IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM CRL. A. NO.670/2018 [A] BETWEEN STATE OF KARNATAKA BY MUDIGERE POLICE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU ...APPELLANT (BY SRI V.S.VINAYAKA, HCGP) AND CHANDRA @ CHANDRU @ CHANDRASHEKAR N E S/O EREGOWDA, AGED ABOUT 29 YEARS LABOURER, R/AT BASKAL VILLAGE, MUDIGERE TALUK, CHIKKAMAGALURU DISTRICT …RESPONDENT (By SRI N.R.RAVIKUMAR & SRI K S GANESH, ADVOCATES) THIS CRL.A 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 OF ACQUITTAL PASSED BY THE LEARNED I ADDITIONAL SESSIONS AND SPECIAL JUDGE, CHIKKAMAGALUR IN SPECIAL CASE NO.29/2015, DATED 19.04.2017 THEREBY ACQUITTING RESPONDENT/ ACCUSED FOR THE CHARGED OFFENCE P/U/S 376 OF IPC AND SECTION 3(2)(v) OF SC/ST (POA) ACT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT The complainant-State in Special Case No.29/2015 on the file of the I Additional Sessions & Special Judge, Chikkamagaluru, has come up in this appeal impugning the Judgment dated 19.04.2017 as well as the order of acquittal of even date in acquitting the sole accused in the aforesaid proceedings who was charged for the offence punishable under Section 376 of Indian Penal Code, 1860 [‘IPC’ for short] and also for the offence punishable under section 3[2][v] of the Scheduled Caste and Scheduled Tribe [Prevention of Atrocities] Act, 1989 [‘Act’, for short].
2. The case of the prosecution is that on 03.10.2013 when the victim PW1-Smt. Geetha was proceeding from the estate of PW.7 she was accosted by accused near St.Joseph’s School between 2 to 2.15 p.m., forcibly took her behind the school and thereafter committed the offence of rape. It is stated that the aforesaid incident took place between 2.00 and 4.00 pm on 3.10.2013, thereafter, she went home at about 4 pm and continued to attend to her day to day affairs, in taking bath, having food and then going to bed in the night. It is on the next day morning, on enquiry by her husband PW.4, she would disclose to him that she was subjected to act of forcible sexual intercourse by the accused between 2 and 4 pm, the previous day.
3. It is, thereafter, the complainant would go to the Police Station along with her husband and lodge a complaint against the accused for offence punishable under section 376 of IPC. She would also state that she is a person belonging to oppressed class of the society and the Accused, a person belonging to Vokkaliga community. It is in this background, complaint is registered not only under section 376 of IPC, but also under section 3[2][v] of the Act. Thereafter, it is stated that the Police conducted investigation and drew spot mahazar where the aforesaid act is said to have committed vide Exhibit.P2 in the presence of witnesses; thereafter, the Police also went to the house of the complainant; collected the clothes that she was wearing the previous day under seizure mahazar vide Exhibit.P5 pursuant to her complaint registered in FIR No.133/2013 in Mudigere Police Station, coming within the jurisdiction of Mudigere Circle of Chikkamagaluru District, for the offences as stated supra.
4. The material also would indicate that on the same day, i.e., on 4.10.2013 at about 7 pm, the victim was taken to General Hospital, Chikkamagaluru and was subjected to medical examination by PW.11 Dr.
R.H. Nayak, where he would collect the vaginal swab and send it for FSL test through the Police. In the meanwhile, it is stated that the Police also sent inner garments of the victim to FSL test.
5. The material on record would indicate that the prosecution recorded statement of not only the victim, but also her husband and witnesses before whom the spot mahazar and seizure mahazar were drawn and also statement of the persons whose names are referred to in the complaint lodged by the victim vide Exhibit.P1, namely, PWs.6 and 8 referred to as CWs.9 and 10 respectively in the charge sheet, who are said to have accompanied the victim from her residence to her place of work in the estate of PW.7-Shanthegowda, who is CW.11 in the charge sheet, where the complainant would state that she was working from 8.30 am to 2 pm on 3.10.2013.
6. Thereafter, it is seen that the accused is arrested on 8.4.2015 and he was sent to General Hospital, Mudigere, for his medical examination, which was conducted by PW.9-Dr. Uma. The Police, after conducting investigation, filed charge sheet in CS No.27/2015 on 10.06.2015 for the very same offences, namely, Section 376 of IPC and also for the offence punishable under section 3[2][v] of the Act and the charge sheet which was filed in the Court of District & Sessions Judge, Chikkamagaluru was registered in Special Case No.29/2015, where charges were framed.
7. Thereafter, the matter went to trial. In the evidence of PW.1 who is the victim in this proceedings, it is seen that she would reiterate the complaint averments. However, when the examination-in-chief of PW.1 is seen with reference to the complaint in Exhibit.P1 and also in her statement before the Magistrate under Section 164 of Criminal Procedure Code, 1973 [‘Cr.PC’ for short] the place of the incident itself is under doubt, in as much as, there is inconsistency with reference to the time and actual place of the incident referred to in the complaint which is different from the place referred to in the statement recorded under section 164 of Cr.PC rendered before the jurisdictional Magistrate as well as her admission in cross examination.
8. As could be seen in the complaint, she would state that on 3.10.2013, when she took permission from PW.7 to go to her house on the premise that she was unwell, while proceeding on the road, she met the accused who is none other than friend of her husband. She would state in the complaint that he wanted to talk to her and asked her to accompany him to an orange orchard nearby. The complaint would indicate that she went with him behind St. Joseph’s School and went to the orange orchard where he committed the act of having forcible sexual intercourse with her. However, when it comes to the statement which is given to the Police, there is improvisation in stating that she was taken by the accused and committed an act of rape under an orange tree in the said estate. However, when it comes to Statement under Section 164 of the Cr.PC before the Magistrate, she would change the statement of accused having taken her to the estate and also near orange tree but states that the alleged crime has taken place in the school itself. However, when the evidence of PW.1 was recorded again, inconsistency persists.
9. In her examination-in-chief, she would reiterate the averments that she was coming home because of ill health and on the way she was stopped by the accused near St. Joseph’s School. However, while proceeding further, she would state that the accused who came there on motorcycle, stopped her to talk to her and he took her behind St. Joseph’s School and in an orange garden, he committed rape. When it comes to cross examination, complainant would state that she met accused near the school who was coming from his house towards school by walk and she would also state in paragraph-14 of the cross examination that he forcibly touched her, did not remove her clothes. But, she only remembers that the accused fell on her and subsequently she was unconscious and when she regained her conscience, clothes that she was wearing were intact and she would state that the accused was not present at the place of incident. However, she does not state what transpired after she lost conscience and till such time she regained it. The length of time she was unconscious is also not certain. She would in one place state that after the incident, she took rest at the place of incident and thereafter reached home at 4 pm. However, in the cross examination, she would state after she regained conscience, she went home which is about two kilometers from the place of the alleged incident.
10. When the evidence of PW.1 and PW4- husband are seen, it is quite inconsistent with each other with reference to time that is taken by the victim to reach her residence which is two kilometers away from the place of incident. Again, when the conduct of victim is seen, she does not disclose anything to her husband on that day. She would proceed with her day to day work. It is only next day when her husband enquires as to why she does not appear to be her usual self, she would state that she was subjected to forcible sexual intercourse by the accused on the previous day between 2 and 4 pm. It is thereafter they decided to go to Mudigere Police Station and lodged the complaint. When the sequence of incidents as narrated in the complaint and evidence of PW.1 along with evidence of PW.4-husband of the victim as well as evidence of her mother-in-law PW.3, her mother PW.5 are perused, there is inconsistency at every stage.
11. As could be seen in the complaint, she would state that on that day she went to work along with PW.6 and PW.8 to the estate of PW.7 where she would state that she developed giddiness in the place of work at 2 pm and with the permission of PW.7 she left for her house. However, when the evidence of PW.6 and PW.8 are seen, they would stoutly deny the same. Both of them would state that they did not go to work on that day, whereas PW.6 would state that she was attending Meeting held by Dharmasthala Sangha and therefore on that day, she did not go to work at all and there is nothing recited from PW.7 to state whether she had taken permission from him to leave the work place at 2 pm and incident has taken place subsequent thereto is also not forthcoming.
12. Besides all this, when the medical evidence available on record is seen, evidence of PW.11-Dr.R.H. Naik who conducted the examination of the victim, the next date of the alleged incident, namely, on 4.10.2013, would indicate that he has conducted test nearly 27 hours after the incident. He would in his cross examination admit that he has not seen any indication of the victim being subjected to forcible sexual intercourse and that there were no physical indication of scratch marks or any other injury of crime of rape being committed on her and he would also state that whenever there is sexual intercourse, there is possibility of the semen being found in the next 24 hours from the vagina. But, it is not seen in the victim when she was subjected to test at 7 pm on 4.10.2013. In addition to that, when FSL report is seen, there is reference to blood stain being found on the inner garments worn by the victim at the time of the incident. However, victim PW.1 in her examination-in-chief would state that she did not suffer from any bleeding injuries at the time of the incident and she was also not experiencing menstrual discharge at the relevant point of time. The said blood stains which were seen on the inner garments of the victim thereafter clearly indicating that the said material could be inserted in this proceedings, which has nothing to do with the incident that is alleged to have taken place.
13. The same aspect is also supported by the statement of the accused in her cross examination where she would state that at about 2.15 pm, when she was forced by the accused for the said act of having forcible sexual intercourse with her, the accused did not remove the clothes of the victim that she was wearing and when he fell on her, she lost her conscience and after regaining her conscience, she found that the dress that she wore was intact. As could be seen from M.O. Nos.1 to 5, it would indicate that at the relevant time of alleged incident, she was wearing a black colour leggings – MO.4, churidhar top – MO.3, under garment – MO.5 with full arm shirt – MO.1 and scarf which is at MO.2.
14. In the normal circumstance, without the assistance of the victim, these clothes referred to in MOs 1 to 5 could not be removed and then put back on the victim when she is in unconscious state. When the incident is said to have taken place, she would restrict the time taken by accused to commit aforesaid offence to the gap of 45 minutes during which period she is said to be unconscious. The evidence of the victim that the accused having removed all the dress of the victim, subjected her to the act of rape and thereafter restored the clothes on her could not be believed. In any event, the whole thing appears to be unnatural and it is tried to be explained in an unacceptable manner.
15. Therefore, in the facts and circumstances, this Court is of the considered opinion that the Sessions Court having rightly appreciated the material available on record, has proceeded to answer the points which are framed for consideration, in the negative and in holding that the alleged act of sexual offence, namely, act of rape as defined under section 376 of IPC not being committed on the victim, appears to be just and proper. Therefore, the question of interfering with the present appeal to reconsider the said Judgment and order of acquittal does not merit consideration.
Accordingly, this appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE TL/AN/-