IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1177 OF 2010 BETWEEN:
Apsar @ Apsar Pasha, S/o Subhan, Aged about 29 years, Residing at Islampur Village, Kasaba Hobli, Nelamangala Taluk, Bangalore District.
(By Sri.A.S.Kulkarni, Advocate) AND:
State by Nelamangala Police Station, Bangalore District.
(By Sri. Divakar Maddur, HCGP) … Appellant … Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment of conviction dated 28.09.2010 passed by the P.O. FTC-II, Bangalore (R) District, Bangalore in S.C.No.123/09-convictinig the appellant/accused for the offence p/u/s 341, 376 read with 511 and 506 of IPC.
This Criminal Appeal coming on for further argument, this day, the Court delivered the following:
JUDGMENT The appellant has challenged the judgment of conviction and order on sentence dated 28.0.2010 in S.C.No.123/2010, passed by the learned Sessions Judge, Fast Track Court-II, Bengaluru Rural District, Bengaluru,(for brevity ‘Sessions Judge’), wherein he was convicted for the offence under Sections 341, 376 r/w Section 511 and 506 of Indian Penal Code and was sentenced accordingly.
2. The charge levelled against the accused by the Sessions Judge, is that on 02.01.2009 at about 8 p.m. while the victim (PW10) was going to her sister’s house, near the land of Pacha, which was on the way in Islampura village within the limits of the complainant police, the accused wrongfully restrained her and forcibly dragged her towards a jack fruit tree and from there near to a bore-well and thereafter to an eucalyptus grove and committed rape on her. Alternatively, it was also charged for attempting to commit such a rape upon her. Further he was also charged for criminally intimidating the victim girl by putting her life threat. Thus the charge for the offence punishable under Sections 341, 376,376 r/w Section 511 and 506 of Indian Penal Code were leveled against him. Since the accused pleaded not guilt, the prosecution in order to prove the guilt against him examined 14 witnesses from PW.1 to P.W.14 and marked documents from Exhibits P.1 to P.16 and material objects at M.O.1 to M.O.6. Neither any witnesses were examined nor any documents were marked as exhibits from accused’s side. After hearing both side and considering the materials placed before him, the Sessions Judge, by his impugned judgment convicted the accused for the aforesaid offences. It is against the said judgment of conviction the appellant has preferred this appeal.
3. Respondent is being represented by the learned High Court Government Pleader. Lower court records were summoned and same are placed before this Court.
4. Heard the arguments from both side. Perused the materials placed before this Court.
5. The points that arise for consideration are:
(i) Whether the prosecution has proved beyond reasonable doubt that on the date, place and time alleged in the charge sheet the accused has wrongfully restrained PW10 and attempted to committed rape on her and also put her under life threat, thereby has committed offence punishable under Sections 341, 376 r/w Section 511 and 506 of the Indian Penal Code”?
ii) Whether the impugned judgment under appeal deserves any interference at the hands of this Court?
6. The case of the prosecution begins with the complaint said to have been filed by the mother of the alleged victim girl i.e., PW1, with the respondent-police on 03.01.2.2009 at 8.00 p.m. alleging that while her daughter (PW.10-victim) as usual going to the house of her another daughter, who is elder sister of the victim i.e., PW.5 – Shabrin to stay with her in the night, on the way, the accused wrongfully restraining her daughter (PW.10), committed rape upon her and put life threat to her. Having heard about the said incident from her daughter, she (complainant) has filed the complaint. After registering the said complaint for the offence punishable under Sections 341, 376, 506 IPC, the complainant – police after completing the investigation had filed charge sheet for the alleged offences against the accused.
7. PW1, the mother of the victim in her examination- in-chief has reiterated what she has stated at her complaint Ex.P.1. She has stated that on the alleged night, it was the accused, who wrongfully restrained her daughter, while she was going alone to her another sister’s house and committed rape upon her.
P.W.2 is the brother-in-law of the victim girl who also has supported the case of the prosecution on the similar lines as that of PW1.
P.W.5 is the elder sister of the victim, who also stated in her evidence that on the alleged night when her sister i.e., PW10 came to her house, she revealed to her about the accused wrongfully restraining her on her way and subjecting her to rape. All these witnesses were subjected to detailed cross-examination from the accused side wherein they adhered to their original version.
P.W. 3 and P.W.4 are the Head Mistresses of schools, who have spoken about they giving the certificates of date of birth relating to the victim and the accused respectively, as entered in their school records.
P.W.6- Dr. C. Siddalingaswamy, is the Medical Officer, who has medically examined the accused and according to him there was nothing to show that the accused was incapable of committing any sexual assault.
P.W.7 was projected by the prosecution showing that he was the one who has seen the accused following the victim at the alleged time of the incident. However, the said witness has not supported the case of the prosecution. Even after treating him hostile, the prosecution could not get any favourable statement in his cross-examination.
P.W.8, who is said to be a pancha to the scene of offence panchanama has also not supported the case of the prosecution.
P.W.11 and PW12 are the Police Constables, among whom, P.W.11 has spoken about he carrying the FIR to the court after the first information was registered in their Station. P.W.12, a woman Police Constable has stated about she taking the victim girl for her medical examination to the doctor. P.W.13-another Police Constable has stated about he apprehending the accused and producing him before his superiors. P.W.14 is the Investigating Officer, who has given a detailed account of the investigation said to have been conducted by him in the case.
8. Learned counsel for the appellant in his argument vehemently contended and highlighted only upon the evidence of P.W.10, the alleged victim, P.W.9-doctor and P.W.14-Investigating Officer and submitted that the analysis of their evidence would go to show that even according to the victim, at the very first point of time, she has given the name of the alleged culprit as one Sri Abdul Subhan, but not the present accused, who is Apsar Pasha. Learned counsel further submitted that even the Dr. Nagarathna (PW9) has also stated that the victim has stated before her the name of the culprit as Abdul Subhan. However, in Ex,.P.12 she has shown the name of the present accused based on the information given to her by the police. It was also submitted by the learned counsel for the appellant that many omissions have been elicited in the cross-examination of P.W.10, which have been confirmed by P.W.14 in his cross-examination. As such, when those statement of omissions and improvements are deleted, then nothing remains in the evidence of P.W.10 to show that the accused is the culprit.
9. Learned HCGP in his arguments stated that immediately after the incident the victim has disclosed the details of the incident to her family members i.e., to her sister and mother before whom she has given the name of the accused. As such, merely because she is said to have given another name before the doctor would by itself not sufficient to hold that there is serious doubt in the case of the prosecution. He also submitted that the medical evidence also supports the case of the prosecution.
10. The alleged victim girl was examined at length as P.W.10. In her examination-in-chief, supporting the case of the prosecution and the contents of the complaint lodged in the case by her mother, the witness has given her statements. She has stated that on the ill-fated day, as usual she was going to the house of her sister i.e., P.W.5 at about 8 p.m. to stay with her said sister on that night. The said house was at a distance from her house nearly about 0ne km. and she used to cover the said distance by walk through path way. Accordingly on the ill-fated day, which was on 2.1.2009 she left her house at 8 p.m. and was going alone to her sister’s house. On the way, she saw Siraj (PW7) was going in front of her and after sometime he took left turn. However, she continued to proceed towards her sister’s house. On the way, on a stone slab, she noticed that the accused was sitting. After surpassing him, while she was moving, said Apsar followed her from back and closing her mouth, he dragged her to a nearby halla/gorge and removed all the garments and laid upon her and attempted to ruin her. Escaping from him she ran away to a little extent, but fell down by stumbling to a stone and sustained injury on her leg. The accused having come there, also dragged her near to a jack fruit tree, which was in that place and laying her down on the ground, he committed rape on her. Thereafter, he also took her near a bore-well, which was nearby the said place and repeated the same act. The witness has also stated her plea that she was physically not well and was operated for appendicitis, was also not considered by him. On the other hand, he promised her to marry and then took her to an eucalyptus grove and repeated the same act once again.
The witness has further stated that thereafter he tied her hands to a tree and at her request to give her clothes, which he had removed, the accused gave her his shirt stating that her clothes have been lost in the darkness and the accused also threatened her by saying that he would kill her if she disclosed the incident to anyone. The victim girl went to her sister’s house and narrated the incident to her, then her parents also came to the said house before whom also she narrated the incident .
P.W.10, victim has also stated that on 04.01.2009 she took the police to the place of occurrence where they have drawn the scene of occurrence of offence panchanama as per Ex.P.2 and her clothes were found there, which the police seized and same were identified by this witness at M.O.3 to M.O.6. P.W.10 has also stated that she also took the police to her sister’s (PW5) house, whereafter production of the shirt which was worn by her after the incident, the police seized the same by drawing panchanama as per Ex.P.7. The witness was subjected to a detailed cross-examination. In her said cross-examination, the witness has admitted that on 03.01.2009 she was medically examined by one Dr. Nagarathna (P.W.9) and that she has stated before the said doctor that one Sri Abdul Subhan, aged about 27 years has held her, attacked her, dragged her and raped her. It is based on this particular statement of the witness that she has stated that she has given the name of one Abdul Subhan as the culprit, learned counsel for the appellant vehemently submitted that at the very first instance, the name of the accused disclosed by the victim to an independent witness was not that of the accused, but of a different person.
11. The evidence of P.W.9 –Dr. Nagarathna, who is the alleged Medical Officer at the Government Hospital, Nelamangala says that the witness has stated that on her inquiry, the victim told her that accused Apsar Pasha dragged her to a near by gorge, stripped her and attempted to commit rape on her. Said witness has given a detailed account of her findings upon physical examination of the victim. She has opined that after physical and clinical examination of the victim and going through the Forensic Science Laboratory report, she has come to an opinion that there was an attempt to commit rape on the said victim girl. Accordingly, she has issued the certificate as per Ex.P.12.
The very same witness in her cross-examination from the accused side has admitted a suggestion as true that the victim girl told before her that one Sri Abdul Subhan aged about 27 years attacked her and done all the aforesaid acts. The witness has also stated in her cross-examination that she has mentioned the name of the present accused i.e., Apsar Pasha in Ex.P.12 on the basis of police information.
12. It is interesting to note that according to the prosecution the very first person to whom the victim is stated to have revealed the alleged incident is to her elder sister i.e., P.W.5, on the very same night. The said witness nowhere in her evidence has stated that her sister i.e., the victim told her that it was the present accused Apsar Pasha, who has committed the alleged act of rape. The said witness has only stated that upon her enquiry, her sister i.e., victim told her that a boy held her tightly when she was coming to her house through forest and committed other alleged acts. Further P.W.5 has also stated that on that night, said boy had also come chasing her sister and immediately her brother-in-law tried to apprehend the said boy but he could not apprehend him. After stating so, the witness has also stated that the said boy is the accused present before the Court. Even while stating so, the witness has not taken the name of the accused nor even the witness has stated that she had seen that boy on that night. Even according to P.W.5, if at all the alleged boy had chased the victim girl up to her house, then that boy was seen not by her (PW5) but by her brother-in-law. P.W.5 has also not stated that her brother in-law told her that it was the present accused Apsar Pasha. Therefore, the evidence of P.W.5 nowhere gives any credible information as to who the alleged accused was. As such, her act of identifying the accused in the court would be with no specific allegation or statement that he was the one who had committed the alleged act.
13. P.W.1, though in her evidence has stated that after hearing about the incident through her another daughter i.e., P.W.5 over phone, when she went to the house of P.W.5, by her enquiry with the victim, she came to know that Apsar Pasha had committed all the alleged acts. According to P.W.1 when the victim narrated the details, her daughter-P.W.5 was also there. If the said statements were to be believed, then a doubt arises as to why the said P.W.5 did not disclose the name of the accused. Had really the victim girl disclosed the name of the accused, then P.W.5 was expected to disclose the same in her evidence.
However, as observed above, she has not done it. It is only after P.W.5 enquired in detail with her sister about the incident, their mother i.e., P.W.1 and their brother-in- law(PW2-Shammu) came to know about the incident. As such, merely because P.W.1 has stated the name of the accused in her evidence would not make that statement free of all serious doubts that has already crept in, in the case of the prosecution. Apart from these, none of these three witnesses i.e., P.W.10, P.W.1 and P.W.5 have nowhere stated that the accused was a known person to the victim since prior to the incident.
14. The victim girl as P.W.10 though has stated that it was the accused i.e., Apsar Pasha, who has committed the alleged act against her, but in her cross-examination has admitted that before the doctor she has stated that, it was one Abdul Subhan, who has committed the act.
15. According to the learned HCGP, said name of Abdul Subhan is father’s name of the accused. That may be so, but substitution of the name of the accused with that of the father’s name would not extinguish the doubt that has crept in, in the case of the prosecution regarding the identity of the accused. No reason is forth coming as to how come the victim has given a different name before the doctor as culprit, who has committed the alleged act. Similarly, the said doctor in her evidence as P.W.9, though has stated initially that on enquiry, the victim told that Apsar Pasha has committed the said act, but has admitted that the victim girl told before her that, it was Abdul Subhan, who attacked her and done all the aforesaid acts. If any mistake committed bonafide by the victim could be considered, but the statement of the responsible medical professionalist, doctor, that too in a case of sexual offence, cannot be so easily ignored. When the doctor has said that, on her inquiry the victim revealed the name of the present accused, how can again say that victim girl told her that it was Abdul Subhan. As already observed, the very same victim girl has also admitted that she has stated before the doctor that it was Abdul Subhan, who has committed the alleged act. Thus, it is clear that at the very first instance when the victim was taken before the independent witness i.e., the Medical Officer, that too for medical examination, where the patient is expected to say true history of the incident, the victim has not revealed the name of the accused, but has given the name of some other person. In such a situation, where there is conflict in the identity of the accused, between two sets of witnesses one is P.W.1,P.W.2 and P.W.5, who being the family members of the victim are interested witnesses and other side is the medical evidence of an independent witness i.e., the doctor, according to whom, it is not the accused, but one Abdul Subhan, is the name of the alleged culprit as told to her by the victim, then the benefit of such doubt regarding the identify of the accused has to be extended to the accused.
16. When the evidence of P.W.10-the victim, is further analysed, it can be seen that several suggestions were made to the said witness in her cross-examination suggesting her that several of the important and material aspects, which she has stated in her examination-in-chief were not stated by her in her statement before the Investigating Officer. Thus, statements suggested as improvements made by the witness in her evidence includes that she was dragged by the accused near a halla, who removed her garments, laid upon her and attempted to ruin her. It is also her another statement that, she escaped from the clutches of the accused and fell down due to stumbling, at that time also the accused dragged her to a jack fruit tree and attempted to commit rape on her. Further the alleged improvements in her evidence is the suggestion that she has not stated before the police that the accused took her near a bore-well and repeated the same act and also the accused putting his genital organ into the mouth of the said girl. Further, it was also suggested to her that she has not stated to the police that the accused again took her to an eucalyptus grove and repeated the same act. Further it was suggested to P.W.10 in her cross-examination that about the accused tying her hands to a tree and she not tracing her clothes in the spot, also were not stated to the police. No doubt, P.W.10 denied all those suggestions made from the accused side. However, P.W.14-Investigating officer to whom the very same suggestions were made from the accused by suggesting to witness that all those suggestions put to the victim (P.W.10) in her cross-examination, as improvements made by her in her cross-examination were admitted by P.W.14 stating that the witness has not made those statements before him. Thus, this vital and very important statements about the alleged act have proved to be material omissions, the benefit of which should naturally go to the accused. The trial court without considering these important variations and omissions in the evidence of prosecution witness appears to have been carried away with the statements of the victim and her family members and erroneously concluded holding the accused guilty of the alleged offence. Since the analysis made above clearly go to show that the prosecution case is not proved beyond any reasonable doubt, but certain important and material doubts have been crept in, more particularly with respect to the identity of the accused, in such a situation, the benefit of such doubt is necessarily to be given to the accused.
17. Consequently, the impugned judgment of conviction and order on sentence passed by the trial court deserves to be set aside and the accused deserves to be acquitted of the alleged offences. Accordingly, I proceed to pass the following:
ORDER The appeal is allowed.
The judgment of conviction and order on sentence dated 28.09.2010 in S.C.No.123/2010, passed by the Presiding Officer, Fast Track Court-II, Bengaluru Rural District, Bengaluru, is set aside. The accused Apsar @ Apsar Pasha, s/o Subhan, Aged about 29 years, Residing at Islampura Village, Kasaba Hobli, Nelamangala Taluk, Bengaluru District, is acquitted of the offences punishable under Sections 341,376 r/w Section 511 and 506 of Indian Penal Code. His bail bonds stand cancelled after the period of appeal and if not appeal is preferred by the State.
Registry to transmit a copy of this judgment along with lower courts records to the court below without delay.
Sd/-
JUDGE Psg*