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Karnataka High Court

Raghavendra @ Piya vs State Of Karnataka By on 28 March, 2024

                            -1-
                                      CRL.A No. 1685 of 2017
                                  C/W CRL.A No. 1526 of 2015


    IN THE HIGH COURT OF KARNATAKA AT BENGALURU
        DATED THIS THE 28TH DAY OF MARCH, 2024
                         PRESENT
   THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
                           AND
           THE HON'BLE MR JUSTICE S RACHAIAH
          CRIMINAL APPEAL NO. 1685 OF 2017 (C)
                           C/W
          CRIMINAL APPEAL NO. 1526 OF 2015 (C)


IN CRIMINAL APPEAL NO. 1685 OF 2017 (C)
BETWEEN:
   RAGHAVENDRA @ PIYA
   S/O MUNIYAPPA
   AGED ABOUT 28 YEARS
   R/AT NO.22, REVANNA LAYOUT
   BEHIND GANESHA TEMPLE NAYANDAHALLI
   BANGALORE - 39.

                                                 ...APPELLANT
(BY SRI. CHANDRASHEKAR R P, ADVOCATE)

AND:
   STATE OF KARNATAKA BY
   CHANDRA LAYOUT POLICE STATION
   BANGALORE - 40
   REPRESENTED BY STATE PUBLIC
   PROSECUTOR, BANGALORE.

                                               ...RESPONDENT
(BY SRI. M V ANOOP KUMAR, HCGP FOR R1;
    SRI. KEMPARAJU, ADVOCATE FOR R2)

     THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCES
DATED 1-10-2015 PASSED BY THE II ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AND SPECIAL JUDGE FOR THE SCHEDULED
CASTES AND THE SCHEDULED TRIBES (PREVENTION OF
ATROCITIES) ACT, 1989 BANGALORE IN S.C.1345/2011 AND ETC.,
                             -2-
                                      CRL.A No. 1685 of 2017
                                  C/W CRL.A No. 1526 of 2015


IN CRIMINAL APPEAL NO. 1526 OF 2015 (C)
BETWEEN:
   NAGESHA
   S/O MUNIRAJU
   AGED ABOUT 20 YEARS
   RESIDING AT NO.35/5
   THOTADA ROAD
   NAYANDAHALLI
   BANGALORE - 560 039.

                                                 ...APPELLANT
(BY SRI. HASHMATH PASHA, SENIOR ADVOCATE FOR
    SRI. KARIAPPA N A, ADVOCATE)

AND:
1. STATE OF KARNATAKA BY
   CHANDRA LAYOUT POLICE STATION
   BANGALORE CITY - 560 040.

     (REPRESENTED BY LEARNED STATE PUBLIC
     PROSECUTOR)

2.   SMT M MAHADEVAMMA
     @ MANJAMMA @ MANJU @ MALLIGE
     W/O M. SHANKARAYYA @ PRAKASHA
     AGED ABOUT 38 YEARS
     RESIDING AT, NO.14, THOTADA ROAD
     BESIDE RAMACHANDRA VATHARA
     NAYANDAHALLI, BANGALORE - 560 039.

                                              ...RESPONDENTS

(BY SRI. M.V. ANOOP KUMAR, HCGP FOR R1;
    SRI. KEMPARAJU, ADVOCATE FOR R2


     THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCES DATED 01-10-2015 PASSED IN SESSIONS CASE
NO.1345/2011 FOR OFFENCES UNDER SECTIONS 376(2)(g) AND 392
READ WITH SECTION 34 OF I.P.C. AND UNDER SECTIONS 3(1)(xi)
AND 3(2)(v) OF THE SCHEDULED CASTES AND THE SCHEDULED
TRIBES (PREVENTION OF ATROCITIES) ACT, 1989 (CCH-17),
BANGALORE CITY.
                                -3-
                                         CRL.A No. 1685 of 2017
                                     C/W CRL.A No. 1526 of 2015


DATE ON WHICH THE APPEALS WAS
RESERVED FOR JUDGMENT                            29.02.2024

DATE ON WHICH THE JUDGMENT
WAS PRONOUNCED                                   28.03.2024


      THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, S. RACHAIAH J, DELIVERED THE FOLLOWING:-


                          JUDGMENT

1. These two appeals are arising out of the common judgment of conviction and order on sentence dated 01.10.2015 in S.C.No.1345/2011 on the file of the II Additional City Civil and Sessions Judge and Special Judge for the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (CCH-17), Bengaluru, wherein the Trial Court recorded conviction of the accused for the offences punishable under 376(2)(g), 392 r/w Section 34 of Indian Penal Code (for short 'IPC') and Sections 3(1)(xi) and 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC / ST (POA) Act').

2. Accused No.1 has preferred Criminal Appeal No.1526/2015 and accused No.3 has preferred Criminal Appeal No.1685/2017, praying to set-aside the impugned judgment. -4- CRL.A No. 1685 of 2017 C/W CRL.A No. 1526 of 2015

3. The ranks of the parties in the Trial Court will be considered henceforth for convenience.

Facts in brief:-

4. The case of the prosecution is that, on 31.07.2011 at about 11.30 p.m., the prosecutrix came from Mandya in a KSRTC bus and alighted at Nayandahalli junction, Bengaluru, to go to her house. When she was proceeding to her house after crossing the railway line, one of the accused stopped her. When she turned towards him, he went near her and started talking with her. By that time, another accused came to the place and they took her to an isolated place and committed rape on her. In the meantime, one of the accused asked accused No.3 to come to the spot. Accused No.3 came to the spot and also committed rape on her in spite of repeated requests made by the prosecutrix to leave her to go to her house. The entire act took place for almost 2½ hours and after the incident of rape, the accused had robbed her gold articles and also cash of Rs.4,500/- and fled away from that place.

5. After the incident, she went near her house, knocked the door of the neighbour and the neighbour came out of the house and she narrated the incident to the neighbour -5- CRL.A No. 1685 of 2017 C/W CRL.A No. 1526 of 2015 and one auto driver had also come to the spot who is examined as PW.5. Thereafter, a complaint came to be registered by her regarding the incident and the police registered a case for the offences punishable under Sections 376, 392 r/w 34 of IPC. However, after conducting the investigation and after obtaining the further statement, Section 376(2)(g) of IPC and Sections 3(1)(x)(xi)(xii) of SC / ST (POA) Act were added.

6. The Trial Court recorded the conviction agaisnt accused Nos.1 and 3 for the offences punishable under Sections 376(2)(g), 392 r/w 34 of IPC and Sections 3(1)(xi), 3(2)(v) of SC / ST (POA) Act.

7. We have heard the learned counsel for the respective parties.

Submission of learned Senior Counsel for appellant in Crl.A.No.1526/2015:

8. Learned Senior Counsel Mr.Hashmath Pasha appearing for accused No.1 in Criminal Appeal No.1526/2015 vehemently contended that the findings of the Trial Court in recording the conviction are perverse and illegal and against to the evidence on record, therefore, the said conviction is required to be set aside.

CRL.A No. 1685 of 2017 C/W CRL.A No. 1526 of 2015

8(i) It is further submitted that the invocation of provisions of SC / ST (POA) Act is erroneous and inappropriate as the appellant is a stranger to the prosecutrix. Even assuming that the accused No.1 was present at the spot of the alleged incident, he was not aware about the caste of the prosecutrix. Moreover, the alleged incident is said to have taken place in the odd hours. In the absence of knowledge regarding the caste of the prosecutrix, invocation of the said provision is inappropriate and illegal.

8(ii) It is further submitted that initially, the prosecutrix had not mentioned that she had informed the accused regarding her caste, subsequently, after 15 days, she stated to have given her further statement and said to have produced the caste certificate, which is marked as Ex.P3. The said caste certificate contains the name as 'Mahadevamma', however, in the complaint the name of the prosecutrix is shown as 'Manju'. Therefore, the Trial Court ought not to have recorded the conviction for the offences punishable under Sections 3(1)(xi) and 3(2)(v) of SC / ST (POA) Act. In support of his contention, learned Senior Counsel relied on the judgment of the Hon'ble Supreme Court in the case of HITESH VERMA v. STATE OF -7- CRL.A No. 1685 of 2017 C/W CRL.A No. 1526 of 2015 UTTARAKHAND & Another1, wherein the Hon'ble Supreme Court considering the judgment of GORIGE PENTAIAH v. STATE OF ANDHRA PRADESH2, held that the victim has to mention the caste of the accused in the FIR in addition to stating that she / he belongs to scheduled caste.

8(iii) It is further submitted that the prosecutrix even though has mentioned that she had been subjected to gang rape during the intervening night of 31.07.2011 and 01.08.2011, she had been subjected to medical examination on 01.08.2011 at about 08.30 a.m., the Doctor after examining her, has opined that there was no evidence of recent sexual intercourse. The FSL report also indicates that the items which were sent for the examination contain neither any blood stains nor any semen. In other words, the evidence of the prosecutrix is not corroborated by the medical and FSL report. Further, learned Senior Counsel has submitted that there are some improvements and contradictions in the evidence of prosecutrix regarding commission of rape and therefore, the conviction for the offence under Section 376(2)(g) of IPC ought not to have been recorded on the strength of the evidence of 1 (2020) 10 SCC 710 2 (2008) 12 SCC 531 -8- CRL.A No. 1685 of 2017 C/W CRL.A No. 1526 of 2015 the sole prosecutrix. To substantiate the said contention, the learned Senior Counsel relied on the judgment of the Hon'ble Supreme Court in the case of SANTOSH PRASAD v. STATE OF BIHAR3, wherein the Hon'ble Supreme Court held that the sterling witness should be of a very high quality and calibre whose version should therefore be unassailable and further held that, to hold an accused guilty for the commission of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

8(iv) It is further submitted that the alleged incident is said to have taken place around about 11.30 p.m. to 01.45 a.m. The accused were strangers to the prosecutrix. Even though their descriptions have been mentioned in the complaint, the identification parade should have been done after their arrest. In the present case, even though the prosecution stated to have conducted identification parade and PW.1 said to have identified the accused in the said parade, the prosecution neither produced the said document nor examined the person who conducted the identification parade. Therefore, 3 (2020) 3 SCC 443 -9- CRL.A No. 1685 of 2017 C/W CRL.A No. 1526 of 2015 the said identification loses its significance. Hence, Section 392 of IPC has not been proved by the prosecution. In the absence of production of report of the identification parade, conviction ought not to have been recorded. However, the Trial Court referred to the conviction on the strength of recovery of gold ornaments alleged to have recovered at the instance of the accused is not proper and it is perverse, therefore, the conviction in respect of the above said offence is required to be set aside.

Submission of learned counsel for appellant in Crl.A.No.1685/2017:

9. Learned counsel for the appellant / accused No.3 in Crl.A.No.1685/2017 has consented to adopt the arguments of accused No.1 in respect of the allegations made against accused No.3, however, made certain submissions that the prosecutrix has not raised any hue and cry immediately after she was asked to stop while she was going home. The recovery of the golden ornaments at the instance of accused No.3 has not been proved. The Trial Court recorded the conviction in respect of all the offences without considering the evidence on record properly therefore, the said conviction is

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C/W CRL.A No. 1526 of 2015

required to be set aside. Learned counsel relied on the following judgments to substantiate his arguments.

1. RAJU & Others v. STATE OF MADHYA PRADESH4

2. RAJA & Others v. STATE OF KARNATAKA5

3. RAI SANDEEP @ DEEPU v. STATE (NCT OF DELHI)6

4. KHUMAN SINGH v. STATE OF MADHYA PRADESH7

5. VENKATESH @ CHANDRA & Another v. STATE OF KARNATAKA8

6. BHARAT v. STATE OF M.P.9

7. RAMDAS & Others v. STATE OF MAHARASHTRA10

8. SUBRAMANYA v. STATE OF KARNATAKA11 Submissions by learned counsel for respondent No.2 in Crl.A.No.1526/2015:

10. It is the submission of learned counsel for respondent No.2 that the evidence of the prosecutrix has been 4 (2008) 15 SCC 133 5 (2016) 10 SCC 506 6 (2012) 8 SCC 21 7 (2020) 18 SCC 763 8 2022 SCC Online SC 765 9 (2003) 3 SCC 106 10 AIR 2007 SC 155 11 2022 Live Law (SC) 887

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C/W CRL.A No. 1526 of 2015

considered by the Trial Court and recorded the conviction on the ground that her evidence inspired the confidence of the Court regarding the commission of the offence and also the circumstances under which the recovery was effected. Therefore, the judgment of conviction is required to be maintained.

11. It is further submitted that the prosecutrix came from Mandya to Bengaluru and alighted at Nayandahalli bus stop and she was proceeding towards her rented house after crossing the railway line. By that time, one of the accused asked the prosecutrix to stop and pretended as if he knew her. When she stopped to talk with him, immediately, another accused joined the hands of the person and both of them took her to a nearby place and committed rape in spite of repeated requests having been made by the prosecutrix stating that she is having children of same age as that of the accused and also pleaded them that she belongs to Scheduled Caste.

12. It is further submitted that the evidence of prosecutrix further clarified that the accused Nos.1 and 2 have called accused No.3 and accused No.3 came to the place and committed rape. After committing the rape, all the accused

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C/W CRL.A No. 1526 of 2015 persons have robbed the golden ornaments and cash of Rs.4,500/- belonging to the prosecutrix.

13. It is further submitted that the recovery of golden ornaments and cash of Rs.2,750/- has been proved by the prosecution. The witnesses to the mahazar have supported the case of the prosecution. The prosecutrix made available the caste certificate to substantiate that she belongs to scheduled caste. The items which were recovered by the Investigating Officer have been identified by the prosecutrix. Such being the fact, the conviction recorded by the Trial Court appears to be proper and appropriate and there is no case made out by the appellants to interfere with the said findings. Making such submission, learned counsel for the respondent No.2 prays to dismiss the appeal.

14. To substantiate the arguments, learned counsel for respondent No.2 relied on the following judgments of the Hon'ble Supreme Court.

1. MUKESH v. STATE OF CHHATTISGARH12

2. PHOOL SINGH v. THE STATE OF MADHYA PRADESH13 12 2014 AIR SCW 5618 13 CRL.A.NO.1520 OF 2021

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C/W CRL.A No. 1526 of 2015

3. RANJEET KUMAR YADAV v. STATE OF NCT OF DELHI14

4. PATAN JAMAL VALI v. STATE OF ANDHRA PRADESH15

5. DAYARAM v. SUDHIR BATHAM AND OTHERS16 Submissions of learned HCGP for respondent-State

15. Learned High Court Government Pleader for respondent No.1 adopted the arguments of respondent No.2 and submitted that the prosecutrix has proved the case beyond reasonable doubt and the conviction can be based on the sole testimony of the victim / prosecutrix with or without corroboration. To substantiate his contention, learned High Court Government Pleader relied on the judgment of the Hon'ble Supreme Court in PHOOL SINGH v. STATE OF MADHYA PRADESH17.

16. After having heard the learned counsel for the respective parties and also perused the findings of the Trial Court, the points which would arise for our consideration are: 14

CRL.A.NO.50 OF 2022 15 (2021) 16 SCC 225 16 (2012) 1 SCC 333 17 (2022) 2 SCC 74

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C/W CRL.A No. 1526 of 2015

(i) Whether the findings of the Trial Court in convicting the appellants for the offences under Sections 3(1)(xi), 3(2)(v) of SC / ST (POA) Act is justified?

(ii) Whether the findings of the Trial Court in convicting the appellants for the offence under Section 376(2)(g) of IPC is justified?

iii) Whether the findings of the Trial Court in recording the conviction in respect of offence under Section 392 r/w Section 34 of IPC are justified?

(iv) Whether the appellants have made out a case to interfere with the said findings?

ANALYSIS

17. The entire case is based on the evidence of sole prosecutrix. It is settled principle of law that the conviction can be based on the sole testimony of the prosecutrix if it inspires confidence. The said evidence of the sole prosecutrix must inspire the confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

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C/W CRL.A No. 1526 of 2015 Reg : point No.(i)

18. In the present case, the Trial Court recorded the conviction for the offences under Sections 3(1)(xi) and 3(2)(v) of SC / ST (POA ) Act on the basis of the evidence of PW.1. Whether the evidence of PW.1 is sufficient to record the conviction for the above said offences needs to be analysed. The accused Nos.1 and 3 were strangers to PW.1 and the caste of the prosecutrix was not known to the accused. PW.1 stated in her evidence that she had disclosed her caste while the accused were committing rape on her and requested them to leave her. However, she did not disclose the said fact in her complaint. Further it is noticed in her evidence that she had disclosed her caste to the Investigating Officer after 15 days from the date of commission of the alleged incident in the form of her further statement.

19. The evidence of PW.1 further states that she has produced Ex.P3 - caste certificate to the police to substantiate that she belongs to scheduled caste. The said document discloses the name as 'Mahadevamma', however, in the complaint, the name of the complainant is mentioned as 'Manju'. Even in the evidence of PW.1, the name of the prosecutrix is mentioned as 'Manju'. None of the witnesses

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C/W CRL.A No. 1526 of 2015 have spoken that she was being called by two names. The Investigating Officer has not made any efforts to cite the family members of the prosecutrix as witnesses to corroborate that she was being called by two names. Therefore, the said document does not inspire confidence of the Court that it belongs to the prosecutrix. Even assuming that the said document belongs to her, on reading of the evidence of PW.1, it can be inferred that the alleged offence did not take place on account of she belongs to scheduled caste. It is settled principle of law prior to the amendment of Section 3(2)(v) of SC / ST (POA) Act that if any act is committed against a person belonging to scheduled caste or scheduled tribe, it must have been committed on account of such person belongs to scheduled caste or scheduled tribe. As per the evidence of PW.1, the alleged incident did not take place on account of she belongs to scheduled caste. Therefore, the ingredients of Sections 3(1)(xi) and 3(2)(v) of SC / ST (POA) Act are not made out by the prosecution. Hence, we are of the considered opinion that the Trial Court has committed error in recording the conviction for the above said offences.

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C/W CRL.A No. 1526 of 2015

20. Our view has been fortified by the judgment of the Hon'ble Supreme Court in the case of PATAN JAMAL VALI v. STATE OF ANDHRA PRADESH18. The observations of the Hon'ble Supreme Court at paragraphs 63 to 65 and 78.1 which read thus:

"63. It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26-1-2016. The words "on the ground of" under Section 3(2)(v) have been substituted with "knowing that such person is a member of a Scheduled Caste or Scheduled Tribe". This has decreased the threshold of proving that a crime was committed on the basis of the caste identity to a threshold where mere knowledge is sufficient to sustain a conviction. Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. The amended Section 8 reads as follows:

"8. Presumption as to offences.--In a prosecution for an offence under this Chapter, if it is proved that--

(2021) 16 SCC 225

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(a) the accused rendered any financial assistance in relation to the offences committed by a person accused of, or reasonably suspected of, committing, an offence under this Chapter, the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence;

(b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object.

(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved."

64. The Parliament Standing Committee Report on Atrocities Against Women and Children has observed that, "high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration" and recommends inclusion of provisions of the SC & ST Act while registering cases of gendered violence against women from the SC & ST communities.

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C/W CRL.A No. 1526 of 2015 However, as we have noted, one of the ways in which offences against SC & ST women fall through the cracks is due to the evidentiary burden that becomes almost impossible to meet in cases of intersectional oppression. This is especially the case when courts tend to read the requirement of "on the ground" under Section 3(2)(v) as "only on the ground of". The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these.

65. However, since Section 3(2)(v) was amended and clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26-1-

2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31-3-2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of an SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside.

78.1. The conviction of the appellant for an offence under Section 3(2)(v) of the SC and ST Act and the sentence imposed in respect of the

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C/W CRL.A No. 1526 of 2015 offence is set aside and the appeal allowed to that extent."

Reg: Point No. (ii)

21. As regards the offence under Section 376(2)(g) of IPC is concerned, as per the evidence of PW.1, the accused Nos.1 to 3 have committed gang rape and robbed her gold ornaments. After the incident, she went near her house and knocked the door of the neighbour and narrated the incident to the members who gathered around her. Immediately, one of the members called the police control room and police came to the spot, took her to the police station and recorded her statement on the same day and reduced the said statement as FIR and thereafter, around about 08.45 a.m., she had been subjected to medical examination. The Doctor who conducted examination of prosecutrix is examined as PW.9 and she has issued a certificate as per Ex.P10. As per the said report, "there was no evidence of recent intercourse". The FSL reports are marked as Ex.P21 and 26. The said reports indicate that the presence of blood was detected on articles Nos.15 - blood swab, 21 - blood swab, 23 - one pant, 24 - underwear, 26 - blood swab. Out of 26 items, except the items stated supra, neither blood was detected nor seminal stains, nor

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C/W CRL.A No. 1526 of 2015 spermatozoa nor skin tissues were detected. On conjoint reading of evidence of PW.1 and PW.9 and also the FSL reports, the inference could be drawn that the evidence of prosecutrix is not sufficient to record the conviction for the offences stated supra for the reason that the evidence of the prosecutrix is contrary to the medical and FSL reports. However, the Trial Court committed error in recording the conviction on the evidence of sole prosecutrix even though it did not pass the test of 'sterling quality'. Therefore, we are of the considered opinion that the conviction recorded for the above offences appears to be perverse and illegal and therefore, the same requires to be set aside.

22. Our view has been fortified by the dictum of the Hon'ble Supreme Court in the case of SANTOSH PRASAD v. STATE OF BIHAR19, paragraph Nos.5 to 7 read thus:

"5. We have heard the learned counsel for the respective parties at length. 5.1. We have considered in detail the impugned judgments and orders passed by the High Court as well as that of the learned trial court convicting the accused. We have also considered in detail the evidence on record, both oral as well as documentary.

(2020) 3 SCC 443

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C/W CRL.A No. 1526 of 2015

5.2. From the impugned judgments and orders passed by both the courts below, it appears that the appellant has been convicted solely relying upon the deposition of the prosecutrix (PW 5). Neither any independent witness nor even the medical evidence supports the case of the prosecution. From the deposition of PW 1, it has come on record that there was a land dispute going on between both the parties. Even in the cross- examination even PW 5, prosecutrix had admitted that she had an enmity with Santosh (accused). The prosecutrix was called for medical examination by Dr Renu Singh, Medical Officer and PW 7 Dr Renu Singh submitted injury report. In the injury report, no sperm as well as RBC and WBC were found. Dr Renu Singh, PW 7 Medical Officer in her deposition has specifically opined and stated that she did not find any violence marks on the body of the victim. She has also categorically stated that there is no physical or pathological evidence of rape. It is true that thereafter she has stated that possibility of rape cannot be ruled out (so stated in the examination-in-chief). However, in the cross- examination, she has stated that there was no physical or pathological evidence of rape. 5.3. As per the FSL report, the blood group on the petticoat and the semen on the petticoat are stated to be inconclusive. Therefore, the only evidence available on record would be the deposition of the prosecutrix. It cannot be disputed that there can be a conviction solely based on the evidence of the prosecutrix. However, the evidence

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C/W CRL.A No. 1526 of 2015 must be reliable and trustworthy. Therefore, now let us examine the evidence of the prosecutrix and consider whether in the facts and circumstances of the case is it safe to convict the accused solely based on the deposition of the prosecutrix, more particularly when neither the medical report/evidence supports nor other witnesses support and it has come on record that there was an enmity between both the parties.

5.4. Before considering the evidence of the prosecutrix, the decisions of this Court in Raju and Rai Sandeep, relied upon by the learned advocate appearing on behalf of the appellant-accused, are required to be referred to and considered. 5.4.1. In Raju, it is observed and held by this Court in paras 11 and 12 as under: (SCC p. 141) "11. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would not tell a lie as to the actual assailants, but there is no presumption or any basis for assuming that the statement

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C/W CRL.A No. 1526 of 2015 of such a witness is always correct or without any embellishment or exaggeration.

12. Reference has been made in Gurmit Singh case to the amendments in 1983 to Sections 375 and 376 of the Penal Code making the penal provisions relating to rape more stringent, and also to Section 114-A of the Evidence Act with respect to a presumption to be raised with regard to allegations of consensual sex in a case of alleged rape. It is however significant that Sections 113-A and 113-B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two sections, thus, raise a clear presumption in favour of the prosecution but no similar presumption with respect to rape is visualised as the presumption under Section 114-A is extremely restricted in its applicability.

This clearly shows that insofar as allegations of rape are concerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally, her statement can, at best, be adjudged on

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C/W CRL.A No. 1526 of 2015 the principle that ordinarily no injured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined."

5.4.2. In Rai Sandeep, this Court had an occasion to consider who can be said to be a "sterling witness". In para 22, it is observed and held as under: (SCC p. 29) "22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-

examination of any length and howsoever

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strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court

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C/W CRL.A No. 1526 of 2015 trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."

5.4.3. In Krishan Kumar Malik v. State of Haryana, it is observed and held by this Court that no doubt, it is true that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

5.5. With the aforesaid decisions in mind, it is required to be considered, whether is it safe to convict the accused solely on the solitary evidence of the prosecutrix? Whether the evidence of the prosecutrix inspires confidence and appears to be absolutely trustworthy, unblemished and is of sterling quality?

6. Having gone through and considered the deposition of the prosecutrix, we find that there are material contradictions. Not only there are material contradictions, but even the manner in which the alleged incident has taken place as per the version of the prosecutrix is not believable. In the examination-in-chief, the prosecutrix has stated that after jumping the fallen compound wall the accused came inside and thereafter the accused committed rape. She has stated that she identified the accused from the light of the mobile. However, no mobile is recovered. Even nothing is on record

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C/W CRL.A No. 1526 of 2015 that there was a broken compound wall. She has further stated that in the morning at 10 o'clock she went to the police station and gave oral complaint. However, according to the investigating officer a written complaint was given. It is also required to be noted that even the FIR is registered at 4.00 p.m. In her deposition, the prosecutrix has referred to the name of Shanti Devi, PW 1 and others. However, Shanti Devi has not supported the case of the prosecution. Therefore, when we tested the version of PW 5, prosecutrix, it is unfortunate that the said witness has failed to pass any of the tests of "sterling witness". There is a variation in her version about giving the complaint. There is a delay in the FIR. The medical report does not support the case of the prosecution. FSL report also does not support the case of the prosecution. As admitted, there was an enmity/dispute between both the parties with respect to land. The manner in which the occurrence is stated to have occurred is not believable. Therefore, in the facts and circumstances of the case, we find that the solitary version of the prosecutrix, PW 5 cannot be taken as a gospel truth at face value and in the absence of any other supporting evidence, there is no scope to sustain the conviction and sentence imposed on the appellant and the accused is to be given the benefit of doubt.

7. In view of the above and for the reasons stated above, the appeal is allowed. The impugned judgment and order of conviction and sentence passed by the learned trial court and confirmed by

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C/W CRL.A No. 1526 of 2015 the High Court are hereby quashed and set aside. The appellant is acquitted from all the charges levelled against him and he be set at liberty forthwith, if not required in any other case." Reg : Point No.(iii)

23. As regards Section 392 r/w Section 34 of IPC is concerned, PW.1 lodges a complaint regarding commission of robbery by unknown persons. In her complaint, she has not disclosed what are the items were robbed by unknown persons. The Investigating Officer after receiving the complaint, arrested accused Nos.1 to 3 on the following day and recovered the amount of Rs.2,750/- in the presence of PW.3 at the instance of all the accused under the seizure mahazar which is marked as Ex.P3. Further the evidence of PW.4 discloses that the accused No.1 took PW.4 along with Investigating Officers to his house and produced M.O.11 - Nokia mobile is said to have belonged to the prosecutrix and also produced one mangalya chain. The said chain has not been produced before the Court as it was pledged by the prosecutrix after it got released from the Court.

24. Similarly, PW.6 has stated that at the instance of accused No.3, some gold ornaments which are marked as

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C/W CRL.A No. 1526 of 2015 M.O.5, M.O.9 and also one Micromax mobile phone which is marked as M.O.10 said to have been seized under Ex.P6. No doubt, PWs.3, 4, 6 and 10 have supported the case of the prosecution regarding recovery of gold ornaments and also cash, however, the said recovery is not sufficient to record the conviction in the absence of identification parade.

25. After analyzing the evidence of all the witnesses, it is inferred that the accused are strangers to the prosecutrix. Even though she described in her complaint about the descriptions of the accused, it would be difficult to identify them without conducting the identification parade. As per the case of the prosecution, the identification parade has been conducted and PW.1 identified the accused in the said parade. However, the report of the identification parade has not been produced before the Trial Court. Moreover, the alleged recovery has been effected in the respective houses of accused Nos.1 and 3, however, the family members of the accused Nos.1 and 3 have not been cited as witnesses to the alleged recovery. Hence, the said recovery creates doubt. It is needless to say that the prosecutrix has not produced any documents to show that she had purchased those items for her own use. In the absence of production of the report of the

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C/W CRL.A No. 1526 of 2015 identification parade and also the receipts for having purchased the items by the prosecutrix, it would not be appropriate to conclude that the accused Nos.1 and 3 have committed robbery of gold ornaments and cash belonging to the prosecutrix. In other words, mere recovery of the gold ornaments and cash are not sufficient to record the conviction for the offence under Section 392 r/w 34 of IPC in the absence of identification parade when the alleged incident committed by unknown persons. Therefore, we are of the considered opinion that the Trial Court committed an error in concluding that the accused Nos.1 and 3 have committed an offence stated supra.

26. Our view has been fortified by the dictum of the Hon'ble Supreme Court in the case DEVINDER SINGH v. STATE OF HIMACHAL PRADESH20, wherein the Hon'ble Supreme Court, at paragraph No.21, held as under:

"21. In the course of her deposition though the prosecutrix stated that she had seen their faces in the torchlight after they had raped her, and had narrated the manner in which they discovered the torch and the battery cells, more or less in the same manner as in the first information report, from her deposition it appears that the torch was lighted only 20 (2003) 11 SCC 488

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for a short duration. In the course of her cross- examination she admitted that for want of light she could not give particulars of the persons who put her on the cot or the person who raped her first. Reading of the deposition of this witness leaves no room for doubt that while the appellants committed the offence, there was no light in the room. In view of these circumstances even if it is accepted that the prosecutrix had a fleeting glimpse of the appellants when they lighted the torch in her room, in the absence of any other evidence to show that the prosecutrix had occasion to see the appellants earlier, or to know them, it was incumbent on the prosecution to hold a test identification parade. This is not a case where an occurrence took place in broad daylight and the prosecutrix had ample opportunity of noticing the features of the appellants. This apart, her naming some of the accused persons in the first information report and not naming them in the course of deposition casts a serious doubt on the veracity of this witness. Further, she named two other persons, and not two of the accused, in her report, and failed to name the accused whom she claimed to know from before as stated in her deposition."

27. In the light of the observations made above, the points which arose for our consideration are answered as:

Point No.(i) - in the 'Negative' Point No.(ii) - in the 'Negative' Point No.(iii) - in the 'Negative' Point No.(iv) - in the 'Affirmative'

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28. Hence, we proceed to pass the following:-

ORDER

(i) Both the Criminal Appeals are allowed.

      (ii)      The impugned judgment of conviction and order

                of     sentence         dated     01.10.2015    in

S.C.No.1345/2011 on the file of the II Additional City Civil and Sessions Judge and Special Judge for the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (CCH-

17), Bengaluru, is set aside.

(iii) The appellants / accused Nos.1 and 3 are acquitted for the offences punishable under Sections 376(2)(g), 392 r/w Section 34 of IPC and Sections 3(1)(xi) and 3(2)(v) of the SC/ST (POA) Act, 1989.

(iv) Bail bonds, if any, stand cancelled.

Sd/-

JUDGE Sd/-

JUDGE Bss