Karnataka High Court
N M Shakeena vs H G Madhu on 21 April, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
CRIMINAL REVISION PETITION NO.467/2013
C/W
CRIMINAL APPEAL NO.328/2013
CRL.R.P.NO.467/2013:
BETWEEN:
N.M. SHAKEENA
W/O BASHA,
43 YEARS,
R/AT AMMATHI KARMAD VILLAGE,
VIRAJPET TALUK,
KODAGU DIST.-571 218.
...PETITIONER
(BY SRI. T.A.KARUMBAIAH, ADVOCATE)
AND:
1. H.G. MADHU
S/O LATE GANESH,
28 YEARS,
2. H.V. RAVI
S/O V. RAJU,
31 YEARS,
3. H.M. JEEVAN
S/O MANI,
27 YEARS
4. H.H. MITHUN
S/O HUCHAIAH,
28 YEARS,
2
5. H.G. BOJANNA @ APPI
S/O LATE GANESH,
26 YEARS,
6. E.J. PAVITHRA
S/O JAMES
29 YEARS,
RESPONDENTS 1 TO 6 RESIDING AT:
CHOWDESHWARI COLONY,
AMMATHI KARMAD VILLAGE,
VIRAJPET TALUK,
KODAGU DIST.-571 218
7. STATE OF KARNATAKA
REP. BY C.P.J. VIRAJPET SUB DIVISION,
VIRAJPET TALUK,
KODAGU DIST.-571 218
...RESPONDENTS
(BY SRI. K. SHYAMSUNDAR, ADVOCATE FOR RESPONDENT
NOS.1 TO 6;
SRI. KRISHNA KUMAR K.K., HIGH COURT GOVERNMENT
PLEADER FOR RESPONDENT NO.7)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH
SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
PRAYING TO CALL FOR THE ENTIRE RECORDS IN
S.C.NO.56/2008 FROM THE FILE OF THE F.T.C., VIRAJPET AND
ENHANCE THE SENTENCE OF 10 YEARS IMPOSED BY THE TRIAL
COURT TO LIFE IMPRISONMENT AGAINST THE ACCUSED
PERSONS/RESPONDENTS FOR THE OFFENCE UNDER SECTION
376 OF IPC.
CRL.A. NO.328/2013:
BETWEEN:
1. H.G. MADHU
S/O LATE GANESHA
AGED ABOUT 23 YEARS
2. H.V. RAVI
S/O V. RAJU
3
AGED ABOUT 26 YEARS
3. H.M. JEEVAN
S/O MANI
AGED ABOUT 23 YEARS
4. H.H. MITHUN
S/O HUCHAIAH
AGED ABOUT 23 YEARS
5. H.G. BOJANNA @ APPI
S/O LATE GANESHA
AGED ABOUT 21 YEARS
6. E.J. PAVITHRA
S/O JAMES
AGED ABOUT 23 YEARS
ALL ARE R/AT CHOWDESHWARI COLONY,
AMMATHI, KARMADU VILLAGE,
VIRAJPET TALUK,
KODAGU DISTRICT.
...APPELLANTS
(BY SRI. K.SHYAMSUNDAR, ADVOCATE)
AND:
STATE OF KARNATAKA
BY C.P.I.,
VIRAJPET SUB-DIVISION,
VIRAJPET TALUK,
KODAGU DISTRICT. ...RESPONDENT
(SRI. KRISHNA KUMAR K.K., HIGH COURT GOVERNMENT
PLEADER)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE OF FINE IMPOSED DATED
20.02.2013 PASSED BY THE PRESIDING OFFICER, F.T.C.,
VIRAJPET IN S.C.NO.56/2008 - CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 120(b), 366 AND 376 OF IPC.
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THIS PETITION AND APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 08.02.2023 AND COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Crl.A.No.328/2013 is filed by the accused Nos.1 to 6 in S.C.No.56/2008 on the file of Presiding Officer, Fast Track Court, Virajpet (henceforth referred to as 'Trial Court' for short) challenging the judgment of conviction dated 20.02.2013 and the order of sentence dated 11.03.2013, by which, they were convicted for the offences punishable under Sections 120B, 366 and 376 of IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.5,000/- each for the offence punishable under Section 120B of IPC and to undergo rigorous imprisonment for ten years and to pay fine of Rs.25,000/- each for the offence punishable under Section 366 of IPC and to undergo rigorous imprisonment for ten years and to pay fine of Rs.25,000/- each for the offence punishable under Section 376 of IPC. The Trial Court also ordered compensation of Rs.1,00,000/- to the victim girl under Section 357 of Cr.P.C.
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2. Crl.R.P.No.467/2013 is filed by the defacto complainant seeking enhancement of the sentence to life imprisonment for the offence under Section 376 of IPC.
3. The case of the prosecution was that on 01.06.2008 at 12.30 p.m. CW.1 submitted information in writing before the Virajpet Rural Police Station, claiming that she had five daughters and two sons and was a permanent resident of Ammatti Karmadu village. She alleged that her neighbour Madhu (accused No.1) used to frequently visit her house and was very cordial with them. She claimed that on 30.5.2008 at about 9.30 a.m., when she was not at home, accused No.1 with an intention to marry her daughter conspired with accused Nos.2 to 6 and kidnapped her daughter-CW2 in an unknown vehicle. She claimed that she came to know about this from her neighbours. She alleged that thinking that the accused must have gone to Bengaluru, she visited her daughter's house in Bengaluru and when enquired with her daughter about CW.2, she disclosed that CW.2 had not gone there. 6 On 31.05.2008, in the evening, she took her daughter Sameena and while searching for CW.2, a Tata Sumo bearing registration No.KA-12-P-246 passed by their side. She alleged that her daughter - CW.2, accused No.1 and accused Nos.2 to 6 were in the Tata Sumo. She alleged that they stopped the Tata Sumo and asked her daughter (CW.2) why she came to Bengaluru. To that, she responded that on 30.05.2008 at 9.30 a.m., accused No.1 called her for getting married and that he had brought a Tata Sumo. Though she refused, she was pulled by her hand and forced into the Tata Sumo and went to Periyapatna along with his friends. She informed that they stayed at a friend's house in Periyapatna, where accused No.1 had sexual intercourse with her. She alleged that CW.2 informed her that on 31.05.2008, the accused No.1 took her to Bengaluru. Thereafter, the complainant pacified CW.2 and informed everyone to go to Virajpet and they went to the police station in the same vehicles. She informed the name of the driver of the Tata Sumo as Chandrashekar. CW.1 requested the police to take action 7 against the accused. Based on this written information, CW.22 registered Crime No.92/2008 for the offences punishable under Sections 120B, 366 and 376 of IPC and drew up the First Information Report and placed it before CW.23.
4. CW.23 recorded the statement of CW.2 and also arrested accused Nos.1 to 6. The Tata Sumo bearing registration No.KA-12-P-246 was seized in the presence of the witnesses, which was incorporated in the property form. The statement of CW.3, CW.4, CW.5, CW.6, CW.7, CW.9 and Jameena were recorded. He also recorded the further statement of CW.1. He also subjected CW.2 and the accused No.1 for medical examination. On 02.06.2008, he visited the place from where, CW.2 was kidnapped and drew up a spot mahazar. He also recorded the statement of CW.21, who submitted the First Information Report to the Court at Madikeri. On 03.06.2008, he visited the house at Abbur Village, where the accused No.1 had allegedly taken CW.2 and recorded a mahazar in the presence of 8 witnesses. He recorded the statement of CW.10 - Smt. Thayamma, the occupant of the house at Abbur, where CW.2 was taken by accused and held captive and was raped by accused No.1. CW.20 produced the dress worn by accused No.1 which was handed over to him by the Medical Officer, which was seized under a panchanama drawn. The objects seized were sent to forensic examination. The accused No.1 and the victim were subjected to medical examination and after receipt of the medical examination report and the report of the Forensic Science Laboratory, a charge-sheet was filed against the accused No.1 for the offences punishable under Sections 120B, 366, 376 of IPC and a charge-sheet was filed against accused Nos.2 to 6 for the offences punishable under Sections 120B, 366 of IPC. Later, an additional charge-sheet was filed against the accused Nos.2 to 6 for the offences punishable under Sections 120B, 366, 376 of IPC.
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5. The Trial Court secured the accused and they were released on bail. Copies of the charge-sheet were furnished to the accused. The Trial Court framed common charges against the accused for the offences punishable under Sections 120B, 366 and 376 read with Section 149 of IPC. The accused pleaded not guilty and claimed to be tried.
6. The mother of the victim/defacto complainant was examined as PW.1. The doctor, who examined the victim was examined as PW.2. The Headmaster of the school, Ammatti Village, where the victim studied was examined as PW.3, who deposed that the victim joined 8th Standard in the year 2006 and that Birth Certificate issued by Ammatti High School showed her date of birth as 05.03.1997. PW.4 was the doctor, who clinically examined the accused No.1 to assess his ability to copulate. PW.5 was the police constable, who took the seized clothes of the victim and the accused No.1 to the Forensic Science Laboratory, Mysuru on 03.06.2008. PW.6 was the 10 Assistant Director of Regional Forensic Science Laboratory, Mysuru, who marked the Forensic Report (Ex.P5). PW.7 was the driver of the Tata Sumo used for the crime, who turned hostile and denied the statement recorded by him before the police (Ex.P6).
7. PW.8 is the victim, who deposed that on 30.05.2008 when she was alone outside her home, the accused No.1 forced her into a Tata Sumo vehicle and that she screamed out for help. She alleged that five other accused came from behind and pushed her into the Tata Sumo vehicle. She alleged that the accused Nos.3 and 6 threatened to kill her, if she raised any alert. She alleged that accused No.1 instructed the driver to go to Abbur near Periyapatna. She identified the vehicle number as KA-12- P-246. She identified the vehicle in the Court as MO.13. She deposed that at a house in Abbur, there was an aged couple. On seeing the accused and the victim, they left to their relatives house. She alleged that all the other accused except accused No.1 also left the house. She 11 alleged that she was not well and therefore, slept in the house. She alleged that the accused No.1 misbehaved with her and raped her. She alleged that she screamed in protest, but there was none to help. Later on 31.05.2008, at 10.30 a.m., the accused No.1 got the Tata Sumo car to go to Bengaluru. She alleged that the other accused also joined in the car. She deposed that she went outside the house and sat in the car and that she was brought to Bengaluru. She deposed that in Bengaluru, the vehicle was stopped at Bharathinagar and the accused went to have liquor. One of them was standing guard near the vehicle, while the others went for lunch at about 3.30 p.m.. Later, accused No.1 called her friend over phone and informed him about he bringing the victim to Bengaluru and requested him to arrange for the marriage with the victim. She deposed that PW.12 came to the spot. The accused No.1 requested him to immediately arrange his marriage with the victim and to take them to the room, where he stayed. She deposed that by that time, PW.1 who had come in search of her to Bengaluru in a Maruthi van and 12 after seeing the Tata Sumo, they stopped the Maruthi van. She deposed that after seeing her, PW.1 took her and asked her why she had come to Bengaluru. PW.8 deposed that she informed her mother that she was forced by the accused to come to Bengaluru. Then, her mother, her sister and her brothers took her and the accused to Virajpet police station, where PW.1 lodged a complaint. She deposed that she was taken to Madikeri Government Hospital, where she was examined by PW.2. She deposed that her clothes were recovered from her at the hospital and samples of her pubic hair and vaginal samples were also collected. She thereafter accompanied the investigating officer to Abbur, where the police drew a mahazar. She identified her signature on the mahazar. She deposed that on 02.06.2008, the investigating officer came to Ammatti to her house and drew a mahazar and took her signature, which she identified. She also disclosed the name of the driver of the Tata Sumo as Chandrashekar. 13
8. In her cross-examination, PW.8 deposed that the house of the accused No.1 was opposite to her house and is separated by a fence. She admitted that her mother and her brother carried a mobile. She alleged that at the time of the incident, her mother was at Kushalnagar and was carrying her mobile. She admitted that few vehicles used to move on the main road of Ammatti. She admitted that there were 10-15 shops on Ammatti - Palibetta road. She deposed that when she was forced by accused No.1 to get into the car, she suffered scratch injuries on her hands. She also deposed that she screamed when she was forced into the car. She alleged that she was seated on the middle seat of the Tata Sumo and accused No.1 and accused No.5 sat on either side. She deposed that the accused Nos.2 and 6 sat on the rear seat. She identified the accused as residents of Chowdeshwari Colony. She deposed that the road to Periyapatna passed through a forest area and they had to go past a forest check-post to reach Periyapatna. She admitted that there was another check-post near Periyapatna. She admitted that all 14 vehicles would be checked at the check-post but claimed that the Tata Sumo was not checked on that day. She admitted that her house was about 10 steps away from the main road where she was forced into the Tata Sumo. She admitted that the place, where she was forced into the Tata Sumo was on the main road and the path to her house from the main road was half a meter. She admitted that many users use the road to reach the school. When she was confronted that her house was 200-250 meters away from the main road, she denied it. She deposed that neither she nor the accused had any breakfast or lunch and reached Abbur at 1.00 p.m. She deposed that they did not have dinner. When questioned whether she screamed out in protest or attempted to break free at the house at Abbur, she deposed that no one permitted her to speak. She deposed that she did not inform the aged couple in the house at Abbur that she was kidnapped by accused No.1 and other accused. She deposed that at about 1.00 p.m., all the accused except accused No.1 left the house and that she, accused No.1 and the aged couple were 15 there. When questioned why she did not scream out, she alleged that she did not know that the other accused had left the place and that she came to know it only after hearing accused No.1 speaking to the other accused over phone. She deposed that it was at about 2.00 or 3.00 p.m. in the afternoon. When questioned why she did not scream out thereafter, she deposed that she did not do so as she feared that she was living in someone else's house. She claimed that she had a menstrual period the next day at Bengaluru. She deposed that the accused No.1 held her hands tightly and raped her. She deposed that she suffered nail scratch injuries on her hand, which were bleeding. She also deposed that she suffered injuries on her private parts. She deposed that she did not wash herself after she was raped. She deposed that she and the accused left Abbur to Bengaluru at 10.30 a.m. and reached Bengaluru by 3.00 - 3.30 p.m. She deposed that the road from Abbur to Bengaluru passed through her village, but claimed that she did not observe the route. She deposed that she did not have breakfast when they left Abbur and 16 did not have lunch. She deposed that when her mother found her at Bharathinagar, Bengaluru, they went to a police station. She deposed that her mother tried to lodge a complaint but the police instructed her to lodge a complaint at Virajpet and that two policemen accompanied them to Virajpet. She deposed that two policemen spoke to the Inspector at Virajpet. She deposed that she showed the wounds to the doctor, when she was examined.
9. PW.9, the brother of the victim deposed that when they were returning back to their village from Bengaluru, they saw a Tata Sumo bearing registration No.KA-12-P-246 at Bharathinagar in Bengaluru. He deposed that out of suspicion, they saw the vehicle as the vehicle carried the registration number of their area. He found PW.8 in the vehicle and on seeing them, PW.8 ran to her mother and told her that the accused No.1 had kidnapped her. She also disclosed that she was forced to go to Periyapatna on 30.05.2008, where she was held captive in a house at Abbur village and that the said house 17 belonged to relatives of Madhu/accused No.1. She informed him that accused No.1 raped her that night and travelled to Bengaluru the next day. He deposed that PW.8 informed him that accused No.1 called Harish and informed him that he had brought a girl and wanted a room. He deposed that the said Harish did not turn up. He deposed that since there were lot of people around, they went to the police station, where they were informed to go to Virajpet and lodge a complaint there. Thus, he deposed that he along with the accused and PW.8 went to Virajpet police station at 4.30 a.m. In his cross-examination, he deposed that on 30.05.2008, he received a call from his mother that PW.8 was not in the house and he reached Ammatti village but did not search for PW.8 in Ammatti. He deposed that they left Ammatti at 11.00 a.m. and reached Bengaluru the next day at 5.00 - 5.30 a.m. in the morning. He deposed that to travel from Ammatti to Bengaluru by road, it normally took 3.30 to 4 hours. He deposed that after they reached the house of PW.11, he could not recollect where all they searched for PW.8. He 18 admitted that the window panes of the Tata Sumo were tinted and no one from outside could see anyone inside the Tata Sumo.
10. PW.10 is the driver of the vehicle engaged by CW.5 - Asif. He deposed that he left Ammatti village at 11.00 a.m. on 30.05.2008 and left to Bengaluru via Hunsur and Hassan. He deposed that he was informed to go to the house of PW.11 at Bengaluru. However, he deposed that he did not go to the house of PW.11 but parked the car outside. He deposed that Asif and others went into the house of PW.11 and all of them stayed there overnight. The next day, Asif and four others along with PW.11 went around Bengaluru. That night, they dropped PW.11 but he did not know what they were searching for in Bengaluru. Again they went to the house of PW.11 and spent time till evening and left to Virajpet. On their way to Mysuru, Asif asked him to stop the vehicle at Bharathinagar road. The vehicle was parked and Asif got down and crossed the road to the other side and brought 19 back a girl. He deposed that he was not aware who the girl was but they went to Virajpet with the girl and by the time they reached Virajpet, it was 3.00 a.m. He deposed that he was asked by the police at Virajpet to sign some document, which he did. However, he stated that he did not give any statement before the police that he had gone to Bengaluru and that his vehicle was hired by Asif to go in search of his sister. This witness was treated as hostile. This witness did not support the prosecution.
11. PW.11 was the sister of the victim, who was staying at Bengaluru. She deposed that on 30.05.2008, PW.1, PW.9, Asif and PW.13 all went to her house at Kumaraswamy Layout at about 5.30 p.m. and enquired whether PW.8 had visited her. She retracted her statement and said that the above persons went to her house at 5.30 a.m. in the morning. She deposed that on 31.05.2008, they went in search of PW.8 but could not recollect the areas, where she was searched. She deposed that till 6.00 p.m., they searched for PW.8 and when they were 20 searching in Bharathinagar, Asif found a vehicle bearing registration No.KA-12-P-246 and stopped the vehicle. She deposed that she was sitting in the car while the others went near the Tata Sumo, which was 10 yards away. She said that the accused were all found in the Tata Sumo along with a driver and PW.8. She deposed that PW.8 came to PW.1 and spoke to her and started crying that the accused No.1 had spoiled her life. She deposed that except her all of them went to the nearest police station but claimed that the police did not enquire with her and that she did not inform anything to the police. In her cross- examination, she deposed that she had a mobile phone and that PW.1 did not call her before coming to Bengaluru. She deposed that PW.1 did not even enquire about whether PW.8 was with her in Bengaluru. She also admitted that the window panes of the Tata Sumo were tinted and the occupants of the Tata Sumo were not visible. She admitted that no complaint was lodged about the missing of PW.8.
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12. PW.12 was the witness to the spot panchanama, who turned hostile and did not support the prosecution.
13. PW.13 is the brother-in-law of the victim - PW.8, who deposed that when PW.1 was in his house at Kushalnagar, she received a phone call and that on the same night, they went in search of PW.8 to Bengaluru and reached by 5.30 a.m. the next day. He deposed that they found the Tata Sumo at 6.00 p.m. PW.10, the driver of the Maruthi van went and saw the Tata Sumo vehicle and found the accused inside. He deposed that the distance between the Tata Sumo and the Maruthi van was 100 meters. He deposed that he saw PW.8 in the Tata Sumo and that the police directed them to go to Virajpet. He deposed that PW.8 had lost consciousness and was not in a position to talk to anybody. He deposed that he informed the police that PW.8 had informed him that she was kidnapped by the accused. In his cross-examination, he in a way supported the prosecution. He was further cross- 22 examined by the accused and he deposed that he reached Ammatti from Kushalnagar by 00.30 hours. He deposed that he could not recollect at what time he reached the house of PW.11 at Bengaluru. He deposed that he and others spoke to PW.1 and left from there. This witness was unable to state where the house of PW.11 was situate and was also not able to say, where they were residing in Bengaluru. He could not recollect the place where they found the Tata Sumo. He deposed that some policemen had come to Virajpet, but could not recollect their names.
14. PW.14 was the lady, in whose house at Abbur, the victim was allegedly held captive by the accused. This witness turned hostile and did not support the prosecution in any manner. PW.15 was the witness to the seizure of Tata Sumo, who did not support the prosecution.
15. PW.16 is the woman police constable, who secured the report from the Government Hospital, Madikeri. PW.17 was the witness to the spot panchanama 23 drawn at the house at Abbur village and a witness to the seizure of MO.1 to MO.12.
16. PW.18 is the constable, who submitted the First Information Report to the Court. PW.19 is the witness to the seizure mahazar under which, the Tata Sumo was seized. He identified the vehicle in the two photographs, which were marked as MO.13 and MO.14.
17. PW.20 was the Assistant Engineer, who prepared a sketch near the house of PW.1 and he identified it as Ex.P15. PW.21 is the investigating officer. Curiously in his cross-examination, he deposed that on enquiry whether PW.1 and PW.8 had lodged any complaint in Bengaluru, they informed him that no such complaint was lodged. He deposed that no policemen had accompanied PW.1 and PW.8 to Virajpet. This witness deposed that he had recorded the statement of Chandrashekar, Ashraf, Harish and M.B. Asif. 24
18. PW.22 is the Sub-Inspector of Police, who registered Crime No.92/2008 and he identified the complaint and F.I.R. and placed the file before PW.21.
19. The statement of the accused under Section 313 of Cr.P.C. was recorded and all of them denied the incriminating evidence against them.
20. Based on the above evidence, the Trial Court held that the accused went to the house of PW.1 when PW.8 was all alone and accused No.1 asked her to marry him. It held when PW.8 refused, the accused No.1 forcibly bundled her into the Tata Sumo with the help of accused Nos.2 to 6 and put her into the fear of death, if she cried for help. It held that the accused took her to Abbur village and stayed there for the night and left to Bengaluru the next day. It held that the evidence of PW.8 - the victim was corroborated by the evidence of PW.1 - complainant. It also held that the evidence of PW.9 corroborated the evidence of PW.1. Therefore, it held that the prosecution had proved that the accused had kidnapped PW.8 from her 25 house and hence, the guilt of the accused persons was established beyond doubt. It further held that though a report was lodged on 01.06.2008 while the incident occurred on 30.05.2008, the delay in lodging the complaint was sufficiently explained as PW.1 was in a state of shock and had gone in search of PW.8. It held that the testimony of PW.9, PW.11, PW.13 was trustworthy and it corroborated the version of PW.8. It further held that the accused No.1 did not explain in his statement under Section 313 of Cr.P.C. as to why he was present in Bengaluru along with PW.8. The Trial Court therefore, held that the accused No.1 kidnapped PW.8 from her house with the help of accused Nos.2 to 6. Therefore, it held that the prosecution had proved the guilt of the accused beyond doubt. In so far as the medical evidence is concerned, though there were no external injuries on either PW.8 or on accused No.1 and though there was no signs of recent sexual intercourse, the Trial Court held that PW.2 deposed that PW.8 had her last menstrual period two days prior to her examination. It therefore held PW.8 had 26 her menstrual periods only when she was at Bengaluru and therefore, the Trial Court held that the accused No.1 had sexually assaulted PW.8 when they were at Abbur. The Trial Court therefore, convicted the accused for the offences punishable under Sections 120B, 366 and 376 of IPC. The accused were sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.5,000/- each for the offence punishable under Section 120B of IPC and to undergo rigorous imprisonment for ten years and to pay fine of Rs.25,000/- each for the offence punishable under Section 366 of IPC and to undergo rigorous imprisonment for ten years and to pay fine of Rs.25,000/- each for the offence punishable under Section 376 of IPC. The Trial Court also ordered compensation of Rs.1,00,000/- to the victim girl under Section 357 of Cr.P.C.
21. Being aggrieved by the aforesaid judgment of conviction and the order of sentence, the accused have filed Crl.A.No.328/2013. The complainant/PW.1 has 27 sought for enhancement of sentence in Crl.R.P.No.467/2013.
22. The learned counsel for the accused submitted that the case of the defacto complainant was extremely doubtful. She admittedly was in possession of mobile phone and his daughter - PW.11 residing in Bengaluru also had a mobile phone. It is rather strange that on 30.05.2008 PW.1 instead of calling PW.11 to enquire about the victim - PW.8, straight away came to Bengaluru. He submitted that neither the driver of the Tata Sumo - PW.7 nor the lady at the house in Abbur - PW.14 supported the case of the prosecution. He submitted that there was no resistance by PW.8 either at the time of being allegedly forced into the Tata Sumo or while travelling from her house to Abbur and from Abbur to Bengaluru. She did not even resist or raise an alarm when she was at Abbur in the presence of PW.14 and her husband. He submitted that there were no physical injuries either on PW.8 or on accused No.1 and the medical evidence clearly disclosed 28 that there was no recent sexual intercourse between PW.8 and the accused No.1. He further submits that it was very strange that neither PW.8 nor any of the accused had their breakfast, lunch or dinner on 30.05.2008. The next day too, PW.8 deposed that they did not have breakfast and the accused stopped at Bharathinagar and some of the accused had lunch. He submitted that PW.8 did not even make an attempt to raise an alarm when she was at Bharathinagar, Bengaluru and there were no signs of any protest. He contended that when PW.8 was examined by PW.2 on 01.06.2008, she had her last menstrual period two days before, which meant that she had last menstrual period on 30.05.2008. He submitted that PW.8 deposed that as per Ex.P2, the genitals of PW.8 were examined and there was no evidence or signs of recent sexual intercourse. He submitted that the hymen of PW.8 was "absent and no recent tears" was found. He submitted that Ex.P2 did not show any external injuries on PW.8 and the radiological examination revealed that PW.8 was aged 19 years. He submitted that the certificate of birth issued by 29 Ammatti High School as per Ex.P3 cannot be a birth certificate but is only an extract of the statement made in the school records. He submitted that there were clear contradictions in the case of the prosecution in so far as it related to attempts made by PW.1 and her family members to go in search of the victim - PW.8. He submitted that while PW.9 claimed that they reached Bengaluru on 31.05.2008 at 5.00 - 5.30 a.m. in the morning. This witness claimed that the time taken to travel from his village to Bengaluru was about 3.30 - 4 hours. However, he could not explain why they reached Bengaluru on 31.05.2008 at 5.00 a.m. He claimed that all of them were sleeping in the car. He deposed that after dropping back PW.11 at her house when they were on their way back to Ammatti, they found a Tata Sumo bearing registration No.KA-12-P-246 at Bharathinagar, Bengaluru. Out of suspicion, they peeped into the vehicle and found PW.8 along with the accused. He contended that this version of PW.9 did not match with the version of the other witnesses. He further contends that admittedly PW.1 30 came to know at Ammatti that PW.8 was allegedly kidnapped but she did not lodge any complaint at Virajpet. Even when in Bengaluru, even after seeing PW.8 in the company of the accused, no complaint was lodged at Bengaluru. On the contrary, PW.1, PW.8 and PW.9 deposed that they went to a police station at Bengaluru but they were advised to go to Virajpet and that two policemen accompanied them. Learned counsel submitted that the investigating officer denied this claim and deposed that when PW.1 and PW.8 had gone to the police station, there was no other policeman. He therefore, contends that the case of the prosecution is extremely doubtful. He submitted that if PW.1, PW.8 and PW.9 had gone to the police station at Bengaluru to lodge a complaint against the accused, it is highly improbable that the accused could have returned along with PW.1, PW.8, PW.9 and others to the police station at Virajpet. He submits that the accused No.1 and PW.1 are neighbours and that there was an ongoing feud between the family of the accused No.1 and PW.1 over the property, where PW.1 was residing. He 31 submits that the present case is one concocted by PW.1 in collusion with her other family members. He therefore, submits that the Trial Court did not consider these inconsistencies, doubtful circumstances before arriving at a finding regarding guilt of the accused. He further submits that PW.8 was aged more than 18 years, which is evident from the medical report submitted by PW.2 and even if the case of the prosecution is taken at its face value, then the irresistible conclusion would be PW.8 had voluntarily eloped with accused No.1. He submitted that the absence of hymen as per Ex.P2 probablised that PW.8 was accustomed to sex and therefore, she must have had sexcapades with some unknown persons. He therefore, contended that the case woven by PW.1, PW.8 and PW.9 were fabricated for the purpose of implicating the accused. He further contended that if the accused No.1 had already planned with the other accused and had arranged a car to take PW.8 to Bengaluru, then this could have been without the consent of PW.8. The fact that PW.8 did not protest at 32 any point of time probablised that she joined the accused on her own volition.
23. Per contra, the learned High Court Government Pleader for the State submitted that the accused taking advantage of the fact that PW.8 was alone in the house, kidnapped her and took her to a house at Abbur, where she was raped by the accused No.1. He submitted that PW.8 recorded her statement before the investigating officer and she stood her ground in the cross-examination. He submitted that PW.1 who was informed about PW.8 missing from the house, in the natural course informed her son (PW.9) who took the help of PW.10 to come to Bengaluru in search of the victim (PW.8). He submitted that PW.1 along with PW.9, PW.10 along with PW.11, PW.13 searched for PW.8 in the city of Bengaluru at various places and when they were returning to their village, they found a Tata Sumo car registered at the RTO of Madikeri. They therefore, out of suspicion, checked the inmates of the Tata Sumo and found PW.8 in the Tata 33 Sumo and upon seeing PW.1 and others, she ran to them and told them that she was kidnapped by the accused. He submitted that the evidence of PW.1, PW.9 and PW.11 corroborated the evidence of PW.8. He submitted that the accused did not lead any evidence in defence to explain under what circumstances they were found in Bengaluru. He submitted that the seizure of the Tata Sumo was corroborated by the evidence of PW.14 and PW.19. He therefore, submitted that the accused were guilty of the offences punishable under Sections 366 read with Section 120B of IPC. The accused were also guilty of an offence punishable under Section 376 read with Section 34 of IPC in view of the statement of PW.8 that she was raped by the accused No.1 and all the other accused conspired with him. Further, he submitted that the Trial Court had taken into consideration the way in which PW.8 was kidnapped and raped and rightly sentenced the accused.
24. Learned counsel for the defacto complainant, on the other hand, submitted that the accused had all 34 conspired to kidnap PW.8 with an intention to marry her of to accused No.1 and she was illegally confined in a house at Abbur village, where she was raped by the accused No.1 while the other accused kept a watch. The learned counsel for the defacto complainant submitted that for an offence punishable under Section 376 of IPC, the accused were liable to be sentenced for life and also pay fine. However, in the present case, the accused were sentenced to undergo rigorous imprisonment for ten years though there was no justification to award a lesser punishment.
25. In reply, the learned counsel for the accused submitted that as per the case of the complainant, PW.8 was kidnapped so that her marriage with the accused No.1 could be solemnised. He submitted that the accused were all less than 25 years old and there was no evidence of rape of PW.8 but the conviction was based on the self- serving statement of PW.8 that she was raped. He submitted that the medical evidence was against the prosecution. Further more, he submitted that when PW.8 35 had her last menstrual period on 30.05.2008 and hence it is improbable that the accused No.1 could have committed rape on PW.8. Further more, he submitted that PW.8 deposed that she did not bath after she was raped. Therefore, there must have been semen stains on the clothes worn by the accused No.1 as well as PW.8. However, the forensic examination disclosed that "there were no semen stains on any of the clothes, MO.1 to MO.12." Therefore, he contends that the sentence imposed by the Trial Court was without any basis and therefore, the question of enhancing it does not arise.
26. I have considered the learned counsel for the accused and the learned High Court Government Pleader for the State as well as the learned counsel for the defacto complainant/petitioner in Crl.R.P.No.467/2013.
27. PW.8 disclosed that she was 15 years old but when PW.2 clinically examined PW.8, she found that the III Molar 8/8 of PW.8 had erupted and therefore, opined that PW.8 was aged more than 18 years. The radiological 36 age as per the X-ray showed the age of PW.8 as 19 years. It is not in dispute that accused No.1 and the defacto complainant are neighbours at Ammatti Village. PW.1 admitted that accused No.1 was frequenting her house. Therefore, the possibility of accused No.1 knowing PW.8 cannot be ruled out. PW.1 claimed that on 30.05.2008, she left to Kushalnagar to drop her daughter along with her son-in-law, her husband and her another daughter in a car. She deposed that PW.8 and another daughter Afsana were at home. She claimed that at about 9.20 a.m., she received a call on her mobile that PW.8 was not found at home. Therefore, she returned back to Ammatti by 10.30 a.m. She claimed that they searched for PW.8 in the neighbourhood but she was not found. In her complaint at Ex.P1, she stated that her neighbours informed her that the accused No.1 took PW.8 in a vehicle. It is strange that PW.1 could have a premonition that the accused took PW.8 to Bengaluru. Later, PW.1 along with her husband, son and Afsar travelled to Bengaluru in a car belonging to her son's friend, to go to her daughter's house in Bengaluru to check 37 whether PW.8 had gone there. When she left Ammatti, it was 2.00 p.m. and she claimed that she reached Bengaluru by 10.00 p.m. but did not find PW.8 at her daughter's house in Bengaluru. It is strange that PW.1, who had a mobile phone in her hand did not even call her daughter in Bengaluru to verify whether PW.8 had come to Bengaluru, but travelled all the way from Ammatti to Bengaluru to check whether PW.8 had gone to her sister's house. She claimed that they searched for PW.8 on 31.05.2008 but could not locate her. When they were returning to Mysuru, they saw a Tata Sumo bearing registration No.KA-12-P-246 at 3.00 p.m. When they checked the vehicle, they found PW.8 and the other accused in the Tata Sumo. On seeing PW.1, PW.8 ran to her and informed her that the accused had kidnapped her and taken to Abbur village and thereafter to Bengaluru. She claimed that she went to the nearest police station in Bengaluru but the police informed her to go to Virajpet and lodge a complaint there. She also deposed that she did not inform the police at Virajpet in writing about, she 38 approaching the police in Bengaluru. She deposed that when she saw PW.8 in the company of the accused, none of the accused attempted to flee from the place.
28. PW.8 deposed that some policemen accompanied them from Bengaluru to Virajpet. However, The investigating officer (PW.21) deposed that no policemen had accompanied PW.1. It is relevant to note that PW.13 deposed that, "£À£Àß CvÉÛ AiÀiÁgÉÆà ¨ÉzÀjPÉ ºÁQ vÀ±Áä¼À£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÁÝgÉAzÀÄ ºÉüÀÄwÛzÝÀ ¼ÀÄ. £Á£ÀÄ «ZÁj¹zÁUÀ £À£Àß CvÉÛAiÀÄ ªÀÄ£É ªÀÄÄAzÉ EzÀݪÀgÀÄ vÀ±Áä¼À£ÀÄß ¨ÉzÀj¹ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÁÝgÉAzÀÄ £À£ßÀ CvÉÛ ºÉýzÀgÀÄ." He further stated, "¦jAiÀiÁ¥ÀlÖt¢AzÀ UÁr ªÀiÁrPÉÆAqÀÄ DgÉÆævÀgÄÀ ¨ÉAUÀ¼ÀÆjUÉ §A¢zÁÝgÉAzÀÄ UÉÆvÁÛ¬ÄvÀÄ."
29. It is therefore, evident from the above that PW.1, PW.13 were aware of the fact that the accused No.1 and the victim (PW.8) had travelled to Bengaluru. The conduct of PW.8 in not even raising an alarm or protesting 39 either at a house of PW.14 or on the way from Abbur to Bengaluru and in Bengaluru, gives an indication that PW.8 had accompanied the accused voluntarily. The fact that PW.1 left her house at Ammatti to Kushalnagar at 8.30 a.m. and that she came to know at 9.20 a.m. that PW.8 was missing, also indicates that accused No.1 had prior knowledge about PW.1 and her family members going out of town and therefore, he had arranged a Tata Sumo and his friends to go to Bengaluru. If the neighbours had informed PW.1 that the accused had kidnapped PW.8 in a vehicle, the prosecution failed to record the statement of any of the neighbours. The fact that the neighbours had witnessed the event, makes the case more doubtful, as PW.8 could have protested and resisted. Further, there was not even a scratch on the body of PW.8 and there were no signs of resistance, when she was allegedly bundled into the Tata Sumo or during her stay at Abbur or when she travelled from Abbur to Bengaluru and during her stay at Bengaluru. PW.8 deposed that at Abbur, all the other accused except accused No.1 went out and 40 therefore, it is only the accused No.1 and PW.8 who were at home at Abbur, but yet she did not even raise an alarm. PW.14 was the lady in whose house at Abbur, PW.8 was held captive by the accused No.1. However, PW.14 categorically stated that the accused had not visited her house. She stood her ground in the cross-examination and denied the suggestions put by the Public Prosecutor. The driver of the Tata Sumo (PW.7) also turned hostile but admitted that he got the Tata Sumo bearing registration No.KA-12-P-246 released. He deposed that he never seen the accused and that he was seeing them for the first time in the Court.
30. PW.8 deposed that she was held by accused No.1 and was forced into the Tata Sumo and later the other accused pushed her into the Tata Sumo. However, Ex.P9, which was the spot mahazar did not indicate any signs of protest by PW.8. In the spot mahazar at Ex.P8, it was found that the house at Abbur was covered by many other houses and measured 12 feet x 15 feet. PW.8 41 deposed that PW.14 and her husband went to their relative's house and therefore, it was only the accused No.1 and PW.8, who were in the house. The investigating officer did not find any acts of protest by PW.8, when the mahazar at Ex.P8 was drawn.
31. All the above facts point out to the possibility of PW.8 accompanying the accused voluntarily. The Trial Court had convicted the accused for the offence punishable under Section 366 of IPC only on the statement of PW.8 that she was kidnapped and the statement of PW.1 that PW.8 was found in Bengaluru in the company of the accused.
32. Section 366 of IPC reads as follows:
"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or 42 seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid."
33. PW.12 was allegedly the friend of accused No.1, who was contacted by accused No.1 on 31.05.2008 and that accused No.1 requested him to arrange for a room and to arrange for the marriage of PW.8 with the accused No.1. He was also a witness to the spot mahazar and his statement was recorded. However, he denied having given his statement, but claimed that he was not aware of contents of Ex.P9. He also denied the suggestions by the Public Prosecutor that the accused No.1 had come 43 to Bengaluru and had requested him to arrange for an accommodation and to arrange for the marriage of PW.8 with accused No.1. The driver of the Maruthi Omni hired by Asif (CW.5) and his family members who was examined as PW.10, deposed that he was not aware as to why CW.5 hired his vehicle to come to Bengaluru. He also did not know what Asif (CW.5), PW.1, PW.9, PW.11 and PW.13 were searching for in Bengaluru. He also did not identify whether PW.8 was the daughter of PW.1. He claimed that he did not record any statement before the police that he had travelled to Bengaluru to search PW.8. This witness was treated as hostile.
34. Therefore, the only evidence available on record is the evidence of PW.1, PW.8, PW.9, PW.11 and PW.13, who spoke about the alleged kidnapping by the accused. There were no eye-witnesses to the incident though the incident had taken place between 8.30 a.m. to 9.20 a.m. on 30.05.2008. None of the neighbours of PW.1 who informed her about the kidnapping of PW.8 were 44 examined. There are no signs of resistance of PW.8 but circumstances indicate that she had done so voluntarily. Therefore, it is difficult to believe the case of the prosecution that all the accused with a common intention kidnapped PW.8 to arrange her marriage with the accused No.1. On the contrary, the case of the prosecution is highly doubtful and the Trial Court has proceeded on the assumption of guilt of the accused, thus resulting in a wrongful conclusion.
35. In so far as the offence under Section 376 of IPC is concerned, PW.8 deposed that, "¤£ÀUÉ DgÉÆæAiÀÄÄ ºÀoÀ ¸ÀA¨sÆ É ÃUÀ ªÀiÁqÀĪÁUÀ ¤£Àß PÉÊPÁ®ÄUÀ¼À£ÀÄß UÀnÖAiÀiÁV »rzÀÄPÉÆArzÀÝ£Æ É Ã CAzÀgÉ »rzÀÄPÉÆArzÀÝ£ÀÄ. £À£ßÀ £ÀÄß UÀnÖAiÀiÁV vÀ£ßÀ 2 PÉÊUÀ½AzÀ »rzÀÄPÉÆArzÀÝ£ÀÄ. £À£ßÀ 2 PÉÊUÀ¼À£ÀÄß »rzÀÄPÉÆArzÀÝ£ÄÀ , DUÀ ¤ªÀÄä PÉÊUÉ UÁAiÀÄ DVvÉÆÛà CAzÀgÉ UÁAiÀÄ DVvÀÄÛ. GUÀÄj¤AzÀ ¥ÀgÀazÀ UÁAiÀÄ DVvÀÄÛ. 2 GUÀÄgÀÄUÀ½AzÀ ¥ÀgÀazÀ UÁAiÀÄ EvÀÄÛ. ¥ÀgÀazÀ UÁAiÀÄ¢AzÀ gÀPÛÀ §gÀÄwÛvÉÆÛà CAzÀgÉ §gÀÄwÛvÀÄÛ. DgÉÆæAiÀÄÄ £À£ÀUÉ §®vÁÌgÀ ¸ÀA¨sÆ É ÃUÀ ªÀiÁqÀĪÁUÀ UÀÄ¥ÁÛAUÀzÀ ªÉÄÃ¯É UÁAiÀÄ DVvÉÆÛà CAzÀgÉ 45 DVzÉ. JµÀÄÖ UÁAiÀÄUÀ¼ÄÀ DVzÀݪÅÀ CAzÀgÉ Jt¸À°®è. gÀPÀÛ ¸ÀzÀj UÁAiÀÄ¢AzÀ gÀPÛÀ §A¢vÉÆÛà CAzÀgÉ §A¢gÀ°®è. £ÀAvÀgÀ ¤ÃªÀÅ C°è vÉƼÉzÀÄPÉƼÀî®Ä ºÉÆâgÁ CAzÀgÉ ºÉÆÃV®è." However, PW.2 deposed to the contrary and stated;
"¨ÁºÀå ªÀÄvÀÄÛ ºÉÆgÀ ¨sÁUÀzÀ°è AiÀiÁªÀÅzÉà UÁAiÀÄUÀ¼ÀÄ PÀAqÀÄ §A¢®è. EwÛÃZÉUÉ ¸ÀA¨sÆ É ÃUÀ ªÀiÁrzÀ AiÀiÁªÀÅzÉà PÀÄgÀĺÀÄUÀ¼ÀÄ £Á£ÀÄ ¥ÀjÃQë¸ÄÀ ªÀ ªÉüÉAiÀÄ°è PÀAqÀħgÀ°®è."
"£ÀAvÀgÀ vÀµÁä FvÀ¼À£ÄÀ ß ºÉjUÉ vÀdÕjAzÀ ªÀÄÄA¢£À vÀ¤SÉUÁV PÀ¼ÀÄ»¹PÉÆnÖgÀÄvÉÛãÉ. ¸ÀzÀj ºÉjUÉ vÀdÕgÀÄ EwÛÃZÉUÉ £ÀqÉzÀ PÀÄgÀĺÀÄUÀ¼ÀÄ E®è CAvÀ C©ü¥ÁæAiÀÄ ¥ÀnÖgÄÀ vÁÛgÉ."
PW.2 identified her report at Ex.P2, which disclosed that the hymen of PW.8 was absent and there were no recent tears found. On local genital examination, there was no evidence of recent sexual intercourse. The clothes worn by the accused No.1 as well as PW.8 were seized and were subjected to forensic examination and the forensic report at Ex.P5 indicated no seminal stains. This assumes significance since PW.8 claimed that after she was raped, she did not wash herself and travelled from Abbur to 46 Bengaluru and in Begaluru too, there was no proof of the accused staying in any accommodation. Thus, the question of PW.8 washing herself was remote. Thus, there must have been some stains left on the clothes worn by PW.8 and accused No.1. In addition to the above, PW.2 deposed that PW.8 had last menstrual period two days before she was examined on 01.06.2008, meaning thereby that she had her last menstrual period on 30.05.2008. As a matter of fact, PW.8 deposed that at Abbur village "she was not well" making it probable that she was either having her period on 30.05.2008 or was suffering from menstrual cramps. Therefore, the possibility of the accused No.1 committing rape is improbable and doubtful.
36. In that view of the matter, the judgment of the Trial Court holding that the accused No.1 had committed rape on PW.8 is not based on a proper appreciation of the evidence but is based purely on a wrong perception of the evidence on record.
47
37. Hence, Crl.A.No.328/2013 filed by the accused is allowed. The impugned judgment of conviction dated 20.02.2013 and the order of sentence dated 11.03.2013 passed by the Presiding Officer, Fast Track Court, Virajpet, in S.C.No.56/2008 for the offences punishable under Sections 120B, 366 and 376 of IPC is set aside. The accused are all acquitted of the said offences and are set free. The bail bonds of the accused stand cancelled.
38. In view of the judgment passed in Crl.A.No.328/2013, the revision petition filed by the defacto complainant in Crl.R.P.No.467/2013 is without any merit and the same is dismissed.
The Registry is directed to forthwith return the Trial Court records.
Sd/-
JUDGE PMR