Karnataka High Court
Raja Naika vs The State Of Karnataka on 2 June, 2011
éé'
AND
THE STATE OF KARNATAKA.
BY sH1RAEAKOPpA POLICE. ._..REsRGNOENT j< '
{BY SR1. PM. NAWAZ ADDL. SP3.'
THIS GREA IS FILED U/s."'3_74 (2) ,<:R;R.'G'. Hy
ADVOCATE FOR THE A.pEELEAN:/s.'V AGAINST THE
JUDGEMENT OT.27.10.2o04"=p_AssEO 'BY"'I'HE; PRL. S.J.,
SHIMOGA IN s.c,..NO. _1--:?:.!.20o2.._ cONxz.I(:f:*1NG THE
APPELLANTS-ACCUEEE NO.1_ 9-;N1V3.,V2~--..AccUsE:> 2 AND 5
FOR THE OFFENCE? .U'/s_f:: ;576'(A:3_3A..V*{g) OF {PC AND
sENTENcING THEM TO 'U.NOERGO~.R.':;;EOR 10 YEARS AND
TO PAY A FINE OE 'I000/.5»-I.D.'», 370 SUFFER 8.1. FOR
ANOTHER A ' A
THESE c';jR_L.ADPEEAs COMING FOR HEARING
ON THIS DA-KTHE3C0.I£RF.l\(;A1)E=THE FOLLOWING.
Z "" " 'V
is filed by accused Nos. 1, 3, 4
and 8 éind" is filed by accused NOs.2
5 in 2002 challenging the judgment
passed by the Principal Sessions
._ convicting the appeilants for the Offence
Otnisnaijie under Section 376 (2) (g) IPC and sentencing
* :3g1_chVV''Of them to undergo R1, for a period for 10 years
' Hxfii pay a fine Of Rs.1,0QO / » in default. {O suffer 8.1. for
3-.
1%
another period of 2 months wi}?h>»w21_'fur;tih'evr" 'to
pay compensation of Rs.4,O0O/L-to
2. The ease of that on
19.11.2001 at were
waiting in the bae1§ya r'o,V of the Victim
situated at' 'Shiikaripura taluk of
Shirnoga there to tether the
OX, the he.1'VVernd carried her forcibly to
a placehonh the Koretagere Thanda, they laid her
dowgnon and the gang raped her one after
.'an_othei5_deS'pite her resistance and each of the accused
intercourse with her, thereby, they
areéhellegedéhto have committed an offence under Section
N V ff>78._(2)Vh[g) of H30.
3. The prosecution in order to prove the case has
V' examined in all 15 witnesses and got marked Exs.P.1 to
P33 and produced M0551 to 7.
g?"
5
4! The defence of the aeeused Wasl"one.A_l.'ef :e:;%i l
denial. They have examined 1. H*:arigjfal:v'EfJaik}an-d 9
produced EXs.D,l to 13.6 in t'l:.eir'.A_A_defen'ee'.
after hearing the proseeluigien arid.__ the thee
learned Sessions Judge was----pl'e«ased to fiiidpthe accused
guilty for the offenees'lleehlarg§e§;1 them and has
convicted thé" .3Ll3P€:1la::nEs V"-a.r'rd llserneneed them as
aforesaid it 3_%_hes_aid orderloflleonvietion that has
been challenged this appeal.
1'5? Prasad, learned Senior
Counsellllfor the .apApel1:_ahts and Sri P.M.Nawaz, learned
Addifioiaal Sl5P..i7or'_rhe respondent State.
Senior Counsel for the appellants it is an artificial ease presented before the Couri.VV__and is a false and concocted one. He submits ai the first instance ihere is a delay of more than n e 48 hours in reporting the crirneAA»t»::>_the' delay is fatal to the ease of the He that while the incident h2ts:v"tel:enA'ple1eeVV $2001-L' complaint came to be lodgedmon Altiefore the Shiralakoppa Police Station. {.9The-Vejvexjillanation given by the complainant in tl'1'e» delay is not supportedéhfy ._evit1«e1'lee on In the complaint. she has stat-_e1:l,Vtl'1::_t h"u.shanVd»who came on the next day exzeni_:\igt_Vl'to'i1-j'_ there is no bus they C0ul(iz.go*. to on the next day, whereas, us %.'n i'i"l%3§l";§%il%°E'e"1? 8f(€fi%""fEo%1%% $33 §1§atE'é §3é5'%t alone«_._Went to the police station. It is ' explanation which raises doubt regarding H and the accused are entitled to get the benefi"t:'of' eueh discrepancy in explaining the delay. He "ft;1fthei* submits that CWs.,2, 3 and 7 were also her ""~V_V:te'latives who had come to her house on the next day 2% < if 4' morning. They had suggested that she Complaint after the arrival of hiishlangju 11.31 ' mew ef the evidence given bef0re«ithe Cxeulrt _th.at had caused bleeding injuiieaen herVlmee:~s hy'''ert:é3hingV. ' with stories and alse her hails._were nothing prevented the take her to the hospital for giving lie submits that this itself date of alleged ir1eider_it__Vth'ea eierious as it is made out to h-fliirther submits that the medical VVevi(len.ee.lA:_i'nlth;i'S~le'ase indicates that the doctor has _opin'e'd.l that'v._viC,_ti'1}:'1l might have been subjected to __:'ihitereeiiree..«Without giving a definite opinion ' regardifig ghastly act alleged to have been committed on :h.e~Vperseh--- the victim. He further submits that since the" are none other than the close relatives of the family of the eemplainanti it is improbable if net i' 'giifnpessible that they Weuid indulge in such ghastly >-
9 activities as against their own relative. tt"re.i5'e.te7:%e.; submits that the entire eVider1ce the"
prosecution would not inspire <:.or1f_;der1ee..te e'0ri"?:i'e_t accused and therefore, he.r's-trbmits__t'hat allowed. He further submitst't'twh_at.Vas eit/;i(ier1ee of DW.1 and the brought out on record that the the association called as Sfevatat. u v_i_s:VVjj)reventing illegal activities as manufacturing of illicit V .-- g1:e;so¢ra1 activities. Hence, eomptatriant the accused, even as on the dateef t _Sr*i;_._P.MV.t§I'axvaz, learned Additional SPP on the fighter' that the fact that the accused are reiatives. Victim further strengthens her case that she Weeld not come out with a false version to implicate " her"ewr1 relatives in a heinous effence sf this nature» 80 Q 2 far as the reason for the delay inftiiei eo npiaine she?h.a':e:
explained regarding delay and of injuries sustained by her, shgekfzould not -eorneaeiit of the"
house alone and hence, thereaeon for fidellay has been properly explained bythe one eanltake note of trauma and agony of jy<oi'irig who Could not Venture to go_ou,t ofthe' a complaint against all barriers of deceneymandg of the offence, hence, he has been explained. So far as the 'injn1'ies-l:.are"eoneerned, doctor has stated that the injurieus onthe person of the victim were healing as 0rf_§'lt:,.Alv:l.2QOl,l"the"'day on which she went to the doctor further submits that nothing has been eiioited in'j_ the cross-examination to show that the eoniplainant / victim was motivated in giving a false complaint since it would have faded the honour of if '''herself and her family in the eyes of the public and therefore, the Complaint and the evideriee "
- victim does not suffer from any-4inti*ineie*lrietahility V and evidence of PW.l alone accused have committed Such hei,_nc;us :e'rirfg;ve.v_VVag.;e1iniet.V:> her. There may be small V'Vtdi1%ferenee"--iril_'thel}ev1denee before the Court, is a highly educated woman andwthat recorded almost two ye;:qiSv:_aft€i::r submits that on a totalivkxf on record, a prudent man that the offence has been there is nothing either illegal or contradictory-tojtliei of law in the judgment of conviction Vpasfised by the learned Sessions Judge ffnerefore, submits that appeal may be " disinris5é'd.,V ' V V ~~8.":The prosecution in this ease commenced with A of the eornplairit by the vietirnr. in the said \~ // vamvmx , Complaint, it is stated that on Monday night atv.-about .6 9.00 p.m., she had gone to tie the OX, at persons came and caught hoid of her the cloth into her mouth in ortief 'tha_t?sh:e raise any VOiC€ and thereafter, they7Commi.'i;teC1 'rap4e'"on'=, her: She has mentioned of hersons who are the aCcuse:o'~w.&_befo.1;e is also mentioned in the 6 persons have assau?;'te'<3;;:.tFhet:3--. not to inform anybody her and hence, she prayett a'n}':'i:'..VV__pro;teotion. The police who reeeiveti the at about 12 noon on
21._1;1;'2001; the further statement of the Victim V:'0n_ the;s' Ex.P.1. In the further statement? which thevubaek side of E3X.P.I, it is stated that the acehiisetihtbyhhhhname Raja Naik son of Adavi Naik, Kumara "Nah; Mala Naik, Range. Naik, Raja Naik and Nagaraja
-- came when she was tying OK and held her mouth ge» 13 Crime No. 173 /200} for offence under.' V' Section 3776 and 596 {PC and After investigation by thepoliee V2:ee:1sedoV.v%ere se<;:fu'1.*ed", and the Charge sheet for thetotfence Seetton 376 (2) (g) {PC was filed agai_unst" egeeusedvtétileging that they have committed t'j:'e.ne Victim. After appearance before thtefiourtg' the a.(:Qused have pleaded not guilty h'2'i:s""stated before Court the averrrientst made-~..eby_4Vhef'* the Complaint. She has stated that 'thedaeeus'ed"_.'ehave committed rape on her on thegdtatte of ixaeiident when her husband had gone to Since her husband did not come home t_iiI'__9sx went to tie the Oxen inside the cow andhdtdttthat time accused Raja Naik, Ranga Naik, Kuméire:A1'Naik Came inside the cow shed and Carried her VA bV§}"ho1duing her on her neck, hands and waist and did ";/E,» 1% not aiidw her to raise any noise. They took hQ1f"._f1€3f Bhandekere and dropped her near the said A: that time, accused N0s.4, 5 and 6 aisd._eaIh'exd'ihere and surrounded her. AeeusedN0'.'1'iraped-.dn.he'r§ air that time, 2 other accused hold heriegs, 2y'.ae:.:usedi-.
her shoulder and hands her head and pressed to 6 Committed rape on Whenever one were holding her. since the accused had heiq shoulders. They had also caused' shoulders and breast.
had seratehediher nose. They have Crushed her r 'sifiene and had caused bleeding injuries. They H on her on the fingers of her ieft leg and the nailshvhas been piucked and had caused injury on 2 ihde'r._b1itt0eks and said incident continued from 9.30 to 31.30 pm. She had no conscience. When she regained //2% 13 conscience, she came to her house and at that't.in1e7*iVhe accused were not there. The distance ' . house and place where she was S1..1bf€Ct6d to r}_ape=ie" ,1 5.0 "' to 200 feet. When she wenttto h0_use' Fakeera Naik, Krishna She'-it narrated the incident. to _the.3'z";:;t£1.V.'iVs.ed her to wait for her husband to Next day she could not get At heiffdhdnsband came to the house? incident to her to be in the house but gdout and sent her outside the house. She jnenit to the police station on the next day antd€'a§~.t.1 a,m.',V 'S{h'e'VgaVe 21 written Complaint, which is It is in her evidence that about police Came to the scene of occurrence and she shown the place of the incident and drew the "i.vn1e.hAazar as per Ex.P.2. Police have seized 3 used »--eehderns and torn condoms from the scene of /Y i?
f .
has not secured any diverse from his first \_2sri:.e It is suggested that her husbandgihd "' assaulted her 4 to 5 days priOI;'»._i[O if:,e.i<i'ehi"e;i1.gi this connection, the Village' elderé'._hé1d Said suggestion has been hy elicited that father of the aeeiised and thinking that her _-~ie.l§¥el$('_'..implicated by accused No.3 othere' Ishe is deposing falsely due' {<31 ., '~ -- V' ':0. PW.3 Krishna Naik, pvvtzi Kuberai' PW.5'"-..__:Pafameshwarappa and PW.6 Cha:1:i,rap};iz£1 ti-iriied hostile to the case of the . V. -pr()eeciii:i0i1..&and hvéife not supported the Version of PW.l PW.7 Dr.Gangi Bai has stated that she__Vha_s ~e§«iafi1ined the Victim on 21.il.200l at about l 1.45. who was breught by WPC T301 ef Shirakipur A Staiion with the history ei rape on l9. i l.200i at i?
9 pm. She has observed that there were 6--ts '? superfieiai abrasions on the face of abrasions on the right side of face and one eQ_ntijis.i"On V' the left arm and abrasions over the ..neCk,.dCiicSt"'and. buttocks, thighs and joints Htiwever, has that there is no bleeding oi" and the same are simple ~-has stated that on examinationpppefdt Jfiarts and after sending the gjfgyi "exai'nination, reports show that .sp:ern'i0toz0a in pubic hairs, vaginal .sinear and has opined that PW.1 rnighthaire hadtéiiniiteiicourse. PW.8 Dr,Kii"an Bhat hapsgpdsteated has examined Raja Naik on has opined that there is nothing to injured is incapable of performing seXiiai"'iAntereourse. He has identified accused No.1 as A V. tiieperson examined by him. He has issued certificates ate this effect. PW.9 Drflfijayakuinar Mfieggeri has 3% if/1 3,53 EZXs.P.8 and R9 but he has turned hostile to the of the prosecution. PW.l2 is the PSI of Police Station. He has registered the ea$Ve».<§n.vtli.e baeils ~.. of the complaint given by PW:.=,l a;nr1 Crime N03 1 73/2001, thereafter,' 2 V A._:eQnti_r§iueti _ ; investigation, sent the medical examination and After receipt of FSVL' along with the €ci:§arge:Q\;:Sankolli. pw. 13 D.Naglap--palVAV'A'~~h2tfS11;': containing the condo}-ngsl' since it contains an identii'ieatiQn~__ rr.'_21sr'l<.~7" in triangular shape. In the er;§$*3-eztarnination,he has stated that the Condoms are .:eil'l--.the government hospitals. PW, 14 is the lr:,s§:f)eetQr'Vie:'i{_if:; Police who has conducted the part of inVeS'tigi1tion in this Case, Visited the scene of eectirrenee, drawn the panchanatna en the scene of .. Vveceurrenee, S€lZ€d the eonelorns from the eeene of St:
occurrence and drawn panchaniarnaé to? thi4s"re£fect_;_'wV In it the cross-examination, it is e1i'cite:fiit"that*-- has not stated before him her}-1and_s °é3rei5e'<t§ed~i ancifl' she was carried on the is also elicited that the stateti during investigation that acciiseci her shoulder; breast and has not stated before her knees and also '1'._ég';' 'fPW. 15 is the Inspector who and after receipt of the records' fromKth'e_ and from the doctors he has V. '_ fi1e<:'t,the' charge'-'sheet before the Court. 1* The accused have denied their involvement in thisease ivivfiansxver to the questions put to them in exarhinativohneiiizunder Section 313 Cr.P.C. Accused have thereafter; examined one Harigya Nail: as DW. 1. In the eteijositioni he has stated that he knows the the members of the Sangha have questioned PW.1 and PW. 10 and they had retorteci that it is not the of Sangha to look after these affairs. He }E3X.D.6 register and stated tha_t...th_e "' it documented the action taken b§jth'ei Svafigheiiiz of the activities of the COfnfiif5ii13,§lHt éiiigi In . L' the erosyexamination by pfoseciitor, it is stated that DW.1 is order to defend the aceused,.wh0--~ are:'his'i'i:ie:1d~S;--.._ ' '
12. 1t._i's- th_e--.h'é.sis;"'Of the above evidence, the learnecl has found the evidence of prosecution" as tfuth'f1,i1 and convincing and has e0.:1.§yieted th'e.._ac:ejused and sentenced them as ' it1en':i.oi:ed.,_éLbQvet ' i3.7.'jOi?-ah a careful re~e0nsiderati0n of the entire eh record, it is seen that there is 9. delay in A X1" the complaint. Vx/"hiie the incident has taken place g-
/2 24 on 19.11.20} at about 9 p.rn., the eomplaint lodged on 21.11.2001 at about 11 am. T given regarding the delay is th:a't'l"t'r1e was' not well and she could not_move'.ah--o_t1t on_»2C}».l:l However, it is in the 'farther staterrigent,» of the' complainant that K.ub'€l1"él'" Neik and Krishna Naik rnet herAq:_0:f1' who were her brothers--in~l:ai&*itr;r{.rElf atall on her face, shoulders: nails were snatched, haetelvvlobsewed the same and wouldlihalve to the hospital, atleast on 20».(j)6'.201la not immediately. The evidence of the witness box is that her husband has sent th:ev'house on coming to know of the incident, which not found in the FIR. Further, the first page of 'theeornplaint is written in one handwriting though the ';;ornplainant says that the said complaint was written in 2 "front of a shop. She has not mentioned the name of the L scribe nor the police have questioned _ it and cited him as a witness. The'sc19ihe on ~iEX,}>'-..1.»pie' the first person to whom PW.1 has 'inforn1ed"in this" r__iase;._ Non--citing and non~eXa1ninin:'g<,of the ectibe to"
the case of the prosec1ition.'V.i-*"* l
14. It is furtherlll -the police have recorded the furtheri.S-tatem'ent__of"eoiiiplainant on the backside of andvlltheiiingredients of the offences xxdtnesses is mentioned in the said complainant, written in separateihahdA:,:\id*itiiig'"by the police. I am of the opinionp that said complaint as originally . .""ic:on't{aii%ied"l'in the Vfifet page and as written by the police ' on the._see'e.:id__page does not have the Value of the paper *».i?hieh"."it written. Further the name of the scribe and the manner in which it was brought in existence l' V' ieemaained suspicious even at the end of investigation.
15. Even if, the Version in the t:¢mp3§:i:it "
believed as true, when the police efuu occurrence, they found the eong:1or;'i's..--3and the pefckeets; PW.1 has not stated anything.abo--n.tth.e s.9;i'tI._e.vrtie1_es her complaint nor use of by the accused. The ease 'ont xnsited the spot is completely which has been PW.1 says that cloth. which disabled her froth' of visiting scene of oceurrenee, investigating agency has not iaidxthgeir the cloth said to have been in the mouth of PW. 1 at the time of commission of lapse on the part of the investigating the Very root of the veracity of prosectitioti ease and the non-seizure and none prodtieition of the said cloth completely gives a go bye to "".the°ease of the eornpiainant. Since it is eiieited that //5 there are about 80 h<3u'se_$ arenrxd t:he:~3e_en§§: ef_ W occurrence and at that hoL1r"t§'f.:t'f1e night Cry Of woman would have vattraeted' few Vh.Qusehe}daA"V4and the subsequent incident asvtflmenti€jr;ed--V;b§fAthe Complainant would have never happened. 'atimitted in her er0ss~exarni_n7ati§n'that abbut4_4V6aO"fee£"'from the eowshed there are iresiédential and if at all PW.1 was CaI'1'i€(i»'fUI',.§tb{)u€:§. 50"~fee.t by'eiX":persons, naturally she weuldhhave * attention of the neighbours. More so ubeeauee' ._4she--~._k11.ew that Accused No.3 as a Forest whoAhad.'~*bhVimp1ieated her husband in a A_ san»d§'a1:$_>VoQd ease..V______'I'.11e behavior of PW.1 appears to be __ against human conduct. Further the adohehter __ht{tSJ"€XaII1ifl€d her has never stated that the inj:1.ries___v'ean*Sed to her would have disabled her from V'~»wa1king§V__en the previous day and her version that the "-Vi'n;'nr}_es caused on her were bleeding has been negatived the evidence of doctor, Under the Circumstances 2- //7 2% without much discussion on the point; "
opinion that having regard to these-ndu--e complaint a well prepared compl?aiVnt.A_Ah'as Been. implicating all the accusedl._tn~V..the Ahcrirne. to be-' further noted that accused nonelcther than near relatives of the victim.': '~flfhere'His re-ason rnentioned by the complainant or her as to why they have such bat./515% 'p1'enrn'ity£» lagailnstjfcofiplainant so as to commit against her. It is to be noted l 4 who had contacted her incident have not supported the case' the circumstances I am of the 'firrn that the prosecution has not proved themaccused beyond reasonable doubt. gone through the judgment of the Trial Uv.Court.. andléthe reasoning given by the Trial Court in V' l..:tjv»eenVicting the accused It is seen that the reasoning