IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23rd DAY OF SEPTEMBER 2017 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.474 OF 2014 BETWEEN:
CHINNASWAMY NAIK, S/O.BELLANAIK, AGED ABOUT 36 YEARS, R/O. SOORALLI, TQ: NANJANGUDU DISTRICT: MYSURU -571 301. … APPELLANT (NOW IN JUDICIAL CUSTODY) (BY SRI.BAHUBALI A. DANAWADE, ADVOCATE) AND:
STATE OF KARNATAKA, BY NANJANAGUDU RURAL POLICE, REP. BY STATE P.P., BENGALURU -560 001. …RESPONDENT (BY SRI.K.NAGESHWARAPPA, HCGP) THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 26.8.13 PASSED BY THE II ADDL. S.J., MYSURU, IN S.C.No.262/11 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S.341, 326, 376 AND 506 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR ONE MONTH FOR THE OFFENCE P/U/S 341 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR SEVEN YEARS AND TO PAY FINE OF RS.5000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR FOUR MONTHS FOR THE OFFENCE P/U/S 326 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR TEN YEARS AND TO PAY FINE OF RS.10,000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR EIGHT MONTHS FOR THE OFFENCE P/U/S 376 OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR ONE YEAR FOR THE OFFENCE P/U/S 506 OF IPC. THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
J U D G M E N T This appeal is directed against the judgment of conviction rendered by the II Additional Sessions Judge, Mysuru convicting the appellant – accused under sections 341, 326, 376 and 506 of Indian Penal Code as per judgment dated 26.08.2013 in S.C.No.262 of 2011.
2. The case of the prosecution is that the prosecutrix was a resident of Surhalli Village of Nanjanagudu Taluk. She was a married lady having two children aged about 11 years and 8 years respectively.
The accused also is a married person having three children. On 12.03.2011, the prosecutrix was grazing cows in her land. At that time, the accused person is stated to have come there in a scooter from behind and caught hold of the prosecutrix, tied her hands with a muffler and committed forcible intercourse on her and also caused grievous injuries on her private parts and anus and went away.
3. The prosecutrix was taken to Nanjangudu Government Hospital and from there, she was admitted in Cheluvamba Hospital at Mysuru where she underwent treatment for about six days. After discharge from the hospital, she lodged a report regarding the incident on 22.03.2011 before the Nanjanagudu Rural Police Station, based on which Cr.No.84 of 2011 was registered against the accused under sections 324, 341, 376 and 506 of Indian Penal Code.
4. The accused was arrested on 1.8.2011. The blade said to have been used for the commission of the offence was recovered at the instance of the accused, and the charge-sheet was laid against him for the above offences. The accused having denied the charges, the prosecution examined as many as 21 witnesses as PW.1 to PW.21 and produced in evidence exhibits P1 to P43 and the material objects at M.O.1 to M.O.9. In the course of cross-examination of the prosecutrix, the portion of the previous statement came to be marked as Ex.D1. The accused denied the incriminating circumstance appearing in the prosecution evidence and did not choose to adduce any defence evidence.
5. Upon hearing the learned counsel appearing for both sides and on considering the oral and documentary evidence produced by the prosecution, by the impugned judgment, the Trial Court found the accused guilty of the above offences and convicted and sentenced him to various terms of imprisonment and fine.
6. I have heard the learned counsel for the appellant and the learned HCGP.
7. Sri.Bahubali A.Danawade, learned counsel for the appellant submits that the Trial Court has committed serious error in convicting the accused. The case of the prosecution suffers from irreconcilable contradictions and inconsistencies. The prosecutrix herself has presented self-contradictory version before the court. The incident narrated in the complaint is substantially at variance with the testimony given by her in the witness box. Even the medical evidence does not support the case of the prosecution. Therefore, the findings recorded by the Trial Court, on the face of it, are perverse. There is no corroboration to the testimony of PW.1 - the prosecutrix. Delay in lodging the complaint has been over-looked by the Trial Court. Even otherwise, testimony of the prosecutrix being inconsistent with the case of the prosecution, the conviction recorded by the Trial Court is wholly unjustified and has led to gross miscarriage of justice.
8. Learned HCGP, however, has argued in support of the impugned judgment and submits that the delay in lodging the information by itself cannot defeat the case of the prosecution. The prosecutrix has explained the reasons for the delay. She has narrated the details of the incident squarely implicating the accused in the alleged incident. The injuries sustained by her are proved to have been caused by the blade which was recovered at the instance of the accused. Therefore, no legality has been committed by the Trial Court either in the appreciation of the evidence or in the reasoning assigned therein holding the accused guilty of the offences charged against him and hence, the learned HCGP has sought for dismissal of the appeal.
9. I have carefully considered the submissions and have meticulously scrutinized the material on record with reference to the statements of the witnesses.
10. The prosecution has examined, in all, 21 witnesses. Amongst them PW.1 is the prosecutrix and the victim of the offence. Through this witness, the complaint lodged by her is marked as Ex.P1. She has narrated the incident and has stated that the accused committed intercourse on her and caused grievous injuries to her. She has identified the blade –M.O.1 used for the commission of the offence.
10(1) PW.2 Siddachari is a witness for the spot mahazar Ex.P2. According to this witness, the spot of occurrence was near the fence surrounding the land belonging to one Doddanaika. He is treated as hostile by the prosecution.
10(2) PW.3 Mahadevappa is a witness for the recovery mahazar Ex.P3. He has stood by the case of the prosecution and has identified the blade M.O.1. seized under Ex.P3.
10(3) PW.4 Rangaswamy is panch witness to the mahazar Ex.P3 - recovery mahazar. He is treated as hostile by the prosecution.
10(4) PW.5 Chikkathayamma is examined to speak about the fact that after the incident, the prosecutrix was unconscious and she was bleeding and she was taken in an Ambulance to Nanjanagudu for treatment. But she has denied that the prosecutrix had suffered bleeding injuries on her private parts and hence she has been treated as hostile by the prosecution.
10(5) PW.6 Gowramma is another neighbouring witness who has deposed in line with PW.5. She is also treated as hostile by the prosecution.
10(6) PW.7 Sukkeshachari is the husband of PW.6.
He is treated as hostile.
10(7) PW.8 Nagamma is the maternal aunt of the prosecutrix. She is examined as a circumstantial witness. She has deposed regarding the admission of the prosecutrix in the hospital on account of the injuries sustained by her on the date of the incident. According to her, the prosecutrix informed her that the injuries on her private parts were caused by the accused. But in the cross-examination she has stated that the prosecutrix was not in a position to speak even after 3 days.
10(8) PW.9 Govindachari is the owner of the land where the incident had taken place. He is treated as hostile.
10(9) PW.10 Doddanaika and PW.11 Marinaika are witnesses from the same village. They are also treated as hostile.
10(10) PW.12 Dr.R.Sudha is the Medical Officer who treated the prosecutrix in Cheluvamba Hospital. Her evidence will be discussed in the course of the judgment.
10(11) PW.13 Nanjamma is the grandmother of the victim. She has deposed about the aftermath of the incident and has stated that the prosecutrix was taken to the hospital for treatment.
10(12) PW.14 Dr.Jayaprakasha H.M. is the Medical Officer who examined the accused and issued the report as per Ex.P14.
10(13) PW.15 S.Prakasha is the Police Constable of Nanjanagudu Rural Police Station who carried the complaint and the F.I.R. to the Magistrate.
10(14) PW.16 is Dr.M.S.Veena to whom the weapon was forwarded for examination and opinion has stated that since the prosecutrix was treated in Cheluvamba Hospital, Mysuru, she could not give any opinion without the certificate from the previous Doctor who treated the prosecutrix.
10(15) PW.17 Shivaswamy is the Circle Inspector who conducted the investigation and laid the charge-sheet against the accused.
10(16) PW.18 B.G.Raghavendragowda is the P.S.I., who registered the F.I.R. against the accused as per Ex.P15 and on the following day, sent the prosecutrix for examination.
10(17) PW.19 Dr.Deepu K.Hebbar is the Medical Officer of Cheluvamba Hospital, Mysuru, who examined the prosecutrix on 23.03.2011 after recording the history furnished by her in the M.L.C. register. According to her, on the date of the examination, she did not find any evidence of sexual intercourse.
10(18) PW.20 Pramodkumar is the Police Inspector who sent the seized articles for chemical examination and obtained the extract of M.L.C. register as per Ex.P26(a) and wound certificate as per Ex.P23.
10(19) PW.21 Rathnamma uruf Minnamma is examined to speak to the fact that soon after the incident, she took the prosecutrix to her place, but this witness is treated as hostile by the prosecution and nothing has been elicited in her cross-examination establishing the circumstance in support of the prosecution.
11. Before adverting to the above evidence, it is relevant to note that the complaint was lodged by the prosecutrix herself as per Ex.P1. There is no dispute that this complaint was lodged by her ten days after the incident. She has offered an explanation for the delay stating that after the incident, she was unconscious and was taken to Nanjanagudu Government Hospital and from there to Cheluvamba Hospital and was treated as an inpatient and therefore, there was delay in lodging the complaint. The explanation offered by the prosecutrix, in cases of this nature are generally accepted, but, what is pertinent to be noted is that in the complaint she has specifically stated that at about 1.00 p.m., when she was sitting under a tree, the accused came from behind in a motorcycle and caught hold of her. The averments made in the complaint if believed, it goes to show that she was first assaulted with a blade and thereafter, the accused embraced her and forcibly committed intercourse on her. In the complaint, it is specifically stated that she lost consciousness, and some persons who were grazing the cattle informed the matter at her house and thereafter, she was taken from the spot to Nanjanagudu Government Hospital in an ambulance. But contrary to the statements found in the complaint, in her evidence she has deposed that the accused came from behind and tied both her hands with a muffler, gagged her mouth with cloth and carried her to the land of one Doddanaika and thereafter, lifted both her legs and committed intercourse on her. She is specific in her evidence that after the intercourse, the accused slashed her private part three times with a blade and she lost her consciousness. Further she has stated that after regaining consciousness, she slowly went near her land and met Minnamma - PW.21 and she in turn informed the matter to Rangaswamy – PW.4 and thereafter, she was taken in an auto to her village and from there to Nanjanagudu Government Hospital and later she was admitted in Cheluvamba Hospital, Mysuru, where sutures were applied to the injuries. In her chief- examination, the prosecutrix has deposed that while getting admitted in the hospital, she did not inform the history of the incident to the hospital authorities out of fear, and told them that she sustained the injuries due to butting of cow.
12. If the evidence of PW.1 is analysed in the backdrop of the evidence of PW.12 namely the Doctor who examined her at the earliest instance, it is significant to note that PW.12 has unequivocally stated that when the prosecutrix was brought to the hospital, she was conscious. According to PW.12, she had suffered profuse loss of blood and when she examined the prosecutrix, she found 4th Degree perineal tear involving anal mucosa and sphincter. The posterial vaginal wall was torn. Anal mucosa was missing. With regard to the external injuries, PW.12 has stated that she noticed a cut wound on the left forearm and when she enquired about it, the prosecutrix told her that while applying I.V. cannula, she sustained the said cut in Nanjanagudu Government Hospital. Further PW.12 has deposed that when she questioned the prosecutrix about the bleeding from the private part, PW.1 informed her that after the intercourse she started bleeding. According to PW.12, the prosecutrix was admitted in the hospital and was put on I.V. fluid, given oxygen and in the course of the treatment, she was given blood and on 18.03.2011, she was discharged from the hospital.
12(1) According to this witness, on 29.09.2011, a blade was sent for her examination and she furnished her opinion stating that the injuries noted by her in the private part and the anus of the prosecutrix are not possible to be caused with the blade M.O.1 or any such sharp weapon.
13. Thus, it could be seen that the testimony of PW.1 does not find corroboration whatsoever in the evidence of PW.12 who examined her at the earliest instance. The evidence of PW.12 goes to show that the injuries sustained by PW.1 were sustained on account of forcible intercourse. But the case of the prosecution is that after committing the intercourse on the prosecutrix against her wish, the accused slashed her private part three times with a sharp blade and caused bleeding injuries. This is inconsistent to the evidence of PW.12. As already stated above, PW.12 has completely ruled out the possibility of sustaining any bleeding injuries on the private parts of PW.1, with the blade M.O.1. As a result the very substratum of the prosecution case falls to the ground.
14. Apart from the above, the apparent contradictions and inconsistencies noted in the evidence of PW-1, creates a serious doubt about the genesis of the incident. PW-1 has asserted that during the occurrence she lost consciousness and after regaining it she slowly walked near her land and met PW-21 who in turn narrated the incident to PW-4 and thereafter both of them took her to the village. But PW-4 and PW-21 have wholly turned hostile and nothing worthwhile has been elicited in their cross-examination in proof of the fact that the prosecutrix was accompanied by them from the spot of occurrence. On the other hand the evidence on record indicates that the injuries were suffered by her at her home and she was directly taken to the hospital from her house. That appears to be the reasons as to why she narrated to PW- 12 at the earliest point that the injuries were sustained by her during intercourse. It is not in dispute that PW-1 is a married lady. Her husband is not examined. Though the prosecution has alleged that the incident took place at 1.00 p.m. on 12.03.2011, the material on record indicates that she was treated in Cheluvamba Hospital at 9.30 p.m. Then is no material to show that she was treated at Nanjangud hospital. All these circumstances, therefore falsify the testimony of PW-1 that she sustained the bleeding injuries during the occurrence in the manner alleged by the prosecution. The testimony of PW-1 does not inspire confidence to hold that the accused committed forcible rape on her and caused injuries on her private parts as contended.
15. The recovery evidence relied on by the prosecution also is not free from doubt. The voluntary statement attributed to the accused does not bear his signature. Medical evidence does not correspond to the injuries found on PW-1. The injuries found on her body are not blade-inflicted injuries. Therefore the story projected by the prosecution that on the date of the incident, PW-1 was subjected to forcible rape and was inflicted with grievous injuries by the accused has remained unsubstantiated. Consequently, it has to be held that the prosecution has failed to prove the guilt of the accused for the offences charged against him.
16. The Trial Court appears to have accepted the testimony of PW-1, as gospel truth without considering the striking contradictions and inherent improbabilities in her evidence. Trial Court has also failed to note that the medical evidence is contrary to the ocular testimony. The prosecution has not produced any independent corroboration to the testimony of PW-1 which is otherwise shaky and unreliable. The recovery of M.O.1 is proved to be false and concocted. The evidence on record does not establish the ingredients of the offences charged against the accused. On reconsideration of the entire material on record, I do not find any justifiable reason to uphold the conviction. In my considered opinion, the findings recorded by the Trial Court are opposed to the evidence on record, therefore perverse and illegal. For the forgoing reasons, I hold that impugned judgment of conviction and sentence cannot be sustained. Consequently the appeal deserves to be allowed.
17. In the light of the above discussion, I proceed to pass the following:-
ORDER Crl.A.No.474 of 2014 is allowed.
The impugned judgment of conviction and order of sentence dated 26.08.2013 passed by the II Additional Sessions Judge, Mysuru in S.C.No.262 of 2011 is set-aside. The appellant/accused is acquitted of the charges leveled against him for the offences punishable under sections 341, 326, 376 and 506 of Indian Penal Code.
The appellant/accused Sri.Chinnaswamy Naik is directed to be released from custody forthwith, if not required in any other case.
The Registry is directed to communicate the operative portion of this order to the Jail Authorities, Central Prison, Mysuru where the accused is lodged.
The fine amount, if deposited by the accused, shall be refunded to the accused.
Sd/- JUDGE Bss.