He was not driven the Ambulance at any point of time. He was not accompanied with accused No.1 to any place. In his presence accused No.1 not picked up quarrel 28 S.C.NO. 1060/2016 with PW.1. He has not given any statement before the police. Even though the learned Special Public Prosecutor cross- examined PW.4 in detail, nothing is elicited from his mouth to support the case of the prosecution. He has denied of giving any statement before the police as per Ex.P8.
17. P.W.5 D. Eshwar is the distant relative of PW.1 also turned hostile to the case of the prosecution. He has deposed that he do not know the accused. He do not know about where PW.1 was working. He do not know the caste of PW.1. He has deposed that one day in the year 2016 when he was working as Cab Driver then the Banashankari Police called him over phone. Hence, he went to the police station. At that time the police took his signature without saying anything. He do not know anything about this case. He has not given any statement before the police. Even though learned Special Public Prosecutor cross-examined PW.5 in detail nothing is elicited from his mouth to support the case of the prosecution. PW.5 has denied of giving any statement before the police as per Ex.P9.
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18. PW.6 Vadiraj and PW.7 Mahesh are the mahazar witnesses to the mahazar Ex.P10. PW.6 and PW.7 have completely turned hostile to the case of the prosecution by stating that in their presence the police have not conducted any such panchanama as per Ex.P10. They do not know the contents of Ex.P10. The police took their signature at Banashankari Police Station. The police have not recorded their statement. Having turned hostile to the case of the prosecution, learned Special Public Prosecutor cross-examined PW.6 and PW.7 in detail. During the course of their cross- examination, PW.6 and PW.7 have denied the entire contents of the document Ex.P10. PW.6 and PW.7 have denied of giving any such statement before the police as per Ex.P10 and P11 respectively.
19. PW.8 V. Sudarshan is the owner of the Swetha Kuteera residential house situated at Biligirirangana Betta. He has deposed that he has not given this house to anybody on rent. He do not know the accused. Accused have not stayed in his Swetha Kuteera House. He do not know CW.4 Shilpa. In 30 S.C.NO. 1060/2016 his presence police have not conducted any panchanama as per Ex.P10. He has not given any statement before the police. Even though learned Special Public Prosecutor cross-examined PW.8 in detail nothing is elicited from his mouth to support the case of the prosecution. He has denied all the contents of the document Ex.P10. He has denied of giving any statement before the police as per Ex.P12.
20. PW.9 Dr. S.R. Jagannath of KIMS Hospital has deposed that on 30.5.2016 he examined the accused between 10.35 AM and 11.05 AM and collected M.O.2 to M.O.4. He has issued the report as per Ex.P13 stating that there is nothing to suggest that the accused is incapable of performing sexual intercourse. During the course of his cross-examination by the learned counsel for the accused nothing is elicited from his mouth to discard his version.
21. PW.10 Dr. Malathi T., of KIMS Hospital has deposed that on 20.5.2016 at about 5 PM victim PW.1 was brought by WPC Janibai in order to examine the victim to find out the sexual assault, the victim stated before her that accused 31 S.C.NO. 1060/2016 Mahesh in November 2013 gave proposal of marriage. She accepted the same. The accused took her for trip to M.M. Hills in the month of April 2014. Accused Mahesh blackmailed her and forced her to have sexual intercourse and had sexual intercourse with her forcefully at Biligirirangana Betta. Thereafter the accused Mahesh repeatedly raped her blackmailed her. She stated that accused Mahesh raped her 10 to 15 times. Thereafter he refused to marry her as she is Scheduled Caste and he is Gowda caste. She has deposed that victim stated before her that accused Mahesh had sexual intercourse with her on 24.3.2016. She has also stated that accused Mahesh tried to kidnap her on 26.3.2016. She has also stated that she tried to commit suicide on 27.3.2016. She has noted down all these in her report in Ex.P14. She has deposed that after examination of the victim she has given opinion as there is evidence of sexual intercourse. She has collected M.O.1, M.O.5 to 8 in order to send the same to FSL. She has issued Ex.P14 examination report. During the course of her cross-examination by the learned counsel for the 32 S.C.NO. 1060/2016 accused she has admitted the suggestion that there was no injuries found on the private part of the victim and she cannot say with whom the victim had sexual intercourse. She has denied the suggestion that she has mentioned the history in Ex.P14 as given by the police. She has denied all other suggestions made to her.
22. PW.12 Shivashankaregowda, Head Constable has deposed that on 24.6.2016 he carried on M.O.1 to 8 to RFSL Mysuru as per the order of ACP.
23. PW.13 Venkatesh deposed that on 29.5.2016 as per the order of Police Inspector he arrested the accused No.1 at Kadirenahalli and produced him before the Police Inspector at 6.30 PM. During the course of his cross-examination nothing is elicited from his mouth to discard his version.
24. PW.14 Krishna T.T., Police Inspector has deposed that on 23.5.2016 he took up the case file from CW.25 for further investigation. On 29.5.2016 he arrested the accused No.1. He has recorded the voluntary statement given by the accused No.1. On 30.5.2016 he produced accused No.1 before the 33 S.C.NO. 1060/2016 court and taken him to police custody. On the basis of voluntary statement given by the accused, as the accused No.1 lead him to Biligiri Rangana Betta House No.429, he has conducted the panchanama as per Ex.P10 in that Travellers Guest House in the presence of panchas Mahesh, S. Vadiraj and V. Sudarshan. He has prepared Ex.P18 and sketch map and snapped Ex.P4 photo. He has recorded the statement of panchas, Mahesh, S. Vadiraj and V. Sudarshan he returned from Biligiri Rangana Betta to the Bangaluru and produced the accused No.1 before the court on 2.6.2016. He handed over the case file to CW.27 on 3.6.2016 for further investigation. In his cross-examination by the learned counsel for the accused PW.4 has deposed that he has not given any notice to the panchas. He has denied the suggestion that he has not recorded the voluntary statement of the accused and not conducted any panchanama as per Ex.P10; hand sketch as per Ex.P18. He has denied the suggestion that the witness Mahesh, Sudarshan and Vadiraj have not given statement before him. He has denied all other suggestions made to him. 34
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25. PW.15 B.P. Manjunath has deposed that on 19.5.2016 at 8.45 PM he registered the case in Crime No.131/2016 based on Ex.P1 complaint lodged by the complainant and sent Ex.P19 FIR to the court. On 20.5.2016 he sent PW.1 to KIMS Hospital for medical examination. On 21.5.2016 he visited to the house of the accused situated at Kadirenahalli and conducted mahazar as per Ex.P2 in the presence of CW.9 Mahesh Kumar, CW.10 Vinay. He has prepared the rough sketch map as per Ex.P20. He has handed over the case file to CW.26 for further investigation. During the course of his cross-examination by the learned counsel for the accused he has admitted the suggestion that the complainant has lodged her complaint to the police station on 27.3.2016 as per Ex.D2. He has not issued any notice to the panchas. He has denied all other suggestions made to him.
26. PW.16 Channabasava Kadeshwaranavar, Police Constable has deposed that on 6.6.2016 he has brought M.O.1 to M.O.8 from KIMS Hospital and produced same before the SHO. The oral evidence of PW.16 is formal in nature. 35
S.C.NO. 1060/2016
27. PW.17 Jayachandra, ASI of Banashankari Police Station has deposed that on 27.3.2016 at about 6 PM the complainant lodged the complaint to the police station as per Ex.D2. Based on the same, he has registered the case in LPT No.347/2016. He has deposed that he has recorded the statement of accused No.1 as per Ex.P22. During the course of his cross-examination by the learned counsel for the accused PW.17 has deposed that on 27.3.2016 PW.1 alone came to the police station. He has deposed that he has not dictated to PW.1 to write Ex.D2 complaint. He has deposed that he has closed the case in LPT No. 347/2016 on 27.3.2016 itself. He has denied the suggestion that Ex.P22 is not the statement given by the accused No.1. He has denied all other suggestions made to him.
28. PW.18 Dr. Chaya Kumari who was working as Incharge Assistant Professor of RFSL, Mysore has deposed that on 24.6.2016 their office received M.O.1 to 8. She has examined M.O.1 to 8 and given her opinion report as per Ex.P23. She has deposed that on examination of M.O.1, 2, 4 to 36 S.C.NO. 1060/2016 8 semen stains were not detected on examination of M.O.3 Spermatozoa was not detected.
29. PW.19 K.H. Venkateshaiah, ASI of Byatarayanapura Police Station has deposed that on 26.3.2016 at about 9 PM the Byatarayanapura Traffic Police produced the complainant and accused No.1 before him on the ground that they were quarrelling in the Ambulance. He states that the Traffic Police asked PW.1 to lodge the complaint and went away. He has deposed that when complainant and accused No.1 were sitting in the police station; PW.1 stated to the accused No.1 that in the promise of marriage he deceived her by spoiling her life on the ground that she belongs to lower caste. He has deposed that he asked PW.1 to lodge the complaint. At that time PW.1 given the complaint as per Ex.D1 stating that when she was returning from the Mandya the boy who going to marry her brought her, at that time the public by seeing them given false information to the police. He has entered the same in the Station House Diary and also recorded the statement of accused No.1 as per Ex.P25 and thereafter closed the case and 37 S.C.NO. 1060/2016 sent them. During the course of his cross-examination by the learned counsel for the accused PW.19 has deposed that he has not given any dictation to PW.1 to write Ex.D1. He states that Ex.D1 is voluntarily written and given by PW.1. He has not recorded the the statement of the public. He has denied all other suggestions made to him.
30. PW.23 M.H. Manjunath Choudhary, ACP has deposed that he took up the case file from ACP Lokesh Kumar on 5.7.2016 for further investigation. Ex.P29 is the DCP Order. He has received Ex.P27 report of the Tahasildar regarding the caste of the complainant. On 25.7.2016 he arrested the accused Revathi, Lokesh, Prasanna Kumar and released them as per anticipatory bail order. He has received Ex.P23 RFSL Report. On 29.7.2016 he has received the document Ex.D1 and Ex.P25 from Byatarayanapura Police Station. On 4.8.2016 he has received Ex.P26 report of the Tahasildar regarding the caste of accused No.1 to 3 Mahesh, Revathi and Lokesh. On 9.8.2016 he has received Ex.D2 and P22 from Banashankari Police Station. On 8.8.2016 he has recorded the statement of 38 S.C.NO. 1060/2016 CW.3 Eshwar. On 11.8.2016 he has recorded the statement of CW.5 G. Krishna. On 16.8.2016 he has received Ex.P15 report of the Tahasildar regarding the caste of accused No.5 and on 18.8.2016 he has received Ex.P28. On 22.8.2016 he has filed charge sheet. During the course of his cross-examination by the learned counsel for the accused he has denied all the suggestions made to him.
31. PW.24 Vinay is the spot mahazar witness has completely turned hostile to the case of the prosecution by stating that in his presence the police have not conducted any mahazar as per Ex.P2. He do not know the contents of Ex.P2. Even though learned Special Public Prosecutor cross-examined him in detail nothing is elicited from his mouth to support the case of the prosecution.
32. Based on the above evidence, it is to be seen if the the prosecution has established the charges against the accused beyond all reasonable doubt. Regarding the caste of PW.1 and accused I have already discussed about the same and hold that PW.1 is belongs to Scheduled Caste and accused No.1 to 5 are 39 S.C.NO. 1060/2016 not belongs to Scheduled Caste or Scheduled Tribe. Mere proof of the caste of PW.1 and accused is not sufficient to hold that the accused persons have committed the offences.
33. The learned Special Public Prosecutor argued that the evidence of PW.1 would clearly establish that accused No.1 sexually assaulted PW.1 by committing sexual intercourse in the promise of marriage. She submitted that PW.10 Doctor has supported the case of the prosecution by sating that there is evidence of sexual intercourse. She submitted that PW.9 Doctor who examined the accused given opinion as per Ex.P13. She argued that all other Police witnesses have supported the case of the prosecution and deposed about the previous incident and about this incident. She submitted that even though the independent witnesses have turned hostile to the case of the prosecution, but the oral evidence of PW.1 and the doctor's evidence and other police officials is sufficient to hold that the accused persons have committed the offences.
34. On the other hand, learned counsel for the accused submitted that in this case except PW.1 no other independent 40 S.C.NO. 1060/2016 witnesses have supported. He submitted that the oral evidence of PW.1 is not corroborating with the document Ex.P1 complaint and Ex.P5 statement given u/s 164 of Cr.P.C., He argued that the date of alleged incident which are mentioned in Ex.P1 and Ex.P5 are totally different than which are deposed by PW.1. He argued that the date of alleged incident which is mentioned in Ex.P14 medical report is also not corroborating with the oral evidence of PW.1. He argued that in this case none of the relatives of PW.1 including her parents are examined. He submitted that the Investigation Officer has not collected any call details to show that PW.1 and accused No.1 had phone contact. He submitted that the Investigation Officer has not collected any such photographs or video allegedly taken by the accused No.1. He argued that PW.1 in her evidence has deposed that the accused No.1 took her to Kadirenahalli but in Ex.P1 and P5 it is mentioned that she herself went to Kadirenahalli. He argued that there is more than two years delay in lodging the complaint from the alleged first incident which is not properly explained by the 41 S.C.NO. 1060/2016 prosecution. He submitted that if at all there was any such sexual assault, the complainant would have mentioned the same in Ex.D1 and Ex.D2 in her complaint lodged before the Byatarayanapura Police and Banashankari Police. He submitted that since no such incident was occurred. PW.1 has not mentioned regarding the sexual assault in Ex.D1 and D2. He argued that accused No.1 has obtained job as a Driver in BMTC. Hence, the PW.1 in order to marry him created false story and lodged the false complaint. He submitted that since PW.1 was harassing accused No.1, hence accused No.1 tried to commit suicide at that time accused No.3 brother of accused No.1 lodged the complaint against PW.1 to the Banashankari Police for which the police issued Ex.D3 endorsement. He argued that the oral evidence of PW.1 which is not supported by any independent witnesses is not believable. He has relied upon the decision reported in:
1) LAWS (DLH) 2015 12 103 Hon'ble High Court of Delhi.
2) 2013 (3) Supreme Court Cases 791
3) 2015 (7) Supreme Court Cases 272 42 S.C.NO. 1060/2016
4) 2016 (4) Supreme Court Cases 140
5) 2013 (9) Supreme Court Cases 113
35. I have appreciated the rival contentions and gone through the entire records. In this case, except PW.1 no other independent witnesses have supported the case of the prosecution. The learned counsel for the accused relied upon decision reported in 2015 (7) SCC 272 to contend that on scrutiny of the evidence of prosecutrix if it is not find it difficult except the version of the prosecutrix then there is a requirement for search of such direct or circumstantial evidence which would lent assurance to her testimony. In the present case, first and foremost thing should be considered whether the oral evidence of PW.1 is consistent and corroborating with her complaint lodged as per Ex.P1 and 164 Cr.P.C., statement given by her as per Ex.P5. In the oral evidence of PW.1 she has deposed about three incidents. First incident at Biligirirangana Betta, second incident after 15 days from returning of Mahadeshwara Betta and Biligirirangana Betta and third incident of sexual assault dated 25.3.2016. On 43 S.C.NO. 1060/2016 perusal of Ex.P1 complaint there is no such mention in Ex.P1 regarding the alleged incident of sexual assault dated 25.3.2016. In Ex.P1 first information statement lodged by the complainant, complainant has mentioned that the first incident that is incident of sexual assault at Biligirirangana Betta was occurred in the month of April 2014. In Ex.P14 medical examination report issued by PW.10 has also mentioned that the victim stated before her that accused Mahesh took her for trip to M.M. Hills in the month of April 2014. PW.10 in her examination-in-chief has deposed that the victim told before her that Mahesh took her for trip to M.M. Hills in the month of April 2014 and had sexual intercourse with her forcefully at Biligiriranganaatha Betta. Hence, on perusal of Ex.P1 first information statement as well as on perusal of Ex.P14 examination report issued by the doctor it is mentioned that the alleged first incident of sexual assault was occurred at Biligirirangana Betta in the month of April 2014. It is pertinent to note that while giving statement u/s 164 of Cr.P.C., by PW.1 as per Ex.P5 she stated that the first incident 44 S.C.NO. 1060/2016 of sexual assault was taken place in the month of July 2014. In the examination-in-chief of PW.1 also she has deposed that the accused No.1, 4 and CW.4 took her to the Mahadeshwara Betta in the month of July 2014. During the course of her cross-examination by the learned counsel for the accused PW.1 has deposed that they went to Mahadeshwara Betta on 14.7.2014. In Ex.P1 complaint the alleged first incident of sexual assault is mentioned as April 2014. In Ex.P14 medical report also mentioned that the alleged first incident of sexual assault was occurred in the month of April 2014. But during the course of the examination-in-chief of PW1 she has deposed that the accused No.1 sexually assaulted her in Biligiri Ranganatha Betta house in the month of July 2014. There is no eye witness to the alleged incident of sexual assault of the year 2014. There is no corroboration in the oral evidence of PW.1 and document Ex.P1 regarding the alleged sexual assault to say whether it was occurred in the month of April 2014 or July 2014. Be that as it may be, but fact remains that there is no independent witnesses on the side of the prosecution to 45 S.C.NO. 1060/2016 show that accused No.1 sexually assaulted PW.1 in Biligirirangana Betta in the year 2014. In the examination-in- chief of PW.1, she has deposed that in Biligiri Rangana Betta under construction of house she was sleeping in the hall and CW.4, accused No.4 were sleeping in another room. She has deposed that soon after accused No.1 sexually assaulted her she knocked the room of CW.4 and accused No.4. She has deposed that CW.4 Shilpa has not came at the time of incident. At one stretch PW.1 has contended that the accused No.1 blackmailed her by stating that accused No.4 and CW.5 have videographed and taken photo of this incident and using the same, the accused No.1 blackmailed her to have further sexual intercourse with her. But on the other stretch she has deposed that CW.4 Shilpa had not came out from the room at the time of incident. If at all CW.4/PW.3, accused No.4 had not come out from their room at the time of this alleged incident how they can videograph or taken photograph of this alleged incident is not explained. More than that there is no photo or document on the side of the prosecution to show that accused 46 S.C.NO. 1060/2016 No.1 had taken photos and videos of PW.1 at Mahadeshwara Betta and Biligirirangana Betta. The Investigation Officer has also not collected any call details to show that the accused No.1 and PW.1 had contacted over phone. There is absolutely no such photographs and call details on the side of the prosecution to show that accused No.1 had sexually assaulted or given sexual harassment to PW.1. According to prosecution, PW.3 Shilpa is the eye witness. PW.3 Shilpa has completely turned hostile to the case of the prosecution by stating that she had not been to any place along with accused No.1 and PW.1. Except PW.3 there are no other independent witnesses regarding the alleged incident of Biligirirangana Betta. In this case, PW.6 Vadiraju, PW.7 Mahesh, PW.8 V. Sudarshan who are signatory to the document Ex.P10 mahazar have completely turned hostile to the case of the prosecution. Since there is no cogent evidence regarding the alleged first incident of the sexual assault at Biligiri Ranga Betta and the month of alleged incident itself deposed by PW.1 is not corroborating with the document Ex.P1 complaint, the oral evidence of PW.1 47 S.C.NO. 1060/2016 creates doubt about her version. If at all any such incident was occurred in the year 2014 what prevented the PW.1 to lodge the complaint to the police soon after the incident is not properly explained. No doubt, PW.1 in her deposition has deposed about the subsequent incident but her oral evidence is not supported by any independent witnesses. Her oral evidence is also not corroborating with the documents Ex.P1 complaint and Ex.P5 statement given u/s 164 of Cr.P.C.
36. The learned counsel for the accused relied upon the decision reported in (2013 (3) SCC 791 in Rajesh Patel vs. State of Jharkhand to contend that delay in filing the FIR not properly explained - Prosecution case not consistent - case if one of consensual sex - benefit of doubt extended and conviction reversed. In my humble view, the principles of this cited decision is aptly applicable to this case. In this case also there is delay of more than 2 years from the date of alleged first incident. Even though the PW.1 complainant has contended that she has lodged the complaint to the Byatarayanapura Police as per Ex.D1 and to Banashankari Police as per Ex.D2, 48 S.C.NO. 1060/2016 in these two complaints she has not narrated anything about the alleged sexual assault.
37. In Ex.P1 complaint, it is mentioned that after returning to Bengaluru from Biligiri Rangana Betta complainant fell sick due to sexual assault and not attended her work for 3 days. Few days later accused No.1 again approached her and blackmailed her to have physical relation and he took her to his room situated at Kadirenahalli and several times he sexually assaulted her. In Ex.P1 the complainant has not mentioned the dates of alleged incident at Kadirenahalli House. PW.1 in her examination-in-chief has deposed that after 15 days from the returning of Mahadeshwara, Biligirirangana Betta, accused No.1 took her to his house after persuading her lot and by torturing by beating her committed sexual intercourse. The accused also took her PAN Card, Aadhar Card, two passport size photos and Voter ID card for registration of marriage. It is pertinent to note that in Ex.P5 164 Cr.P.C., statement, the complainant has stated that she herself went to the room of the accused as he was 49 S.C.NO. 1060/2016 blackmailed at that time, the accused by burning with cigarette but on her right hand committed sexual assault on her. He done so for twice. In Ex.P1 complaint, it is mentioned that accused No.1 took her to Kadirenahalli room several times and committed sexual assault on her. In Ex.P5 164 Cr.P.C., statement it is mentioned that accused took her twice to his room and committed sexual intercourse. PW.1 neither in her examination-in-chief nor in Ex.P1 complaint and Ex.P5 164 Cr.P.C., statement stated regarding the dates of alleged incident. In Ex.P1 complaint itself mentioned that on 18.9.2015, the accused No.1 took her PAN Card, SSLC Marks Card, Photos, Aadhar Card etc., by stating that it requires for marriage registration. But in the chief-examination PW.1 she has deposed that after 15 days from the returning from Biligiri Rangana Betta, the accused No.1 taken her PAN Card, Aadhar Card and Passport size photographs. As per Ex.P1 complaint, PAN Card, Marks Card, photos were taken by accused No.1 in the month of September 2015 but PW.1 in her examination-in- 50
S.C.NO. 1060/2016 chief has deposed that it was taken place as if in the year 2014.
38. With regarding to the alleged incident of abuse in the name of caste, in Ex.P1 complaint, the complainant has not mentioned the dates of the phone calls made by the accused No.1, 2 to 5 and also not mentioned the date of the alleged incident at P.G. In Ex.P1 complaint it is mentioned that accused No.3 Lokesh, accused No.4 Prasanna and accused No.5 Cheluvaraju abused her over phone and one day accused No.1 Mahesh came near her hostel and beat her with chappal. Quite contrary to the document Ex.P1 complaint PW.1 has deposed that on 23.3.2015 the accused No.1, accused No.3 to 5 met her in the Hospital at Padmanabha Nagara and at that time accused No.1 bet her with slippers and abused her and also snatched her mobile phone. In Ex.P1 complaint there is no mention regarding accused No.3 to 5 were also came near the hostel and quarrelled with her.
39. With regarding to the alleged incident at Mandya in the house of accused No.2, PW.1 has deposed that on 51 S.C.NO. 1060/2016 26.3.2015 she went along with CW.3 Eshwar to the house of accused No.1 where accused No.2 scolded her in the name of caste. Hence, she returned back to the Bengaluru. PW.5 Eshwar in his examination-in-chief itself has deposed that he do not know PW.1. Even though PW.1 has claimed that CW.3/PW.5 Eshwar is her cousin but PW.5 has completely turned hostile to the case of the prosecution by stating that he do not know PW.1 and do not know anything about the incident. There is absolutely no evidence on the side of the prosecution to show that PW.1 along with CW.3/PW.5 went to Mandya to the house of accused No.2 at that time accused No.2 abused PW.1 in the name of caste.
40. In this case, PW.1 has deposed that while she was returning from Mandya and came to Kengeri at that time accused No.1 and one Krishna stopped her and pulled her inside the Ambulance and by seeing that the public informed the same to the police, then the Byatarayanapura Police took her and accused No.1 to the Byatarayanapura Police station and then she has given statement before Byatarayanapura 52 S.C.NO. 1060/2016 Police as per Ex.D1. The document Ex.D1 marked on the side of the accused during the course of cross-examination of PW.1. If at all any such incident regarding the sexual assault or abuse in the name of caste was occurred, PW.1 would have mentioned the same in Ex.D1 complaint dated 26.3.2016. But there is no such mention in Ex.D1 regarding the sexual assault and abuse made by the accused to her. It is admitted fact that PW.1 has also lodged another complaint dated 27.3.2016 as per Ex.D2 to Banashankari Police. The document Ex.D2 is also marked on the side of the accused through PW.1. Even in Ex.D2 also PW.1 has not mentioned anything about the alleged sexual assault and alleged abuse made by the accused to her in the name of caste. If at all there was any such incident of sexual assault occurred, that should have mentioned in Ex.D2. PW.1 has taken contention that as the accused No.1 promised her that he will marry her. She has not mentioned about the sexual assault in Ex.D1 and D2. Even if it is presumed that for the reason that accused No.1 promised her that he will marry her for that reason she has not mentioned about the previous 53 S.C.NO. 1060/2016 incident in Ex.D1 and D2, the prosecution should have examined the parents of PW.1 or relatives of PW.1 to show that as the accused No.1 promised her that he will marry her for that reason they had sexual relation. It is now settled principle of law is that the sexual relationship between two Adultry is not an offence. This principle is laid down by the Hon'ble Supreme Court in Dr. Bharathram Muralidhar Sunray v/s State of Maharashtra and others.
41. In this case, the accused persons have taken defence that since PW.1 was forcing accused No.1 to marry her and giving trouble to accused No.1 unbearable torture given by PW.1, Accused No.1 attempted to commit suicide and in this regard accused No.3 Lokesh brother of the accused No.1 lodged the complaint. PW.1 in her cross-examination admitted the suggestion that accused No.1 attempted to commit suicide by consuming poison. She has admitted that accused No.3 has lodged the complaint against her to the Banashankari Police on 9.5.2016. No doubt PW.1 has denied the suggestion that due to unbearable torture given by her, accused No.1 attempted to 54 S.C.NO. 1060/2016 commit suicide but fact remains that the accused No.1 and PW.1 were loving each other. There is no cogent evidence on the side of the prosecution to show that accused No.1 forcefully committed sexual intercourse on PW.1. The oral evidence of PW.1 about the alleged sexual assault is not corroborating with the document Ex.P1 complaint and Ex.P5 statement given u/s 164 of Cr.P.C. The oral evidence of PW.1 is not supported by any independent witnesses. The alleged date of incident which is mentioned in Ex.P14 sexual offence report is also not corroborating with the oral evidence of PW.1. Merely because PW.10 doctor has given opinion that there is evidence of sexual intercourse that itself is not sufficient to hold that accused No.1 forceful sexual intercourse with PW.1. PW.18 Dr. Chaya Kumari, Incharge Assistant Director of RFSL who examined M.O.1 to M.O.8 has given her report as per Ex.P23 that no seminal stains were detected in Article No.1, 2, 4 to 8 and no Spermatozoa detected in Article No.3. There is delay in lodging the complaint which is not properly explained by the prosecution is also fatal to the case of the prosecution. The 55 S.C.NO. 1060/2016 learned counsel for the accused relied upon the decision reported in 2015 (7) SCC 272 in Mohd. Ali @ Guddu vs. State of Uttar Pradesh to contend that no doubt the conviction can be based on sole testimony of prosecutrix if it is unimpeachable and beyond reproach. The oral evidence of PW.1 is not corroborating with her own complaint as per Ex.P1 and 164 statement given as per Ex.P5. Her oral evidence is also not corroborating with the alleged date of incident mentioned in Ex.P14 medical report. The oral evidence of PW.1 is not supported by any independent witnesses. PW.2 to PW.5 who are stated to be eye witnesses and circumstantial witnesses. The oral evidence of PW.1 is also not supported by PW.6 to PW.8 and PW.24 mahazar witnesses. The oral evidence of PW.9 and PW.10 doctors, PW.11 to PW.17, PW.19 and PW.23 Police witnesses are not sufficient to hold that the accused persons are committed offences u/s 376, 417, 506 r/w 34 of IPC and under Sec. 3(1) (x) 3(2)(v) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. The oral evidence of PW.1 which is not corroborating with the 56 S.C.NO. 1060/2016 documents Ex.P1 complaint, Ex.P5 164 Cr.P.C., statement and Ex.P14 medical report is not sufficient to hold that the accused have committed the offences under Sections 376, 417, 506 r/w 34 of IPC & Sec. 3(1) (x) 3(2)(v) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. The oral evidence of PW.1 is not inspiring confidence and not believable that the accused No.1 committed sexual assault on her in the promise of marriage. The oral evidence of PW.1 is not sufficient to hold that the accused persons abused PW.1 in the name of caste and given life threat to her. The benefit of doubt shall be given to the accused. The prosecution has failed to prove the case against accused for the offences punishable under Sections 376, 417, 506 r/w 34 of IPC & Sec. 3(1) (x) 3(2)(v) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act beyond all reasonable doubt. The prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. Hence, I answered Point No.1 to 5 in the negative.
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42. Point No.6:- In view of my findings on points no.1 to 5 and for the foregoing reasons and discussions, I proceeds to pass the following:-
O R DE R Acting u/s 235(1) of Cr.P.C., accused No.1 to 5 are acquitted of the offences punishable under Sections 376, 417, 506 r/w 34 of IPC & Sec. 3(1)
(x) 3(2)(v) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act.
The bail bond of the accused and their surety shall stand cancelled. However the bond executed in compliance of Sec. 437A of Cr.P.C., shall be in force still statutory period.
M.O.1 to M.O.8 being worthless shall be destroyed after expiry of appeal period.
(Dictated to the Judgment Writer directly on the computer, transcribed by him, corrected, signed and then pronounced by me in open Court on this the 18th day of February, 2020.) (MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.
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S.C.NO. 1060/2016 A N NE X U R E
1.WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 : Victim
P.W. 2 : Gowri
P.W. 3 : Shilpa
P.W. 4 : B. Krishna
P.W. 5 : Eshwara
P.W.6 : Vadiraj
P.W.7 : Mahesh
P.W.8 : V. Sudarshana
P.W.9 : Dr. S.R. Jagannath
P.W.10 : Dr. Malathi.T
P.W.11 : Shivakumar S.M.
P.W.12 : Shiva Shankaregowda
P.W.13 : Venkatesh
P.W.14 : Krishna T.T.
P.W.15 : B.P. Manju
P.W.16 : Chennabasava Kadeshwar Nawar
P.W.17 : Jayachandra
P.W.18 : Dr. Chaya Kumari
P.W.19 : K.H. Venkateshaiah
P.W.20 : H.N. Anusuya Devi
P.W.21 : Shivanna
P.W.22 : V. Hanumantharayappa
P.W.23 : M.H. Manjunatha Chaudhari
P.W.24 : Vinay
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2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint
Ex.P. 1(a) : Signature of PW.1
Ex.P.1(b) : Signature of PW.15
Ex.P. 2 : Panchanama
Ex.P. 2(a) : Signature of PW.1
Ex.P2(b) : Signature of PW.15
Ex.P 3 : Photograph
Ex.P 4 : Photograph of house in
Biligiriranga Hill
Ex.P4(a) : Signature of PW.14
Ex.P 5 : Statement
Ex.P. 5(a) : Signatures of PW.1
Ex.P5(b) : Videographed Statement
covering letter with two CDs
Ex.P 6 : Out Patient card
Ex.P 6(a) : Signature of PW.3
Ex.P 7 : Statement of PW.3
Ex.P8 : Statement of PW.4
Ex.P9 : Statement of PW.5
Ex.P10 : Panchanama
Ex.P 10(a) : Signature of PW.6
Ex.P10(b) : Signature of PW.7
Ex.P10(c) : Signature of PW.8
Ex.P10(d) : Signature of PW.14
Ex.P11 : Statement of PW.7 before PI
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Ex.P12 : Statement of PW.8 before PI
Ex.P13 : Report of PW.9
Ex.P13(a)(b) : Signatures of PW.9
Ex.P14 : Report
Ex.P14(a)(b) : Signatures of PW.10
Ex.P14(c) : Signature of PW.15
Ex.P15 : Report of Tahasildar
Ex.P15(a) : Signature of PW.11
Ex.P15(b) : Signature of PW.23
Ex.P16 : Acknowledgment issued by RFL
Ex.P17 : Report of HC No.5499 and PC 9445
Ex.P17(a) : Signature of PW.14
Ex.P18 : Rough Sketch of place of incident
Ex.P18(a) : Signature of PW.14
Ex.P19 : FIR
Ex.P19(a) : Signature of PW.15
Ex.P20 : Rough sketch
Ex.P20(a) : Signature of PW.15
Ex.P21 : Report of PC 12858
Ex.P21(a) : Signature of PW.16
Ex.P22 : Copy of Statement given by accused
No.1 in LT NO. 247/2016
Ex.P22(a) : Signature of PW.17
Ex.P23 : Certificate of PW.18
Ex.P23(a) : Signature of PW.18
Ex.P24 : Sample Seal
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Ex.P24(a) : Signature of PW.18
Ex.P25 : Copy of written document of Mahesh
Ex.P26 : Report regarding of caste
complainant and accused
Ex.P26(a) : Signature of PW.20
Ex.P26(b) : Signature of PW.23
Ex.P27 : Report of PW.21
Ex.P27 : Signature of PW.21
Ex.P27(b) : Signature of PW.23
Ex.P28 : Report of PW.22
Ex.P28(a) : Signature of PW.22
Ex.P28(b) : Signature of PW.23
Ex.P29 : Order of DCP
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil
4. DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D1 : Statement of Victim
Ex.D2 : Copy of the Complaint dt. 27.3.2016
Ex.D3 : Xerox copy of Endorsement on the
complaint given by Accused No.3
5. LIST OF MATERIAL OBJECTS:
M.O.1 : Undergarment of victim
M.O.2 : Grey colour Underwear
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M.O.3 : Public hair
M.O.4 : Swab from glans penis
M.O.5 : Vaginal Swab
M.O.6 : Vaginal Smear
M.O.7 : Public hair
M.O.8 : Nail Clipping
(MOHAN PRABHU)
LXX Addl. City Civil & Sessions Judge
& Special Judge, Bangalore.
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Judgment pronounced in the
open court vide separate judgment.
O R DE R
Acting u/s 235(1) of Cr.P.C.,
accused No.1 to 5 are acquitted of the
offences punishable under Sections
376, 417, 506 r/w 34 of IPC & Sec.
3(1) (x) 3(2)(v) of The Scheduled Caste
& Scheduled Tribe (Prevention of
Atrocities) Act.
The bail bond of the accused and
their surety shall stand cancelled.
However the bond executed in
compliance of Sec. 437A of Cr.P.C.,
shall be in force still statutory period.
M.O.1 to M.O.8 being worthless shall be destroyed after expiry of appeal period.
(MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.