Bangalore District Court
The State By vs Rakesh B.R. 29 Years on 27 May, 2020
IN THE COURT OF THE LXX ADDL. CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 27 th day of May, 2020
:PRESENT:
Sri. MOHAN PRABHU, M.A., LL.M.
LXX Addl. City Civil & Sessions
& Special Judge, Bengaluru.
S.C.NO. 1182/2018
COMPLAINANT: The State by
Nandini Layout Police Station,
BENGALURU
(By Special Public Prosecutor)
V/s
ACCUSED: Rakesh B.R. 29 years,
S/o. Late Ramegowda,
R/at No.76, Srisai Nilaya,
besides Parvathanjaneya Temple,
Laggere Main Road,
Narasimhaswamy Extension,
Nandini Layout, Bengaluru.
N/o. Veerapura village,
Bhadravathi Hobli, & Taluk,
Shivamogga District.
(By Sri. Movendan R, Advocate)
1.Date of commission of offence: 01.01.2013 to 17.4.2018
2. Date of report of occurrence : 28.4.2018
3. Date of commencement of : 30.11.2018 recording of evidence 2 S.C.No. 1182/2018
4. Date of closing of evidence : 20.11.2019
5. Name of the Complainant : Smt. Varalakshmibai B
6. Offences Complained of : Secs.376, 417, 420 of IPC & u/s.3(2)(v) of SC/ST(PoA.) Act.
7. Opinion of the Judge : Accused is Acquitted.
J UD GM E N T The Assistant Commissioner of police, Malleshwaram Sub-Division, Bengaluru city has filed the Charge Sheet against the accused for the offences punishable under Secs. 376, 417, 420 of IPC and u/s. 3(2)(v) of The Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act.
2. Based upon the first information lodged by C.W.1 on 28.4.2018 at 7.15 PM the Nandini Layout Police have registered the First Information Report bearing Crime No.210/2018 for the offences punishable under Secs. 376, 417, 420 of IPC and u/s. 3(2)(v) of The Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act. Thereafter the I.O.,/ACP has conducted the investigation and after collecting 3 S.C.No. 1182/2018 all the materials has filed the charge sheet against the accused for the aforesaid offences.
3. The case of the prosecution briefly stated as follows:-
C.W.1 is belongs to Lambani caste comes under Scheduled Caste. Accused belongs to Gowda community. The accused was the Photographer. That on 28.8.2013 when CW.1 had been to take photo for Ration Card she came in contact with the accused. The accused who taken the phone number of CW.1 in the guise that he will call her after photos are ready, started to call her over mobile phone. The accused who came in contact with CW.1 proposed to marry her even though CW.1 pleaded that she has already married and having three children. The accused blackmailed CW.1 complainant saying that he would commit suicide if she did not marry him. Thus, on the false promise of marrying her accused used to come to her house and in the promise of marrying her, accused committed sexual intercourse with CW.1 since 2013 till 17.4.2018. The accused who continuously committed sexual intercourse with CW.1 in the promise of marriage started to 4 S.C.No. 1182/2018 move along with another lady since from one month prior to lodging of this complaint. When the complainant asked the accused to get marriage, the accused has been dodging on one pretext or the other. The accused during the course of committing sexual intercourse with CW.1 he was videographed the sexual acts and he used to give threat to CW.1 saying that he will upload the said scenes if she did not agree for sexual intercourse with him. The accused by blackmailing CW.1 and in the false promise of marrying her had committed sexual intercourse with her from 2013 till 17.4.2018. On 17.4.2018 in the house CW.1 when CW.1 asked the accused to got married performed, at that time the accused refused to marry her on the ground that she belongs to Scheduled Caste and if he marries her his family prestige comes down. The accused also threatened her that he will upload the videographs of sexual act in social media. Hence, she felt insulted and attempted to commit suicide between 1.30 PM and 2 PM. Then the accused shifted her with the help of his friend to Nagpur Kulkarni Medizone Hospital and by giving treatment to her in 5 S.C.No. 1182/2018 that hospital and got discharged on the same day. It is also alleged that the accused when used to come to her house by make believe her that he is doing business extracted nearly Rs. 6 to 7 lakhs and also received gold ornaments and amount from her. Based on the first information statement lodged by CW.1 on 28.4.2018 the Nandini Layout Police registered the case in Crime No.210/2018 and sent FIR to the court. The Investigation Officer visited to the place of incident and conducted the panchanama. The I.O., recorded the statements of the witnesses. The I.O., got recorded 164 Cr.P.C., statement of CW.1 by sending her before Magistrate.
The I.O., after collecting the medical reports of CW.1 and accused and after collecting the report of the Tahasildar regarding the caste of CW.1 and accused on completion of investigation has filed the charge sheet against the accused for the aforesaid offences.
4. The accused released on bail on 26.6.2018 as per the order passed by the Hon'ble High Court of Karnataka in Criminal Petition No. 3756/2018. Charge sheet copies 6 S.C.No. 1182/2018 furnished to the accused and thereby provisions u/sec.207 of Cr.P.C is duly complied with.
5. On 6.9.2018 charges are framed against accused for the offences punishable u/secs. 376, 417, 420 of IPC and u/s.3(2)(v) of S.C./S.T (Prevention of Atrocities) Act for which accused pleaded not guilty and claimed for trial.
6. During trial, the prosecution has examined 13 witnesses out of 23 witnesses cited in the charge sheet as P.W.1 to PW.13 and documents Ex.P.1 to P.15 are marked. During the course of cross-examination of PW.2 documents Ex.D1 to D3 Birth Certificates are marked.
7. On 17.12.2019 statement of accused as required u/sec.313 of Cr.P.C., is recorded by putting all incriminating evidence. The accused has denied all the incriminating evidence of the prosecution. The accused in his 313 statement has stated that "2013 ರಲ ನನನ ಸಸಬರ ಸಸಟರನಲ ಇರಲಲಲ. ಸಸಬರ ಸಸಟರಗಗ ನನಗಗ ಸಸಬಸಧ ಇಲಲ. ನನನ ಯವದದ ತಪಪ ಮಡಲಲ." The accused has not lead any defence evidence. 7
S.C.No. 1182/2018
8. I have heard the arguments of the Learned Special Public Prosecutor and the Learned Counsel for the accused and also perused the entire case papers.
9. The learned Special Public Prosecutor has submitted that PW.2 is the prosecutrix has spoken in detail about the incident. PW.2 has lodged the complaint against the accused as per Ex.P2. She has deposed about conducting panchanama in her presence as per Ex.P1. She has given her 164 Cr.P.C., statement before the Magistrate as per Ex.P5. Ex.P4 is the photo of the accused and PW.2 taken in the house of the PW.2. She submitted that PW.2 has clearly deposed about the sexual assault made by the accused in the false promise of marriage. PW.3 is the mother of PW.2 has supported the case of the prosecution and deposed about the accused coming to her house in the promise that he will marry PW.2 and committed sexual intercourse with PW.2. She submitted that PW.3 has also deposed about due to harassment made by the accused PW.2 attempted to commit suicide. PW.4 is the neighbour who also supported the case 8 S.C.No. 1182/2018 of the prosecution. PW.5 is the doctor who examined the accused and issued examination report as per Ex.P6. PW.6 was the Incharge Tahasildar has issued Ex.P7 report regarding the caste of PW.2 complainant. PW.7 Police Constable who taken the accused for medical examination. PW.8 is the relative of PW.2. PW.8 also supported the case of the prosecution. PW.9 Police Constable who apprehended the accused and produced before ACP and thereafter he has escorted the accused to the hospital for medical examination. PW.10 is the doctor who examined PW.2 victim and issued Ex.P3 medical report. PW.11 is the WPC who taken the PW.2 to the hospital for medical examination. PW.12 is the ACP who conducted further investigation and filed the charge sheet. PW.13 is the Police Inspector who registered the case in Crime No.210/2018 based on Ex.P2 complaint lodged by the complainant. She submitted that all these witnesses are supported the case of the prosecution. She argued that the oral evidence of PW.2 is corroborating with the oral evidence of PW.3, PW.4, PW.8. She submitted that the oral evidence of 9 S.C.No. 1182/2018 PW.2 is also corroborating with the evidence of doctor. PW.1 is the mahazar witness also supported the case of the prosecution. She submitted that the prosecution has proved the case against the accused beyond all reasonable doubt and the accused is liable to be convicted for the charges framed against him.
10. The learned counsel for the accused submitted that PW.2 complainant was married twice and had 3 children. One Harish is her first husband and Santhosh is her second husband. He argued that PW.2 without taking divorce from Harish married to one Santhosh. He submitted that the documents Ex.D1 to D3 which would go to show the name of the father of the children of PW.2. He submitted that as per Ex.D1 the name of father of child PW.2 is mentioned as Harish. In Ex.D2 and D3 the name of the father of the children of PW.2 is mentioned Santhosh V.G. He argued that PW.2 and PW.3 have not stated anything about the source of money which is allegedly paid to the accused. He argued that the love affairs between PW.2 and accused converted into 10 S.C.No. 1182/2018 sexual assault case. He argued that the oral evidence of PW.2 and PW.3 is very clear that it was consensual sex. He submitted that even though PW.3 knows about the accused had intimacy with PW.2 she has kept quiet. That itself pre- supposes the sex between PW.2 and accused was consensual one. He argued that there is no document on the side of the prosecution to show that PW.2 was attempted to commit suicide. The prosecution has not produced any document to show that PW.2 has paid the amount and gold to the accused. The prosecution has also not produced the document to show that PW.2 and accused had phone conversation and accused captured pictures in mobile phone or any other devise. He argued that if at all there was any such incident of forcible sexual intercourse was taken place PW.2 would have raised alarm for help. He submitted that there is abnormal delay in lodging the complaint which is not properly explained by the prosecution. He submitted that there is lot of contradictions in the oral evidence of PW.2, PW.3 to PW.4 and PW.8. He submitted that the medical evidence also not supporting the 11 S.C.No. 1182/2018 case of the prosecution. He argued that the prosecution has failed to prove the case against the accused beyond all reasonable doubt. Hence, he prays for acquittal of the accused.
11. The learned counsel for the accused relied upon following decisions: -
1) 2017(1) Karnataka Law Journal 687 in D.S. Karthik vs. State of R.T. Nagar Police Station, Bengaluru and another.
2) 2019 Crl.L.J. (NOC) 385 (Gau) in Daganta Gogoi v.
State of Assam and another.
3) 2016 SCC Online Kar 4881 in State by Bilichodu Police vs. Lokeshwarappa.
4) LAWS (KAR) 2016 6 137 High Court of Karnataka in State vs. Gopalappagouda.
5) LAWS (KAR) 2017 2 247 High Court of Karnataka in Krishna R vs. State by Lakkavalli Police Station.
6) LAWS (KAR) 2016 12 73 High Court of Karnataka in State of Karnataka vs. Narayanaswamy Abbayyappa
7) LAWS (KAR) 2014 6 53 High Court of Karnataka in Sambulingappa vs. Ninganagouda Iranagouda Hiregoudar.12
S.C.No. 1182/2018
8) LAWS (KAR) 2015 3 428 High Court of Karnataka in State vs. Sadashiva.
12. Upon hearing the following points arise for my determination:-
1) Whether the prosecution proves beyond all reasonable doubt that from the year 2013 till 17.4.2018 the accused promising that he will marry CW.1 in the false promise of marriage committed forcible sexual intercourse with CW.1 and thereby, the accused has committed an offence punishable u/s 376 of IPC?
2) Whether the prosecution proves beyond all reasonable doubt that the accused had sexual intercourse with C.W.1 in the promise of marriage and later he refused to marry her on the ground that she belongs to Scheduled Caste and thereby, the accused has committed the offence punishable u/s. 417 and 420 of IPC?
3) Whether the prosecution proves beyond all reasonable doubt that the accused the accused not being the member of 13 S.C.No. 1182/2018 Scheduled Caste or Scheduled Tribe knowing very well that CW.1 belongs to Lambani case comes under Scheduled Caste sexually assaulted CW.1 by committing sexual intercourse with CW.1 from 2013 to 17.4.2018 and on 17.4.2018 at about 12.30 PM when CW.1 requested him to marry her at that time he abused her in the name of caste and refused to marry her and thereby the accused has committed an offence punishable u/sec. 3(2)(v) of The Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act?
4) What order or sentence?
13. My findings on the above points are as follows:
Point No.1:- In the negative Point No.2:- In the negative Point No.3:- In the negative Point No.4:- As per final order for the following REASONS
14. POINT No.1 to 3:- Since these points are inter linked with each other, they are taken up together for 14 S.C.No. 1182/2018 common discussion in order to avoid repetition of facts and evidence.
In order to prove the case of the prosecution, during the process of trial, the prosecution has examined in all 13 witnesses as PW.1 to PW.13 and documents Ex.P1 to P15 are marked. During the course of cross-examination of PW.2 documents Ex.D1 to D3 are marked. P.W.1 is the spot mahazar witness. PW.2 is the complainant and victim. PW.3 is the mother of PW.2. PW.4 is the neighbour of PW.3 working in school who is circumstantial witness. PW.5 D. S. Praveen examined the accused and issued his report as per Ex.P6. PW.6 who was working as incharge Tahasildar of Yalahanka Taluk issued Ex.P7 report regarding the caste of PW.2 complainant. PW.7 Police Constable who taken the accused to the M.S. Ramaiah Hospital for medical examination. PW.8 Bala Nayak is the relative of PW.2 is the circumstantial witness. PW.9 is the Police Constable who apprehended the accused and produced him before ACP. He has also deposed about he has taken the accused to M.S. Ramaiah Hospital for medical 15 S.C.No. 1182/2018 examination. PW.10 Dr. Girishchandra Y.P., has deposed about the examination of the victim and issued report as per Ex.P3. PW.11 WPC has deposed about she has taken the victim PW.2 to M.S. Ramaiah Hospital for medical examination. PW.12 V. Dhananjaya, ACP who conducted further investigation and has filed the charge sheet against the accused. PW.13 Police Inspector registered the case in Crime No. 210/2018 based on Ex.P2 complaint lodged by PW.2.
15. P.W.1 Mohammed Ajaruddin has deposed that on 29.4.2018 the police called him near the house of PW.2. He has deposed that PW.2 has shown the place of incident in House No.148. At that time the ACP Dhananjaya has conducted panchanama in his presence and in the presence of one Shivaprasad as per Ex.P1. During the course of his cross- examination by the defence PW.1 has deposed that when he was in the friend's Aquarium & Pets Shop which is situated at the distance of 50 to 60 meter from house of PW.2 at that time the ACP called him for mahazar. He has denied the suggestion 16 S.C.No. 1182/2018 that in his presence no such mahazar as per Ex.P1 drawn by the police.
16. P.W.2 is the complainant and victim. PW.2 has deposed that she belongs to Lambani caste. Accused belongs to Gowda caste. The accused knows about her caste. On 28.2.2013 when she had been to Cyber Centre situated at 4 th Block, Nandini Layout in order to take her photo for Ration Card and at that time the accused who was taking photo came in contact with her. The accused received her phone number by stating that he will call her after photos were ready. Hence, he has given her phone number. Thereafter the accused started to call her over phone daily. She told the accused that she has already married and having 3 children and her husband left her. She has deposed that the accused assuring her that he will marry her and look after her very well. She was not believed the version of the accused. Thereafter the accused blackmailed her by saying that he would commit suicide if she did not marry him. Accused who came to her house by holding her veil to her neck threatened her that he 17 S.C.No. 1182/2018 will kill her. When her mother was going for work and she was alone in the house the accused committing sexual intercourse with her forcibly. She has deposed that the accused on the false promise of marry her since 2013 till 17.4.2018 committed forcible sexual intercourse with her by threatening her. One month prior to 17.4.2018 the accused started to move along with another lady. That on 17.4.2018 she asked the accused to marry her, then the accused refused to marry her and by stating that if she force him to marry her he will upload the sexual acts done by him with her in the social media. He abused her as you belongs to Lambani caste; if I would marry you it will lower down the prestige of family. She has deposed that prior to 17.4.2018 when the accused was in contact with her the accused by stating that he requires an amount for business he received Rs. 6 to 7 lakhs cash and 70 grams gold from her. She has deposed that she was working in Garments. After the delivery of her twin child she used to work as maid servant in the houses. She states that on 17.4.2018 as the accused abused her in the name of caste and refused to marry 18 S.C.No. 1182/2018 her unbearable torture given by the accused she consumed poison. At that time the accused taken her to Kulkarni Madizone Hospital situated at Nagapur and given treatment and after discharge from the hospital he left her to her house and thereafter the accused did not returned to her house. She has deposed that on 28.4.2018 she has lodged the complaint against the accused as per Ex.P2. ACP Dhananjaya visited to her house on 29.4.2018 and conducted mahazar as per Ex.P1 as the place of incident was shown by her. The police taken her to M.S. Ramaiah Hospital for medical examination at that time she has signed on Ex.P3 medical report. She has identified Ex.P4 photos. She has deposed that the police taken her before the Magistrate, at that time she has given her statement u/s 164 of Cr.P.C., before the Magistrate as per Ex.P5. During the course of her cross-examination by the learned counsel for the accused she has deposed that the date of birth of her child is 2.7.2009. Now that child is aged 10 years. The age of her twin child is about 8 years of age. She states that after the birth of her twins after 1 ½ years later, the 19 S.C.No. 1182/2018 accused came in contact with her. She has deposed that the accused knows that she belongs to Lambani caste when he came in contact with her. She has deposed that her husband Santhosh was with her at the time of she gave birth to first child. Her marriage with Santhosh was performed in the year 2009. She has deposed that in order to show that she was given Rs. 6 to 7 lakhs to the accused she has not produced any documents. She has deposed that her husband Santhosh living separate from her. She has deposed that she drank half of the 30 ml bottle spray in order to commit suicide. She discharged from the hospital on the same day and came to the house at 8.40 PM. She has admitted the document Ex.D1 Birth Certificate of her first daughter. She claims that in Ex.D1 the father's name is wrongly mentioned. She has deposed that her husband Santhosh's friend Kaviraj who came to the Vani Vilas Hospital told to the hospital authorities that her husband name as Harish instead of Santhosh. Hence, name of the father of her child is wrongly mentioned in Ex.D1 as Harish instead of mentioning it as Santhosh. She has 20 S.C.No. 1182/2018 admitted the document Ex.D2 and D3 Birth Certificates of her twin children. She states that the police have not seized her mobile phone. She has denied the suggestion that Harish is her first husband and Santhosh is her second husband. She has denied the suggestion that she without giving divorce to Harish married to Santhosh. She has deposed that the accused used to keep one pair or two pairs of clothes in her house. The police have not seized the clothes of the accused. She has deposed that she got written Ex.P2 through one Krithika. She has denied the suggestion that she had no such huge amount of Rs. 6 to 7 lakhs to pay the accused. She has denied the suggestion that at no point of time the accused had sexual intercourse with her in the promise of marrying her. She has denied all other suggestions made to her.
17. P.W.3 is the mother of P.W.2 has deposed that CW.6 to CW.9 are all neighbours. She and PW.2 belongs to Lambani caste. Accused belongs to Gowda caste. Accused knows about their caste. Her daughter PW.2 had 3 children. Santhosh is the husband of PW.2. Santhosh left PW.2 when PW.2 refused 21 S.C.No. 1182/2018 to got abortion of twin child. She has deposed that at about 6 years back when she and PW.2 went to take photo for ration card to the Cyber Centre, the accused came in contact with PW.2 and thereafter the accused started to call PW.2 over phone. When she was enquired about PW.2 why the accused making so much phone calls at that time she disclosed that the accused assured that he will marry her. She has deposed that accused used to come to the house of PW.2. She has warned the accused not to come to house since he is not yet married to PW.2. The accused giving threat to PW.2 saying that he would commit suicide if she did not marry him. Accused also threatened PW.2 saying that he will upload and circulate her obscene pictures captured in mobile phone in social media. Accused also received Rs.5 to 6 lakhs from PW.2. When she used to go for daily work to the temple, at that time when PW.2 was alone in the house the accused used to give torture to PW.2. The accused committed sexual intercourse with PW.2 on several times. She advised her daughter PW.2 to live separately in order to avoid the accused, then her daughter 22 S.C.No. 1182/2018 went to Goraguntepalya in order to live separately. At that time the accused in the guise of marriage again brought her from Goraguntepalya to her house and continued his illegal act of blackmailing her and sexual assault to PW.2. She has deposed that accused started to live along with another lady. That on 17.4.2018 the accused came to her house at the time of her daughter PW.2 asked the accused whether he will marry her or not. At that time accused picked up quarrel with PW.2 and abused her saying that she belongs to Lambani caste. He will not marry her. If he marries her it will lower his caste prestige. Felt insulted her daughter PW.2 consumed some poison. At that time she by holding the legs of the accused asked the accused why he has deceived the PW.2 by promising her that he will marry her and had sexual intercourse and now quarrelling with her. Then the accused pushed her. Accused taken PW.2 to the hospital and gave treatment and thereafter brought her back from the hospital and dropped to the house and went away. Thereafter the accused has not turned up. Hence, PW.2 has lodged the complaint against the accused. 23
S.C.No. 1182/2018 During the course of her cross-examination by learned counsel for the accused, she has deposed that the accused quarrelled with her daughter between 3 PM and 5 PM. She states that she along with her daughter residing in the present house since 5 years. She has admitted the suggestion that accused and her daughter knows each other even at the time when she and her daughter were residing at previous rented house. She states that she and her daughter were living in previous rented house for 7 years. She states that at the time of accused quarrelling with her daughter, she and her elder daughter Shanthibai and witness Vijayamma were present. She states that her daughter PW.2's first child born in Vanivilas Hospital. After 2 years later, twins were born. She has admitted the suggestion that PW.2 herself attempted to commit suicide for several times by slitting on her hands by her own. She has admitted the suggestion that at the beginning PW.2 and the accused were friends. She contends that the friendship between her daughter and accused turned into love affair. She has deposed that she came to know after one year from the 24 S.C.No. 1182/2018 date she went to got prepare Ration Card that the accused and her daughter loving each other. She has deposed that in her absence, that is when she visiting to her native place, at that time in the night hours, the accused used to stay in her house along with her daughter. She states that she has enquired with the caste of the accused, at that time the accused told that he belongs to Gowda caste. When question asked her whether she has enquired with the accused why he is postponing the marriage with her daughter, then she answered that once when she enquired with the accused, then he told that his mother is not feeling well. She has deposed that her daughter was given the loan amount and amount received by her at the time of death of her husband to the accused. She has not lodged any complaint to the police. She knows that there was physical relationship between her daughter PW.2 and the accused. She claims that she has given Rs.60 lakhs out of Rs.70 lakhs of retirement benefits of her husband to her daughter PW.2. She claims that the accused was giving illtreatment to her daughter PW.2 since 7 years. She has 25 S.C.No. 1182/2018 deposed that her daughter PW.2 consumed half bottle of the rat poison and pesticide in her house bathroom. She claims that as the accused did not returned to her house, after this incident of consuming the poison by PW.2, hence after 10 days later PW.2 has lodged the complaint against the accused to the police. She has deposed that the accused was arrested in her house on the date when the accused brought his mother to her house. She has denied all other suggestions made to her.
18. P.W.4 Smt. Vijayamma has deposed that accused and PW.2 were living together in the same house. Hence, she thought that they were husband and wife. At about 1 year 4 months back on 7th when she was returning from school work duty, at about 2.30 PM accused was quarrelling with PW.2 in her house. Hence, she went inside the house, at that time the accused taken PW.2 to the hospital for the reason that PW.2 has consumed the poison. On the next day when she enquired with PW.2 reason for consuming the poison, at that time she told that as the accused abused her in the name of caste as Lambani Caste and also threatened her that he will upload the 26 S.C.No. 1182/2018 videos of sexual intercourse recorded in the mobile phone hence, for that reason she was attempted to commit suicide by consuming the poison. During the course of cross-examination of PW.4 she has stated that the school work timing is between 8.30 AM and 5.30 PM. She states that when she was returning towards her house as she saw PW.3 Sonibai near the gate and heard the quarrel sound inside the house, hence, she went to the house of PW.3. On that day the school timing was half day and she returned to the house between 2.30 and 3 PM. She has deposed that at the time of this incident PW.2 and PW.3, children of PW.2, accused and friend of accused were present. Except these persons nobody were present at the time of incident. She has deposed that on the next day of this incident she enquired with PW.2 to know about the reason for consuming the poison. She has admitted the suggestion that she was not witnessed the quarrel allegedly taken between accused and PW.2. She do not know the type of poison consumed by PW.2. She has deposed that she came to know through PW.3 that PW.2 has consumed the poison used to kill 27 S.C.No. 1182/2018 cockroach. She has deposed that she was not personally seen PW.2 consuming the poison. But she has seen while PW.2 was vomiting. She states that she do not know the name of the husband of PW.2. She do not know whether the accused was staying in the house of PW.2 in the night hours. She has denied all other suggestions made by the learned counsel for the accused in her cross-examination.
19. P.W.5 being the doctor has deposed that on 30.4.2018 between 12.40 PM and 1.10 PM after obtaining the consent of the accused, he has conducted physical, local genital examination of the accused. He opined that there is nothing to suggest that the accused is incapable of performing an act like that of sexual intercourse. He has issued his report as per Ex.P6. In his cross-examination by the defence, he has admitted the suggestion that he did not find any external injuries on the body of the accused. He did not find the evidence of recent sexual intercourse.
20. P.W.6 Somanna being the incharge Tahasildar Grade- II of Yalahanka has deposed that on the basis of the report of 28 S.C.No. 1182/2018 the Revenue Inspector he has issued report Ex.P7 by stating that PW.2 is belongs to Lambani caste comes under Scheduled Caste and accused is belongs to Vokkaliga caste. During the course of his cross-examination by the defence, nothing is elicited from his mouth to discard his version and document Ex.P7.
21. PW.7 Venkanna Bhovi, Police Constable of Nandini Layout Police Station has deposed that on 30.4.2018 he has taken the accused to the M.S. Ramaiah Hospital for medical examination and submitted his report to the ACP as per Ex.P6.
22. PW.8 being the relative of PW.2 and 3 has deposed that PW.2 and 3 are belongs to Lambani caste. He was residing in front of the house of PW.2 at Nandini Layout. He states that accused used to come to the house of PW.2. Accused knowing very well that PW.2 had husband and children in the promise that he will marry PW.2 had sexual intercourse with PW.2. He has deposed that the accused received amount of Rs. 6 to 7 lakh from PW.2. He states that one day the accused quarrelled with PW.2 by saying that she 29 S.C.No. 1182/2018 belongs to Lambani caste, hence, he will not marry her. He states that the accused also threatened PW.2 saying that he will upload obscene videos in social media, hence, PW.2 consumed the poison on 8.4.2018. Thereafter the accused did not turned up. During the course of cross-examination by the learned counsel for the accused, PW.8 has deposed that he was not in the place of incident to say that PW.2 was consumed the poison. He has deposed that he was not present in the place of incident when accused was quarrelled with PW.2. He has admitted the suggestion that he was signed a typed document in the police station. He states that he knows the accused since 3 to 4 years. He has admitted the suggestion that he was not personally seen the quarrel. He has admitted the suggestion that he came to know about the quarrel through PW.2. He has admitted the suggestion that his wife was also not present at the time of quarrel taken place. He was not personally seen PW.2 giving money to the accused. He do not know how much money was received by way of death benefits after the death of husband of PW.3. He contends that his house is situated at 30 S.C.No. 1182/2018 the distance of 3 feet from the house of PW.2. He has admitted the suggestion that at no point of time he was heard any type of screaming sound in the house of PW.2. He has admitted the suggestion that since his house was situated adjacent to the house of PW.2 even small sound comes from the house of PW.2 can hear from his house. He has deposed that he has seen 4 to 5 times accused coming to the house of PW.2. He states that his wife is not doing any other work except the household works as house wife. He states that at no point of time he was questioned the accused, reason for coming to the house of PW.2. He states that at no point of time PW.2 pleaded with his wife regarding the alleged illtreatment of the accused. He do not know whether the accused used to stay in the house of PW.2. He do not know about the type of poison consumed by PW.2. He was not seen the obscene pictures in the mobile phone of the accused. He has deposed that one day PW.2 told him that the accused captured the obscene pictures of sexual intercourse in his mobile. But he has not questioned the about the same to the accused and also not advised PW.2 to 31 S.C.No. 1182/2018 lodge complaint to the police. He has deposed that now he is residing in the rented house situated at the distance of one kilo meter from the house of PW.2. He has denied all other suggestions made to him.
23. PW.9 Shivakumar K.M., Police Constable of Nandini Layout Police Station has deposed that on 30.4.2018, ACP deputed him and PC No. 11655 to trace out and produce the accused before him, hence they after contacting the informant arrested the accused near the Parvathanjaneya Temple of Sakamma Layout of Nandini Layout and produced the accused before ACP. He has also deposed that he has taken the accused to M.S. Ramaiah Hospital for medical examination. In his cross-examination by the defence he has denied all the suggestions made to him.
24. PW.10 Dr. Girishchandra Y.P., of M.S. Ramaiah Hospital has deposed that on 29.4.2018 victim/PW.2 was brought before him through WPC No.14270 and WPC No.17223 in order to examine her and to find out the evidence of sexual intercourse. He has deposed that the victim has 32 S.C.No. 1182/2018 given before him the history that she had last sexual contact with accused on 19.4.2018. The victim has stated that she had undergone sterilization 6 years back. She had a child of 7 years from her previous marriage. He has deposed that on genital examination, hymen showed old tears. He has given his opinion regarding the sexual intercourse as "There is no evidence of recent sexual intercourse". He states that no external injuries found on the body of the victim. He has issued examination report as per Ex.P3. During the course of his cross-examination by the defence, he has admitted the suggestion that no external injuries were found over the private part of the victim. He states that hymen tears could have happened at the first sexual intercourse. He states that the victim stated before him that her last sexual intercourse with the accused was on 19.4.2018. He has deposed that he cannot say whether there was forcible sexual intercourse.
25. PW.11 Smt. Mallamma WPC has deposed that on 29.4.2018 as per the order of ACP she along with WPC No. 17223 taken PW.2 to the M.S. Ramaiah Hospital for medical 33 S.C.No. 1182/2018 examination. She has signed on Ex.P3 medical report and also submitted her report to ACP as per Ex.P9. During the course of her cross-examination by the learned counsel for the accused, she has denied all the suggestions made to her.
26. PW.12 V. Dhananjaya, ACP is the Investigation Officer in this case has deposed that on 29.4.2018 he has took up the case file from CW.22 P.I., for further investigation. He has received Ex.P10 DCP Order. He has visited to the house No. 148 of PW.2 and conducted the panchanama as per Ex.P1 in the presence of panchas Mohammed Ajaruddin and Shiva Prasad. He has sent PW.2 to the M.S. Ramaiah Hospital for medical examination. He has recorded the statements of CW.4, CW.5, CW.7, CW.8, CW.9, CW.10. On 30.4.2018, he has received Ex.P3 medical report. On the same day, he arrested the accused at 10 AM as the accused was produced before him through CW.20 and CW.21. He sent the accused to the M.S. Ramaiah Hospital with proper escort for medical examination. He has sent PW.1 victim to the court in order to record statement u/s 164 of Cr.P.C. He has recorded the statements 34 S.C.No. 1182/2018 of CW.6, CW.11, CW.20, CW.19. He has received Ex.P12 copy of 164 statement of PW.2, Ex.P6 medical report of accused. Ex.P7 the report of Tahasildar regarding the caste of accused and complainant. On 20.6.2018, he has received Ex.P14 property extract of the house of PW.2 from the Revenue Officer. He has deposed that on 29.4.2018, he has recorded the further statement of PW.2, at that time PW.2 produced Ex.P4 photo. He has deposed that on completion of investigation he has filed the charge sheet against the accused. During the course of his cross-examination by the learned counsel for the accused he has deposed that along with Ex.P4 photo, the complainant has not given CD or negative. He has deposed that he did not collected the records of Kulkarni Medzone Hospital. He has not investigated about which type of poison was consumed by PW.2. He has deposed that he has not seized the mobile phone of the accused to say that there was obscene pictures. He has deposed that when he was checked the mobile phone of the accused, he was not found any obscene pictures and videos in that mobile phone. He states that he has not collected the 35 S.C.No. 1182/2018 mobile phone call details from the service provider. He has not seized any articles belongs to the accused in the house of PW.2. He has not conducted any investigation about how much gold was given by PW.2 to the accused. He has deposed that PW.2 complainant has given the amount to the accused in cash. He has denied all other suggestions made to him.
27. PW.13 Kantharaju H.M. Police Inspector has deposed that on 28.4.2018 at 7.15 PM based on Ex.P2 complaint lodged by PW.2 he registered the case in Crime No.210/2018 and sent Ex.P15 FIR to the court. During the course of his cross- examination by the learned counsel for the accused PW.13 has deposed that he was not enquired with PW.2 regarding the reason for delay in lodging the complaint. He states that PW.2 at the time of lodging the complaint as per Ex.P2 has not produced the mobile phone and any other documents.
28. Based on the above evidence it is to be examined if the prosecution is successful in bringing home the guilt of accused beyond all reasonable doubt.
36
S.C.No. 1182/2018
29. In this case, there is no much dispute regarding the caste of P.W.2 and the accused. PW.2 has deposed that she is belongs to Lambani caste and accused is belongs to Gowda caste. PW.3 is the mother of PW.1 has also deposed that she and her daughter PW.2 are belongs to Lambani caste and accused is belongs to Gowda caste. PW.4 and PW.8 have also deposed about the caste of PW.2 and 3 by stating that they are belongs to Lambani caste. The oral evidence of PW.2, P.W.3 regarding their caste is not tested in their cross-examination. The oral evidence of PW.4 and PW.8 who deposed regarding caste of PW.2 and PW.3 are not tested in their cross- examination. PW.6 who was working as Incharge Tahasildar is the best witness to say about the caste has issued Ex.P7 report stating that PW.2 is belongs to Lambani caste comes under Scheduled Caste and accused is belongs to Vokkaliga caste. The oral evidence of PW.2, PW.3, PW.4, PW.8 coupled with the oral evidence of PW.6 and document Ex.P7 is sufficient to hold that PW.2 and PW.3 are belongs to Lambani caste comes under the Scheduled Caste and the accused belongs to Vokkaliga 37 S.C.No. 1182/2018 caste which does not comes under Scheduled Caste or Scheduled Tribe. Thus, the prosecution has proved that PW.2 is belongs to Scheduled Caste and accused do not belongs to Scheduled Caste or Scheduled Tribe.
30. In this case, PW.2 is the complainant, PW.3 mother of PW.2, PW.4 neighbour of PW.2 and 3 and PW.8 who is the relative of PW.2 and 3 are all supported the case of the prosecution. The argument of the learned counsel for the accused is that PW.2 is a lady who married twice and had 3 children and undergone sterilization falsely contending that accused in the promise of marriage had sexual intercourse with her. The learned counsel for the accused argued that there was a love affair between PW.2 and the accused. Due to vengeance PW.2 converted love affairs into sexual assault by falsely contending that the accused in the promise of marriage and by giving threat to her had sexual intercourse with her from the year 2013 to 2018 for 5 years. He argued that there was abnormal delay in lodging the complaint which is not properly explained by the prosecution. He submitted that 38 S.C.No. 1182/2018 there is no cogent evidence on the side of the prosecution to show that the accused has committed the offences charged against him. On the other hand, the learned Special Public Prosecutor submitted that PW.2 is the victim, PW.3 is the mother of PW.2. P.W.4 is the neighbour of PW.2. PW.8 is the relative of PW.2 have supported the case of prosecution and thereby the prosecution has established the charges framed against the accused.
31. Prior to proceed further it is necessary to note some of the undisputed facts in this case. It is undisputed fact that PW.2 is married lady. It is undisputed fact that PW.2 has 3 children. It is undisputed fact that PW.2 had undergone family planning by sterilization. It is undisputed fact that PW.3 mother of PW.2 and children of PW.2 were all residing together in the same house. It is the version of PW.2 is that the accused has continuously committed sexual intercourse with her from 2013 till 17.4.2018.
32. It is important to note to extract some portion of the deposition of PW.2 given in her cross-examination. In page 39 S.C.No. 1182/2018 No.8 of her cross-examination she has deposed that at present she is residing in House No.148, her previous address is House No.25/45. She has deposed that her children were born in Vanivilas Hospital while she was residing in House No. 25/45. She has deposed that the accused knows about caste as Lambani caste at very inception when they acquainted with each other. In page No.10 of her cross-examination she has deposed that after the birth of her twins, she undergone Tubectamy operation as family planning. According to her, her husband Santhosh was along with her when she delivered her first child. In page No. 10, she has deposed that her marriage with Santhosh was performed in the year 2009 but in her cross-examination at page No.18 she has deposed that her marriage was performed in the month of August 2008. But fact remains that she was married with Santhosh in the year 2008 or 2009. She has admitted the documents Ex.D1 to D3 the Birth Certificates of her children. In her cross-examination at page No.19, she has deposed that the accused used to come to her house for 6 years. When question asked her whether 40 S.C.No. 1182/2018 the accused was staying in night hours, she answered that whenever her mother was used to go to her native place then the accused used to stay in her house in the night also. She has deposed that accused also taking bath in her house and also eating food in her house. When question asked her whether the accused has kept his regular wearing clothes in her house, she answered that the accused used to keep one or two pairs of his clothes in her house and till today his clothes are there in her house. In page No.6 of her cross-examination when question asked by the learned counsel for the accused to her that whether the accused committed rape on her continuously for 5 years, then she answered that accused forcibly committed rape on her for 2 years and thereafter as the accused assured her that he will marry her hence, believing the version of the accused, she had sexual intercourse with the accused. She has admitted the suggestion that she knows the fact that without giving divorce to her husband, the marriage with any other person is not possible. She contends that the accused assured her that at the time of marriage he would see 41 S.C.No. 1182/2018 that she will divorce to her husband. In page No.28 of her cross-examination she has deposed that she had not made any effort to give divorce to her husband Santhosh. The reason for that is she intends to join with her husband Santhosh.
33. On perusal of the oral evidence of PW.2 at one stretch PW.2 has deposed that as the accused assured that he will marry her, hence by believing the same, she had sexual intercourse with him for 3 years, and in another stretch PW.2 deposed that she has not given divorce to her husband Santhosh because she intends to join him. Admittedly, PW.2 married to Santhosh long back in the year 2008. The document Ex.P1 is the Birth Certificate of the first child of PW.2 wherein the date of birth of the child is mentioned as 2.7.2009. The address of the parents of the child is mentioned as 25/45, 12th Cross Road, Nandini Layout, 4th Block, Bengaluru. Ex.D2 and Ex.D3 are the Birth Certificates of twins children of PW.2 wherein the date of birth of these two children mentioned as 4.9.2011 and the address of the parents at the time of birth of child is mentioned as No.25/45, 12 th 42 S.C.No. 1182/2018 Main, 4th Block, Nandini Layout, Benglauru. Ex.D1 to Ex.D3 are all got marked through PW.2 in her cross-examination as she has admitted these 3 documents. PW.2 and PW.3 have deposed that PW.2 and accused known each other at the time when PW.2 was residing in House No. 25/45. It is undisputed fact that as on the date of lodging the complaint as per Ex.P2, PW.2 and PW.3 were residing in House No. 148, situated at Nandini Layout, IV Block, 10th Main. In Ex.P2 complaint, it is mentioned that the complainant is residing in the House No.148 since 4 years. PW.2 in her cross-examination has deposed that when she was met the accused at the first time she was residing in House No.25/45. She states that she was residing in the House No.25/45 during the year 2012-13. According to PW.2 she was met with the accused for the first time in the year 2013 when she had been to take the photos for Ration Card to the Cyber Centre wherein accused was working as Photographer. It is the case of the prosecution is that accused who has taken the phone number of PW.2 started to talk with her over the phone and developed the friendship with 43 S.C.No. 1182/2018 her and thereafter he by threatening her that he will commit suicide if she does not co-operate for sexual intercourse and by giving threat to her he had sexual intercourse with her and thereafter the accused continued to have sexual intercourse with her till 17.4.2018. It is pertinent to note that neither PW.2 nor PW.3 have deposed regarding on which date the accused came to their house for the first time and threatened PW.2 to have sexual intercourse with him. PW.3 in her cross- examination has deposed that she came to know that her daughter PW.2 and the accused loving each other only after one year from the date when they met each other in the cyber centre. According to PW.3, accused and PW.2 used to talk each other over phone and thereafter they started to love each other. During the course of the cross-examination of PW.3 she has deposed as follows: -
"ನಮಮ ಮಗಳನ ಚಸ 1 ಮತನ ಆರಗದಪ ಸಸದಹತರನ ಎಸದರ ಸಕ ಅವರನ ಮದಲನ ಸಸದಹತರದದರನ, ನಸತರ ಸಸದಹವದ ಪಪದತಗ ತರನಗತನ ಎನನ ಸ ತತರ. ಆರಗದಪ ಮತನತ ನಮಮ ಮಗಳನ ಪಪದತ ಮಡನವ ವಚರ ನಮಗ ಯವಗ ಗಗತತಯತನ ಎಸದರ ಸಕ ನನಗ ತಸಗಳನ ಮತನತ ಸ ಹದಳಲನ ಆಗನವದಲಲ ಎನನ ಇಸವಯನನ ಸ ತತರ. ದ 17.4.2018 ಕಕಸತ ಹಸದ ಎಷನ ಷ ವಷರಗಳ 44 S.C.No. 1182/2018 ಹಸದ ನಮಗ ನಮಮ ಮಗಳಗಗ, ಆರಗದಪಗಗ ಪಪದತ ಇತನತ ಎಸದನ ನಮಗ ಯವಗ ಗಗತತಯತನ ಎಸದರ ಸಕ ರದಷನ ಕರರ ಮಡಸಲನ ಹಗದದಗ ಆರಗದಪಯ ಪರಚಯವದ 1 ವಷರದ ನಸತರ ಅವರಬಬರಗ ಪಪದತಸನತತದರ ಎಸದನ ಗಗತತಯತನ ಸ ತತರ.
ಎನನ ನನಸ ಮಗಳಗ ವವಹ ವಚಚದದನ ಆಗರನವದಲಲ. ನಮಮ ಮಗಳಗ ನದವ 1 ನದ ಮದನವ ಡಸವರರ ಆಗದದ ಮದನವ ಆಗಬರದನ ಎಸದನ ಬನದದ ವದ ಹದಳದರ ಎಸದರ ಸಕ ನನಸ ಮಗಳಗ ಬನದದವದ ಹದಳದನನ."
34. In page No.19 of cross-examination of PW.2, she has deposed that "ಆರಗದಪಯನ ನನಸ ವಡಯವನನ ಸ ಆತನ ಮಬಸಲ ಪದನನಲ ತಗದರನತತನ ಎಸದನ ನನನ ನನಸ ತಯಯಗಲದ, ಅಕಕಳಗಗಲದ ಹದಳರಲಲಲ. ನದವ ನಪ 2 ದಗರನಲ ಆರಗದಪ ನಮಮ ಜಗತ ಗನಟಷಗ ಸಸಸರ ಮಡನತತದದನನ ಎಸದನ ಹದಳದರ ಎಸದರ ಸಕ ಗನಟಷಗ ಸಸಸರ ಮಡನತತದದನಸದನ ಹದಳಲಲ, ಆರಗದಪ ನನಸ ಜಗತ 6 ವಷರನನಸ ಮನಗ ಬಸದನ ಹಗದಗನತತದದನನ ಎಸದನ ಹದಳದನ, ಆರಗದಪಯನ ನಮಮ ಮನಯಲ ರತಪ ಇರನತತದದನ ಎಸದರ ಸಕ ನನಸ ತಯ ಊರನಲ ಇಲಲದದ ಇರನವ ಸಮಯದಲ ಆರಗದಪ ನಮಮ ಮನಯಲಯದ ಇರನತತದದನನ ಎನನ ಸ ತತರ. ಆರಗದಪ ನಮಮ ಮನಯಲ ಊಟ ಮಡನವದನ, ಸನಸ ಮಡನವದನ ಮಡದರಯ ಎಸದರ ಸಕ ಊಟ ಮಡನವದನ, ಸನಸ ಮಡನವದನ ಮಡದರಯ ಎಸದರ ಸಕ ಊಟ ಮಡದರ ಮತನತ ಸನಸ ಮಡದರ. ಆರಗದಪ ನಮಮ ಸ ಇಡನತತದದನ ಎಸದರ ಸಕ ಒಸದನ ಜಗತ ಅಥವ ಎರಡನ ಜಗತ ಮನಯಲ ಬಟಷ ಬರಗಳನನ ಬಟಷಗಳನನ ಸ ನಮಮ ಮನಯಲ ಇಡನತತದದನನ ಎನನ ಸ ತತರ. ಆರಗದಪಗ ಸದರದ ಬಟಷಗಳನನ ಸ ಸ ಜಪತ ಮಡಲಲ, ಪಲದಸರನ ಜಪತ ಮಡದರಯ ಎಸದರ ಸಕ ಪಲದಸರನ ಆ ಬಟಷಗಳನನ ಆದರ ಆತನ ಬಟಷಗಳನ ನಮ ಸ ತತರ.
ಮ ಮನಯಲದ ಎನನ 45 S.C.No. 1182/2018
35. In page No.21 of cross-examination of PW.2, she has deposed as"ನನನ ವಷ ಕನಡದಗ ಗಸಗಣಣ ಬಸದರಗದ ಅಥವ ಸರವಣ ನಮಮ ಮನಯ ಹತತರ ಬಸದದದರಗದ ಎಸದನ ನನಗ ಹದಳಲನ ಆಗನವದಲಲ. ಈ ಎಲ ಲ ಸಕದರರನ ಆರಗದಪ ನಮಮ ಮನಗ ಬರನತತರನವಗ ಆರಗದಪ ನನಸ ಗಸಡ ಎಸದನ ಎಲಲರಗ ತಳದನಕಗಸಡದದರನ. ಗಲಟಯದ ದನ ಸಕದರಗಗ ಆರಗದಪ ನಮಮ ಸಸದಹತ ಎಸದನ ಗಗತತಯತನ ಎಸದನ ಸಕ ಸಸದಹತ ಎಸದನ ಗಗತತಗಲಲ ಆದರ ಆ ಸಕದರರನ ನನನ ಆರಗದಪಯನನ ಸ ಇಟನ ಷ ಕಗಸಡವಳನ ಎಸದನ ಹದಳನತತದದರನ ಎನನ ಸ ತರ."
36. In page No.26 of cross-examination of PW.2, she has deposed as "2013 ರಸದ 2018 ಇಸವಯವರಗ ಆರಗಪ ನಮಗ ಎಷನ ಷ ಬರ ಅತತಚರ ಮಡದರ ಎಸದರ ಸಕ ಎಷನ ಷ ಬರ ಅತತಚರ ಮಡದರ ಎಸದನ ಹದಳಲನ ಆಗನವದಲಲ ಎನನ ಸ ತತರ. ಆರಗದಪ ನಮಗ 5 ವಷರ ನರಸತರವಗ ಅತತಚರ ಮಡದರ ಎಸದರ ಸಕ ಆರಗದಪ 2 ವಷರ ನನಗ ಬಲವಸತವಗ ಅತತಚರ ಮಡದದನನ, ನಸತರ ಆರಗದಪ ನನಸನಸದ ಮದನವಯಗನತತದನ ಎಸದನ ಹದಳದ ಕರಣ ನನನ ಆರಗದಪ ಸ ತತರ.
ಮದನವಯಗನತತನ ಎಸದ ನಸಬ ದಸಹಕ ಸಸಬಸಧ ಮಡದನನ ಎನನ ನಮಮ ಗಸಡ ಸಸತಗದಷ ಜಗತ ಡಡವರರರ ಆಗದದ ಬದರಯವರ ಜಗತ ಮದನಮಯಗನವದಲಲ ಎಸದನ ನಮಗ ಗಗತತತನತ ಎಸದರ ಸಕ ಗಗತತತನತ ಎನನ ಸ ತತರ. ಸಕ ಮನಸದನವರದನ ನನಸನನ ಸ ಮದನವ ಮಡಕಗಳನ ಳ ವ ಕಲಕಕ ನನಸ ಗಸಡನಗ ನನದ ಡಸವರರ ಸ ತತರ."
ಕಗಡಸನತತದನ ಎಸದನ ಹದಳದನನ ಎನನ
37. In page No.28 of cross-examination of PW.2, she has deposed as "ನನನ ನನಸ ಗಸಡ ಸಸತಗದಷದಸದ ವವಹ ವಚಚದದನ ಮಡನವ ಪಪಯತಸ 46 S.C.No. 1182/2018 ಮಡರನವದಲಲ. ಅದಕಕ ಏನದರಗ ಕರಣ ಇದಯ ಎಸದರ ಸಕ ನನನ ನನಸ ಗಸಡನ ಜಗತ ಹಗದಗಬದಕನ ಎಸದದನ."
38. On perusal of deposition of PW.2, it is very clear that she knows that without getting divorce from her husband Santhosh, she cannot marry with any other person including the accused. PW.3 mother of PW.2 has also admitted the suggestion that she was advised her daughter that without giving divorce to her husband she cannot marry again. PW.2 has admitted the subsistence of her marriage with Santhosh. In this case, the accused has taken defence that PW.2 not only married to one Santhosh but also married to one H.V. Harish. The learned counsel for the accused while addressing the argument submitted that in Ex.D1 Birth Certificate of the child of PW.2, the father's name is mentioned as Harish, but in Ex.D2 and D3 remaining two children Birth Certificate, the father's name is mentioned as Santhosh V.G. PW.2 in her cross-examination admitted the suggestion that she had Tatto in her right hand as H.V. But she has clarified it as the said Tato of H.V. means that 'H' indicates her friends name Hema 47 S.C.No. 1182/2018 and 'V' indicates her name. It is the argument of the learned counsel for the accused is that the Tatto 'H.V.' means 'H' indicates Harish 'V' indicates the name of PW.2. Except Ex.D1, Birth Certificate of child, the accused has not produced any other document to show Harish is related to PW.2. PW.2 has made it clarified that at the time of delivery of her first child as one Kaviraj, the friend of her husband Santhosh who was present in the hospital given the name of her husband as Harish to the hospital authorities, hence her husband name in Ex.D1 is wrongly mentioned as 'Harish'. Whether Harish is husband of PW.2 or not is no much relevant to this case. But fact remains that PW.2 married to one Santhosh and she had three children out of her marriage wedlock. After birth of her twin children she undergone sterilization for family planning. On perusal of the document Ex.D2 and D3 Birth Certificate of her child, it would go to show that the twins were born on 4.9.2011. According to PW.2 soon after her 2 nd delivery i.e., after the birth of her twin children, she undergone Tubectamy operation for Family Planning. According to P.W.2, she was 48 S.C.No. 1182/2018 undergone operation of Tubectomy for family planning in the year 2011 itself that is even prior to she came in contact with the accused. Now the question is whether the physical contact between PW.2 and the accused comes within the definition of rape or it was consensual sexual act to be decided by the court. It is necessary to refer the some of the decisions of Hon'ble High Court and Hon'ble Supreme Court.
39. The learned counsel for the accused relied upon the decision reported in 2017 (1) Karnataka Law Journal 687 D.S. Karthik vs. State by R.T. Nagar Police and another wherein it is held that:
"(A) Penal Code, 1860 - Sections 376 and 417 -
Promises of marriage - Failure to fulfil a promise - A love affair, where a man promises to marry a woman and even has a physical relationship with her and if subsequently the marriage does not come through it cannot be said that an offence either under Section 376 or under Section 417 of IPC is made out. In such a case, the liability could only be under civil law for damages - Mere failure to fulfil a promise on a subsequent date on account of various factors of circumstances do not amount to an act of cheating.
49
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40. The Hon'ble Supreme Court in the decision reported in AIR 2019 Supreme Court 157 in para-12 observed that if it established and proved that from the inception, the accused who gave the promise to prosecutrix to marry, did not have any intention to marry and the prosexutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such consent can be said to be consent obtained on a misconception of fact as per Section 90 of IPC and in such a case, such consent would not excuse the offender and such an offender can be said to have been committed rape as defined u/s 375 of IPC.
41. The Hon'ble High Court in the case of Kumaresh Chikkappa Bagodi vs. State by Kalagatagi Police reported in 2002 (3) Karnataka Law Journal 609 while setting aside the conviction of the appellant therein has held that when once a fully grown up girl above age of 16 years submits herself to the accused on his promise of marriage and continues to indulge in such activity for over a period of one year till she conceives such voluntary consenting act of prosecutrix cannot 50 S.C.No. 1182/2018 fasten criminal liability on the accused as it would only amount to breach of promise to marry.
42. The Hon'ble High Court of Karnataka in the decision reported in 2013 ILR (Karnataka) 2537 in Anjinappa vs. State of Karnataka Halavagalu Police Station, Davanagere held regarding the difference between consensual sex and rape.
43. In the decision reported in 2005 AIR (SC) 203 in Dilip Singh vs. Dilip Kumar vs. State of Bihar , in the judgment of the Hon'ble Supreme Court Head Note 'A' & 'B' reads as follows: -
"A. Indian Penal Code, Section 375 Clause secondly and Section 376 - Accused committed rape on prosecutrix by promise to marry - Promise was genuine, but marriage did not materialise due to family pressure - Accused not guilty of rape, but only of breach of promise.
B. Indian Penal Code, Section 375 Clause secondly - Accused made a genuine promise to marry and committed intercourse with consent of prosecutrix - Accused could not marry due to family pressure - Accused not guilty of rape - It is breach of promise and not a case of false promise
- Accused would be guilty of offence of rape if from very inception he had fraudulent intention."51
S.C.No. 1182/2018
44. In the decision reported in 2016 (1) JT 141 in Thilakraj vs. State of Himachalpradesh Head Note A to C reads as follows: -
A. Indian Penal Code, 1860 Section 376 Acquittal in rape case - Prosecution version that accused committed sexual intercourse with prosecutrix on false promise to marry her - Testimony of prosecutrix not believed -
1. Accused was aged 30 years and prosecutrix aged 40 years - They were in relationship for two years prior to incident - Accused used to stay overnight at her residence -
2. The evidence as a whole including FIR, testimony of prosecutrix and MLC report prepared by medical practitioner clearly indicates that the story of prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable.
B. Indian Penal Code, 1860 Sections 420. 415 For conviction of accused for the defence of cheating all the necessary ingredients constituting an offence under the Section 415, IPC must be proved beyond reasonable doubt.
C. Indian Penal Code, 1860 Sections 415, 417 and 420 Cheating - Ingredients of offence of cheating reiterated -
1. (i) there should be fraudulent or dishonest inducement of a person by deceiving him -
(ii) (a) the person so deceived should be induced to deliver any property to any person, or to 52 S.C.No. 1182/2018 consent that any person shall retain any property, or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived, and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property -
45. Applying the principles of above referred decisions to the present case, it is come in the evidence of PW.2 is that accused continuously came to her house for 5 years and physical relationship with her. It is the contention of PW.2 is that accused assured that he will marry her. Admittedly, PW.2 is married lady having 3 children and also undergone Tubectamy family planning. It has come in her evidence that she knows that without giving divorce to her husband Santhosh, the marriage with the accused is not possible. PW.2 has deposed that all her neighbours and the friends knows about the love affairs between her and accused. She states that the friends of the accused saying before her as accused kept her as mistress. PW.4 in her examination-in-chief has 53 S.C.No. 1182/2018 deposed that she thought that accused and PW.2 are husband and wife as PW.2 and accused living together. PW.3 mother of PW.2 has deposed that her daughter PW.2 and accused used to talk over phone regularly and on enquiry PW.2 told her that as a friend she was talking with the accused over phone. PW.3 has deposed that only when she was asked PW.2 why she was talking so much with the accused over phone, then PW.2 told her that accused loving her and promised her that he will marry her. PW.3 has deposed that she came to know that PW.2 and accused loving each other only after one year from the date when PW.1 first met to the accused in the Cyber Centre. The said version of PW.3 itself go to show that at the beginning when PW.2 started to talk with the accused she was not disclosed to her mother about the love affairs with the accused. No doubt, it is come in the evidence of PW.2 and PW.3 that accused used to come to their house. PW.2 and 3 have deposed that the accused used to stay in their house in the night hour also when PW.3 was out of station. The very version of PW.3 and PW.4 is that the accused used to come to 54 S.C.No. 1182/2018 their house and continuously had physical relationship with PW.2 indicates that it was consensual in nature.
46. It is the contention of the PW.2 is that accused used to give threat to her saying that he will commit suicide if she did not co-operate for sexual act. PW.2 has deposed that the accused in the promise of marrying her had sexual intercourse with her. When PW.2 herself knows that without giving divorce to her husband, it is not possible to marry the accused under such circumstances, the contention of PW.2 is that in the promise of marriage accused had physical relationship with her is not acceptable. PW.2 has deposed that she was not made any efforts to give divorce to her husband Santhosh. PW.2 knowing very well that she is married women and her marriage with Santhosh is still subsisting and despite of that she and accused had love affairs which does not fall under Section 90 of IPC. Since PW.2 herself knows that without giving divorce to her husband, her marriage with the accused is not possible, under such circumstances her physical relationship with the accused does not amounts to misconception of fact. PW.2 has 55 S.C.No. 1182/2018 not stated anything about the dates of first sexual intercourse. PW.2 has not stated the date, time and place, when, where and on which date the accused has given threat to her saying that he will commit suicide if she does not marry her. PW.2 in her examination-in-chief simply stated that the accused from the year 2013 till 17.4.2018 continuously committed rape on her by giving threat to her. In her cross-examination she has deposed that she cannot say the dates of the incident. In her cross-examination PW.2 has deposed that out of 5 years duration, accused forcibly committed sexual intercourse with her for 2 years and thereafter for 3 years accused promising her that he will marry her had sexual intercourse with her. In Ex.P2 complaint, there is no such averments that the accused forcibly committed sexual intercourse with her for 2 years and thereafter for 3 years he had sexual intercourse with her in the promise of marriage. In any sexual assault cases, the first date of incident is very much relevant to ascertain whether it was amounts to rape or consensual sex. In the present case, PW.2 has not deposed anything about the date, when the first 56 S.C.No. 1182/2018 incident of sexual assault was occurred. She has made general allegations by stating that from the year 2013 till 17.4.2018, the accused had committed rape on her.
47. The oral evidence of PW.2 is not supported by the medical evidence. PW.10 Doctor who has deposed about the examination of PW.2 has deposed that PW.2 has given before him history that she had last sexual contact with the accused on 19.4.2018. He has deposed that PW.2 has stated that she has undergone sterilization 6 years back. P.W.10 has opined that there is no evidence of recent sexual intercourse. PW.10 has deposed that hymen of PW.2 showed old tears. In his cross-examination by the defence, PW.10 has deposed that the hymen tears could have happened at the first sexual intercourse. Admittedly, PW.2 is married lady and delivered 3 children. She knows about the sexual intercourse as she is already married and had children through her husband. According to PW.10 hymen tears could have happened at first sexual intercourse. PW.10 doctor has clearly deposed that PW.2 stated before him that her last sexual intercourse with 57 S.C.No. 1182/2018 the accused was on 19.4.2018. It is pertinent to note that according to PW.2 prosecutrix and her mother PW.3 accused did not turned up after 17.4.2018, after he went from their house, by quarrelling. But quite contrary to the case of the prosecution, PW.10 doctor has deposed that PW.2 stated before him that her last intercourse with the accused was on 19.4.2018. The oral evidence of PW.2 is not corroborating with the oral evidence of PW.10 doctor with regarding to alleged sexual intercourse. More than that PW.10 doctor has opined that there is no evidence of recent sexual intercourse. The medical evidence is not supporting the case of the prosecution.
48. PW.3 is the mother of PW.1 is interested witness. PW.4 has not deposed anything about the sexual assault except by saying that as the accused and PW.2 living together she thought that they are husband and wife. PW.8 even though in his examination-in-chief has deposed that the accused in the promise of marriage had sexual intercourse with PW.2, but in his cross-examination he has admitted the suggestion he has not witnessed any incident of quarrel 58 S.C.No. 1182/2018 between accused and PW.2 in the house of PW.2. According to PW.8, his house is situated 3 feet away from the house of PW.2. PW.8 has admitted the suggestion that even small sound in the house of PW.2 can hear from his house. In his cross- examination, PW.8 has deposed that at no point of time, he heard the screaming sound, shouting sound in the house of PW.2. On perusal of the oral evidence of PW.8, it is in the nature of hear say evidence.
49. PW.2 has deposed that accused quarrel with her on 17.4.2018 and when she insisted him to marry her, then the accused threatened her by saying that he will upload the obscene videos in the social media. In the present case, the prosecution has not produced any document such as CDR of phone calls, whattsApp messages and also not produced the mobile phones. PW.2 in her cross-examination has deposed that the accused has sent the obscene pictures to her mobile also. When the question asked her whether she was produced mobile phone before the police, then she answered that as her mobile phone was turned into pieces, she could not produce 59 S.C.No. 1182/2018 the mobile phone before the police. PW.12 Investigation Officer in his cross-examination has deposed that he was checked the mobile phone of the accused but he did not find any obscene pictures in that mobile phone. PW.12 has deposed that he has not made any efforts to collect the CDR of the mobile phone of the accused and complainant from the service provider. PW.12 has deposed that he has not seized any material objects in this case. The oral evidence of PW.2 is not supported by any documentary evidence to show that the accused had taken the pictures or videographed the obscene pictures in his mobile phone. PW.2 has not deposed anything about the date, time and place of such recording. She has not deposed anything about when the accused has taken the obscene pictures. In the absence of any cogent evidence on the side of the prosecution to show that accused has taken obscene pictures of PW.2, it cannot be held that accused has threatened PW.2 that he will upload the obscene videos to the social media. On perusal of the oral evidence of PW.2, PW.3, PW.4 and PW.8 60 S.C.No. 1182/2018 would go to show that the physical contact between PW.2 and accused is consensual in nature.
50. The Hon'ble Supreme Court in the case of K.P. Thimmappa Gowda vs. State of Karnataka reported in (2011)14 SCC 475 while setting aside the conviction awarded by our Hon'ble High Court has held as under: -
"12. In Criminal Cases the rule is that the accused is entitled to the benefit of doubt if the court is of the opinion that on the evidence two views are reasonably possible, one that the appellant is guilty and the other that he is innocent, then the benefit of doubt goes in favour of the accused.
13. In the present case, the facts are that Rathnamma herself stated in her evidence that she had sex with the appellant on several occasions. It is also an admitted fact that the FIR against the appellant was lodged just a few days before the birth of Rathnamma's child which means there is delay of over 8 months in lodging the FIR. The finding of the trial court which has not been disturbed by the High Court is that Rathnamma was about 18 years of age at the relevant time. On these facts, a view is reasonably possible that Rathnamma had sex with the appellant with her consent and hence there was no offence u/s 376 IPC because sex with a woman above 16 years of age with her consent is not rape."61
S.C.No. 1182/2018
51. In the present case, on perusal of the oral evidence of PW.2 it would go to show that the physical relationship with her and accused was consensual in nature. PW.3 mother of the accused who knows about the love affair between PW.2 and accused also not made any effort to lodge complaint against the accused if there was any forceful act or threat given by the accused.
52. According to PW.2, the last incident was occurred on 17.4.2018 but she has lodged the complaint as per Ex.P2 on 28.4.2018. The reason for delay in lodging the complaint is not properly explained by the prosecution. PW.2 has deposed that after she coming to know that accused started to move with another lady, she has lodged this complaint. According to PW.2 the reason for lodging the complaint against the accused is that he started to move along with another lady. PW.3 has deposed that after the accused who dropped PW.2 from the hospital to the house, he did not turned up for 10 days, hence, her daughter lodged complaint. If at all the accused gave threat to PW.2 and had sexual intercourse with her, what 62 S.C.No. 1182/2018 prevented her to lodge the complaint immediately after the first incident is not explained by PW.2. Even after the alleged last incident dated 17.4.2018 also PW.2 has not lodged complaint immediately. There is delay of 10 days in lodging the complaint from the date of last alleged incident. PW.13 Police Inspector who deposed about receiving Ex.P2 and registering case in his cross-examination stated that PW.2 complainant has not stated anything about the reason for delay in lodging the complaint. Hence, the delay in lodging the complaint is also fatal to the case of the prosecution. There is no cogent evidence on the side of the prosecution to show that the accused has committed the offences punishable u/s 376, 417 of IPC.
53. With regarding to Sec. 420 of IPC., it is the evidence of PW.2 is that the accused received Rs.6 to 7 lakhs from her and received 70 gram gold and deceived her. PW.2 in her cross-examination has deposed that she has not produced any document to show she was given Rs. 6 to 7 lakhs amount to the accused. She has deposed that after the death of her 63 S.C.No. 1182/2018 father her mother received Rs.1,60,000/- as death benefits, out of which her mother has given her and her brother Rs.47,000/- each. She has deposed that she has paid the amount to the accused out of the amount she received from her mother, out of her own earning and the money which was received from others. In this case, the prosecution has not produced any documents to show that PW.2 had such an huge amount of Rs.6 to 7 lakhs in order to give the same to the accused. The prosecution has not produced the account extract of PW.2 and PW.3 and also not produced any documents to show how much amount was received by PW.3 as death benefit of her husband. PW.3 has deposed that after the death of her husband she has received total amount of Rs.70 lakhs out of which she has given Rs.60 lakhs to her daughter PW.2. The oral evidence of PW.3 is quite contrary to the oral evidence of PW.2 with regarding to the total amount received on account of the death of husband of PW.3. It is pertinent to note that neither PW.2 nor PW.3 have deposed the date and year to show when PW.2 was given cash amount and gold to the accused. Mere 64 S.C.No. 1182/2018 allegations without the document and without oral evidence regarding when the amount was given is not sufficient to hold that the accused has received Rs.6 to 7 lakhs and 70 grams gold from PW.2. PW.12 Investigation Officer has not collected any documents to show that accused was received Rs.6 to 7 lakhs from PW.2. It is not the evidence of PW.2 is that she had any document to show that she has given Rs.6 to 7 lakhs to the accused. Admittedly, PW.2 and PW.3 were doing household work. It is come in the evidence of PW.2 is that prior to her delivery she and her husband Santhosh used to work in the Garment factory. If at all PW.1 had such huge amount of saving and has received the amount of death benefit of her father she should have produced the document about the same. In the present case, there is absolutely no documentary evidence to show that accused received amount of Rs.6 to 7 lakhs and 70 grams gold from PW.2 and deceived her.
54. With regarding to Sec. 3(2)(v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, the burden is upon the prosecution to show that the accused not being the 65 S.C.No. 1182/2018 member of Scheduled Caste or Scheduled Tribe knowing very well that PW.2 belongs to Lambani caste sexually assaulted her by committing sexual intercourse in the promise of marriage and also abused her in the name of caste. It is the specific case of the prosecution is that on 17.4.2018, the accused quarrelled with PW.2 and refused to marry her on the ground that she belongs to Scheduled Caste and threatened her that he will upload the obscene videos in the social media. PW.2 has deposed that she was consumed the poison on 17.4.2018 when the accused refused to marry her and threatened her that he will upload the obscene videos in social media and abused her in the name of caste as you belongs to Lambani caste and if I will marry you it will lower my caste. In the present case, even though PW.2 and PW.3, PW.4 have deposed that PW.2 has consumed the poison and the accused himself admitted her to Medizone Hospital for treatment, the prosecution has not produced any documents of Medizone Hospital. In her cross-examination PW.2 deposed that she was consumed 300 ml bottle containg spray. PW.3 has deposed 66 S.C.No. 1182/2018 that PW.2 has consumed half bottle of rat poison and pesticide of flower plant. PW.4 has deposed that PW.2 has consumed the poison to kill cockroach. PW.4 has deposed that she has not personally seen PW.2 while consuming the poison. PW.3 has deposed that PW.2 was consumed the poison in the bathroom, at that time she was not present in the bathroom. There is no clear evidence on the side of the prosecution to show which type of poison was consumed by PW.2. There is absolutely no documentary evidence to show that PW.2 was taken treatment in the hospital on account of consuming the poison on 17.4.2018. PW.12 Investigation Officer has deposed that he has not made any efforts to collect the documents from the Kulakarni Medzone Hospital to show that PW.2 was consumed the poison. There is no cogent evidence on the side of the prosecution to show that due to quarrel made by the accused PW.2 was consumed poison on 17.4.2018.
55. The learned counsel for the accused submitted that there is no ingredients to attract provisions of Sec. 3(2)(v) of the 67 S.C.No. 1182/2018 Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act. He has relied upon the decisions: -
1) 2016 SCC Online Kar 4881 in State by Bilichodu Police vs. Lokeshwarappa.
2) LAWS (KAR) 2016 6 137 High Court of Karnataka in State vs. Gopalappagouda.
3) LAWS (KAR) 2017 2 247 High Court of Karnataka in Krishna R vs. State by Lakkavalli Police Station.
4) LAWS (KAR) 2016 12 73 High Court of Karnataka in State of Karnataka vs. Narayanaswamy Abbayyappa
5) LAWS (KAR) 2014 6 53 High Court of Karnataka in Sambulingappa vs. Ninganagouda Iranagouda Hiregoudar.
6) LAWS (KAR) 2015 3 428 High Court of Karnataka in State vs. Sadashiva.
The learned counsel for the accused submitted that there is no corroboration in the oral evidence of PW.2, PW.3, PW.4, PW.8 regarding the alleged incident dated 17.4.2018. The learned Special Public Prosecutor submitted that the accused quarrelled with PW.2 on 17.4.2018 and abused her in the name of caste and threatened her, hence she has consumed the poison. I have appreciated the rival contentions. It has 68 S.C.No. 1182/2018 come in the evidence of PW.2 is that at the initial stage itself when she came to know about the accused, at that time the accused knows that she belongs to Lambani caste. According to PW.2 she came in contact with the accused in the year 2013 when she had been to the Cyber Centre to take the photograph for Ration Card. According to her, soon after she came in contact with the accused, accused knows about her caste. PW.2 has deposed that on 17.4.2018 when she asked the accused to marry her, then the accused refused to marry her and threatened her that if she force him to marry her he will upload obscene pictures in social media and he abused her as you belongs to Lambani caste. It is pertinent to note that in Ex.P2 complaint, it is not specifically mentioned that on 17.4.2018 accused abused her in the name of caste. It is mentioned in Ex.P2 is that on 17.4.2018 when she was talking with the accused regarding accused movement with another lady then due to humiliation she has consumed the poison. In Ex.P5 164 Cr.P.C., statement given by PW.2 she has not stated anything about on 17.4.2018 the accused abused her in the 69 S.C.No. 1182/2018 name of caste. PW.3 has deposed that on 17.4.2018 at about 1 PM when she returned from her regular work at that time her daughter PW.2 asked the accused why he was moving along with another lady, at that time accused claimed that he was not moving with another lady, then the quarrel taken place. PW.3 has deposed that on 17.4.2018 when her daughter asked the accused whether he will marry her or not. At that time the accused quarrelled with PW.2 saying that "ನದನನ ಲಸಬಣ ಜತ, ನಮಮ ಜತ ಸರಯಲಲ, ನನಸನನ ಸ ಮದನವ ಆಗನವದಲಲ. ನನಸನನ ಸ ಮದನವಯದರ ನಮಮ ಜತಗ ಕಳಸಕ ಬರನತತದ." The oral evidence of PW.3 is not corroborating with the oral evidence of PW.2 regarding the alleged abusive language. PW.2 in her cross-examination has deposed that she has consumed the poison between 1.30 PM and 2 PM. That means according to PW.2, the quarrel taken place prior to 1.30 PM. PW.3 in her cross-examination deposed that the accused quarrelled with her daughter PW.2 between 3 PM and 5 PM. PW.3 has deposed that she had returned to her house from the work at 1 PM. According to PW.3, the accused quarrelled with PW.2 between 3 PM and 5 PM. But PW.2 has deposed that she 70 S.C.No. 1182/2018 has consumed the poison between 1.30 PM and 2 PM. There is no corroboration in the oral evidence of PW.2 and PW.3 regarding the alleged incident dated 17.4.2018. PW.4 has deposed that she heard quarrel sound in the house of PW.2 at 2.30 PM. PW.4 is not eye witness to the incident. She was not personally seen the accused quarrelling with PW.2. PW.4 has not deposed anything about the abusive language used by the accused. PW.4 has deposed that on enquiry to PW.2, on the next day of this incident, PW.2 told her that as the accused abused her as Lambani caste and refused to marry her, she consumed poison. PW.4 has clearly admitted that she has not witnessed the incident. PW.8 has also deposed that he was not witnessed the incident. Even though PW.8 has deposed that the accused abused PW.2 saying that she belongs to Lambani caste. But in his cross-examination by the defence, PW.8 has clearly admitted that he was not personally seen the incident. It is now settled principle of law is that mere having knowledge that the victim belongs to Scheduled Caste does not ipso facto constitute an offence under Scheduled Caste/Scheduled Tribe 71 S.C.No. 1182/2018 (Prevention of Atrocities) Act unless it is proved by the prosecution that the offences have been committed only for the reason that PW.2 belongs to Scheduled Caste. PW.2 has deposed that the accused knows about her caste from the beginning itself in the year 2013. PW.2 and PW.3 have not deposed anything about merely because PW.2 belongs to Scheduled Caste, the accused deceived her in the promise of marriage and committed sexual assault on PW.2. There is no cogent evidence on the side of the prosecution to show that accused has committed the offences u/s 3(2)(v) of The Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act.
56. PW.2 and PW.3 have deposed that the police arrested the accused in their house. PW.9 Police Constable has deposed that ACP deputed him and PC No.11655 in order to trace out the accused. Hence, they after contacting the informant arrested the accused near Parvathanjaneya Temple of Nandini Layout. PW.9 who has deposed about he apprehended the accused near Parvathanjaneya Temple of 72 S.C.No. 1182/2018 Sakamma Extension. But quite contrary to this, PW.2 and PW.3 have deposed that the police arrested the accused in their house. The alleged last incident was occurred on 17.4.2018 but PW.2 has lodged the complaint as per Ex.P2 against the accused on 28.4.2018. There is 10 days delay in lodging the complaint from the date of last incident and the reasons for delay in lodging complaint is not properly explained by the prosecution. In the oral evidence of PW.2 and PW.3 they have not deposed anything about the date of the first physical contact of the accused and PW.2. PW.2 has deposed that the accused committed rape on her from the year 2013 to 17.4.2018. PW.2 has not deposed the date on which the first incident of sexual intercourse was taken place. She has not deposed the dates when the accused given threat to her and had physical contact with her. PW.2 has deposed that the accused used to tie her vale on her neck and giving threat to her. In Ex.P2 complaint, there is no mention that accused used to give threat to her by tying her vale to her neck. In Ex.P5 164 Cr.P.C., statement it is mentioned that the accused 73 S.C.No. 1182/2018 giving threat to her saying that he will tie the wire to his own neck and also threatening her that he will die by tying her Dupatta. Nowhere in Ex.P2 complaint and Ex.P5 164 Cr.P.C., statement it is mentioned regarding the accused threatened her by tying vale on her neck. PW.2 in her cross-examination has deposed that for 2 years accused committed rape on her but thereafter as the accused assured her that he will marry her, hence she had physical relationship with him. This version of PW.2 shows that according to PW.2, accused given threat to her for 2 years and thereafter as he assured her that he will marry her, she had physical relationship with him. If at all the accused was given life threat to her and given threat to her saying that he will die if she do not co-operate what prevented her to lodge the complaint against the accused at the initial stage itself in the year 2013 is not properly explained by the prosecution. The oral evidence of PW.3 who has deposed that PW.2 used to talk with the accused over phone and they were loving each other and this love affair came to know to her only after one year later from the date when PW.2 and accused 74 S.C.No. 1182/2018 met in Cyber Centre itself indicates that it was the love affair between PW.2 and the accused. It is now well settled principle of law is that if the court is of the opinion that on the evidence two views are reasonably possible, one is that accused is guilty and other that he is innocent, then the benefit of doubt goes in favour of the accused. In the present case, the first incident of physical relationship between accused and PW.2 started in the year 2013 and it continued upto 2018 for 5 years. PW.2 has deposed that the accused used to come to her house for 6 years and he used to stay in her house in the night hours, all these indicates without the consent it was not possible. PW.2 is married lady having 3 children. Her marriage with Santhosh is till subsisting. It also come in her evidence that she knows that without the divorce with her husband Santhosh, it is not possible to her marriage with any other person. Under such circumstances the oral version of PW.2 is that accused by promising her that he will marry her and in the promise of marriage he had sexual intercourse with her is not believable. There is no cogent evidence on the side of the prosecution to 75 S.C.No. 1182/2018 show that the accused has committed the offences punishable u/s 376, 417, 420 of IPC and u/s 3(2)(v) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. On an appreciation of the entire evidence on record this court of the opinion that the prosecution has failed to prove the case beyond all reasonable doubt that the accused has committed the offences punishable u/s 376, 417, 420 of IPC and u/s 3(2)
(v) of Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act. Hence, I answered Point No.1 to 3 in the negative.
57. Point No.4 :- In view of my findings on Point No.1 to 3 and for the foregoing reasons and discussions, I pass the following :-
O R DE R Acting under Section 235(1) of Cr.P.C., the Accused B.R. Rakesh is hereby acquitted of the offences punishable under Secs. 376, 417, 420 of IPC and u/s. 3(2)(v) 76 S.C.No. 1182/2018 of The Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act.
The bail bond of the accused and surety bond shall stand cancelled. However the bond executed in compliance of Sec.
437A of Cr.P.C., shall be in force till statutory period.
(Dictated to the Judgment Writer directly on the computer corrected, signed and then pronounced by me in open Court on this the 27th day of May, 2020.) (MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bengaluru.
A N NE X U R E
1.WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 : Mohammed Ajaruddin
P.W. 2 : Varalakshmi Bai
P.W.3 : Sonibai
P.W.4 : Vijayamma
P.W.5 : Dr. S. Praveen
P.W.6 : Somanna
P.W.7 : Venkanna Bhovi
P.W.8 : Bala Nayak
77
S.C.No. 1182/2018
P.W.9 : Shivakumar K M
P.W.10 : Dr. Girish Chandra Y.P.
P.W.11 : Mallamma
P.W.12 : V. Dhananjaya
P.W.13 : Kantharaju H M
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Panchanama Ex.P.1(a) : Signature of PW.1 Ex.P.1(b) : Signature of PW.12 Ex.P. 2 : Complaint Ex.P.2(a) : Signature of PW.2 Ex.P.2(b) : Signature of P.W.12 Ex.P 3 : Medical Examination Report of PW.2 Ex.P.3(a) : Signature of P.W.2 Ex.P.3(b) : Signature of P.W.10 Ex.P.3(c) : Signature of P.W.11 Ex.P.3(d)(e) : Signature of P.W.12 Ex.P.4 : Photo Ex.P.4(a) : Signature of P.W.12 Ex.P.5 : 164 Cr.P.C., Statement of PW.2 Ex.P.5(a) to (c): Signatures of P.W.2 Ex.P.6 : Medical Examination Report of Accused Ex.P.6(a) : Signature of P.W.5 Ex.P.6(b) : Signature & Thumb impression of accused Ex.P.6(b) : Signature of P.W.7 78 S.C.No. 1182/2018 Ex.P.6(d) : Signature of P.W.9 Ex.P.6(e) : Signature of P.W.12 Ex.P.7 : Report regarding caste of complainant and accused Ex.P.7(a) : Signature of P.W.6 Ex.P.7(b) : Signature of P.W.12 Ex.P.8 : Report of P.W.9 to ACP Ex.P.8(a) : Signature of P.W.9 Ex.P.8(b) : Signature of P.W.12 Ex.P.9 : Report of PW.11 Ex.P.9(a) : Signature of P.W.11 Ex.P.10 : Order of DCP. Ex.P.10(a) : Signature of P.W.12 Ex.P.11 : Report of CW1 Ex.P.11(a) : Signature of PW.12 Ex.P.12 : Statement u/s 164 Cr.P.C., of complainant Ex.P.12(a) : Signature of PW.12 Ex.P.13 : Covering letter of Revenue Inspector Ex.P.13(a) : Signature of PW.12 Ex.P.14 : Property Extract Ex.P.14(a) : Signature of PW.12 Ex.P.15 : FIR Ex.P.15(a) : Signature of PW.12 3. WITNESSES EXAMINED FOR THE DEFENCE: Nil 79 S.C.No. 1182/2018 4. DOCUMENTS MARKED FOR THE DEFENCE: Ex.D1 : Birth Certificate of first daughter
Ex.D2 & D3: Birth Certificates of twins children of PW.2
5. LIST OF MATERIAL OBJECTS:
Nil.
(MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bengaluru. 80 S.C.No. 1182/2018 Judgment pronounced vide separate detailed judgment.
O R DE R
Acting under Section 235(1) of
Cr.P.C., the Accused B.R. Rakesh is
hereby acquitted of the offences
punishable under Secs. 376, 417, 420 of
IPC and u/s. 3(2)(v) of The Scheduled
Caste & Scheduled Tribes (Prevention of
Atrocities) Act.
The bail bond of the accused and
surety bond shall stand cancelled.
However the bond executed in compliance
of Sec. 437A of Cr.P.C., shall be in force
till statutory period.
(MOHAN PRABHU)
LXX Addl. C.C & Sessions Judge
& Spl. Judge, Bengaluru.