Karnataka High Court
State Of Karnataka vs Shivakumar @ Kumaru on 10 September, 2012
Bench: Dilip B.Bhosale, S.N.Satyanarayana
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF SEPTEMBER 2012
PRESENT
THE HON'BLE MR. JUSTICE DILIP B BHOSALE
AND
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
CRIMINAL APPEAL NO.1001 OF 2007 (A)
BETWEEN:
State of Karnataka,
By Police Sub Inspector,
Women Police Station,
DAVANAGERE. .. APPELLANT.
(By Sri.P.M.Nawaz, Addl. SPP.)
AND:
Shivakumar @ Kumaru,
S/o late Shivappa,
Age: 36 Years, Occ:
Worker in Bakery,
R/o Devaraj Urs Extension,
'C' Block, Shibara Cross,
DAVANAGERE. ...RESPONDENT.
(By Sri.V.B.Siddaramaiah, Adv.)
*-*-*-*-*-*-*
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This appeal is filed under Section 378(1) and (3) of the
Code of Criminal Procedure, praying to grant leave to file an
appeal against the Judgment dated 29.03.2007 passed by the
Sessions Judge, Davanagere, in S.C.No.115/2006 acquitting
the respondent / accused for the offence punishable under
Section 376 read with Section 511 of IPC.
This Appeal coming on for Final Hearing this day, the
Court delivered the following:
ORAL JUDGMENT: (DILIP B. BHOSALE J)
This appeal is directed against the Judgment and Order dated 29.03.2007 rendered by the Sessions Judge at Davanagere, in Sessions Case No.115/2006, whereby the respondent - accused has been acquitted of the offence punishable under Section 376 read with 511 of IPC.
2. The respondent - accused was charged and tried for the offences punishable under Sections 376 and 511 of IPC. The Sessions Court, however, convicted him for the offence punishable under Section 509 of IPC and sentenced him to undergo simple imprisonment for a period of three months and also to pay a fine of Rs.3,000/- and in default to undergo simple imprisonment for 15 days.
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3. The respondent - accused had filed an appeal bearing Criminal Appeal No.636/2007 in this Court challenging the order of conviction under Section 509 of IPC. That appeal was heard and disposed of by the learned Single Judge vide Judgment and Order dated 27.07.2010. The operative portion of the Judgment dated 27.07.2010 reads thus:
"The appeal is allowed in part confirming the conviction of the appellant for the offence under Section 509 IPC.
The sentence of imprisonment is confined to the custody of the accused during the investigation and trial and the fine amount is enhanced to Rs.10,000/-, in default, to undergo simple imprisonment for three months. The fine amount shall be credited to the State."
It is in this backdrop, we have heard the learned counsel for the parties.
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4. The prosecution case is that on 22.02.2006 at about 5.00 p.m., the respondent - accused called the prosecutrix (P.W.3), when she was returning from the school, inside his house and removed the towel which he was wearing on his waist and tried to fell her on the ground and attempted to commit rape. The prosecutrix (P.W.3) informed the incident to her father (P.W.2), who in turn went to the house of the accused along with his daughter. The accused after seeing the father of the prosecutrix, allegedly ran away. The father of the prosecutrix (P.W.2) thereafter lodged an FIR and on the basis thereof investigation was carried out and a charge sheet was filed for the offences punishable under Section 376 read with 511 of IPC. The Sessions Court after taking evidence of all the witnesses, more particularly, P.Ws.2, 3, 5 and 7, acquitted the accused of the offence punishable under Section 376 read with 511 of IPC. The relevant observations 5 made by the learned Sessions Judge in Paragraphs 18 and 19 read thus:
"18. By virtue of the said facts it do go to show that there were no injuries on the body of the victim girl as per Ex.P.8.
Hymen was in tact. There were no
external injuries. Presence of seminal
stains was not found. There is no
evidence of mental retardation. It is
further stated that there was no evidence of recent sexual intercourse. By virtue of these facts it do go to show that absolutely there are no materials regarding the offence under Sec. 376 of IPC or offence under Sec. 511 of IPC regarding attempt to commit rape. Even though the victim girl has stated that the accused has removed the towel but the clothes worn by the victim girl have not been removed. There is no evidence to that effect. But she has stated that the accused dragged her inside the house. This is a very important fact that has to be taken into consideration. The complaint has been given by PW 2 as per Ex.P2. Even in the complaint also it is stated that when she wanted to return the 6 money given by the accused towards purchase of bajji, the accused was naked and he wanted to do something. These facts do go to show that any attempt to commit rape has not been proved. But however the dragging of the victim girl has been spoken to by PW 2, which also finds place in the cross examination. That fact also has been supported by PW 5. Even though the complaint has been given by the father as if the victim girl has stated so the fact regarding the dragging has not been stated but however she has categorically stated in the evidence. It has not been got elicited whether the statement of the victim girl has been recorded by the police or not. Therefore it do go to show that the evidence given by PW 2 will have to be believed. Moreover the victim girl is aged about 12 years studying in 7th standard. Such a girl could not tell lie. The very fact of dragging the victim girl by holding her hands would go to show that he intended to commit a crime but the crime is not completed. As a result it amounts to an offence under Sec. 509 of IPC. In order to 7 commit an offence under Sec. 509 of IPC the following ingredients are relevant:
i.e., whoever intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman.
19. In the present case there has been gesture made by the accused by dragging the victim girl when he was wearing a towel inside the house. That itself would be sufficient to say that there was intention of such gesture having been made intrudes upon the privacy of such a person. The victim girl was a stranger.
There was no reason for the accused to drag her inside the house. Intrude of the privacy of the girl is sufficient to bring home the guilt within the scope of Sec.
509 of IPC. That was with intend to insult the modesty of such woman.
Perhaps since the victim girl has shouted no further offence has taken place."
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5. We have, with the assistance of the learned counsel for the parties, perused the evidence of the prosecutrix. She has stated that about a year ago, when she was returning from the school, the accused gave her Rs.2/- and asked her to bring bajji. She enquired in the hotel and since bajji (pakoda) were not available, she went to the house of accused to return the money given by him. The accused, at that time, asked her to come inside his house and when she requested him to take money there itself, he caught hold her hands and dragged her inside the house. When she shouted, P.Ws.6 and 7, the neighbours went there and after seeing them, the accused ran away. This story was narrated by P.W.3 to her father (P.W.2), who also in his evidence stated the same story, as to what happened between the prosecutrix and the accused. Out of the neighbours, P.W.6 did not support the prosecution case at all. P.W.7, the another neighbour, simply stated that when he was near the house of the accused, he heard the cries of the prosecutrix and when he went there, the accused ran away. When he enquired with the 9 prosecutrix, she disclosed him that he had removed his clothes. The evidence of this witness though support the prosecution case to some extent, in our opinion, would not help the prosecution to prove the charge of rape against the accused. The medical evidence on record does not support the allegation of rape at all. It is in this backdrop, in our opinion, for the reasons recorded in Paragraphs 18 and 19, the Sessions Court has rightly acquitted the accused of the offences punishable under Sections 376 read with 511 of IPC. Having regard to the nature of evidence on record and in view of the order passed by the learned Single Judge dated 27.07.2010 in Criminal Appeal No.636/2007, we do not find any reason to interfere with the judgment of acquittal.
6. In the result, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE AGV.