Karnataka High Court
Ashwath vs The State Of Karntaka on 20 August, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL APPEAL No.307 OF 2013
BETWEEN:
Ashwath
S/o Lakshmana,
Aged about 22 years,
Occ: Tyre Puncture Shop,
R/o Janakonda Village,
Chitradurga Taluk and District -577 501.
... Appellant
(By Sri.R.B.Deshpande, Advocate)
AND:
The State of Karnataka
By Chitradurga Rural Police Station - 577 501.
...Respondent
(By Sri. Vijayakumar Majage, Addl. SPP)
This Criminal Appeal is filed under Section
374 (2) of Cr.P.C., praying to set aside the order
dated 13.03.2013 passed by the Additional District
and Sessions Judge, Chitradurga in SPL.C.No.1/12
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convicting the appellant/accused for the offences
punishable under Sections 376(1), 506, 323 of IPC
and Sections 3(1)(xii) and 3(2)(v) of SC/ST (PA) Act,
1989 and etc.,
This Criminal Appeal coming on for Final Hearing
this day, B.A. PATIL, J., delivered the following:
JUDGMENT
The present appeal has been preferred by the appellant/accused assailing the judgment of conviction and order of sentence passed by the Additional District and Sessions Judge, Chitradurga in Special Case No.1/12 dated 13/14.03.2013.
2. The brief facts of the case are that:
As per the complaint - Ex.P.3, Smt.Lakshmakka
- the mother of the victim filed a complaint on 26.11.2011 at about 8 p.m. In the said complaint, she has narrated that she is residing in the address given therein and she has got two female children and one male child and on 26.11.2011 at about 7 a.m., she had been to Singapura for coolie work and at that 3 time, her children were there and her husband -
Rajappa had been to work at garden land of one Marappa on Kavalahatti road and when she came back to the house at about 6.00 p.m., her 2nd daughter - Manjula who is aged about 10 years, was crying and when she asked her, why she is crying, then she told that on the same day morning, when she went to coolie work at about 8 a.m., herself and her brother - Praveena wanted to go to the land where her father was working and when they were proceeding at Holalkere road, when they came near Devapuradahatti bridge, at that time, the accused - Ashwath came on a motorcycle and they stopped the said motorcycle and told him that they were going to the land where her father was working and requested him to drop there and the said Ashwath took both of them on the motorcycle and after going for some distance, he went towards left side on the mud road and thereafter, he 4 stopped his motorbike and thereafter, he started taking her in the field where the Maize crop was there and her brother also cried, he assaulted him and due to fear, he ran away. Thereafter, the said Ashwath took her inside the Maize crop and thereafter, he stripped his dress and asked her to strip down her dress also and by fear, she started weeping. At that time, accused - Ashwath threatened and thereafter, he pulled down her Chudidhar. Thereafter, he made her to fall on the ground. Thereafter, he also removed his pant. After stripping her clothes, he raped her and as a result of the same, there was an ache on her private part and blood was also oozing and thereafter, the said Ashwath threatened her with life and not to tell the said fact to anyone. Thereafter, by giving Rs.13/- in her hand, he sent her and due to fear, as she was having body ache, she came and informed the same to the mother and she has further stated 5 that she belongs to Nayak Community and the said Ashwath belongs to Shetty Banajiga Community. She belongs to a lower society and her daughter has been sexually assaulted and threatened with life and she requested to take legal action against the said person. On the basis of the said complaint, the case was registered in Crime No.529/2011 under Sections 376, 323 and 506 of IPC read with Section 3(1)(x) and (xii) of SC/ST (PA) Act, 1989. Thereafter, after investigation, charge sheet was laid against the accused.
3. Thereafter, the Sessions Court took cognizance and secured the presence of the accused and after hearing the learned Public Prosecutor and learned counsel for the accused, Charge was prepared and read over to the accused, he pleaded not guilty and claimed to be tried and as such, the case was set down for trial.
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4. In order to prove the case of the prosecution, prosecution examined 9 witnesses and got marked 14 documents with sub-marking and also MOs.1 to 3. Thereafter, the statement of the accused was recorded by putting incriminating material as against him. Accused denied the same and he has not led any evidence on his behalf. After hearing both parties, the trial Court held that the evidence produced by prosecution is sufficient to hold the accused guilty and convicted him for the charges leveled against him. Assailing the same, the appellant/accused is before this court.
5. We have heard the learned counsel Sri.R.D.Deshpande and learned Additional SPP - Sri. Vijayakumar Majage.
6. Apart from the grounds of appeal, the learned counsel for the accused/appellant vehemently 7 argued and contended that the evidence produced by the prosecution including the victim, is not sufficient to bring home the guilt of the accused beyond all reasonable doubt. He further submitted that the evidence of P.W.1-victim is not corroborated with medical evidence. He also further submitted that though the husband of the complainant - C.W.5 has been cited as a witness and he is material witness, but, he has not been examined before the Court. He further submitted that as per the case of the prosecution, Chudidhar was worn by the victim at the time of the alleged incident and she has also suffered bleeding injuries on her private part, but the said clothes were not seized and the same has not been sent for chemical examination so as to substantiate the version of the victim - P.W.1. He further submitted that on the way one Obalesh - C.W.9 and one more witness have seen the victim and his 8 brother being taken on the motorcycle. But, they have not been examined by the prosecution except her brother. He further submitted that from the version of the victim, she has also suffered injuries and even, at the time of sexual assault, she has caused scratch injuries on the accused and she has also beaten the accused. When the accused was examined by P.W.7, he has not noticed any injuries over the body of the accused. He further submitted that when P.W.5 examined the victim, he has also not noticed any injuries over the body of the victim as well on the private part of the victim. All these evidence clearly goes to show that the said incident has not at all taken place and only a false complaint has been filed against the accused. He further submitted that without there being any sufficient and cogent evidence, the trial Court without proper appreciation of the evidence, has wrongly convicted the 9 appellant/accused. The appellant /accused has made out good grounds and as such, he prays to allow the appeal and to set-aside the impugned judgment of conviction and order of sentence by acquitting the accused.
7. Per contra, the learned Additional SPP vehemently argued by contending that the victim herself has clearly given her evidence before the Court below about the sexual assault committed by the accused and the said evidence is also corroborated by the evidence of P.W.2. He further submitted that the complaint came to be filed immediately on the same day itself which clearly goes to show that there is a sexual assault committed by the accused on the victim. He further submitted that though there is no supportive medical evidence, but if the evidence of the victim is sufficient and if it clearly goes to show that the accused has sexually assaulted her, then the 10 Court can convict the accused. The trial Court, after considering all the material facts, has rightly convicted the appellant/accused. There are no good grounds made out by the appellant/accused so as to interfere with the impugned judgment of conviction and order of sentence. On these grounds, he prays to dismiss the appeal as devoid of merits.
8. We have gone through the submission made by the learned counsel for the appellant/accused and also we have gone through the grounds made out in the memorandum of appeal and also judgment of conviction and order of sentence passed by the trial Court.
9. During the course of argument, the learned counsel for the appellant/accused has taken us through the entire evidence produced before the Court below. It is the contention of the learned counsel for 11 the appellant/accused that the evidence produced before the Court below is not worth believable and even the evidence of victim is not sufficient to hold that the appellant/accused has sexually assaulted the victim and committed the alleged offence.
10. In order to verify whether prosecution has proved the guilt of the accused, let us consider the evidence of the victim/P.W.1. As could be seen from the evidence of victim/P.W.1, as she was minor, the Court has put some questions and thereafter, considering the fact that she is capable of answering the questions and she has understood the proceedings, the evidence has been recorded. In her evidence, she has deposed that on Saturday morning at 7.00 a.m., herself and her brother, in order to see her father, who was working in the garden of one Marappa, were proceeding. At that time, accused who is present before the Court, came on the Motorcycle 12 near Devapuradahatti bridge and at that time, herself and her brother waived the hand and accused took them on the Motorcycle and when they asked to stop the Motorcycle near the land, he did not stop and told that first they would go to his land and thereafter, he will bring and leave them there. She has further deposed that thereafter, accused took herself and her brother to the land where Maize crop has been grown and there, he assaulted his brother and threatened and thereafter, he dragged her by holding her hand and thereafter, stripped her clothes and thereafter, he opened his pant zip and thereafter, he put his private part. After giving Rs.13/-, he threatened her not to tell the said incident to anybody and he is going to murder her. If she wants anything, she can ask him and he also told that she has not been sexually assaulted and if anybody asks she has to tell that she has not been sexually assaulted and if she tells the 13 said fact to anyone, he is going to take away her life and thereafter, he left her. She has further deposed that he has raped her and thereafter, she went to the garden where her father worked and there they did not tell anything to him. She has further deposed that her brother at about 6.00 p.m., told everything and she has been brought back at about 8.00 p.m. She has further deposed that at the time of alleged incident, she was wearing Chudidhar and at the time of going to the Police Station, she had worn Midi and she has identified MO.1 - Midi and MO.2 - Jacket and she has also identified the photographs of the motorcycle as Ex.P.1 and 2. During the course of cross-examination, it has been elicited that on the road, there were people coming around and even some people were going and coming from the lands. She has further deposed during the course of cross- examination, that on that day - Saturday, she has not 14 gone to School and her brother is also not going to School and at the time when she and her brother left the house, her mother had not gone to coolie work. She has further deposed that when she and her brother were going to the filed, the same has been seen by one Bhadranna, But, they did not talk and she calls the said person as Bhadranna and Bhadranna who went towards Chitradurga with the Milk Can and apart from Bhadranna, nobody has seen them. She has further deposed that when they boarded the motorcycle, one Obleshanna has seen and he has also not talked with them and further deposed that when he asked where they are going, they told that they are going to the garden land and the said Obleshanna was coming towards the land at Jayapurada Hatti. She has further deposed that accused took her and her brother to the land under the guise of picking the onion crop and when she was running, she cried and at that time, 15 the accused dragged to the spot of incident and at the time when he dragged, there were scratches on her hand, leg and body and the clothes were also torn. She has further deposed that she has been sexually assaulted for some time and again, she has deposed that accused penetrated her for half an hour and at that time, she has scratched and assaulted the accused and when a question has been put whether she tried to bite and at that time, she has deposed that she has bitten the accused and her clothes were also torn. Again, she has told that her Chudidhar was torn and it was stained with blood and when she bite the accused, there was injury to the accused. She has further deposed that she has kept the torn clothes in the house and she went to the police station wearing new clothes and she has handed over the clothes which she had worn at that time. The clothes which were torn were kept in the house and the said clothes 16 were stained with blood. After seeing the injuries on her, the Doctor has written a report regarding his provisional opinion. The other suggestions have been denied by this witness.
11. P.W.2 is the brother of the victim. He has deposed that himself and her sister when going to the land of his father, they waived hand to the motorcycle and the accused took himself and his sister on the motorcycle and when they asked to stop, he did not stop on the way and then he stopped. Thereafter, he took her sister and he made an hue and cry and the accused assaulted on his head and he immediately ran away to the village and thereafter, he told the same to his sister - Saraswathi. P.W.1 came in the evening and filed the complaint. He has further deposed that P.W.1 told that she has been raped and complaint has been filed. During the course of cross-examination, he has also deposed that on the way, so many people 17 move around and that he did not inform to anybody. He further deposed that himself and P.W.1 boarding the bike has not been seen by anybody. At that time, when the accused assaulted him, accused was not holding the hand of P.W.1. At that time, P.W.1 has not tried to run away from that place and he is having love and affection towards P.W.1. He has also further deposed that nobody asked him on the way why he is crying and he did not tell anybody including his sister. He further deposed that he has also not told the said fact to his father and he also did not tell his mother. He further deposed that after accused held the hand of P.W.1, he did not know what happened and he has not stated the said fact to anybody, except that nothing has been elicited from the mouth of this witness.
12. P.W.3 is the mother of the victim. She has also deposed that at about 10.00 a.m. on Saturday 18 she had been to coolie work at about 8.00 to 9.00 a.m., P.Ws.1 and 2 by saying that they want to go to the land of the father, they went and when she came back at about 6.00 p.m. the door was locked and children were there in her parents house and she brought the elder daughter - Saraswathi. P.W.2 told that the accused in the field has sexually assaulted and thereafter, at about 8.00 p.m. P.W.1 told that accused in the field stripped down her clothes and has sexually assaulted and paid Rs.10 and Rs.3 into her hand and told not to tell the said fact to anybody and that she had bleeding in her private part and the clothes were also muddy as she had been made to lie on said mud and she took her to the Hospital and thereafter, she got the complaint prepared and filed the same as per Ex.P.3. During the course of cross- examination, at para No.22, she has deposed that Chudidhar which was worn by her daughter - victim 19 was stained with blood. It was also muddy and it was torn and the said clothes have been left in the garden land and she was wearing new clothes and she brought her daughter and the said clothes have been kept in the house and the same were not brought to the Police Station and she has told the police that the said clothes were stained with blood and were muddy and were torn and have been kept in the house and the said clothes have not been handed over to the police. Except that, nothing has been elicited from the mouth of this witness.
13. P.W.4 is Rangaswamy who wrote the complaint as per the say of P.W.3. He has also supported the version of P.W.3.
14. P.W.5 is the Doctor who examined the victim. In his evidence, he has deposed that on 27.11.2011 at about 11.45 p.m., he was on duty in 20 District Hospital, Chitradurga, a girl by name Manjula P.W.1, aged 10 years old was brought by WHC-82 Renukamma, with a history of alleged rape by Ashwath at 8 a.m. on 26.11.2011 at Kavalahatty Jowar field near Janukonda, with a requisition by PSI. He examined her. On examination, he has stated Secondary Sexual Characters not developed, no fresh injuries over the body including genitalia, Hymen was not ruptured and it was intact. He has further deposed that the following materials are collected for RFSL examination. They are Vaginal smear, Vaginal swab, blue coloured midi, yellow coloured midi top and blue coloured short. He handed over all these things to the Police, Davanagere. He has further deposed that;
" The order of female genital organ is Labia majora, inside Labie minora, (Labia majora behind it, is will connect Labia minora thorough forchette) inside is 21 Hymen, inside it vagina starts. Vagina is a canal. The Penetration of male organ with a Labia majora, and Labia minora, there will not be any hymen rupture. Vulval portion means mons pubis, Labia majora. A 10 year aged girl is threatened and sexually intercoursed, then there will be erosions over labia majora, forchette, labia minora."
He has further deposed that their common medical concept is that, whenever hymen is intact, there was no sexual intercourse. During the course of cross-examination, he has deposed at para No.15 that if a man commits forcible sexual intercourse on a ten year aged girl, then there is every chance of injuries on labia majora, labia minora, forchette, witness says hymen is an important part to be injured during the sexual intercourse. On first time sexual intercourse, there would be rupture of hymen. Further, he deposed that if the girl resists in that act, there may 22 be scratch marks, force marks, bite marks and other injury marks both on the victim and on the aggressor. He has further deposed that on the examination of that girl, he did not find any erosions over labia majora, forchette and labia minora. On first time sexual intercourse, there would be bleeding depending on the injury.
15. P.W.6 is the Head Master of the School. He has issued the Birth Certificate as per Ex.P.9, which discloses that the date of birth of the victim is 29.09.1997. During the course of cross-examination of this witness, nothing has been elicited so as to discard his evidence.
16. P.W.7 is the Doctor, who examined the accused. In his evidence, he has deposed that on 27.11.2011 at 1.20 a.m., he was in the casualty, one patient by name Ashwath, aged about 21 years, 23 present before the Court, was brought through PC with a history of having committed rape on 26.11.2011 at about 8 a.m. at field. He examined him. Cardio Vascular System, Respiratory system and per abdomen, he examined his external genital organ. On inspection, external genital organ was found normal. No injuries or stain found around the external genitals. So, he came to the conclusion that, he is potent and he is able to do sexual intercourse and he issued a certificate as per Ex.P.7. During the course of cross-examination, he has deposed that in Ex.P.7, he has not mentioned the time and the date of his examination.
17. P.W.8 is the PSI, who registered the case on the basis of Ex.P.3 and submitted the FIR as per Ex.P.10.
18. P.W.9 is the Police Inspector, who investigated the case and filed the charge sheet. 24 During the course of evidence, he has deposed about the investigation done by him and during the course of cross-examination, he has deposed that in Ex.P.3 and in the statement of the victim, he has stated that at the time of the alleged incident, she was wearing Chudidhar and other suggestions which have been suggested, have been denied by this witness.
19. On the evidence of P.W.1 - the victim, the girl who is considered to be a star witness in this case, she has alleged that on the date of alleged incident, the accused dragged her to the field and committed sexual assault on her and at that time, she has also sustained scratch injuries and she has also sustained bleeding injuries over the private part and at the time of alleged incident, she has also scratched the body of the accused and she has also bitten the accused. But, as could be seen from the evidence of P.W.5 - the doctor, who examined the victim, in his evidence, he 25 has clearly deposed before the Court that there were no fresh injuries over the body including genitalia and Hymen was not ruptured and it was intact. He has even deposed before the Court during the course of cross-examination that if a man commits forcible sexual intercourse on a ten year aged girl, then there is every chance of injuries on labia majora, labia minora, forchette and that hymen is a important part to be injured during the sexual intercourse. On the first time sexual intercourse, there would be rupture of hymen. He has further deposed that if the girl resists in that act, there may be scratch marks, force marks, bite marks and other injury marks both on the victim and on the aggressor. With the said evidence, if we look into the injuries certificates, Ex.P.6 is that of the Victim and Ex.P.7 is that of the accused. The said documents clearly go to show that there were no internal injuries found i.e., "No fresh injuries over the 26 genitals. Hymen was also intact". Even in Ex.P.7 whereunder the accused was examined, he has also not suffered any injuries. A perusal of the said evidence, clearly goes to show that no injuries were there over the body of the victim when she was examined by the Doctor - P.W.5 that too on the same day.
20. Be that as it may, even it is the case of the prosecution that at the time of sexual assault, she has suffered bleeding injuries over her private part and even the Chudidhar which was worn by her was stained with blood. In her evidence, she has clearly deposed that the said clothes have been changed and have been kept in the house and the same clothes have not been seized and the same has not been sent for chemical examination for reasons best known to the Investigating Officer. If really she has suffered any injuries on her private part, definitely the clothes 27 might have been stained with blood and definitely, Investigating Officer might have seized the said articles and might have sent same for chemical examination.
21. We are conscious of the fact that if penetration is there, it will specify the ingredients of sexual assault. But as could be seen from the evidence of P.W.1 - the victim, she has deposed before the Court below that she has been sexually assaulted for more than half an hour and at that time, she was lying on the hard ground and under the said circumstances, definitely, she might have suffered injuries and that she might have also suffered other injuries as stated by P.W.5, if it is for the first time that she has been sexually assaulted. By going through the entire evidence of P.W.1 and P.W.5 - the Doctor who examined the victim with the evidence which has been led by the victim, it does not repose 28 any confidence to hold that she has been sexually assaulted by the accused.
22. We are also conscious of the fact that if the evidence of the victim reposed confidence even though there is no corroboration with the medical evidence, then under such circumstances also, the Court can convict the accused for the alleged offences. But in the instant case on hand, there is no such evidence even to infer that the victim has been sexually assaulted by the appellant/accused. Looking from any angle the evidence which has been produced is not worth believable so as to hold that she has been sexually assaulted as deposed by her in her evidence and as well as in Ex.P.3 - complaint which has been filed by P.W.3 - mother of the victim.
23. Be that as it may even if we peruse the evidence of the victim - P.W.1 with that of P.W.2 who 29 was also there at the time when the victim has been taken by the accused as alleged, there is also inconsistency in the evidence of P.W.1 and 2. Even if we peruse closely the evidence of P.W.2, immediately after the incident, she had been to the land of her father, where he was working, but she has not disclosed the said incident to him and even he has also not noticed that the clothes of the victim has been stained with blood or any injuries or even the Chudidhar which was worn by her was torn. Even as could be seen from the evidence which has been produced before the Court below, no evidence has been produced to show that the accused committed the offence knowing fully well that she belongs to SC/ST community and thereafter, he has sexually assaulted her. On this ground also the prosecution has utterly failed to prove the guilt of the accused. It is well established principles of law that if there are 30 reasonable doubts in the case of the prosecution, then the benefit of doubt should go to the accused. We have carefully and consciously gone through the judgment of conviction and order of sentence passed by the trial Court. The trial Court without properly appreciating the said facts and the legal aspect, has wrongly convicted the appellant/accused. The appellant/accused has made out a case so as to interfere with the said order and to set-aside the same.
Since the main appeal is disposed of, I.A. No.1/2018 and I.A.No.1/2013 do not survive for consideration. Accordingly, the same are also disposed of.
Hence, the following;
ORDER Appeal is allowed. The judgment and order of conviction and sentence passed by the Additional District and Sessions Judge, 31 Chitradurga in Special Case No.1/2012 dated 13/14.03.2013 is set aside. The appellant/accused is acquitted of all the charges levelled against him.
The concerned prison authorities are hereby directed to release the appellant/accused forthwith, if he is not required in any other case.
The Registry is hereby directed to send the operative portion of this judgment to the concerned prison authorities immediately.
Sd/-
JUDGE Sd/-
JUDGE NBM