Karnataka High Court
Sri Swamy @ Swamigowda vs State Of Karnataka on 3 October, 2016
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF OCTOBER 2016
BEFORE
THE HON'BLE MRS.JUSTICE RATHNAKALA
CRIMINAL REVISION PETITION NO.723/2016
BETWEEN:
1. SRI SWAMY @ SWAMIGOWDA
S/O LATE GIDDEGOWDA
AGED ABOUT 57 YEARS
VEGETABLE MERCHANT
KATTINAKERE MARKET
PRESENTLY RESIDENT OF HUNASINKERE
HASSAN CITY - 573 201.
2. SRI SATHISH
S/O SWAMY @ SWAMIGOWDA
AGED ABOUT 27 YEARS
VEGETABLE MERCHANT
KATTINAKERE MARKET
PRESENTLY RESIDENT OF HUNASINKERE
HASSAN CITY - 573 201.
3. SRI UTHAIAH
S/O CHINNAPPA
AGED ABOUT 55 YEARS
BANK EMPLOYEE
RESIDENT OF CHAMPAKA NAGARA
SAKALESHPUR - 573 134. ...PETITIONERS
(BY SRI B.CHETHAN, ADV.)
AND:
STATE OF KARNATAKA
HASSAN CITY POLICE
HASSAN DISTRICT - 573 201.
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REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001. ...RESPONDENT
(BY SRI S.CHANDRASHEKARAIAH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C., PRAYING TO QUASH THE
ORDER DATED 21.01.2016 IN S.C.NO.271/2014 PASSED BY THE
II ADDL. DIST. AND S.J., HASSAN BY ALLOWING THE
APPLICATION FOR DISCHARGE.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard on admission.
2. The petitioners are aggrieved by the order dated 21.01.2016 passed by the II Additional District and Sessions Judge, Hassan, in S.C.No.271/2014, whereby their application filed under Section 227 of Cr.P.C. came to be rejected.
3. The fact is that the De-facto complainant lodged a complaint before the respondent - Police alleging that the accused persons during the night hours of 22.07.2005 trespassed into her house. All the three of -3- them one after another committed rape on her and assaulted her etc. After the investigation, the Investigating Officer filed the charge sheet in respect of the offence under Sections 448, 323, 354 read with Section 34 of IPC. The Trial Court after giving audience to both the parties framed charge in respect of the offence under Sections 448, 323, 354 read with Section 34 of IPC. The prosecution entered into trial. PWs.1 and 2 have turned hostile. The prosecutrix was examined as PW.3. She testified to the effect during her examination- in-chief evidence that the first accused committed rape on her while second and the third accused had arrested her and subsequently, they assaulted her. She was cross-examined at length. After recording the statement of witnesses, the learned Magistrate took cognizance of the offence under Section 376 of IPC and committed the matter to the Sessions Court. The accused/petitioners filed the petition under Section 227 of Cr.P.C. Learned Sessions Judge though considered the documentary -4- evidence relied upon by the prosecution was otherwise, having regard to the evidence of the prosecutrix that the accused committed rape on her, was of the opinion that there is ground to raise charge against the accused in respect of the offence under Section 376 of IPC.
4. Sri B.Chethan, learned counsel appearing for the petitioner submits that the prosecutrix due to her previous enmity against the accused persons has falsely implicated the accused. While in her complaint, she made allegation against all the three accused in respect of the offence under Section 376 of IPC. During her evidence before the learned Magistrate, she turned otherwise to allege that the first accused committed rape on her. That by itself would disclose that she has testified falsely before the Court. The medical evidence does not support the commission of rape on her. As admitted by her during cross-examination, there was some galata between her and the petitioners. When the -5- first petitioner's daughter expired, the petitioners believed that the prosecutrix by exercising black magic was responsible for the death of the girl. When there is no corroborating medical evidence, framing of charge in respect of the offence under Section 376 of IPC would be redundant. Even on a perusal of the entire prosecution papers, it will not reach the offence under Section 376 of IPC and the accused persons are entitled to be discharged of the offence under Section 376 of IPC.
5. Learned High Court Government Pleader appearing for the respondent while seeking to sustain the order of the Court below submits that the testimony of the prosecutrix before the Court coupled with the complaint allegation is sufficient to make out a prima facie for the offence under Section 376 of IPC against the accused. Without the case passing through the test of trial, it is too premature to discharge the accused from the offence under Section 376 of IPC.
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6. In the light of the above rival submissions, I have perused the case papers. It is a fact that the complainant at the first instance in her complaint alleged that all the three accused persons committed rape on her. For want of corroborative medical evidence, the Investigating Officer had given up Section 376 of IPC at the time of filing of charge sheet. However, the complainant has testified before the Court that she was subjected to rape. Of course, there is variance between her complaint allegation and oral testimony before the Court and no medical evidence in corroboration to the complaint allegation is available on record. However, when the oral testimony of the prosecutrix is before the Court alleging that the second and the third accused were arresting her, while the first accused committed rape on her, the veracity of the same has to be tested during her cross-examination, the Court below has rightly rejected the application and the matter does not merit admission.
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Accordingly, the revision petition is dismissed. In view of the dismissal of the revision petition, IA.No.2/2016 does not survive for consideration and the same is dismissed.
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JUDGE LB/-