IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM CRL.A.NO.855/2018(A) BETWEEN THE STATE OF KARNATAKA THROUGH HULIMAVU POLICE STATION, BANGALORE, REPT. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU - 01 ...APPELLANT (BY SRI VINAYAKA V.S, HCGP) AND ANAND P V S/O MUNISWAMY, AGED ABOUT 30 YEARS R/AT THILAVALLI VILLAGE, HANAGAL TALUK HAVERI DISTRICT-581104 …RESPONDENT (BY SRI J T GIREESHA, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER DATED 12.09.2017, PASSED BY THE LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE, IN S.C.NO.146/2015, ACQUITTING THE ACCUSED-RESPONDENT, FOR THE OFFENCES P/U/S 376, 420, 506 OF IPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT The prosecution-State in SC No.146/2015 on the file of LIII Additional City Civil and Sessions Judge, Bangalore, has come up in this appeal impugning the judgment and order of acquittal dated 12.09.2017 passed in the said proceedings.
2. It is the case of the prosecution that one Anand-accused in Cr.No.505/2014 registered with Hulimavu Police Station coming within the jurisdiction of Bengaluru City, is alleged to have committed offence punishable under Sections 376, 420 and 506 of IPC.
3. It is the case of the complainant-Ratna that she was resident of house bearing No.71/J, Papanna House, 3rd cross, Nagamma Street, Hulimavu, for more than a year prior to the date of complaint dated 01.08.2014. According to her, she was residing in the said house along with her cousin brother and was working in a garments factory; that on 24.12.2013, her cousin brother had gone to his village to attend a marriage and she was alone in the house. On the same day, the accused-respondent herein, who is said to be a resident of Thiluvalli village, Hangal Taluk, Haveri District, had come to Bengaluru, informed her that he would come to her house to stay though the complainant had informed him that her cousin brother is not at home; the accused came at about 7.30 p.m., again he went outside and came back at 8.40 p.m., had dinner with her and subsequently, he is said to have given cool drinks to her and she consumed the same; that when she woke up in the morning at 5.45 am., she noticed that she was lying next to the accused without dress; then she realized that she was subjected to rape by the accused; that when her parents decided to get her married, she informed the act committed by the accused and subsequently, lodged complaint-Ex.P1 with the Hulimavu Police on 01.08.2014.
4. Admittedly, there is a delay of nearly eight months in filing the complaint from the date of alleged act by the complainant since accused had threatened her with dire consequences that if she informs anybody about the said incident he would kill her by pouring acid on her and would kill her family members by mixing poison in their food. This prevented her to file the complaint at the relevant point of time. The complaint filed by her vide Ex.P1 was accepted, based on which FIR came to be registered vide Ex.P5, investigation was conducted by the police, spot mahazar was drawn and the clothes of the victim which were seized after eight months from the alleged date of incident were sent to FSL, Madivala, Bengaluru. In the meanwhile, the victim was taken to PW.10-Dr.Pramila for medical examination to ascertain as to whether the act of rape is committed on her and thereafter evidence of the neighbours was recorded. After investigation was completed by PW-8 Ravishankar, Deputy Superintendent of Police (CID), charge sheet was filed. The same was committed to Sessions Court where it was registered as SC No.146/2015. In the said proceedings, charges were framed and subsequently the matter went into trial.
5. In the proceedings before the Sessions Court, the victim is examined as PW1; one of the neighbours- Devaraj, coolie by profession, is examined as PW2 and another neighbour by name Roopa with whom the victim is said to have disclosed the act of rape committed against her within three days from the said act is examined as PW3 and one Kumar, who is said to be the cousin brother of victim is examined as PW4; Dr.Chandrashekar, who conducted examination of the Material objects and submitted FSL report is examined as PW5; the person who registered the complaint at the first instance on 01.08.2014 is examined as PW6-Chandrappa; the Women Police Constable (WPC) who took the victim for medical examination on 01.08.2014 is examined as PW7; the person who conducted investigation and filed charge sheet namely Ravishankar C.R., Deputy Superintendent of Police (CID) is examined as PW8; Dr.Dileep Kumar, who examined the accused subsequent to filing of the complaint is examined as PW9; Dr.Pramila A.K., who examined the complainant-victim on 01.08.2014 the date on which the complaint was lodged by her alleging the act of rape being committed on her is examined as PW10.
6. The Tribunal, on appreciation of the evidence of the aforesaid persons and also on appreciation of the other material evidence on record, which are Exs.P1 to P11 and MOs.1 to 7, dismissed the complaint registered against the accused by acquitting him of the offence punishable under Sections 376, 420 and 506 of IPC, which is challenged in this appeal.
7. Before taking up this appeal, the complaint- Ex.P1 is required to be analysed, which would indicate that the complaint dated 01.08.2014 is filed with reference to the alleged offence said to have committed on the intervening night of 24.12.2013 and 25.12.2013 i.e., nearly eight months prior to the date when the said complaint was registered with Hulimavu Police within whose jurisdiction the victim was said to be residing along with her cousin brother. But, nowhere in the complaint she would state that besides herself and her cousin brother, no other person was residing in the said house. However, when trial progressed, it has come on record through PWs.1, 3 and 4 that besides the complainant and PW4 one more person by name sangeetha, who is said to be the younger sister of PW4 was residing in the said house at the relevant time. So far as the presence of said Sangeetha on 24.12.2013 at the alleged place of offence is not disclosed by the complainant. On the other hand, her presence itself is suppressed in the complaint. Further, her presence is only established when the prosecution unfurled the relationship between the accused, complainant, PW4, in the said proceedings.
8. Further, in the process of trial, it has come to the knowledge of the Court below that the accused has been projected as a stranger in the complaint-Ex.P1, however, he is not a stranger. He is paternal aunt’s son of complainant i.e., complainant’s father’s elder sister’s son, which is conspicuously absent in the complaint. It is stated that on the ill-fated day i.e., 24.12.2013, when the complainant was alone in the house, the accused had called her and informed that he has come to Bangalore and would be staying in her house though the complainant told that her cousin brother-PW4 has gone to village to attend a marriage. While making such statement, there is no reference with regard to Sangeetha, who is the sister of PW4 and that she was residing in the same house. The manner in which the alleged rape is explained is also highly suspicious in as much as the victim would state that though the victim informed that she is alone at home and her cousin brother has gone to village to attend a marriage, the accused came to her house, both had dinner and thereafter the accused said to have given cool drinks, which made her to drowse, it is only after 5.45 a.m. in the next morning she noticed that she was in bed without dress on her body lying beside the accused.
9. Though the alleged incident is said to have taken place on the intervening night of 24/25.12.2013, the same is not informed to the police until 01.08.2014. The reason attributed for the delay is that there was threat by the accused with dire consequences to her and to her family members and also threat to disfigure her by pouring acid. The complainant does not state what happened subsequently i.e., whether the accused left the house or continued to stay in the victim’s house. But, in the evidence, it has come on record that the accused continued to live in the house on 25.12.2013 also, thereby indicating that the physical relationship between the accused and the complainant continued on the next day and during his stay in two days they had intercourse for more than six times, which would not have been possible without the consent of the victim. It is further stated that the accused, who is said to be a resident of Hangal Taluk came to Bengaluru on three other occasions, stayed in her house and resumed physical relationship. All these would defy the allegations made by the victim that she was forced to have intercourse with him by threatening of disfiguring her by pouring acid and causing death of the family members by mixing poison in their food, are not properly established.
10. The first and foremost lacuna in the complaint is not disclosing the relationship between accused and victim, who are the children of brother and sister i.e., victim’s father and accused mother are brother and sister, which is not at all brought on record by the complainant, which fact is unfolded only in the process of trial.
11. Now coming to the evidence of the prosecution, the evidence of PW3-neighbour, who is said to have come to know the alleged incident which took place on 24.12.2013 has not supported the case of the prosecution and also not withstood the cross-examination, where she was not able to state that the accused and victim were alone in the said house during the intervening night of 24/25.12.2013 and the presence of Sangeetha is also not properly established in her evidence. Similar is the evidence of PW2- neighbour, PW4-cousin brother, who was residing along with the victim at the relevant point of time. So far as the evidence of Doctor-Dr.Chandrashekar PW5, who has conducted test on the clothes worn by the accused is concerned, it may not avail to the benefit of the prosecution for the reason that admittedly, when the complaint was lodged on 01.08.2014, almost eight months had already lapsed between the alleged incident and the date of complaint. Hence, seminal stains or any other evidence on the said clothes are not found and the said formality was a futile exercise. In the instant case, any result found in the medical examination of accused on 01.08.2014 is also of no consequence as could be seen from the evidence of Doctor-PW9.
12. In the nut shell, it is clear that the strain in the relationship between the victim and accused who were closely related to each other has taken shape in the form of complaint being filed alleging the act of rape having been committed on her. Even assuming that there was physical relationship between the accused and the victim either on 24.12.2013 or any other date as contended by them, can only be considered as consensual act. Though there was commotion in the family with reference to marriage proposal of the victim with the accused, no evidence is placed on record to show that assurance was given by the accused to the complainant and her family members and has failed to live up to that. Besides that, it is also seen that there is failure on the part of the prosecution to establish that immediately after the alleged act of rape, accused threatened the victim and her family members and that she being under the threat of the accused was not able to inform the said incident to her family members is also proved to be erroneous in as much as within two days from the alleged act of crime the victim has gone to her native place to attend a wedding where the entire family of the victim and as well as the accused were present. If at all the alleged incident were to be true, nothing prevented the complainant to expose the alleged threat posed by the accused, regarding alleged threat of dire consequences to her as well as to her family who were also present in the wedding.
13. It is in this background, the Sessions Court having given due weightage to the evidence available on record has rightly come to the conclusion that the prosecution-State has miserably failed to establish the offence alleged in the complaint-Ex.P1 registered as FIR-Ex.P5; subsequently, by way of charges before the Court and accordingly, dismissed the proceedings consequently, acquitted the accused of the offences alleged against him, which appears to be just and proper.
14. In the light of aforesaid discussion, this Court is of the considered opinion that the judgment and order of acquittal in SC No.146/2015 on the file of the LIII Additional City Civil and Sessions Judge, Bangalore, does not call for interference by this Court. Accordingly, the appeal filed by the prosecution is hereby dismissed.
Sd/- JUDGE Sd/- JUDGE TL