Bangalore District Court
State By Krishnarajapura Police vs Chandra Reddy on 31 December, 2016
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH-55)
Dated this the 31st day of December 2016
Present: SMT.RAJESHWARI.N.HEGDE.,
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
S.C.NO.370/2009
COMPLAINANT State by Krishnarajapura Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED 1 Chandra Reddy,
S/o.Krishna Reddy, 30yrs,
2 Smt.Sudha,
W/o.Chandra Reddy, 23yrs
Both the accused are residing at
No.94, Sadaramangala,
Kadugodi Post,
Bangalore-67
(By Sri.S.Shankarappa-Advocate)
1. Date of commission of offence 29-11-2008
2. Date of report of occurrence 01-02-2008
3. Date of arrest of Accused-1 19-01-2009
Date of release of Accused-1 23-07-2009
Period undergone in custody by 6months &
Accused-1 4days
2 S.C.No.370/2009
4 Date of arrest of Accused-2
Date of release of Accused-2 ON BAIL
Period undergone in custody by
Accused-2
5 Date of commencement of evidence 17-01-2011
6 Date of closing of evidence 19-09-2015
7 Name of the complainant Annapoorna
8 Offences complained of Secs.366, 343, 376, 109
read with 34 of IPC
9 Opinion of the Judge NOT FOUND GUILTY
10 Order of sentence ACQUIITED
JUDGMENT
Charge-sheeted by the K.R.Puram police, in Crime No.450/2008 against the accused No.1 and 2, committed by the X ACMM, Bengaluru City, the accused are before this Court facing trial for the offences punishable under Section 366, 343, 376, 109 read with 34 of IPC.
2. Prosecution case briefly stated that, That on 1.12.2008 at about 13.00 Hours, the complainant Smt.Annapporna filed the complaint as per Ex.P1 alleging that on 29.11.2008 at about 10 AM., herself, her daughter-victim and the sister of the complainant by name Nirmala all the three went to C-College, K.R.Puram where the victim was studying to enquire as to why the victim had failed in 3 S.C.No.370/2009 one subject, after enquiry, the complainant and her sister Nirmala were going together and in front of them, the victim was going, at that time, a silver colour Innova car bearing No.KA-03-MK-2556 was parked and in that car, these accused Nos. 1 and 2 were there and they forcibly kidnapped her [complainant] daughter and fled away towards Swatantranagar. They searched for her but, she did not trace out.
3. On the basis of the said complaint, a missing case was registered in Cr.No.450/2008 as per FIR Ex.P3. Thereafter, criminal law was set in motion. The Investigating Agency commenced the search of the Victim. That on 12.1.2009 the victim and the accused persons were traced out in Chennai. On enquiry, the victim told that, on 29.11.2008 at about 10.30 A.M., accused No.1 and 2 being the husband and wife kidnapped her in Innova car bearing Regn. No.KA-03-MK-2556 and took her to Chennai City and there they confined her [victim] in a hotel and accused No.1 committed rape on her against her will and accused No.2 also co-operated to the said act along with her husband who is accused No.1. Thereafter the complainant police brought her and the accused persons back to Bangalore and after recording her statement, on the basis of her statement, the Sub-Inspector of Police, has inserted Secs. 342 and 376 r/w Sec.34 of IPC and taken up further investigation. The victim was sent for medical examination, accused No.1 was also sent for medical examination and spot mahazar conducted both at Bangalore 4 S.C.No.370/2009 and at Chennai and after completion of the investigation formalities, charge-sheet has been filed.
4. The accused Nos. 1 and 2 are on bail. They are represented by the counsel of their choice. After appearance of the accused persons, the copies of the prosecution papers [charge-sheet] were given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing the learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in- office has framed the Charge on 26.8.2009 for the offences punishable under Secs.366,376, 343 and 109 r/w Sec.34 of IPC and read over to the accused in the language known to them. The accused persons pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused has examined in all 13 witnesses as PWs-1 to 13, out of the total 18 witnesses as shown in charge-sheet and got marked the documents as per Exs.P1 to P15 and got marked one Material Object as per MO1.
7. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C was recorded. The accused have denied the incriminating evidence found in the evidence of prosecution witnesses. Their defence is that of total denial of their involvement in the alleged 5 S.C.No.370/2009 incident and that they are totally innocent and as accused No.1 refused to marry the victim, a false case is foisted against accused Nos. 1 and 2. The accused has also filed written submission with regard to answer to the question asked in u/Sec.313 of Cr.P.C. statement. Further, in support of their defence, the accused have got marked the documents as per Exs.D1 to D16.
8. At this stage, it is necessary to mention that, the prosecution has examined only 13 witnesses out of 18 witnesses as cited in the charge-sheet. CWs-9, 10, 13, 15 and 16 are not examined by the prosecution. CWs-9 and 10 are the witnesses to spot mahazar drawn at Anita Towers, Chennai, where the victim and the accused persons had stayed, CW13 is the Police Constable who traced out the victim and the accused Nos. 1 and 2 at Chennai and brought them back to Bangalore and produced them before the complainant police, CW15-ASI and CW16-Head Constable who co-operated with CW14 at the time of investigation, were not examined by the prosecution. On perusal of the order sheet, it discloses that, CWs-13, 15 and 16 were given up as repetition. Further, inspite of issuance of repeated summons to CWs-9 and 10, they were not present before this court for giving evidence and therefore CWs-9 and 10 were dropped from examination vide order dated: 22.8.2013 by rejecting the prayer of learned Public Prosecutor.
6 S.C.No.370/20099. Heard the learned Public Prosecutor and the learned counsel for the accused. Learned Public Prosecutor has relied upon the following decisions in support of the prosecution.
1. AIR 1981 SUPREME COURT 361 ( State of Himachal Pradesh v. Harpal Singh & Another )
2. 2009(1) Crimes 111 (SC) ( State of U.P. v. Manoj Kumar Pandey )
3. AIR 2008 SUPREME COURT1603 ( Animireddy Venkataramana & Others v. Public Prosecutor, H.C. of A.P.)
4. 1987 Cri.L.J. 1965 ( Mani v. State of Kerala )
5. 2003 Cri.L.J. 2548 ( Visveswaran v. State ) AIR 2003 SC 2471 (Supreme Court)
6. AIR 2007 Supreme Court 2594 (From: Madhya Pradesh) (Asharam & Another v. State of M.P.)
7. 2001 Supreme Court Cases (Cri) 1504 (Chandrasekhar Sureshchandra Bhatt v. State of Maharastra )
8. 2007(3) Crimes 310 (SC) SUPREME COURT OF INDIA (State of Rajasthan v. Nana & Others)
9. (2011) 1 Supreme Court Cases (Cri) 381 (2010) 12 Supreme Court Cases 324 (State of Uttar Pradesh v. Krishna Master & Others)
10. 2015(1) KCCR SN 78 (SC) Supreme Court of India (Vinod Kumar v. State of haryana)
11. CRI.L.J. 710 (Rajendra Datta Zarekar v. State of Goa) Supreme Court.
12. 2007(1) Crimes 54 (SC) Supreme Court of India (Acharaparamath Pradeepan & another)
13. III (2003) CCR 158(SC) Supreme Court of India State of Madhya Pradesh v. Mansingh & Others) 7 S.C.No.370/2009
14. 2013 (4) Crimes 1 (SC) (Md.Iqbal & another v. State of Jharkhand)
15. 2000(4) Crimes 234 (SC) Supreme Court of India (State of U.P. v. Hari Mohan & Others)
16. (2004) 3 Supreme Court Cases 654 (State of Punjab v. Dhanaj Singh Alias Shera & Others)
17. 2015(3) Crimes 83 (SC) Supreme Court of India (State of U.P. & Others v. Kamla Kant Dubey)
18. 2015(3) Crimes 1 (Guj.) Gujarat High Court (Aher Khima Manda v. State of Gujarat)
19. (2011) 3 Supreme Court Cases 654 (Sheo Shankar Sing v. State of Jharkhand & Another)
20. AIR 1996 Supreme Court 522 (Kuldip Singh & S.Saghir Ahmad v. Shir Bodhisattwa Gautam)
21. (2008) 11 Supreme Court Cases-38:
(2008) 3 Supreme Court Cases (Cri) 955
22. AIR 2007 SC 144
23. (1999) 3 SCC 507
24. AIR 2010 SC 1894 Learned defence counsel has filed the written submission with regard to the omissions elicited in the evidence of witnesses and also relied upon the following decisions:
1. 1992 Cri.L.J. 2761 ( Poolpandi v. Superintendent, Central Excise )
2. A.I.R. 1996 S.C. 2478 ( Dhanna v. State of Madhya Pradesh )
3. 2013 Cri.L.J. 2990 ( Deepak Gulati v. State of Haryana ) 8 S.C.No.370/2009
4. AIR 2011 S.C. 349 ( Subhash v. State of Haryana )
5. 2013 Cr.L.J.3196 ( Mallesh Khemanna v. State of Karnataka )
6. 2013 Cri.L.J. 2062 ( Rajesh Patel v. State of Jharkhand )
7. 2013 Cri.L.J. 3236 ( Prabhat v. State of Maharashtra ) Perused the records.
10. After hearing the arguments of learned Public Prosecutor and the learned defence counsel and as per the Charge leveled against these accused persons, the following Points do arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 29.11.2008 at about 10.30 A.M., the accused persons kidnapped the victim, when she had been to her college, situated at K.R.Puram, Bangalore in Innova car bearing Regn.
No.KA-03-MK-2556 and thereby committed an offence punishable under Sec.366 r/w Sec. 34 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that the accused persons kidnapping the victim took her to Chennai and got rented room at Anitha Towers, in Chennai and wherein accused No.1 committed rape on her [victim] repeatedly against her will and thereby he has committed an offence punishable under Sec.376 r/w Sec..34 of IPC?
9 S.C.No.370/20093. Whether the prosecution further proves beyond reasonable doubt that the accused persons confined the victim in a room at Anitha Towers in Chennai for a period of one month and thereby committed an offence punishable under Sec.343 r/w Sec. 34 of IPC?
4. Whether the prosecution further proves beyond reasonable doubt that accused No.2 on the pretext of perform the marriage of the victim with accused No.1, [who is the husband of accused No.2] enticed accused No.1 to commit rape on the victim and thereby accused No.2 has co-operated to the said act of accused No.1 and thereby accused No.2 has committed an offence punishable under Sec. 109 r/w Sec.34 of IPC?
5. What Order?
11. My findings on the above points are as under:
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: In the Negative.
Point No.4: In the Negative.
Point No.5: As per the final order for the following REASONS
12. POINT NOS. 1 TO 4: Consideration of these Points are based on the same facts and evidence and therefore, to avoid repetition, these points are taken up together for discussion.
10 S.C.No.370/200913. According to the prosecution, that on 29.11.2008 at about 10.30 A.M., accused No.1 and 2 being the husband and wife kidnapped the victim in Innova car bearing Regn. No.KA-03-MK-2556 and took her to Chennai City and there, they confined her [victim] in a hotel and accused No.1 committed rape on her against her will and accused No.2 helped accused No.1, to do such act. Hence, the accused have committed the offences as per the charge leveled against them.
14. The initial burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied upon the evidences of PWs-1 to 13. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Annapoorna-mother of the victim and the complainant in this case Pw.2 Nirmala-Sister of the complainant and Aunt of the victim said to be the eye witnesses and deposes about the kidnapping of the victim by accused Nos. 1 and 2 Pw.3 Vijaykumar-brother of the victim and hear-say witness deposes about the kidnapping of the victim by accused Nos.1 and 2 Pw.4 Anand Reddy-father of the victim who is also hear-say witness Pw.5 Victim 11 S.C.No.370/2009 Pw.6 M.Manjunath-PSI deposes about receipt of complaint, registering of FIR, conducting mahazars, seizure of the Innova car Pw.7 Ramachandrappa-Head Constable deposes about the tracing of the victim. at Chennai Pw.8 Ananth Reddy-Spot Mahazar witness drawn at C-College, Bangalore PW.9 Dr.B.M.Nagaraju deposes about the medical examination conducted on the Victim and on accused No.1 PW10 G.Krishnappa-Spot Mahazar witness drawn at C-College, Bangalore PW11 Mallikarjun-Police constable deposes about taking of the FIR PW12 H.G.Thippeswamy-Police Inspector deposes about taking of further investigation PW.13 Yuvaraj-Manager-Hotel Nandini Palace and Hotel Anitha Towers, Chennai, deposes about the documents
15. Before appreciating the evidence, it is better to have a glance of the evidence given by all witnesses.
16. PW1-Complainant and the mother of the victim deposes that, her daughter[victim] studying in BBM in the year 2008, failed in one subject and she again took examination and in order to see the result, she, her sister Nirmala (Pw.2) along 12 S.C.No.370/2009 with victim had gone to her college at 10.00 AM, after enquiring with the Principal they were returning to their house, at that time, the accused Nos.1 and 2 catch hold of the victim and dragged her towards K.R.Puramm, victim was crying, thereafter, complainant telephoned to her brother and to her sister, her brother and her relatives came and did efforts to trace out the victim, but she could not trace out, thereafter, she lodged the complaint-Ex.P.1.
17. PW2-Nirmala sister of the complainant and aunt of the victim, deposes that in the year 2008, she, PW.1 along with victim PW.5 had gone to 'C' College in order to see the result of the complainant and when they were returning, in front of the college ground, they heard cry of the victim and when they looked into, they saw that accused No.1 was dragging the victim into in a Innova car, as they knew the accused No.1 who is the resident of neighbouring house, they did not lodged the complaint. One month thereafter, the victim was traced out and they came to know that the victim was kidnapped by the accused persons and wrongfully restrained her at Chennai.
18. PW-3 Vijay Kumar brother of the victim, PW-4 father of the victim, deposed similarly to the evidence of Pws.1 and 2.
19. PW-5 victim deposes that in the year 2008 she had been to 'C' College to see her result and after enquiring, she was returning along with her mother and aunt, while she was going 13 S.C.No.370/2009 little forward from her mother and aunt and her mother and aunt were coming from her backside, at that time, there was a silver Innova car was stationed and when she was coming near to the said car, the accused No.1 came and pushed her in the said car and accused No.2 was inside the car, she pulled the victim inside the car, there was 10.30 AM, thereafter, she was taken to Chennai and kept her in a room, both accused beating her and they did not provide any food to her. Thereafter, accused No.1 raped her and accused No.2 has helped accused No.1, they kept in the lodge at Chennai for a period of one month, thereafter, the K.R.Puram police came to Chennai and brought her to Police Station and send her to medical examination and Doctor conducted medical examination as per Ex.P.2.
20. PW.6 PSI deposes that, on 01/12/2008 at about 1.00 PM, when he was in Police Station as SHO, the complainant came to the Police Station and filed the written complaint, on the basis of the said complaint, he has registered the case in Cr.No.450/2008 and sent FIR as per Ex.P.3. Thereafter, he had visited the place of offence and conducted the spot mahazar as per Ex.P.4. He further deposes that on 13/01/2009, Police Inspector arrested the accused No.1 and took him to police custody requesting before the Court and that on 14/01/2009, as per the voluntary statement given by the accused No.1, he along with ASI and HC, took the accused to Chennai wherein the accused No.1 had shown the hotel i.e., 14 S.C.No.370/2009 Anitha Tower, near Triplicane highway and they went there and inspected the said hotel and that on 16/01/2009, they conducted mahazar with regard to the seizure of the vehicle parked in the said hotel i.e., Innova car bearing Regn. No.KA- 03-MK-2556 as per Ex.P.7. Further, he deposes that, he has also conducted mahazar in room No.303 of Anitha Towers, wherein, the accused said to have raped the victim as per Ex.P.8.
21. PW.7 Head Constable deposes that on 12/01/2009 , he was deputed to trace out the victim and accordingly he had gone to Chennai and in Anitha Lodge Room No.303, the accused Nos.1 and 2 along with Suma were there and he brought them from Chennai and produced before the IO on 13/01/2009 along with his report.
22 PW.8 said to be spot mahazar witness drawn near 'C' - College as per Ex.P.4, has not supported the case of the prosecution.
23. PW.9 Dr.B.M.Nagaraj deposes that he examined the victim on 13/01/2009, as brought by woman police, K.R.Puram Police Station and he has issued the medical certificate as per Ex.P.2. He further deposes that on the same day he has also conducted medical examination of accused No.1 brought by police constable of K.R.Puram Police Station and he issued the medical certificate as per Ex.P.5.
15 S.C.No.370/200924. PW.10 another panch witness to Ex.P.4 deposes that on 01/12/2008, K.R.Puram police called him near 'C' College and they conducted mahazar from 1.30 PM to 2.00 PM on that day as per Ex.P.4 and he has signed, Ex.P.4(a).
25. PW.11 Police Constable deposes that, he was deputed to submit FIR to the Court and accordingly that on 01/12/2008 at 8.00 PM took FIR in Cr.No.458/2008 and submitted before X ACMM on 02/12/2008. He further deposes that on 13/01/2009, he has submitted the requisition to the court seeking permission to insert Sections 342 and 376 of IPC in the FIR and he has given his statement before Police Inspector as per Ex.P.3.
26. PW.12 Police Inspector deposes that on 13/01/2009 he took up the case file for further investigation from PW.6 and the police constable who was deputed for securing the accused persons, brought the accused persons and produced before him along with the victim. He recorded the statement of the victim and thereafter both the accused persons were arrested him and he sent the victim to B.R.Ambedkar Medical College hospital along with the woman constable for medical examination, he enquired the accused persons, the accused No.1 has given his voluntary statement as per Ex.P.9 and thereafter the accused No.1 was also sent to medical college hospital for medical examination and he recorded the statements of the witnesses, thereafter, he took the accused No.1 to his police custody with 16 S.C.No.370/2009 the permission of the Court, as per the requisition letter as per Ex.P.6, as per the statement given by the accused No.1 in his voluntary statement, he has deputed to his police staff to go to Chennai and accordingly that on 17/01/2009 in the morning 10.30 AM, the accused No.1 along with Innova car, spot mahazar, the statement of the witnesses, the hotel register extracts, the police staff who were deputed to go to Chennai came and produced the accused No.1 before the Police Inspector along with the afore said documents. He further deposes that, he has subjected the said Innova car to the PF. The Hotel Register Extracts were marked as per Ex.P.10 to 14. He further deposes that, he has received the medical certificates with regard to the medical examination of the victim from the hospital as per Ex.P.2 and with regard to the accused No.1 as per Ex.P.5 and after completion of the investigation he has filed the charge-sheet.
27. PW.13 Yuvaraj Hotel Manager has not supported the case of the prosecution.
28. On the basis of the aforesaid evidences of the prosecution witnesses PWs.1 to 13, documents-Ex.P.1 to P.15, and MO-1, learned Public Prosecutor submitted his arguments that the accused have committed the offences and this Court can rely on the said evidences, may proceed to convict the accused.
17 S.C.No.370/200929. On the other hand, the learned defence counsel argued that, there are contradictions, inconsistencies, omissions and improvements in the evidences of the Prosecution witnesses and therefore their evidences cannot be relied upon so as to base the conviction. Further, the learned defence counsel would submit:
. There is inordinate delay in lodging the complaint.
The incident said to have happened on 29/11/2008 but the complaint lodged on 01/12/2008, the delay is not properly explained.
. Spot mahazar Ex.P.4 not filed along with the charge- Sheet and later-on the document Ex.P4 is created.
. There is a discrepancy in description of vehicle number in Ex.P.4 and in the complaint Ex.P1.
. In Ex.P8 i.e., Mahazar at Hotel Anitha Towers, bears the signature of the accused No.1. As per Article 20(3) of the Constitution of India, it violates the right of the accused.
. In Ex.P.1 i.e., typed complaint the vehicle number was mentioned in the complaint and if really the accused No.1 kidnapped the complainant in Innova car then immediately police would have proceed to trace out the vehicle.
.There are many contradictions and omissions in the evidences of PWs.1 to 6. The documents i.e. marked as per Ex.P.10 to P.14 are said to be the copies of the Register maintained by Anitha Towers Hotel which are all bears the date after the date of the complaint and the original Registers of those Exs.P10 to P14 have not secured by the prosecution.18 S.C.No.370/2009
. The defence of the accused is that, the victim was intended to marry the accused No.1, but the accused No.1 did not marry her and therefore the complainant set up this kidnapping and rape story and filed the complaint.
On the basis of the aforesaid lacunas pointed out by the defence, the learned defence Counsel submitted that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and therefore prayed for acquittal.
30. After hearing the arguments of the learned Public Prosecutor and the learned defence counsel, now it is necessary to scrutinize the evidences of the prosecution witnesses cautiously by considering their version in the cross-examination.
31. The arguments of the learned defence counsel is that, there is inordinate delay in lodging the complaint. I have gone through the Complaint-Ex.P.1. As per Ex.P.1, the incident took place on 29/11/2008 at 10.00 AM and the complaint was lodged on 01/12/2008 at 1 P.M., thereby, there is a delay of two days in lodging the complaint.
32. The Learned Public Prosecutor argued that though there is two days delay in lodging the complaint, complainant has properly explained the delay in lodging the complaint. The explanation is that at the time of the incident, the complainant's 19 S.C.No.370/2009 husband had gone out on his private work and the complainant was alone in the house, therefore, she did not lodged the complaint on the said day and when her husband returned to the house, she told about the incident to her husband and thereafter, she and her husband went to the Police Station and lodged the complaint on 01/12/2008. Therefore, the learned Public Prosecutor submitted that, the delay in lodging the complaint was properly explained by the complainant.
In so far as delay is concerned, learned Public Prosecutor has relied upon the following decisions:
(1) AIR 1981 SC 361 (2) 2009 (1) Crimes 111 SC (3) AIR 2008 SC 1603 (4) 1987 Crl.L.J 1965 (5) 2015 (1) KCCR Short Note 45 [SC] (6) AIR 2007 SC 2594 I have gone through all the aforesaid decisions. In all the aforesaid decisions, the ratio laid down is that:
"FIR is only to set criminal law in motion. Delay in lodging FIR in rape case-As honour of family was involved, as members had to decide whether to take the matter to the court or not, therefore, there may be delay in lodging the complaint".
On the basis of the principles laid down in the aforesaid decisions, learned Public Prosecutor argued that, though there is delay in lodging the complaint, the complainant has explained the said delay and therefore, that delay cannot be 20 S.C.No.370/2009 seriously taken into consideration and not fatal to the case of the prosecution.
33. In reply to the said arguments the learned defence counsel argued that, though in the complaint it is mentioned that the husband of the complainant was not in the house and therefore there is a delay in lodging the complaint, during the course of cross-examination of PW.1-complainant, several admissions made by her that she had gone to the Police Station previously with regard to the incident that her husband and her father involved in a murder case, she was aware that any unpleasant incident happened, immediately it has to be brought to the notice of the police, her brother and her relatives came near the college, there was mobile with her brother and her husband was also having the mobile, that number was known to her son, then immediately she should have intimated to her husband about the incident and she could have lodged the complaint with the help of her brother, her relatives or with the help of her own son who was studying in Engineering.
Further, the learned defence Counsel argued that PW.1 deposed that because her husband was suffering from Diabetic, if the incident was reported to the police, then her husband would be shocked and therefore she did not reported the incident to the police. Therefore, the learned counsel for the accused argued that, explanation given with regard to delay in 21 S.C.No.370/2009 lodging the complaint cannot be believable and it is a false complaint lodged by the complainant.
34. On going through the explanation given by the complainant in Ex.P.1 and after perusal of the evidence with regard to delay in lodging the complaint, as rightly argued by the learned counsel for the accused that there are contradictions in her evidence with regard to the delay in lodging the complaint. It is ridiculous to note that, the victim aged 22 years at the time of the incident, she was accompanied with her mother and aunt to the college, kidnapped in the day light at about 10.00 AM, if she was really kidnapped by the accused, then the mother of the victim or aunt of the victim could have immediately lodged the complaint. But they did not lodged the complaint immediately.
35. At this stage, the learned Public Prosecutor submitted that, any unmarried woman if kidnapped, then the family has to think over about lodging the complaint, looking into her future, therefore the mother of the victim did not lodged the complaint immediately and it is further argued that, in a case of rape, the delay in lodging the complaint cannot be seriously taken note of and the Court has to accept the explanation in lodging the complaint. However, it is pertinent to note that, if a woman kidnapped by two persons and took her in a innova car, generally the family members will keep quite 22 S.C.No.370/2009 without bringing to the notice of the police, if she really kidnapped by two persons and further as complainant has not given specific and consistent reason with regard to the delay and her evidence is full of inconsistencies and not specific, she has assigned different reasons/versions with regard to delay in lodging the complaint, therefore, the explanation given by the complainant appears to be vague explanation and which cannot be accepted. The delay in lodging the complaint was not properly explained by the prosecution.
36. Further, the learned defence Counsel argued that in Ex.P1, description of the car is mentioned as silver coloured Innova car bearing registration No.KA-03-MK-2556. The complaint is lodged on 01/12/2008. If really these accused persons kidnapped the victim in the said car, then the police could have immediately taken action to trace out the said vehicle, as the description of the vehicle number was given in the complaint. But, till the date of securing the accused and the victim i.e., on 13/01/2009 i.e., for a period of 44 days, the police did not made any efforts to trace out the said vehicle. Therefore, the learned defence Counsel argued that, the story of the prosecution that the accused kidnapped the victim in the said vehicle, cannot be believable.
37. Further, he has also brought to the notice of the Court that in Ex.P.4, vehicle number is mentioned as silver coloured innova car bearing registration No.KA-03-EK-2556.
23 S.C.No.370/2009Therefore, the learned counsel submitted that the description of the vehicle mentioned in Ex.P.1 is entirely different from that of the description of the vehicle mentioned in Ex.P.4. Further, he has also brought to the notice of this Court with regard to panchanama Ex.P.4 was not produced by the complainant police along with the charge-sheet. It was produced in the later date at the time of trial by filing an application u/Sec.91 of Cr.P.C. Therefore, the learned counsel argued that Ex.P.4 is a concocted document.
38. It is true that as rightly argued by the learned counsel for accused, the police could have immediately trace out the vehicle after lodging the complaint, but they did not do so. Therefore, the doubt arises in the mind of the Court with regard to the truthfulness of the documents Ex.P.1 and Ex.P.4. Thereby, the arguments advanced by the learned defence Counsel that a prudent police could have immediately taken steps to trace out the vehicle when the vehicle number was mentioned in the Ex.P1, has to be accepted.
39. Further the learned defence Counsel submitted in Ex.P8 i.e., Mahazar at Hotel Anitha Towers, bears the signature of the accused No.1. Therefore, he argued that, even the Ex.P8 Mahazar cannot be looked into.
24 S.C.No.370/200940. As a reply to the said argument, learned Public Prosecutor submitted that, though signature was obtained on Ex.P8, it will not affect the prosecution case. In that regard, he has relied upon the decision reported in AIR 1999 SC 1776, wherein it is held that:
"Obtaining signature of the accused on seizure memo would not vitiate the prosecution case and if any signature has been obtained by an IO, there is nothing wrong or illegal about it".
Therefore, the arguments canvassed by the learned defence Counsel that, because the signature of accused No.1 obtained on Ex.P8, Ex.P8 cannot be looked into, is not sustainable.
41. Further, the learned counsel for the accused brought to the notice of this Court that the prosecution has not produced the documents to show that the accused was kept the victim in the lodge at Chennai. On perusal of the said documents i.e., marked as per Ex.P.10 to P14, those documents are dated 31/12/2008, 06/12/2008, 11/08/2008, 29/12/2008 and 05/12/2008. The complainant's case is that, she was kidnapped on 29/11/2008 and she was secured by the police on 12/1/2009.
42. The learned counsel for the accused argued that, the prosecution has not produced any documentary evidence to show that where was the victim from the date 29/11/2008 to 25 S.C.No.370/2009 05/12/2008. If really the accused kidnapped her and kept in a room by wrongful confinement, then the prosecution could have placed the evidence from the date of 29/11/2008 to 05/12/2008. Further, the learned counsel argued that the prosecution has also not placed any documents to show that from 07/12/2008 to 10/12/2008, where was the victim kept under confinement. Further, it is also argued that, from 12/12/2008 to 28/12/2008, no documentary evidence placed by the prosecution that where the victim was kept under confinement, likewise on 30/12/2008 no document placed with regard to where the victim was residing and further from the date of 01/10/2009 to 11/10/2009, no documentary evidence placed by the prosecution to show that where the victim was residing. Further, the learned counsel for the accused argued that the documents Ex.P.10 to P.14 are concocted documents by the prosecution. The original register of the said documents not marked. The prosecution though examined the Manager of the Hotel Anitha Towers, Chennai, the Manager could not identified the said documents i.e., Ex.P.10 to P.14. During the course of cross-examination of PW.13 [Manager] he deposed that, he could not say whether the documents Ex.P.10 to P.14 belonged to his Hotel or not. Therefore, this Court cannot make any reliance on the said documentary evidence i.e., Ex.P.10 to P.14, so as to say that the victim was wrongfully confined in the Hotel Anitha Towers at Chennai from 29.11.2008 to 12.1.2009.
26 S.C.No.370/200943. Accepting the arguments of the learned defence Counsel that, the prosecution has not placed any documentary evidence with regard to the stay of the victim from the date of 29/11/2008 to 04/12/2008, 07/12/2008 to 10/12/2008, 12/12/2008 to 28/12/2008, 30/12/2008, 01/01/2009 to 11/01/2009, if really the accused kidnapped the victim then the prosecution could have produced the relevant documents of the Hotel, where the accused kept the victim in confinement, the documents Ex.P.10 to P.14 cannot be believable at all.
44. It is argued by learned Public Prosecutor that the accused persons kidnapped the victim in Innova Car, which can be depicted from the evidences of the complainant, victim and her aunt. Further it is argued that during the course of investigation, the said Innova car secured and the IO has also conducted the panchanama in the Hotel and collected the Hotel receipts. Therefore, he argued that the prosecution has proved the guilt of accused persons that, they kidnapped the victim. Further, learned Public Prosecutor argued that, though there are minor contradictions in the evidence of Prosecution witnesses, those contradictions cannot be seriously taken note-of and the marginal variations between the statement of the Prosecution witnesses recorded under Sec.161 of Cr.P.C and the testimony given in the court, cannot be treated as improvements, they are only elaborations. In that regard learned Public Prosecutor has relied upon the following decisions reported in:
27 S.C.No.370/2009(1) 2001 SCC (Crimes) 1504 (2) 2007 (3) Crimes 310 (SC) (3) (2011) 1 SCC (Crime)381 (4) 2015 (1) KCCR Short Note 78(SC), (5) 2007 (1) Crimes 54 (SC) (6) 2000 (4) Crimes 234, (SC), (7) (2004) 3 SCC 654 (8) 2015 (3) Crimes 83 (SC), (9) (2011) 3 SCC 654, (10) (2010) 8 SCC 191 (11) AIR 2010 SC 1894 I have gone through all the aforesaid decisions. The observations made in the aforesaid decisions are:
In the 1st decision, "It is the prerogative of the Public Prosecutor to elicit such points from a witness as he deems necessary for the case. No Public Prosecutor can be nailed to the statement recorded under Sec.161 of the Code".
In the 2nd decision, " Merely because there was some difference in the version of one witness so far as his statement in the court vis-viz statement in the FIR is concerned, that does not in any way affect the credible and cogent evidence of other witnesses".28 S.C.No.370/2009
In the 3rd and 4th decisions, "Criminal Trial- Appreciation of evidence- Generally- Principles- court should read evidence as a whole-So read, if it appears to have a ring of truth, then, discrepancies, inconsistencies, infirmities or deficiencies of minor nature not touching core of the case, cannot be ground for rejecting the evidence- Courts should sift the evidence to separate falsehood from truth-It should not adopt a hyper-technical approach".
In the 5th decision, "Some improvements in the testimony of a witness would not lead to rejection thereof in its entirety".
In the 6th decision, "Defective investigation cannot be made a basis for acquitting the accused, if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them".
In the 7th decision, "Defective investigation not fatal to the prosecution where ocular testimony is found credible and cogent."
In the 8th decision, "Appreciation of evidence- Improvement over FIR in deposition- Not fatal evidence of the witness trustworthy".29 S.C.No.370/2009
In the 9th decision, "Criminal Trail-Investigation- Defective or illegal investigation-Deficiencies in investigation by way of omission and lapses on part of Investigating Agency cannot in themselves justify a total rejection of prosecution case".
From the aforesaid observations made in all the aforesaid decisions, learned Public Prosecutor submitted that, in the present case, though there may be contradictions, improvements, deficiencies, omissions and lapses on the part of the Investigating Officer and during the course of evidence of the witnesses, the evidence of the witnesses cannot be discarded and accepting their evidence, the accused may be convicted.
45. On the other hand, learned defence Counsel argued that, there are serious contradictions and omissions in the evidences of PW1 to PW6, the said contradictions, omissions cannot be neglected and accused cannot be convicted on the basis of the evidences of the Prosecution witnesses by neglecting such contradictions and omissions. In that regard, the learned defence Counsel has relied upon the decision reported AIR 2011 SC 349, wherein it is held that:
"If a significant omission in the statement of the witness is recorded under Sec.161 of Cr.P.C, the same may amount to a contradiction and therefore the evidence cannot be trustworthy to believe".30 S.C.No.370/2009
In another decision reported in 2013 Cril.L.J 3236, wherein it is held that:
"Contradictory versions in FIR and discrepancies and omissions during the trial are fatal to the prosecution story. Hence, conviction set-aside"
Therefore, the learned defence Counsel argued that, as there are contradictory versions in the evidences of the Prosecution witnesses and there were several omissions in the evidences of PW1 to PW6, as note-down in the written submission made by him, therefore, he argued that, the prosecution evidence cannot be accepted.
46. On analyzing the evidence of the Prosecution witnesses, in this case, as rightly argued by the learned defence Counsel that there are many contradictions, omissions and improvements in the evidence of the prosecution witnesses, this court is of the opinion that, the evidence of PW1 to PW6 cannot be trustworthy to believe and hence, their evidence cannot be accepted to base the conviction.
47. At this stage, learned Public Prosecutor further submitted that, though there are contradictions in the evidences of the Prosecution witnesses, the sole testimony of the victim may be considered to base the conviction. In that 31 S.C.No.370/2009 regard, learned Public Prosecutor has relied upon the following decisions:
(1) 2013 (4) Crimes 1 (SC) wherein it is held that:
"Conviction can be based on the sole evidence of the prosecutrix".
(2) AIR 1996 SC 922, wherein it is held that:
"Rape-Is most hated crime- It is crime against basic human rights-Also violates right to life".
Therefore, learned Public Prosecutor submitted that, this court may also take note-of the crime against the woman and if there was no abduction and rape of the victim, then, she would not have lodged the complaint. No one would normally concoct a story of rape and lodge the complaint unless there was crime committed on them. Therefore, learned Public Prosecutor submitted that the sole testimony of the victim may be relied upon to base the conviction.
48. However, this court has taken note-of the serious contradictions, omissions and discrepancies in the evidence of the Prosecution witnesses PW1 to PW4 and so also the victim-PW5. At this stage, it is very pertinent to note that, all the witnesses PW1 to PW3, PW5 they did not specifically mentioned the date of incident in their chief examination. They deposed that, in the year 2008, they had gone to the 32 S.C.No.370/2009 college of the victim. PW4 deposed that on 21.11.2008 his wife, daughter and sister-in-law gone to the college of the victim. Really the incident had happened on 29.11.2008, then PWs-1 to 5 could have deposed the specific date in their chief- examination. Further, PW1 deposed that, while they returning from the college, the victim-PW5 was proceeding in front of them along with her friends, but, in the complaint, it is not stated that, she was proceeding along with her friends. Further, according to PW1 the accused No.1 and accused No.2 dragged the victim towards K.R.Puram. She did not depose that, accused Nos. 1 and 2 dragged the victim into the Innova Car. In her cross-examination she admitted that, she did not stated in her statement that, victim was going with her friends in front of them and accused No.1 and accused No.2 dragged the victim towards K.R.Puram before the police. She also admitted that, she did not stated before the complainant police that, the victim was screaming and crying.
49. PW2 deposed that, she saw that there was Innova car and accused No.1 took Suma [victim] and made her to sit in the said car. During her cross-examination, though it is suggested to her [PW2] she did not stated in the statement made before the complainant police that, she saw Innova Car, during the course of cross-examination of PW6- Police Sub- Inspector, he admitted that, PW2 did not stated before him that, she saw Innova Car and the accused No.1 took Suma 33 S.C.No.370/2009 [Victim] and made her to sit in the Innova Car. Therefore, there is contradiction in the evidence of PW2, which is proved from the evidence of PW6.
50. Likewise, the learned defence Counsel pointed out the contradictions marked as Exs.D14 and D15 i.e., in the evidence i.e., during the course of cross-examination of PW2.
51. The victim PW5 during the course of cross- examination deposed that she did not stated before the complainant police that accused No.1 came and pushed her in the Car and accused No.2 was inside the car and at that time, it was 10.30 A.M. Further, she admitted that, she did not stated before the complainant police that the accused persons confined her in a room at Chennai and beating her and not giving food to her. Further she admitted that she did not stated before the complainant police that the accused persons used to change lodge at Chennai.
52. On going through the cross-examination of PW1 to PW5, there are inconsistencies in their evidence. PW4 during the course of cross-examination stated that, except himself, nobody had mobile in his house, but PW3 deposed that, he had mobile phone with him while he was going to tuition. Further, PW4 deposes that, the complainant police written the statement made by his wife which is Ex.P1, however, Ex.P1 is 34 S.C.No.370/2009 the Complaint and not hand-written complaint, it is typed complaint. Therefore, the evidence of PWs- 1 to 4 not corroborated each other and there are inconsistencies in their evidence and hence, their evidence cannot be trustworthy to accept, so also the evidence of PW5 also not trustworthy to accept and accordingly, the arguments canvassed by the learned Public Prosecutor that, sole testimony of PW5 may be accepted to convict the accused, cannot be sustainable.
53. It is the argument of the learned defence Counsel that, the victim had intention to marry accused No.1 and as she did not succeed, she filed false case against these accused persons.
54. In so far as false implication of the accused are concerned, learned Public Prosecutor has relied upon the following decisions:
(1) 2015(1) KCCR Short Note 45 (SC)
(2) 2008 Crl.L.J 710
(3) (2008) 11 SCC 38
I have gone through all the 3 aforesaid decisions. The
observations made in the aforesaid decisions are:
In the 1st decision, "No foundation established for plea of false implication."35 S.C.No.370/2009
In the 2nd decision, "False implication-Normally improbable-Rape leaves a permanent scar and has a serious psychological impact on the victim and also her family members- No one would normally concoct a story of rape just to falsely implicate a person".
Therefore, learned Public Prosecutor argued that, the plea of false implication cannot be taken into consideration.
55. On the other hand, the learned defence Counsel submitted that, the victim and the accused No.1 were known to each other and they moved together, in the evidence of the victim, it was elicited that, she had love with accused No.1 and she roamed along with accused No.1 and when she expressed her desire to marry him, it was refused by accused No.1 and his family, that was the cause for false implication of the accused persons. In that regard, the learned defence Counsel has relied upon the decision reported in 2013 Cril.L.J 3196, wherein it is observed that:
"The accused had been visiting the victim for a long period of time indicates that, the victim had consented to have sexual intercourse with the accused-Held, accused was acquitted"
The learned defence Counsel has also relied upon another decision reported in 2013 Cril.L.J 2990, wherein it is observed that:
36 S.C.No.370/2009"If the accused promises to marry the victim, and has sexual intercourse, the action constitutes as rape only if the accused from the initial stages had no intention to keep the promise".
56. On going through the evidence of the victim, she herself admitted that, she accompanied with accused No.1 to temples and other places [as seen from the Photographs produced by the defence at Exs.D4 to D11] further she attended the marriage of accused No.1 along with accused No.2 and their Marriage Reception [as seen from the Photographs produced by the defence at Exs.D1 to D3], discloses that, she voluntarily went with the accused No.1 and it appears that, there was no forcible abduction or kidnap of the victim and thereby, it may be said that, the accused have been falsely implicated by the victim, as she could not marry accused No.1. Therefore, there is force in the arguments of the learned defence Counsel that, these accused persons have been falsely implicated.
57. Looking into the evidence of the prosecution witnesses, as rightly argued by the learned defence Counsel that, there are contradictions in the evidences of PWs-1 to 5, further, there is delay in lodging the complaint, though it is explained, this Court has not accepted the said explanation as properly explained. Further, the prosecution has not placed any documentary evidence with regard to the stay of the victim on the afore-mentioned dates i.e., 29.11.2008 to 5.12.2008, 37 S.C.No.370/2009 7.12.2008 to 10.12.2008, 12.12.2008 to 24.12.2008, 26.12.2008 to 28.12.2008, 30.12.2008, 1.1.2009 to 13.1.2009 . Further, Ex.P.4 not produced along with the charge-sheet, the hotel Manager not supported the case of the prosecution, further, in this case, the accused has placed the documents i.e., Ex.D series, wherein, the accused contended that, the victim intended to marry the accused No.1 and she herself accompanied the accused No.1 to go to temples and other places, and further the accused No.1 did not marry her, she lodged the false complaint.
58. In view of the aforesaid discussions and taking into all these considerations, this Court is of the opinion that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Accordingly, I answer Point Nos.1 to 4 in the Negative.
59. POINT NO.5: In view of my aforesaid discussions, I proceed to pass the following :
ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, the accused Nos.1 and 2 are acquitted of the offences punishable under Sec. 366, 343, 376, 109 read with 34 of IPC.38 S.C.No.370/2009
Their bail bonds and surety bonds obtained earlier stands cancelled. However, the bail bonds and the surety bonds executed by the accused Nos.1 and 2 on 03/10/2015 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment.
The interim custody of the vehicle MO.1 given to one Sri.B.V.Srinath is made absolute after the appeal period is over.
(Dictated to the Stenographer partly and directly on the computer, corrections carried out and then pronounced by me in the Open Court on this the 31st day of December 2016).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Annapoorna Cw.1 17-01-2011
Pw.2 Nirmala Cw.2 17-01-2011
Pw.3 Vijay Kumar Cw.4 17-01-2011
Pw.4 Anand Reddy Cw.5 26-03-2011
Pw.5 Suma Cw.3 04-07-2011
Pw.6 M.Manjunath Cw.14 21-06-2012
Pw.7 Ramachandrappa Cw.12 21-06-2012
Pw.8 Anantha Reddy Cw.6 25-06-2013
Pw.9 Dr.B.M.Nagaraju Cw.11 11-10-2013
Pw.10 J.Krishnappa Cw.7 21-12-2013
39 S.C.No.370/2009
Pw.11 Mallikarjuna Cw.17 17-01-2014
Pw.12 H.J.Thippeswamy Cw.18 21-07-2014
Pw.13 Yuvaraj Cw.8 23-02-2015
Documents marked for the prosecution:
Ex.P1 Complaint Pw.1 17-01-2011
Ex.P1a Signature of Pw.1 Pw.1 17-01-2011
Ex.P1b Signature of Pw.6 Pw.6 21-06-2012
Ex.P2 Medical report of victim Pw.5 04-07-2011
Ex.P2a,b Signatures of PW5 Pw.5 04-07-2011
Ex.P2c Signature of Pw.9 Pw.9 11-10-2013
Ex.P2d Signature of Pw.12 Pw.12 21-07-2014
Ex.P3 FIR Pw.6 21-06-2012
Ex.P3a Signature of Pw.6 Pw.6 21-06-2012
Ex.P4 Mahazar drawn at C-college, Pw.6 21-06-2012
K.R.Puram, Bengaluru
Ex.P4a Signature of Pw.6 Pw.6 25-06-2013
Ex.P4b Signature of Pw.7 Pw.7 21-12-2013
Ex.P4c Signature of Pw.6 Pw.6 21-06-2012
Ex.P5 Medical report of A-1 PW9 11-10-2013
Ex.P5a Signature of Pw.9 Pw.9 11-10-2013
Ex.P5b Signature of Pw.12 Pw.12 21-07-2014
Ex.P6 Requisition Pw.11 17-01-2014
Ex.P6a Signature of Pw.12 Pw.12 21-07-2014
Ex.P7 Mahazar drawn at Hotel Pw.6 17-01-2014
Anitha Lodge, Triplicane,
Chennai regarding seizure of
Tata Innova car bearing
Regn.No. KA-03- MK-2556
which was used for
kidnapping the victim
Ex.P7a Signature of Pw.6 Pw.6 17-01-2014
Ex.P8 Mahazar drawn at Hotel Pw.6 17-01-2014
Anitha Lodge, Triplicane,
Chennai, where accused No.1
committed rape on the victim
Ex.P8a Signature of Pw.6 Pw.6 17-01-2014
40 S.C.No.370/2009
Ex.P9 Voluntary Statement of Pw.12 21-07-2014
accused
Ex.P9a Portion of voluntary statement Pw.12 21-07-2014
Ex.P9b Signature of Pw.12 Pw.12 21-07-2014
& P9c
Ex.P10 Documents relating to Hotel Pw.13 23-02-2015
to P14 Anita Towers
Ex.P10a Signatures of Pw.12 Pw.12 21-07-2014
to P14a
Ex.P15 Statement of Pw.13 PW13 23.2.2015
Material objects marked for the prosecution:
MO1 Car Pw.1 07-09-2015 Documents marked for the accused Nos.1 and 2:
Ex.D1 to Photos Pw.2 04-07-2011
D12
Ex.D13 Statement of Pw.5 PW5 20-09-2011
Ex.D14 Statement of Pw.2 Pw.2 14-02-2012
Ex.D15 Portion of statement of Pw.2 14-02-2012
Pw.2
Ex.D16 Statement at Pw.11 PW11 17-01-2014
Witness examined and material objects marked for the accused Nos. 1 and 2:
- Nil -
LIV Addl., City Civil & Sessions Judge, Bangalore.41 S.C.No.370/2009
31/12/2016 Accused Nos.1 & 2 are present.
Judgement pronounced in open court:[ Vide separate detailed Judgement] In exercise with the powers conferred upon me under Criminal Procedure Code, the accused Nos.1 and 2 are acquitted of the offences punishable under Sec. 366, 343, 376, 109 read with 34 of IPC.
Their bail bonds and surety bonds obtained earlier stands cancelled. However, the bail bonds and the surety bonds executed by the 42 S.C.No.370/2009 accused Nos.1 and 2 on 03/10/2015 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment.
The interim custody of the vehicle MO.1 given to one Sri.B.V.Srinath is made absolute after the appeal period is over.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.43 S.C.No.370/2009