Karnataka High Court
State Of Karnataka vs Rajesab S/O. Mahaboobsab Mulla on 20 March, 2017
Equivalent citations: 2017 (3) AKR 797, (2017) 173 ALLINDCAS 785 (KAR), (2017) 3 KANT LJ 371, (2017) 3 CRIMES 35, 2017 (4) KCCR SN 524 (KAR)
Bench: Anand Byrareddy, K.Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
R
DATED THIS THE 20TH DAY OF MARCH, 2017
PRESENT
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
AND
THE HONOURABLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.100049/2014
Between:
State of Karnataka
Represented by Police Inspector
Garag Police Station,
Dharwad Taluk & District.
... Appellant
(By Shri. V.M.Banakar, Addl. SPP)
And:
Rajesab
S/o: Mahaboobsab Mulla,
Aged about: 40 Years,
R/o: Kurubagatti,
Now R/o: Harobelavadi,
Taluk & District: Dharwad
... Respondent
(By Shri. V.G.Bhat, Advocate)
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This appeal is filed under Section 378 (1) & (3) of
Cr.P.C. seeking to grant leave to appeal against the judgment
and order of acquittal dated 31.07.2013 passed by the II Addl.
District and Sessions Judge, Dharwad, in S.C.No.148/2010, for
the offences P/U/S 376 r/w 511 of IPC and be set aside the
judgment and order of acquittal and convict the
respondent/accused for the offences P/U/S 376 r/w 511 of IPC.
This appeal coming on for Final Hearing this day, Anand
Byrareddy J., delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor on behalf of the state.
2. The appeal is filed against the judgment of the trial Court in Sessions Case No.148/2010 on the file of the II Addl. District and Sessions Judge, Dharwad, whereby the trial Court has acquitted the accused for an offence punishable under Sections 323 and 376 of the Indian Penal Code (Hereinafter referred to as ' the I.P.C', for brevity) and also for an offence punishable under Section 376 read with 511 of IPC, while it has convicted the accused to simple imprisonment for a period of two months :3: and to pay a fine of Rs.500/- in respect of the offence punishable under Section 354 of the IPC.
3. The facts of the case as stated by the prosecution are as follows;
The complainant-Irabasappa had stated that his daughter- Iravva, though married had been deserted by her husband and she was residing along with him. That she had taken their cattle for grazing on 05.06.2008 and that at about 1.00 p.m., when his daughter was near Narasinganavar Halla of Kurubagatti village, the respondent-accused is said to have come there and had over powered her and had outraged her modesty. A case was said to be registered on the basis of the complainant. However, on further investigation a case was said to be registered against the accused for an offence punishable under Section 376 of the IPC as well. He was said to have been arrested on 07.06.2008 and further proceedings were taken and he had stood trial. :4:
4. It is on an analysis of the evidence that was tendered the Court below has rendered the above impugned judgment. It is pointed out that the trial Court in proceeding to analyze the evidence has firstly found that Ex.P13 the complaint, indicated that the prosecutrix PW.1 had come back home crying at about 2.00 p.m. and she was accompanied by PW.6, Hanamantapa and PW.9, Vithal, and on inquiry the complainant was told that his daughter had been molested and her blouse was torn by the accused and it was for that reason that she was crying. The witnesses, PWs.6 and 9, in turn had informed the complainant, particularly PW.9, that he had heard cries from the Halla, where the incident is said to have been taken place and on going there he saw the accused physically molesting the victim and on seeing the witness PW.9, the accused is said to have run away from the spot.
5. It is thereafter PW.6 also was said to have been called to the spot by PW.9, and both of them tried to console the victim :5: and then had brought her home. On the basis of the complaint, the FIR had been registered only for the offence punishable under Section 323 and 354 of the IPC. It is on subsequent investigation that other provisions namely 376 read with 511 of the IPC were introduced.
6. PW.1 the victim is said to have been born deaf and dumb, and her evidence had been recorded with the assistance of a translator, PW.10, who was said to be an educator for the deaf and dumb, through means of signs. The prosecutrix is said to have narrated that around 1.00 p.m. the accused had come and tied her eyes with a cloth and had torn her blouse. He is then said to have handled her breasts and had felled her to the ground. He had then forced his hand between her legs and had penetrated her vagina with his penis. All these details had been narrated by means of signs which were in turn interpreted by PW.10 and recorded by the Court. It is further narrated that the accused had run away after having satisfied his lust. :6:
7. The evidence of PW.3 was to the effect that, he learnt of the incident only when PWs.6 and 9 brought PW.1 home and when they narrated the manner in which the incident is said to have occurred and that PW.9 had seen the accused running away from the spot and that he was naked from the waist down and he was holding his underwear in his hand while running away. It is this circumstance of the sexual act committed by the accused, which was significantly missing from the complaint, that is notice by the trial Court as being an improvement. And the trial Court has opined that it was an improvement, which certainly affected the genesis of the case. And it was incumbent on the complaint to narrate this aspect of the matter, in the first instance, in the complaint.
8. One other aspect which the trial Court has found was that the complainant was an illiterate man and he had put his left thumb impression on the complaint and in his testimony had stated that on the very same day of the incident, he had lodged the complaint orally, and it was written down in the police :7: station by a police officer and he had put his left thumb impression on the said written content. It is further stated that the victim herself had accompanied the complainant to the police station and the police had made inquiries with her as well. And she had replied through signs. It was further found from the record that she was also taken to a medical practitioner, where she had again narrated the incident by signs. But still the police had not chosen to register a case and investigate the matter for the offence punishable under Section 376 IPC. The provisional medical certificate and final report at Exs.P8 and 9 are also silent as regards the enquiries made by the police and the medical practitioner in the first instance and the report is also silent as regards the rape as claimed by the victim.
9. Ex.P8, discloses that the victim was taken to the hospital by a woman constable and the trial Court has pondered that the police had narrated the history of rape to the medical practitioner and even then the same being absent in the report as :8: being inexplicable. Further, PW.6, has stated that he was near the spot and where the incident is said to have taken place, as he had gone there to bring back his buffaloes and at that point of time he had heard screams and he had gone there to investigate and that had seen the accused running away from the scene and he also noticed that the accused was not wearing any clothes below his waist and he was holding his underwear in his hand. Thereafter he had seen the victim with her torn blouse and it was also claimed by the said witness, that she had explained by signs of her having been ravished by the accused. And that he had contacted his friend, Ningappa, who was on the adjacent land and by the time he came, the accused had run away and therefore they could not catch the accused. It is thereafter, that he and Ningappa had brought the victim home where she had again by means of signs had narrated her plight. But Ningappa, who was examined as PW.4 had not supported the case of the prosecution.
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10. It is further found by the trial Court that PW.9, another crucial witness for the prosecution to establish the circumstance of the offence having been committed. According to PW.9, he along with PW.6 had come to the spot simultaneously on hearing the cries of the victim and he had stated that, he came at the same time as PW.6 to the spot, which is not the version of PW.6. It was the claim of PW.6, that he was the only one who came to the spot after he heard screams, and on seeing him the accused had run away from the spot that he was half naked. Therefore, the Court has found that there was inconsistency in the testimony of these crucial witnesses PW.6 & 9 as to the timing of their arrival at the scene and that one would not be in a position to corroborate the testimony of the other. And that their testimony was also not consistent with the complaint as made by Irabasappa the complainant PW.3 and hence there is complete inconsistency in the version given by the victim, her father the complainant and PWs.6 and 9.
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11. One other witness whose testimony may be relevant to the prosecution is that of PW.10 the translator who was employed to interpret the signs made by PW.1 in her testimony before the Court.
12. The Trial Court has found that the victim had been taken to a school for the deaf and dumb by the Police at which time, the investigation had been completed. In that the medical examination and the FSL report had been received which did not indicate the commission of the alleged rape. Whereas, according to the record in a tutor of the school meeting with the victim, had been told about the commission of rape. Therefore, the Trial Court has seriously doubted the veracity of the evidence of PW.10 and the interpretation by the said witness of the signs made by the victim as to the accused being a bearded person and that he was wearing sandal paste on his neck and that he had caught hold of her by her hair and threw her on the ground and stripped her of her clothes before committing rape. And that he had also undressed himself completely. All of : 11 : which did not find place in the complaint, nor the testimony of P.Ws.6 and 9 and the victim herself. They had not stated about the accused having removed his clothes completely and P.W.6 had also not indicated that the accused was completely naked, if the testimony of P.W.10 is to be reconciled with the testimony.
13. Though P.W.3, the complainant had stated that he had narrated the incident as disclosed by him in his testimony, the complaint, however, is silent on these aspects. One other aspect highlighted by the Court below is the fact that the Investigating Officer had made a requisition to the Committal Magistrate to include an offence punishable under Section 376 read with Section 511 of the IPC. According to him, from the contents of the FSL report, it was confirmed that the under garments of the victim which had been sent for forensic examination, did indicate signs of the commission of the alleged rape. But however, the Trial Court has observed that the FSL report only revealed the presence of semen stains on the petticoat of the victim and not on any other garments, nor were any such semen : 12 : stains found either in her vagina or on her pubic hair, nor was it found on the clothes of the accused. The Trial Court has thus dismissed the presence of semen stains, as bringing home the charge against the accused of having committed rape. The Trial Court has further concluded that the information provided by the complainant, P.Ws.6 and 9, even if it could be accepted in part, it would indicate that there was a quarrel between the accused and the victim and that in the course of which her blouse had been torn and she had been manhandled and nothing beyond had occurred. It is in this manner that the Trial Court has acquitted the accused for the offence punishable under Section 376 read with Section 511 of the IPC or for an offence punishable under Section 376 of the IPC. It is opined that at best a case has been made out for an offence punishable under Section 354 of the IPC, in the absence of any other clinching incriminating material and acceptable evidence in support of the charges and has restricted the punishment as aforesaid. It is this which is under challenge in the present appeal. : 13 :
14. The learned Additional State Public Prosecutor would firstly point out that even for an offence punishable under Section 354 of the IPC, by virtue of the amended provision, the minimum punishment is one year which may extend to 5 years. Though under the unamended provision, the imprisonment was for a term which could extend to two years or with a fine. Therefore, when the Trial Court has categorically found that the accused had committed an act which was an offence punishable under Section 354 of the IPC, the Court has been extremely lenient and ought to have punished the accused with a far greater punishment. It is contended that this itself would indicate the manner in which the Trial Court has approached the facts of the case.
15. The learned Additional State Public Prosecutor would highlight the fact that the victim was a woman who was born deaf and dumb. Therefore, she was seriously handicapped in narrating the trauma that she underwent. The fact that there was strong circumstantial evidence in the form of evidence of : 14 : P.Ws.6 and 9 to support the pathetic story of the victim has been cast aside by the Trial Court in finding fault with the minor variations of the episode, as narrated by the victim P.W.1 and PW.6, the witness who was present on the scene immediately after the commission of the offence and who had seen the accused flee from the spot, naked from the waist down, and the victim lying on the ground crying for help with torn clothes and P.W.9 also having been called to the spot, who was nearby, having seen the plight of the victim, has been trivialized, as an incident where there was a quarrel between the accused and the victim which is rather a naive conclusion of the Trial Court. Whereas, the testimony of the victim alone was sufficient to bring home the charges against the accused for an offence punishable under Section 376 of the IPC. Even assuming that there was no positive report, either by the FSL or by the Medical Practitioners, as to the victim having under gone forcible sex, it would still be possible for the prosecution to bring home a charge for an offence punishable under Section : 15 : 376 read with Section 511 of the IPC. The Trial Court having negated the same, on the finding that though semen stains were found on the petticoat of the victim, such semen stains were not to be found on other undergarments of the victim did not bring home the charges against the accused, is a crude approach in expecting that the victim's clothes would be drenched with semen and that such evidence could be produced.
16. The further conclusion of the Trial Court that no semen stains were found on the clothes of the accused or on the private parts of the victim is also a negation of the complaint of a deaf and dumb woman who could not give a graphic description of the manner in which she was violated by the accused. Though the circumstance of the offence having been committed and the accused being a person who had ravished the victim being portrayed through the testimony of P.W.6 has been diluted and trashed with reference to the details contained in the complaint lodged by the illiterate father of the victim, who may not have dictated the gory details, as he was not the victim and he had : 16 : only the account made by his daughter through signs. At the point of time, when she had only then been rescued from the trauma and was in a state of agitation and suffering and apart from the account of P.Ws.6 and 9, he had little other information. The absence of these particulars in the First Information Report, therefore, could not have prompted the Trial Court to hold that the prosecution had failed to make out a case. It is contended that the approach of the Trial Court has therefore, completely side lined and ignored the evidence of the victim herself.
17. It is also pointed out that the intervention of P.W.10, who is said to be a teacher at a school for the deaf and dumb to interpret the signs made by P.W.1, while rendering her testimony in Court was superfluous. The signs made by the victim in Court were not a learnt sign language. But a dumb person seeking to narrate the incident by physical signs and the Trial Court was capable of comprehending those signs. The presence of P.W.10, the interpreter was mere surplusage, the : 17 : Trial Court did not have to rest on the interpretation given by P.W.10, when the victim herself was present in Court and was doing her best to narrate her case through signs. Therefore, it was the testimony of P.W.1 which assumed center stage and ought to have been given credence, while the evidence of others was only to support her case and it was not the other way around. Therefore, the Trial Court was in error in seeking to find consistency and corroboration to a degree as would be warranted in any other case involving a victim, other than such as in the present case. Therefore, the approach of the Trial Court is found wanting in having proceeded to dilute and trash the evidence of the prosecution in the case on hand. Therefore, the SPP would seek that even if the prosecution has not made out a case for an offence punishable under Section 376 of the IPC, it has certainly made out a case for an offence punishable under Section 376 read with Section 511 of the IPC and seeks that appropriate punishment be awarded to the accused. : 18 :
18. While the learned counsel for the respondent would candidly admit that no appeal has been preferred against the conviction and sentence for an offence punishable under Section 354 of IPC. However, since the present appeal by the State is to question the acquittal under Section 376 of the IPC, the cogent reasons assigned on the several aspects by the Trial Court would certainly demonstrate that the prosecution had failed to establish its case beyond all reasonable doubt. The emotional pitch which the learned Additional State Public Prosecutor would seek to cast, in challenging the judgment of the Trial Court would not however enable him to contend that there was material evidence which was consistent and evidence which was corroborated by the several witnesses. On the other hand, the inconsistencies and contradictions which have been highlighted by the Trial Court cannot be dubbed as being an indifferent approach of the Trial Court. He would contend that when the very freedom of the accused is at stake, it is for the prosecution to establish the case beyond all reasonable doubt : 19 : and since it has failed to do so, the accused having been acquitted for the offence punishable under Section 376 of the IPC or for the offence punishable under Section 376 read with Section 511 of the IPC, is well founded and does not warrant interference and seeks dismissal of the appeal.
19. In the light of the above rival contentions, Firstly insofar as the complaint having been registered for an offence punishable under Sections 323 and 354 of the IPC and the First Information Report being silent, as regards any offence punishable under Section 376 of the IPC, is not unusual. The complainant was an illiterate man. His complaint had been dictated at the Police Station which was said to have been recorded by a Police personnel. He had merely affixed his thumb impression to the content of the First Information Report. It is settled law that First Information Report need not be an encyclopedia of the incident and it only sets the law in motion. Therefore, if on further investigation, the case has been enlarged to include an offence punishable under Section 376 of : 20 : the IPC, it cannot be said to be vitiated on that ground. The case of the prosecution does not entirely rest on circumstantial evidence. The victim herself is a witness and her testimony should be given full effect, particularly when the woman was born deaf and dumb. The evidence of P.W.6 which could be termed as circumstantial evidence, was so close in proximity of time making him almost an eyewitness to the offence. In that, he was in the vicinity and having heard the whimpers and cries of the victim, had come on the scene to see the accused run away, naked from the waist down, and apparently after having molested the victim. The victim again having narrated her plight by virtue of signs was sufficient for P.W.6 to comprehend as to what had transpired. Therefore, this sequence cannot be said to be implausible. On the other hand, would corroborate the evidence of the victim. The fact that the Trial Court has found that the incident had taken place and that it could be categorized only as a quarrel that had taken place between the accused and the victim and that he had even torn : 21 : her clothes in the process, would indicate that the evidence was sufficient for the Court atleast to arrive at such a conclusion. The Trial Court has not chosen to ponder as to how semen stains could be found on the victim's petticoat when she had been deserted by her husband and was wearing the same petticoat at the time of the incident and it was at a forensic examination that this was confirmed. The Trial Court having opined that no semen stains were found on other garments of the victim is indeed unfortunate. The ejaculate of a normal man would not be of such a quantity as to drench the clothes of the victim, nor was it necessary that the man should ejaculate while committing rape and that he should stain the clothes of the victim. This extreme expectation of signs of rape is indeed unfortunate.
20. Insofar as the testimony of the victim having been disbelieved or having been diluted with the reference to the testimony of P.W.10, who was called in to interpret the signs made by the victim to depose before the Court is concerned, the : 22 : manner in which the evidence of a witness unable to communicate verbally is to be recorded is laid down under Section 119 of the Indian Evidence Act, 1872, as it stood before the amendment by Act No.13 of 2013, is as follows:
"119. Dumb witnesses.-- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence."
Since the witness was examined as on 07.01.2012, the amended provision which was incorporated with effect from 03.02.2013, was not available. Therefore, it is inexplicable that the interpreter, P.W.10 has been brought into service to interpret the signs made by the victim.
21. This Court takes judicial notice of the fact that sign language is an art and is well developed in almost every language. In that, there are newsreaders, who read the news through sign language in most languages. It is not that sign language which was being used by the witness in the present : 23 : case. She was an illiterate woman and was narrating her story by signs which were capable of being comprehended by anybody and not necessarily a person trained in sign language which would be peculiar to a trained person in sign language. Therefore, it was for the Court to have recorded the narration by the victim of the incident by the signs that she was making in Court and there was no need for any interpreter.
22. The Supreme Court in addressing the scope of manner of examination of such witnesses in the case of State of Rajasthan vs. Darshan Singh, 2012 (5) Supreme Court Cases 789 has referred to the observation of the Apex Court in M.P.Sharma vs. Satish Chandra, AIR 1954 SC 300 to the following effect.
"A person can 'be a witness' not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of dumb witness or the like."
It is further expounded thus:
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"26. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law requires that there must be a record of signs and not the interpretation of signs."
(emphasis supplied) : 25 :
23. Therefore, it was incumbent on the Trial Court to have actually recorded the signs made by the witness and not the interpretation of signs. The exercise of having brought in the assistance of P.W.10 was wholly unnecessary. Though the amended Section 119 of the Indian Evidence Act, 1872 referring to the assistance of interpreter or a Special Educator in recording the statement of dumb witnesses, apparently relates to a person conversant with sign language and being able to speak in sign language, as a trained person would. It is such communication which may have to be interpreted by a trained person, for otherwise the Court is not precluded from comprehending the signs made by a dumb witness to state or narrate particular state of affairs. As observed by the Apex Court in Darshan Singh, that a case in point is the silent movies of a bygone era, which were understood widely because they were able to communicate ideas to people through novel signs and gestures, emphasize body language and facial expressions which enabled to audience to comprehend the intended : 26 : message. Therefore, the evidence of the victim having been sought to be diluted by reference to certain vague interpretations given by P.W.10 was unfair and was unwarranted. Consequently, from the evidence on record, we are fully convinced that the prosecution has made out a case for an offence punishable under Section 376 read with Section 511 of the IPC and this we are concluding on the account of medical reports and the FSL reports as well as the opinion of the Medical Practitioners that there were no signs of sexual activity. We have our own doubt as to whether such medical examination would actually indicate recent sexual activity. For, the Medical Practitioner was looking for injuries, as if an act of sex should always produce injuries. Therefore, the opinion if it was founded on that basis, would be erroneous. But we are compelled to hold that though rape itself may not have been established, there was atleast an attempt to rape.
Consequently, the judgment of the Court below is set aside, insofar as the acquittal of the accused for an offence : 27 : punishable under Section 376 read with Section 511 of the IPC and we hold that the accused is found guilty of the said offence and in our opinion a punishment of rigorous imprisonment of seven years atleast would be warranted for an offence under Section 376 of IPC, but since the offence of rape has not been firmly established, we convict him for an offence punishable under Section 376 read with Section 511 of IPC, to rigorous imprisonment for three years and six months. The respondent having been convicted and sentenced to simple imprisonment for two months shall be entitled to a set off for the period during which he has suffered imprisonment.
Sd/-
JUDGE Sd/-
JUDGE msr/Rsh