Karnataka High Court
State Of Karnataka vs Ramamurthy on 3 February, 2020
Bench: S.N.Satyanarayana, H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
AND
THE HON'BLE MR.JUSTICE H.P. SANDESH
CRL.A.NO.495/2014(A)
BETWEEN
STATE OF KARNATAKA
BY HAROHALLI POLICE
STATION-562 117. ...APPELLANT
(BY SRI VINAYAKA V.S, HCGP)
AND
1. RAMAMURTHY
S/O DURGEGOWDA
AGE 47 YEARS
2. CHANDRA
S/O.LATE MAREGOWDA
AGE:45 YEARS
3. GANESHA
S/O DURGEGOWDA
AGE:32 YEARS
2
4. NAGARAJ URF MULLA
S/O.CHELUVEGOWDA
AGE:47 YEARS
5. SURESHA,
S/O DURGE GOWDA
AGE : 37 YEARS
RESPONDENT NOS.1 TO 5 ARE
RESIDENTS OF KOLAGUNDI VILLAGE
MARALAVADI HOBLI
KANAKAPURA TALUK-562 117.
6. NANJAPPA,
S/O.KEMPANNA
AGE:42 YEARS,
R/AT THATTEKERE VILLAGE,
MARALAVADI HOBLI,
KANAKAPURA TALUK-562 117. ...RESPONDENTS
(BY SRI N.S.SAMPANGIRAMAIAH, ADVOCATE
FOR R1 TO R5 AS AMICUS CURIAE;
SRI. H S CHANDRAMOULI, ADVOCATE FOR R6)
THIS CRL.A IS FILED UNDER SECTION 378(1) AND
(3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER DATED 28.10.2013
PASSED BY THE II ADDL. DISTRICT AND SESSIONS
JUDGE, RAMANAGARA, KANAKAPURA, RAMANAGARA
DISTRICT, IN S.C.NO.99/2007 ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 143,
448, 354, 376, 324 R/W 149 OF IPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
SANDESH J., DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is filed challenging the Judgment and Order of acquittal dated 28.10.2013, passed by the II Additional District and Sessions Judge, Kanakapura, Ramanagara District, in Sessions Case No.99/2007, acquitting the respondents for the offences punishable under sections 143, 448, 354, 376, 324 read with Section 149 of IPC.
2. The factual matrix of the case is that on 6.1.2004 at about 9 am, all the accused have assembled with the common object near the house of Urugaiah, to commit rape of PW.2-Jayamma. Thereafter, the accused persons have trespassed into the house of Jayamma and lifted Jayamma near to the pond which is located at Thattekere Kolalagundi Road and she was subjected to rape by Accused No.6 against her will. It is the case of the prosecution that the accused persons have trespassed into the house of PW.2 and outraged her modesty and assaulted her. Based on the 4 complaint given by PW.1-husband of the victim, the Police have registered Crime No.4/2004 at the first instance, for the offences punishable under sections 143, 448, 323 read with section 149 of IPC. During the course of investigation, based on the further statement of victim-PW.2, the Police have registered second FIR in terms of Exhibit.P9 invoking the offences punishable under sections 143, 448, 323, 324, 376 read with Section 149 of IPC. After filing of the charge sheet, the accused persons were secured and accused persons did not plead guilty and hence case was set for trial. The prosecution, in order to prove the charges leveled against the accused, relied upon the evidence of PW.1 to PW.13 and got marked the documents as Exhibits.P1 to P9 and also got marked material objects MO Nos. 1 to 4.
3. The trial Judge, after recording evidence subjected the accused persons under section 313 of Cr.PC and incriminating material put against them. The respondent - defence confronted documents 5 Exhibits.D1 to D28 during the cross examination of prosecution witnesses. Thereafter considered the material available on record, both oral and documentary evidence and acquitted all the accused persons for the charges leveled against them. Hence, present appeal is filed by the State questioning the Judgment and Order of acquittal made by the trial Court.
4. The State in the appeal would contend that the learned Sessions Judge failed to appreciate the evidence of PW.1 and PW.2 and also evidence of PWs.5 to 8 who are the material witnesses, who have spoken with regard to the incident of trespass and also committing other offences such as carrying PW.2 near to the pond. The trial Court also failed to consider the evidence of the Doctor who has been examined as PW.11 in a proper perspective. The Judgment and Order of acquittal recorded by the Sessions Judge is against the material on record, ignoring both oral and documentary evidence. Hence, it requires interference 6 of this Court and this Court has to re-appreciate the material available on record.
5. Learned High Court Government Pleader appearing for the State Sri. Vinayaka, vehemently contends that the prosecution examined the victim as PW.2 and also examined other witnesses PW.1 who is husband of the victim. The evidence of PW.5 to PW.8 corroborates the evidence of PW.1 and PW.2. The trial Judge failed to appreciate the same, particularly, the wound certificate of the victim, discloses that she had sustained two injuries and the same has not been appreciated. The very approach of the trial Judge is erroneous and hence it requires interference.
6. Per contra, learned Counsel appearing for Accused Nos.1 to 5 as Amicus Curiae, in his arguments, vehemently contended that though first complaint was registered on 6.1.2004 at 11 am itself, the FIR reached the Court on 7.1.2004 at 10.30 am and hence there is 7 delay in registering the case. The very inception of registration of the case itself is doubtful and the documents are manipulated.
7. It is further contended that it is the case of the prosecution that all the accused persons trespassed into the house of PW.1 and PW.2 and tied PW.1, thereafter, lifted PW.2-victim from the house and that daughter of PW.1 and 2 came and removed the rope which is used for tying PW.1, but the daughter of said PW.1 and PW.2 has not been examined before the Court. It is also contended that statement of PW.2 was recorded on 16.01.2004 i.e., after ten days of the alleged incident of rape where heinous offence was attributed against accused persons. The statement recorded after ten days of the incident clearly shows that no such incident took place and all the materials are manipulated to rope the accused persons. 8
8. Learned Counsel would also contend that it emerges in the evidence that there was differences between the prosecution witnesses and accused persons with regard to the land dispute and the same is evident in the records and particularly PW.5 to PW.8 are interested witnesses who are having ill-will against Accused No.6. Hence, evidence of prosecution, particularly, PW.5 to PW.8 cannot be accepted. The trial Judge, while appreciating the evidence on record, pointed out the contradictions in evidence of PWs.1, 2 and 5 to 8 and has given anxious consideration to the material on record and hence there are no grounds to reverse the finding of the trial Court coming to other conclusion and there are no merits in the appeal.
9. Learned Counsel for Accused No.6, in his arguments, vehemently contends that the trial Judge while appreciating both oral and documentary evidence, pointed out the contradictions in the evidence of the prosecution witnesses. Learned Counsel also tried to 9 place report of Vani Vilas Hospital before this Court and the same has not been placed before the trial Court and also both prosecution as well as defence have not made any effort to bring the said documents before the Court and in the absence of any appropriate application, it is not appropriate to receive the same and appreciate the same before this Court. Learned Counsel, however, in his arguments would contend that the victim made a statement before the Doctor at Vani Vilas Hospital that she was subjected to rape by Ganesh and Nagaraj. But, the case of the prosecution is that Accused No.6 had committed rape on the victim. Accused No.6 is entitled for benefit of doubt since there is no material on record. It is also contended that medical evidence does not support the case that she was subjected to rape. Hence, the appeal is devoid of merits.
10. Having heard arguments of appellant's Counsel and also Counsel appearing for 10 Respondents/accused, this Court has to re-appreciate the material available on record and the points that arise for consideration are;
[i] Whether the trial Court has committed an error in not appreciating the material on record in a proper perspective and committed an error in acquitting the Accused of the offences punishable under sections 143, 448, 323, 324, 376 read with Section 149 of IPC?
[ii] What Order?
11. Keeping in view the contentions urged before this Court and also considering both oral and documentary evidence, this Court has to re-appreciate the evidence available on record. We have already pointed out that the prosecution, in order to prove its case, examined witnesses PW.1 to PW.13. Out of them, PW.2 is the victim according to the prosecution. PW.1 is husband of the victim. PW.5 to PW.7 are father, 11 mother and daughter and relatives of the Accused No.6. According to the prosecution, they have witnessed the incident. PW.8 is also another eye witness. The prosecution mainly relies upon the evidence of PW.1 and PW.2 and PW.5 to PW.8. The prosecution has also relied upon evidence of PW.9 and PW.11.
12. Now, let us consider evidence available on record, particularly, evidence of PW.2. PW.2 is the victim. In her evidence, she claims that as on the date of the incident, she herself and her husband were in the house. At that time, all the accused persons have trespassed into the house of the victim. It is also her evidence that on 5.1.2004 at about 5 pm, there was a clash between PW.6-Deviramma and her daughter and Accused No.5 near the house of PW.6. At that time, she was also present and she went to their house to make telephone call to her husband. She witnessed the incident and abuse made by Accused No.1 to PW.6 and her daughter PW.7. She questioned the same and 12 hence Accused No.1 was having ill-will against her. Hence, on 6.1.2004 at about 10 am, all of them came with deadly weapons like club and cycle chain. The accused persons have tied her husband and thereafter Accused No.2, 4 and 6 lifted her suddenly from the house and took her towards Kolalagundi Village. The same was witnessed by PW.5 to PW.7 and they have questioned the accused persons and asked them to leave her. At that time, the accused persons have assaulted PW.5 to PW.8. Thereafter, the accused Suresh tried to take her in Bajaj motor cycle and at that time, she fell down. The witnesses PW.5 to PW.8 stayed near their house and thereafter all the accused persons took her half kilometer near the pond and they removed her clothes. The Accused No.4 removed her inner wear and Accused Nos.2 and 4 held her and Accused No.6 committed rape on her four times and thereafter she was pushed into the water. She was shifted to hospital and she regained consciousness on 7.1.2004 at 10 am 13 and at that time, she has disclosed the incident to the Doctor. After ten days, she was taken to the spot where she was subjected to rape and seized the clothes by drawing mahazar. She attested the mahazar and identified her signature and identified MO Nos.1 to 3 belongs to her. She was subjected to cross examination. In the cross examination, it is elicited that she cannot tell the specific overt act of accused on her husband. The neighbours also did not come to their residence. But, she volunteers that the accused persons did not allow her to scream at the spot. It is also elicited that she did not try to remove the rope which has been used for tying her husband. It is also elicited that her clothes were removed near the pond. Till then, they have not removed her clothes. It is also elicited that when her clothes were removed, she did not object and she volunteers that the accused did not allow her to resist from clutches of the accused. It is suggested that she was discharged from the hospital on 14 7.1.2004 itself and she says that she cannot tell the date. Exhibits.D1 and D2 are confronted, making a suggestion that she did not make any statement before the Police that she was subjected to rape and the same are marked as Exhibits.D1 and D2. It is also her evidence that she was not subjected to assault except in the house.
13. The other material witness is PW.1 who is husband of PW.2. PW.1 also reiterates his evidence similar to that of PW.2-victim. He says that when he was tied in the house, his daughter came and removed the same and immediately he went to the Police Station and lodged a complaint. He himself has shown the place of incident and the Police have drawn mahazar in terms of Exhibit.P2. He was subjected to cross examination. He admits that near his house other houses are located. He was subjected to assault on his cheek and also accused persons were having long in their hands and hence he kept quiet. He also admits 15 that his wife did not scream at the spot. The incident might have been witnessed by the neighbours. But, he says that when his wife was lifted from the house, he was inside the house and nobody came to his house. After ten minutes of the incident, his daughter came and removed the rope. He did not ask the persons who are on the road about his wife. He went to the Police Station at around 11 am and thereafter he went to the hospital. He found Jayamma, Mahadeva, Kalaiah, Deviramma, Sudha and Shashikala in the Hospital. He was in the hospital for ten minutes. The Doctor has not given any first aid. His wife regained conscious after three days. It is suggested that Durgegowda also has given separate complaint against them and he denies that he is not aware of the same. But he admits that he is attending the case in the Court.
14. The other witnesses are PW.5 to PW.8. PW.5 is husband of PW.6. The PW.7 is the daughter of PWs.5 and 6. The evidence of PWs.5 to 7 are similar. It is 16 deposed that on 6.1.2004 at about 10 am, they heard that the victim was screaming to save her and the accused persons were carrying PW.2 and when they witnessed the same, immediately they came out from the house. When they questioned the Accused persons, Accused No.2 Chandra assaulted them with cycle chain.
15. PW.7 also gave evidence similar to that of PW.5 and others. She also reiterates that all of them have assaulted her. Even she further states that her sister was also subjected to assault.
16. In the cross examination of PW.5, it is elicited that Accused No.6 is his wife and he is staying in the house belonging to his father-in-law. It is suggested that his father-in-law has given three acres to him and the same was denied. He admits that there was a dispute from lifetime of his father-in-law between them. He claims that at the time of the incident, one Deviramma was also present. It is suggested that there 17 were twenty five persons at the time of the incident and the same was denied. The witness says only accused persons were present. It is suggested that accused persons have not assaulted him and the same was denied. He also says that when PW.2 screamed to save her, at that time he came out. When he was subjected to assault, he lost his conscious and thereafter he was not aware of what had happened. When Exhibits.D4 and D5 were confronted to the witness and the witness admits the same. He also admits that they are also attending the court case.
17. PW.6-wife of PW.5 in the cross examination also admits Accused No.6 is her brother. It is suggested that her father had given three acres of land to them and she says that her husband had purchased the same. To this witness also, it is suggested that there were twenty five persons at the time of the incident. The witness volunteers that there were only accused persons and her husband and children were there at 18 the spot. It is suggested that Durgegowda also came to the spot. But, the witness says she did not witness him. It is suggested that Durgegowda also had sustained injuries and the witness says she has not witnessed the same. However, she admits that based on the complaint given by Durgegowda, she is attending the Court as accused.
18. PW.7 was subjected to cross examination. It is also suggested that there were twenty five persons at the time of the incident, but the same was denied. She says in her evidence that Jayamma was lifted from the said place and she was present at that time. It is suggested that she was in the house and not in the place and the same was denied. It is also elicited that except the place of incident which had taken place near her house, she did not go to any other place. However, she claims that the Police came and seized the clothes of the victim near the pond. It is also elicited that she did not witness any removal of clothes of the victim. 19
19. The other witness is PW.8. PW.8 in her evidence claims that PW.7 is her sister. It is her evidence that when her father tried to pacify the incident, the accused persons assaulted her father by cycle chain and club and she also sustained injuries to her left arm and on her back in the incident. It is her evidence that the accused Mulla, Suresha and Ganesha have assaulted her and the very same accused persons assaulted her father with cycle chain and club. The accused Ramachandra, Mulla, Suresha and Ganesha assaulted her father with cycle chain and club as a result, her father had sustained more injuries. She was subjected to cross examination. She also admits that case is registered against them. It is suggested that accused persons did not lift PW.2 and she is deposing falsely, she denies the same. However, she claims there were forty persons at the spot.
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20. This Court has to reconsider the material available on record. Though it is the case of the prosecution that the victim was subjected to rape, there is no any medical evidence before the Court. PW.11 has been examined who says in her evidence that there is no any sign of victim being subjected to sexual act recently. It is her evidence that she found only two injuries on her such as on the elbow and on the lower limbs, both of one centimeter. It has to be noted that the statement of PW.2 was recorded on 16.01.2004 after ten days of the incident. PW.2 in her statement on 16.01.2004 says that the accused persons have removed her clothes and Accused No.6 committed rape on her. It is also important to note that it is her evidence that Ramachandra assaulted her with cycle chain on her left thigh and also on right arm and on her back. The wound certificate which is produced before the Court which is marked as Exhibit.P7 does not correspond to the overt act alleged against Accused No.6 21 by PW.2. On perusal of the wound certificate, Exhibit.P7 which discloses that she had suffered abrasion of 1 x 1 cm over medial epicondyle of right upper limb and 1 x 1 cm over lateral side of left lower limb. There is no material before the Court that these injuries could be caused by the overt acts said to have been committed with the cycle chain. In the cross examination of PW.11, it is elicited that these injuries could be caused if only persons falls on the hard surface. It is also important to note that the prosecution witnesses have all deposed before the Court that they are subjected to assault. Except wound certificate at Exhibit.P7 of the victim, no material is placed before the trial Court by the prosecution with regard to sustain injuries by other witnesses i.e., PWs.1, 5 to 8. On perusal of both oral and documentary evidence of PW.2, though she claims in her further statement that she was assaulted with cycle chain, she has not deposed the same before the Court while giving 22 evidence that she was subjected to assault by cycle chain. It is also pertinent to note that the medical evidence does not correspond with the overt act alleged against the accused. Apart from that, inconsistency in the evidence of PW.2, she claims that accused persons have tied her husband with a rope and the Investigating Officer did not seize the rope which was used for tying him. It is the case of the prosecution that daughter of PW.1 and PW.2 came and removed the said rope and it is rightly pointed out by learned Counsel for Accused Nos.1 to 5 that the daughter of PW.1 and PW.2 has not been examined before the Court. It is also important to note that though all the witnesses were subjected to assault and witnesses to the incident, there are material contradictions in their evidence. It has to be noted that it is the case of PW.2 and PW.5 that all the accused persons have lifted PW.2 from the house. But, PW.6 in her evidence has stated that accused persons were dragging PW.2 towards Kolalagundi village Road. But, 23 evidence of PW.6 is contrary to evidence of PWs.2, 5, 7 and 8. These witnesses claim that PW.2 was lifted from the house. Having considered the material available both oral and documentary, on record, it discloses that evidence of PW.3 - brother of the victim claims that he collected the clothes from the tank bed and produced the same to the Police. It is the evidence of the victim that she herself produced clothes before the Police and mahazar was drawn. PW.7 also reiterates that clothes were seized near the pond which is contrary to mahazar. It is emerged in the evidence that PW.2 claims that she lost conscious at the spot after the act of Accused No.6 committing rape on her and she regained conscious on the next day i.e., on 7.1.2004. The husband - PW.1 says, she regained conscious after 3 days. But, the other witnesses have deposed that she was immediately shifted to the house and thereafter she was taken to the hospital and the same indicates that she was conscious immediately after the incident. 24 There is no material before the Court that she lost conscious at the spot and also PW.1-her husband claims that PW.2 regained conscious after three days and his evidence is against PW.2. But, she was subjected to medical examination on 7.1.2004 on the basis of the reference made by the Police and she was examined in Vani Vilas Hospital on the same day.
21. Learned Counsel appearing for Accused No.6 also brings to our notice unmarked documents that the victim made before the Vani Vilas Hospital, making allegations against Accused Ganesha and Nagaraja and they have committed rape and not Accused No.6- Nanjappa. We have already made it clear that the unmarked documents which is not part of the records cannot be relied upon. However, taking into account the prosecution evidence available on record, we do not find any material to bring the accused persons for the charges leveled against them. No doubt, even in the absence of the medical evidence with regard to the rape, 25 evidence of the victim if inspires confidence of the Court, the same is sufficient. But, taking into account the material evidence available on record, the same does not inspire confidence of the Court as there are contradictions in evidence of prosecution witnesses it was suggested that there were twenty five persons at the spot and the same has been denied by PW.5 and PW.6, but, PW.8 claims there were forty persons, PWs.5 and 6 claim only Accused persons were there. Only based on the suggestion, the Court cannot come to the conclusion that heinous offence has taken place, but, some incident had taken place but there was no credible evidence. It is evident from evidence of PW.5 to PW.8 that there was dispute among accused and others and a complaint has been lodged with regard to the incident. When rivalry is being emerged before the trial Court, the trial Court has rightly come to the conclusion that evidence of PW.5 to PW.8 does not inspire confidence of the Court.
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22. We have given anxious consideration to the evidence available on record, both oral and documentary and on re-appreciation of the evidence, we do not find any material to come to other conclusion to reverse the finding of the trial Court. Hence, in view of the discussion made hereinabove, we pass the following order:
ORDER This appeal is dismissed. Registry is directed to pay fee of *Rs.10,000/- in favour of learned Amicus Curiae who assisted the Court on behalf of Accused Nos. 1 to 5 and send the trial Court record forthwith.
Sd/-
JUDGE Sd/-
JUDGE AN/-
*Corrected vide Chamber Order dated 29.02.2020