Karnataka High Court
The State Of Karnataka vs Arjuna @ Kumara @ Somu on 29 May, 2018
Equivalent citations: AIRONLINE 2018 KAR 335, 2018 (3) AKR 496
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29th DAY OF MAY, 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.1366/2012
BETWEEN:
The State of Karnataka
by Rajagopalanagar Police
Bangalore.
... Appellant
(By Sri. Vijayakumar Majage, Addl. SPP)
AND:
Arjuna @ Kumara @ Somu
S/o Yallappa
Aged about 23 years
No.39/A, 3rd Cross
Kempamma Badvane
Lakshmidevinagar, Laggere,
Bangalore-560 096.
... Respondent
(By Sri. Hashmath Pasha, Advocate)
This Criminal Appeal is filed under Section
378(1) and (3) of the Cr.P.C praying to grant leave to
appeal against the judgment and order of acquittal
dated 17.07.2012 passed by the XLV Addl. City Civil
and Sessions Judge, Bangalore in S.C.No.686/2009
acquitting the respondent/accused for the offences
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punishable under Sections 366, 376 and 344 of
Indian Penal Code.
This Criminal Appeal coming on for hearing this
day, BUDIHAL R.B. J. delivered the following:-
JUDGMENT
This appeal is preferred by the State being aggrieved by the judgment and order dated 17.7.2012 passed in Sessions Case No.686/2009 on the file of the 45th Additional City Civil and Sessions Judge, Bengaluru City, wherein the learned Sessions Judge acquitted the accused of the offences punishable under Sections 344, 366 and 376 of IPC.
2. The brief facts of the prosecution case are that on 26.12.2008 at about 8.00 a.m. in front of Sree Omkareshwar Credit Co-operative Society on the public road, while PW1-victim, a minor girl was proceeding and at that time the respondent-accused came and called her and asked her to marry him. While PW1 refused to accompany the accused for marrying him, in spite of that accused-respondent was forcibly kidnapped the said victim with an -3- intention to marry her and took her to Hosadurga Taluk, Kaggalighatta village near Kanchipura to the house of PW-9 Govindappa and kept the victim minor girl PW1 in the house of Govindappa from 26.12.2008 to 13.1.2009 and thereafter committed rape on her against her will.
3. The above facts have been informed by the victim to her brother-in-law over phone and thereafter her brother-in-law Siddappa who examined as PW3 informed the same to Rajagopalanagar police station and along with the police they came to Kanchipura and arrested the accused/respondent and brought them to Rajagopalangar police station. The complaint lodged by the victim girl is marked as per Ex.P1. On the basis of the said complaint police have registered a case in their police station Crime No.513/2008 for the offences punishable under Sections 344, 366 and 376 of IPC.
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4. After completion of investigation, the Investigating Officer filed the charge sheet against the accused for the aforesaid offences.
5. After hearing both sides learned Sessions Judge framed the charges as against the accused for the said offences and when the charges were read over and explained the accused pleaded not guilty and claimed to be tried. Accordingly, the matter was set down for trial.
6. In support of his case the prosecution in all examined 17 witnesses and got marked documents Exs.P1 to P17 with sub-markings and also got marked 10 Material Objects. Then accused has been examined under Section 313 of the Cr.P.C. and his statement came to be recorded.
7. On the side of the defence no witnesses were examined. But during the course of examination of the prosecution witnesses, document Exs.D1 to D7 were got marked.
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8. After hearing the arguments on both the sides and also considering the materials placed on record both oral and documentary, the learned Sessions Judge held that prosecution failed to prove its case beyond all reasonable doubt and accordingly acquitted the appellant/accused from all the charges.
9. Being aggrieved by the judgment and order of acquittal and also challenging its legality and correctness on the grounds as mentioned at ground Nos.1 to 8 of the appeal memorandum the State is before this Court in this appeal.
10. We have heard the arguments of the learned Additional SPP for the appellant/State and also arguments of the learned counsel appearing for the respondent/accused.
11. The learned Additional SPP while arguing the case made the submission that looking to the complaint averments the victim girl herself is the complainant mentioned her age as 16 years as on the -6- date of the alleged offence. He also made the submission that the evidence of the victim girl and her relatives PWs.3 and 4 also goes to show that there is a consistent evidence through the mouth of the victim girl as well as PW3 that it is the accused who forcibly took the victim girl in an auto rickshaw threatening her. Then he took her to Kaggalighatta, kept her in a rented house and during night in spite of her protest by threatening her he committed forcible sexual intercourse on her. Learned Additional SPP further made the submission that there is no reason for the victim girl to forcibly implicate the accused person in this case. He submitted that though the evidence of the victim girl is not supported by the medical evidence, that itself is not a ground to reject the case of the prosecution when the evidence of the victim girl herself is trustworthy.
12. Learned Additional SPP by taking us through the entire materials also made the submission that there is a corroborative evidence of -7- PWs.3 and 4 the close relatives of the victim girl that the accused person forcibly took her along with him and he has committed sexual intercourse on the victim girl. Hence he submitted that all these aspects were not properly appreciated and considered by the learned Sessions Judge and he wrongly read the evidence and wrongly proceeded holding that prosecution failed to prove its case beyond all reasonable doubt and he has wrongly acquitted the respondent/accused. Lastly he made a submission to allow the appeal and set aside the judgment and order of acquittal passed by the Court below and to convict the respondent/accused for all the charges leveled against him.
13. Learned counsel appearing for the respondent/accused submitted that looking to the prosecution material itself there is no material placed by the prosecution to establish any of the charges levelled against the respondent/accused. He made a submission that medical evidence i.e. the oral -8- evidence of the doctor PW9 who examined the victim girl clearly deposed in his evidence that there were no injury found on the person of the victim girl. Even he has deposed that there are no signs that she was subjected to sexual intercourse. He further made the submission that even looking to the FSL report Ex.P6, the findings are negative. The seminal stains were not found in any of the articles sent for examination.
14. Learned counsel submitted that even with regard to the oral evidence of the victim girl it clearly goes to show that there is no kidnapping of the victim girl, there is no offence of rape committed on her. Hence, he submitted that all these aspects were properly considered and appreciated by the learned Sessions Judge, no illegality has been committed by the trial Court in coming to such conclusion. Learned counsel lastly made a submission that there is no merit in the appeal and submitted to dismiss the -9- appeal by confirming the judgment and order of acquittal passed by the Court below.
15. We perused the grounds in the appeal memorandum, judgment and order of acquittal passed by the Court below, the oral evidence of the prosecution witnesses PWs.1 to 17 and also the documents produced during the course of trial. We have also considered the oral submissions made by learned counsel on both sides at the Bar.
16. Looking to the evidence of the prosecution witnesses after perusal of the entire materials earlier the missing complaint was filed by one Siddappa PW3 who is the maternal uncle of the victim girl. The said document is marked as per Ex.P3. We have perused Ex.P3. He simply mentioned that the victim girl who is the daughter of his sister aged about 15 years went out of the house at 8.00 a.m. on 26.12.2008 stating that she will go to the school and she has not returned. They made a search of all the places, even then she was not traced. He has also given the details
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about the facial features of the said girl. On the basis of the said complaint Ex.P3 FIR came to be registered in Crime No.05/2008 for man missing. Subsequently the victim girl also filed the complaint as per Ex.P1. It is dated 14.1.2009. We have perused the contents of Ex.P1 wherein she has stated that at the time of incident she was studying in 10th standard. On 26.12.2008 at 8.00 a.m. while she was going to the school by walk, one Arjuna @ Kumara @ Somu, who was residing in their house on rental basis came there and told her to marry him. Even though she objected for the same, forcibly he took her in an auto rickshaw to Majestic and from there they went to Kanchipura in Hosadurga Taluk. There he took one house on rental basis and stayed there. At that place he forced to marry her. When she did not agree for the same, he committed forcible sexual intercourse on her. When she told that she will inform about the same to her maternal uncle, he was threatening her and without brining to the knowledge of said Arjuna, when she informed to her paternal uncle he came
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and took her back. After coming to the house of Siddappa PW3 she narrated what has happened, so also she informed Siddamma her Junior Aunt then she was taken to the police station and she lodged the complaint. She alleged that forcibly she was kidnapped by the accused person for the purpose of marrying with him and then he committed forcible sexual intercourse on her. On the basis of the said complaint Ex.P1, FIR came to be registered in Ex.P12 in Crime No.513/2008 for the offences punishable under Sections 366-A and 376 of IPC.
17. Looking to the oral evidence of this victim girl who has been examined as PW1 what she has narrated in the complaint she reiterated in her examination-in-chief. She identified her complaint as Ex.P1 and her signature as Ex.P1A. She also deposed that police asked her to show the place from where she was kidnapped. Then she showed the place which was nearby the Omkareshwar Credit Co- operative Society. Police prepared the mahazar under
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Ex.P2 and her signature is under Ex.P2A. Thereafter, she went to K.C. General hospital, she gave her date of birth as 9.9.1992 as on the date of the incident. In the cross-examination she deposed that her school was at the distance of 1 kilo meter from her residence and she was going to school by walk. She admitted that in the year 2008 she was studying in SSLC. She admitted that when she was studying in SSLC she was having sufficient knowledge. She admitted that the accused was staying in the house of PW3- Siddappa on rental basis for a period of nine months. She also admitted that herself and the accused person are the neighbours, often they were talking to each other and she was having well acquaintance about the accused. On 26.12.2008 she left the house early to go to the school. She told in the house that there is special class, so she has to go early. She admitted that on 26.12.2008 there was supplementary exam of SSLC. She admitted that two days earlier to 26.12.2008 the accused person vacated the rented house. She deposed about the
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accused vacating the house, herself and the neighbours came to know. The accused never took her to the school. When accused called her, she did not tell that she will not come. She denied the suggestion that when she was going in an auto rickshaw she has not made any protest. She denied the further suggestion that when the auto rickshaw deviated from the route of her school, she has not protested. The accused threatened her by showing the knife and she did not allow her to scream from the place where she boarded the auto rickshaw, till they went to Majestic he was holding the knife in his hand. There were people in the bus stand and even in the bus she did not tell anything to the persons present in the bus. She further deposed that he held her mouth and threatened her holding the knife, then she made an attempt to escape from that place, but it was not possible for her. Though she wanted to tell before the driver and conductor of the said bus, the accused did not allow her to do the same, then question was put to the witness that when the
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photograph under Exs.D1 to D4 were taken. The victim girl and accused took the photographs after they married in the temple. For this, the victim answered and she was weeping. She deposed before the Court that the accused told her that after taking the photograph he will relieve her. She admitted that Exs.D1 to D4 were taken in the photo studio. She admitted as true that in photo Ex.D1 golden coin chain (kasina sara) is visible. She admitted that it belonged to her junior Aunt, but she denied the suggestion that one day earlier to accused vacating the house she herself took that golden coin chain having 32 coins and she herself handed over to the accused person. She denied the suggestion that tali which is visible in the photograph Ex.D1 is purchased by them. She denied the suggestion that at Bagepalli they went to see the Telugu movie "King". When they were at Bagepalli the accused purchased new clothes to her, she wore the new clothes and taken three photographs which were under Exs.D5 to D7. She admitted that all these three photographs
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were taken in the studio. But she denied the suggestion that even on 4.1.2009 they went to another Telugu Movie "Yuvata". She denied the suggestion that on 13.1.2009 when they went to the police station her Doddakka snatched the tali from her neck. She denied the further suggestion that at that time she questioned her as to why she snatched the tali from her neck. She denied the further suggestion that she told the Sub-inspector that according to her will she came to the police station. She denied the suggestion that on 13.1.2009 her maternal uncle Siddappa, Doddakka and other 4 to 5 people brought the accused at Rajagopalanagar police station. She denied the suggestion that she told before the Sub-inspector that she herself willingly came to the police station. She admitted that in the police station one signature was obtained. She admitted that Ex.P1A is her signature. But she denied the suggestion that the complaint Ex.P1 was typed in the police station itself. She denied the further suggestion that the complaint prepared in the
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police station her maternal uncle Siddappa forcibly obtained her signature. She denied the suggestion that morning at 8.00 a.m. when she was going to the school, the accused brought auto and asked her that he will drop her to the school and she sat in the said auto rickshaw is not at all stated before the police in her complaint. She deposed that after lodging the complaint she has not given any statement before the police. She denied the suggestion that she has not at all informed her maternal uncle over phone that for 18 days the accused person retained her at Kagaligatta. She phoned to her maternal uncle Siddappa from the coin booth phone No.9741983496. She denied the suggestion that at Kagaligatta there is no such coin booth. She denied the suggestion that she was sleeping in the house of her grand-mother and on that day she kept one chit mentioning that come to the said place to see her and accordingly the accused person came to her grand-mother's place at 10.00 p.m. She denied the suggestion that after two weeks, one Friday again she prepared a small chit
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informing the accused to come to the said place and accordingly the accused person came to her grand- mother's house. She denied the suggestion that on that day she went to the place nearby the Samadhi of Dr.Rajkumar, but she admitted that she has not mentioned in her complaint that accused threatened her by showing the knife, but however, she deposed that accused threatened her. She denied the suggestion that she herself wrote in her handwriting as 'Sweet Lover'. She studied up to 10th standard in Kannada Medium. She does not know reading and writing of English. She admitted that in Kannada Medium also from 4th standard there was English language. Again she stated that she knows writing of English language. She denied the suggestion that accused told that he is going to marry her, made an attempt to rape on her and when she told that she will inform her maternal uncle, then he threatened her and committed rape on her and she denied that she has not stated these things in her complaint Ex.P1. She does not know who typed the complaint.
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She denied the further suggestion that except her signature in the police station on the complaint, it was typed on computer. She denied the further suggestion that her maternal uncle Siddappa colluding with the police prepared Ex.P1. She admitted that even on 14th morning she went to the police station, but she denied that on 14th she herself deposed before the police inspector that she voluntarily went along with the accused person and there is no fault on the part of the accused. She denied the suggestion that from 26.12.2008 to 30.1.2009 the accused person has not at all committed rape on her and she is giving false evidence as against accused person.
18. In support of the case of the prosecution the maternal uncle of the victim girl is also examined as PW3 and he has also deposed in the cross examination-in-chief on the lines of the victim girl as stated above. In the cross examination he deposed that he does not know that when victim was admitted
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to the school and on what basis her date of birth was mentioned. He further deposed that they mentioned the date of birth and they have kept the same. Said document was given to the school, when she was admitted to the school and presently they are not having the said document. Whatever the date of birth and spelling, it is the date of birth as per the school certificate. The date of birth was not registered when he gave the complaint for missing of victim. At that time, they did not find out the date of birth. Victim was at Bengaluru from her birth. She denied the suggestion that according to her, correct date of birth on 26.12.2008 she was aged of 18 years. When it was suggested even in the school records also the age of victim as on 26.12.2008 was 16 years 3 months and 16 days, but the witness shown his ignorance stating that he does not know, but he has not denied this fact.
19. When he gave the missing complaint he was not knowing as to with whom the victim went, but at that time, victim was studying in SSLC and was wise
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enough to know with whom she has to go and with whom she should not. With regard to the call made by the victim girl to P.W.3 on 13.1.2009 he deposed that at that time his mobile number was 9741983496 and it was an Airtel SIM. He was having currency to the said mobile. He informed about the call received by him on 13.1.2009 from the police, but he does not know whether police have obtained the information with regard to the said call from the Airtel office. However, he denied the suggestion that on 13.1.2009 victim had not at all called him to his mobile phone.
20. P.W.4-Siddamma is examined in support of the prosecution case. Her evidence is also to the effect as stated by the victim girl. In her cross- examination she deposed that when Renukadevi called them over phone, then only they came to know about the place where she was at that time. She admitted that at the time of giving missing complaint of victim, her husband was having suspicion as against the accused person. Before victim went
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missing, the accused person had vacated their house in which he was residing as a tenant. She denied the suggestion that when victim left the house, she had taken Kasinasara and jumki along with her and also denied the suggestion that victim herself willingly went along with the accused person and she was not having any sort of threat from the accused person. Accordingly, they have filed the complaint before the police. However, she has stated that she does not know what police have written in the complaint.
21. As per the evidence of victim girl and P.Ws.3 and 4, it is the case of the prosecution that accused person forcibly took Renukadevi in an autorickshaw showing knife to her. Even if it is admitted, the said fact is not mentioned in the complaint filed.
22. In Ex.P14, the school transfer certificate, the date of birth of the victim girl is mentioned as 09.09.1992. Therefore, as on the date of the alleged incident, victim was aged 16 years, 3 months and 16 days i.e., above the age of 16 years.
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23. We have also perused the photographs Exs.D1 to D7. Looking to the said photographs and more particularly, the photograph at Ex.D5, it will not give an impression that the said photographs were taken under threat by the accused person. The photographs clearly show and support the contention of the accused person that victim girl was in love with the accused and she has voluntarily left the house and went along with the accused person.
24. It is the defence taken by the accused person during the course of cross-examination that the victim girl has not at all filed the complaint under Ex.P1 on her own, but the police have prepared the contents of Ex.P1 in the police station in collusion with P.W.3 Siddappa and simply obtained the signature of the victim girl.
25. In this connection, paragraph No.2 of the cross-examination portion of P.W.3 Siddappa in page No.42 of the paper book is relevant wherein he has
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deposed that on 13.1.2009 Rajagopalnagar police have not at all come to his house. On the next day when they gave the complaint since victim was knowing to write Kannada, she wrote on a sheet of paper and the same was got typed in the typewriting shop which is at a little distance from the police station. It is also stated that the complaint written in the handwriting of the victim was also handed over to the police. He has further denied that in the handwritten complaint victim has mentioned that herself and accused person were in love with each other and both of them got married voluntarily and were staying in a house at Kaglighatta as husband and wife and nobody forced her.
26. The cross-examination portion of P.W.3, the maternal uncle of the victim girl goes to show that apart from Ex.P1, the complaint written in the handwriting of P.W.1 was also handed over to the police. But the said complaint is not produced before the Court during the course of trial.
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Even the police have not stated as to what has happened to the complaint written in the handwriting of the victim girl and it was suppressed by the prosecution.
27. There is a clear suggestion made by the defence that in the said complaint written in the handwriting of the victim girl, she has mentioned that herself and accused were in love with each other and voluntarily they went and got married and staying as husband and wife in a rented house.
28. Hence, when the complaint in the handwriting of the victim girl was admitted to have been handed over to the police and when it is the contention of the prosecution that the accused person took the victim girl forcefully and committed forcible sexual intercourse on her, for the purpose of fair trial, it was bounden duty of the police to produce the said document also before the Court, non- production of important and material document will go to the root of the case and adverse inference will
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have to be drawn to the case of the prosecution as per Section 114(g) of the Evidence Act that, if police had produced the said document, the contents of the document would have gone against the case of the prosecution.
29. So far as the allegation of forcible sexual intercourse is concerned, the evidence of P.W.9- Dr.Tulasidevi is material in this case.
30. P.W.9-Dr.Tulasidevi has deposed in the examination-in-chief that on 14.1.2009 Rajagopalnagar police have sent requisition for examination of the victim girl Kum.Renukadevi and her belongings regarding the rape committed on her and accordingly, she examined victim and collected vaginal swab, pubic hair, nail clipping and clothes on her body. She has packed and sealed and sent the same to the police station. On receiving the FSL report, she has given her opinion as per Ex.P6 and her report is as per Ex.P7 and Ex.P7(a) is her signature. She has identified the letter given to the
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police after collecting the samples as per Ex.P8 and her signature is Ex.P8(a).
31. In the cross-examination she has deposed that when she examined victim, she has not noticed any external injuries on her person. The hymen was intact and that she was not subjected to sexual intercourse.
32. Therefore, the oral evidence of P.W.9 also clearly shows that victim girl was not subjected to sexual intercourse.
33. P.W.17-Chandru, Police Inspector has deposed in his examination-in-chief about the investigation conducted in the case.
34. In the cross-examination he deposed that in the missing complaint given by P.W.3-Siddappa there is no mention that victim was kidnapped and as per Ex.P2-Mahazar they did not find any clue in the said place regarding the happening of the incident. He has admitted that the panch witnesses to Ex.P2
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mahazar i.e., Jayaram and Ganesh were not the residents of the said place where mahazar was conducted. But he admitted the suggestion that at the place where the said mahazar was conducted there was movement of public. The evidence of P.W.17 also shows that he has selected the panch witnesses at the instance of complainant though the independent witnesses were available at the place of mahazar. But he denied the suggestion that on that day P.W.3 Siddappa obtained the signature of victim on the complaint Ex.P1 forcibly. He further denied that on that day victim told that nobody kidnapped her. He further deposed that in the report of the K.C.General Hospital under Ex.P7 it is mentioned that there are no signs of sexual intercourse and in the FSL report under Ex.P6 it is mentioned that seminal stains were not found on item Nos.1 to 4 and item Nos.6 to 9 and 10 and presence of spermatozoa was not found on item No.5.
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35. These documents and also the evidence of P.W.17-Investigating officer would show that there is nothing on record to show the commission of rape by the accused on the victim girl.
36. The learned Sessions Judge has taken all these aspects into consideration extensively and ultimately has come to the conclusion that prosecution has failed to prove its case beyond all reasonable doubt that accused person has committed kidnap and forcible sexual intercourse on the victim girl.
37. Even P.W.3-Siddappa has deposed that the victim girl was wise enough and was having better knowledge about the worldly affairs as to with whom she has to go and with whom she should not. The materials show that though she was not having the age of maturity, but was having the mental maturity as on the date of incident. As such, even on that ground, we are of the opinion that prosecution has
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failed to make out a case that there was a forcible sexual intercourse committed on the victim girl.
38. On perusing the materials on record we are of the opinion that the view taken by the learned Sessions Judge is one of the possible views. We do not find any illegality committed by the learned Sessions Judge in the judgment and order of acquittal passed or there is any perversity or capricious in coming to such conclusion. There are no valid and justifiable grounds for this Court to interfere into the judgment and order passed by the Court below. There is no merit in the appeal.
Accordingly, appeal is hereby dismissed.
Sd/-
JUDGE Sd/-
JUDGE AP/bkp