IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL NO.866 OF 2019 C/W CRIMINAL APPEAL NO.2063 OF 2017 IN CRL.A. NO.866 OF 2019 BETWEEN:
Parthiban, S/o Babu, Aged about 28 years, R/o Sebastian’s House, Hulavalli Village, C.K.Palya Road, Bengaluru South Taluk, Bengaluru City – 560 078. ...Appellant (By Sri. Syed Akbar Pasha, Advocate) AND:
State by Hulimavu Police Bengaluru Represented by Public Prosecutor High Court of Karnataka, Bengaluru – 560 001. ...Respondent (By Sri M. Diwakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment and order of conviction and sentence dated 04.09.2017 passed by LIII Additional City Civil and Sessions Judge, Bengaluru in S.C.No.1036/2016 convicting the appellant/accused No.2 for the offence punishable under Section 363, 376D r/w 34 of IPC.
IN CRL.A. NO.2063 OF 2017 BETWEEN:
Sathish, Aged about 27 years, S/o. Muniswamy, R/o Murthy’s house, Chikkabommasandra, Yelahanka, Bengaluru -560 064. ...Appellant (By Sri. Hanumaiah, H.C., Advocate) AND:
State of Karnataka, By Hulimavu Police Reptd. by State Public Prosecutor, High Court Building, Bengaluru -560 001. ...Respondent (By Sri M.Diwakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the judgment and order of conviction and sentence dated 04.09.2017 passed by LIII Additional City Civil and Sessions Judge, Bengaluru in S.C.No.1036/2016 convicting the appellant/accused No.1 for the offence punishable under Section 366, 376D r/w 34 of IPC.
These Criminal Appeals coming on for Admission, this day, the Court made the following:
JUDGMENT Criminal Appeal No.866/2019 has been preferred by appellant-accused No.2 and Criminal appeal No.2063/2017 has been filed by appellant-accused No.1.
2. I have heard the learned counsel for appellant and learned High Court Government Pleader for respondent-State.
3. Though these cases are listed for admission, with the consent of learned counsel appearing for the parties, same is taken up for final disposal.
4. The genesis of the case of prosecution is that, on 20.05.2016 at about 5 pm, victim came out of the house to buy ginger garlic paste to provision store, while returning home the accused No.1 and another unknown person came in an auto rickshaw told the victim that they are going towards Santhosh’s house and they will drop her in their auto. They took her near Raja Iris Layout’s vacant site, sexually assaulted the complainant and left from the place. On 21.05.2016, around 12 pm, when the complainant was informing her ordeal to her husband and son, at that time, accused No.1 was peeping into the house of the complainant. Immediately, he was apprehended and was beaten. The same has been informed to the police and police came to the spot arrested accused No.1. On the basis of the case, complaint has been registered.
5. The police investigated the case, filed charge sheet as against accused Nos.1 and 2. Thereafter, the said case has been committed to the Sessions Court. The Sessions Court took the cognizance and secured the presence of accused Nos.1 and 2. After hearing them, charge was prepared, read over and explained to them. Accused pleaded not guilty and claim to be tried and as such trial was fixed.
6. In order to prove the case of the prosecution, the prosecution got examined 11 witnesses and got marked 11 documents. Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C., by putting incriminating material as against them. Accused denied the same and thereafter the accused have not chosen to lead any evidence in order to mark any document.
7. After hearing the learned counsel appearing for the parties, the Court below came to the conclusion that there is ample material to convict the accused for the offence punishable under Sections 366 and 376 –D read with Section 34 of IPC.
8. Being aggrieved by the same, challenging the legality and correctness of the judgment accused Nos.1 and 2 are before this Court. The main grounds urged by the learned counsel appearing for the appellants are that, the Court below without properly appreciating the evidence and material placed on record has come to a wrong conclusion and has wrongly convicted the accused. It is further submitted that victim – PW-1 has not supported the case of the prosecution and she has been treated as hostile and even the evidence of neighbour-PW5 and the evidence of the Son-PW6 of the victim, they have supported the case of the prosecution. But they are hearsay evidence. When the victim herself has not supported the case of the prosecution, then under such circumstances, the evidence of PW5 and PW6 is not going to support the case of the prosecution. In that light, he submitted that the court below has wrongly convicted the accused.
9. It is his further submission that the evidence of Doctor-PW9, will also not corroborate with the evidence of PW1. In that light, the Court below has erred in appreciating the evidence and has come to a wrong conclusion and has wrongly convicted the accused. On these grounds, he prays to allow the appeal and to set aside the impugned order and acquit accused Nos.1 and 2.
10. Per contra learned High Court Government Pleader vehemently argued and submitted that evidence of PWs-5 and 6 clearly indicates that it is accused No.1 who has taken the victim in an auto rickshaw. Thereafter he sexually assaulted and also bitten the victim and some bite marks are also there on the body of the victim and it corroborates with the evidence of PW9 – Doctor, who immediately examined the victim. It is his further submission that circumstance together indicates that accused No.1 has been apprehended by the public on the spot, when he was near the house of PW-1. He further submitted that the trial Court, after considering the material placed on record has come to a right conclusion and has rightly convicted the accused. It is his further submission that any rape case, the Court could lean very heavily in favour of medical evidence to come to the conclusion that the accused has committed an offence. It is further submitted that appellants-accused have not made out any good grounds so as to interfere with the judgment of the trial Court. On these grounds, he prayed to dismiss the appeals.
11. I have carefully and cautiously gone through the submissions made by learned counsel appearing for the parties and perused the records including the lower court records secured in this behalf.
12. In order to prove the case of the prosecution, prosecution got examined 11 witnesses. PW-1 – Victim is the main witness to the case of the prosecution and has not supported the case of prosecution and she has been treated as hostile. Even during the course of cross examination, nothing has been elicited so as to substantiate the case of the prosecution. PW2 is the PSI who received the complaint as per Ex.P1 and thereafter registered the case and issued FIR as per Ex.P5. PW3 is the police inspector, who investigated the case and filed the charge sheet as against the accused. PW4 is the doctor, who examined the victim and has given report as per Ex.P10. She has opined that, they were signs of sexual assault on the victim. She has also further deposed that they sexual assaulted on her private part. During the course of cross examination nothing has been elicited so as to discard her evidence. PW5 is the neighbor, in her evidence, she has deposed that she knows PW1 and accused No.1 also, but she did not know much about accused No.2.
13. On 20.05.2016, at about 5.00 pm, PW1-
victim, informed that she went to provision store to bring ginger garlic paste and next day mentioned at about 11.00 am, accused came to her house and after seeing him PW1 started making hue and cry and she informed to her husband, son and neighbors. She has further deposed that one more person was also there along with accused No.1. During the course of cross examination of this witness she has deposed that since 7 – 8 years, accused-1 was known to her. If there is any work he used to come to her house and she came to know about the incident only on the say of PW1. She has not gone to the Police Station, except that nothing has been elicited from the moth of this witness. PW-6 – Son of the victim. He has also deposed that on 20.05.2016, his mother went at about 5.00 pm to bring ginger garlic paste and accused influenced and took her in an auto rickshaw to Raja Iris Layout’s vacant site and she has been sexually assaulted and same has been informed to him by his mother, PW-1. Subsequently, next day accused No.1 has been apprehended and taken by Police to the Police Station.
14. During the course of cross examination of PW6 – the son of the victim, has deposed that he came to know about the incident at about 11.00 a.m. only when PW1 said about the incident, except that nothing has been elicited from the mouth of this witness. PW7 is the owner of wine shop. He has deposed that, on 20.05.2015, at about 6 p.m. accused No.1 came to his wine shop and has taken four bottles of Original Choice. He came in an auto rickshaw and at that time, a lady was sitting in the auto. After four days, Police called him and he told them that about four days back accused No.1 has come to his shop. He has been treated as hostile. During the course of cross examination, nothing has been elicited from the mouth of this witness.
15. PW8 is the recovery mahazar witness to Ex.P6-the autorikshaw which has been used for the commission of offence which has been seized. PW9 is the Doctor who examined accused No.2 giving report as per Ex.P7. PW10 is the Assistant Sub Inspector, he has deposed that on 21.05.2016 when he was on rounds at about 12.00 p.m. he received credible information that on 20.05.2016 in the evening hours accused No.1 and another person took the victim in an autorikshaw and have sexually assaulted. Immediately he apprehended the first accused who was there along with public and brought him and produced before the Head Constable. PW11 is the police constable who went and apprehended accused -2 and produced before he Investigating officer.
16. On close reading of all these materials which have been brought by the prosecution, the prosecution has not clearly established the case as it alleges. As per the case of the prosecution, accused Nos. 1 and 2 with a common intention came and took the victim in an autorikshaw and thereafter she has been sexually assaulted at Raja Irish Layout. But victim has not supported the case of the prosecution and she has been treated as hostile. Though it is contended by the learned HCGP that there is evidence of PW5 who is the neighbor of the victim, PW6 is the son of the victim, but on close reading of their evidence indicates they have deposed only on the basis of the information revealed by PW1- victim. When PW1 herself has not supported the case of the prosecution and she has turned hostile then under such circumstances, evidence of PWs 5 and 6 will not be having much importance and there is no corroboration with the evidence of PW1, so also the evidence of PWs 4 and 9. It is also not corroborated with the evidence of PW1.
17. I am conscious of the fact that if there is strong medical evidence then under such circumstances, Court can take in to consideration the said evidence and convict the accused. In the instant case on hand, there are no eye witnesses and it is the victim who alone was there when the alleged incident is said to have been taken. When she herself has not supported the case of the prosecution, then under such circumstances, the evidence of the Doctor is not going to help the case of the prosecution. It is also well settled proposition of law that if there is any contradiction between the ocular evidence and medical evidence, it is the ocular evidence which has to be relied upon. If the ocular evidence is taken into consideration, then under such circumstances, it is not going to substantiate to prove the case of the prosecution. The trial Court without looking into the factual aspect has come to a wrong conclusion and wrongly convicted the accused.
18. I have perused the judgment of the trial Court. Though the victim has not supported the case of the prosecution and has been treated as hostile, but the case has been made out as if that the victim was affected psychologically and emotionally and has not supported the case of the prosecution. Even during the course of cross examination of PW1 the same suggestion has not been made in this behalf.
19. Be that as it may, the victim is of 42 years old and she has gone with the accused in autorikshaw and taking into consideration the said facts and the said observation which has been made by the Court below also does not appears to be correct. Taking into consideration the above said facts and circumstances, I am of the considered opinion that the Court below has erred in coming to a right conclusion and has wrongly convicted the accused.
20. I have carefully and cautiously gone through the judgment of the trial Court. Judgment of the trial Court is perverse and not based upon any reasoning and it is liable to be set aside.
Accordingly, both the appeals are allowed and the appellants-accused Nos. 1 and 2 are acquitted of the charges leveled against them.
Jail authorities are hereby directed to release them forthwith if they are not required in any other case.
Registry is directed to communicate the operative portion of the judgment forthwith, to the concerned jail authorities to release accused Nos. 1 and 2 (Viz., Sathish S/o. Muniswamy and Sri. Parthiban S/o. Babu) if they are not required in any other case.
Sd/- JUDGE Ag/BVK