IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.670 OF 2017 BETWEEN:
State of Karnataka Represented by the PSI, Kapu Police Station, Rep. by SPP, High Court, Bengaluru-01. …Appellant (By Sri. Diwakar Maddur, HCGP) AND:
Devendra Shetty, Aged 47 years, S/o. Late Krishna Shetty, R/at Devalagujji, Dendoorkatte, Manipura Village, Udupi Taluk-574 101. …Respondent (By Smt. Haleema Ameen, Advocate for Sri. S.Vishwajith Shetty, Advocate) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C praying to grant leave to appeal against the judgment and order of acquittal dated:10.01.2017, passed by the II Additional Civil Judge and J.M.F.C., Udupi, in C.C.No.477/2014 – acquitting the respondent for the offence punishable under Section 342, 354(A), 506 of IPC.
This Criminal Appeal coming on for Admission this day, the Court made the following:
ORDER The State has preferred this appeal challenging the judgment of acquittal dated 10.01.2017, passed by the learned II Additional Civil Judge and JMFC, Udupi (hereinafter for brevity referred to as “trial Court”), in C.C.No.477/2014, wherein it has acquitted the present respondent for the offences punishable under Sections 342, 354(A), 506 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as “IPC”).
2. The summary of the case of the prosecution is that on 9.11.2013, at about 12.15 p.m., the accused called CW-1/PW-1 Mallika to his house, situated at Devalagujji, Manipura village of Udupi Taluk, and wrongfully confined her in his house by closing the door and used criminal force on her with an intention to outrage her modesty by hugging her and when she resisted, protested and tried to ran away from his house, he also gave her life threat and thereby committed the offences punishable under Sections 342, 354(A), 506 of IPC.
3. Charges were framed against the accused for the offences punishable under Sections 342, 354(A), 506 of IPC.
4. Since the accused pleaded not guilty, trial was held, wherein the prosecution examined seven witnesses as PWs.1 to 7 and got marked documents from Exs.P-1 to 7(a). Neither any witness was examined from the side of the accused nor any documents were marked from the side of the accused and no material objects were marked.
5. After hearing both side, the trial Court by its impugned judgment dated 10.01.2017, acquitted the accused for the alleged offences. It is against the said judgment, the State has preferred this appeal.
6. Though this matter was listed for Admission, with the consent of learned counsel from both sides, the matter is taken up for final disposal.
7. Heard the arguments from both side, perused Memorandum of Appeal, impugned judgment and Lower Court Records.
8. Learned High Court Government Pleader in his arguments submitted that all the material witnesses, including the victim, have fully supported the case of the prosecution, except PW-3. The evidence of prosecution witnesses are trustworthy and bona fide, however, their evidence has not been properly appreciated by the trial Court.
10. Learned counsel for the respondent/accused in her arguments submitted that, admittedly there are no eye witnesses to the alleged incident. PWs.2 to 5 projected by the prosecution are not eye witnesses to the incident, but, they are only hearsay witnesses. Learned counsel further submitted that there are contradictions in the evidence of PW-1 to that of her complaint and further statement she has stated before the Court which has been elicited in her cross- examination. Learned counsel also stated that there are material improvements in the evidence of PW-1 to that of her complaint, as such, the trial Court has rightly given the benefit of those material contradictions and improvements in favour of the accused and pronounced the judgment of acquittal, which does not warrant any interference at the hands of this Court.
11. Among the seven witnesses examined by the prosecution, PW-1 is the alleged victim-cum- complainant in the case. She has stated that on 9.11.2013, at about 12.15 p.m. while she was fetching water near her house, the accused approached her and asked her to go to his house. Even though she said that she is not willing to go to his house, on the pretext that he had got some important and personal matter to told to her, he made her to go to his house. Once she entered his house, he closed the front door and all of a sudden hugged her, stating that he would give her pleasure and put his hand on her private organ. When she attempted to be released from him and resisted his act, the right shoulder part of the nighty, a dress which she was worn at that time, was torn and some how she managed to escape from him and came out from his house. At that time, accused also put her life threat. The witness stated that since she was scared of her respect, she did not lodge the complaint on the same day. However, at the advise of her brother, she lodged the complaint with the police on the next day.
She was subjected to a detailed cross-examination from the accused side.
12. PW-2 – Sadananda, the brother of PW-1, has stated that while he was returning home on the alleged date of the incident in the afternoon between 12.00 to 12.15 p.m., hearing his sister’s yelling noise from near the house of the accused, he went there and by enquiring with his sister, he came to know that while she was fetching water near the tank, the accused made her to go to his house and misbehaved with her and tried to outrage her modesty and attempted to had physical contact with her.
He was also subjected to a detailed cross- examination from the accused side.
13. PW-3 – Kusuma, though was projected as another witness having heard about the incident from PW-1 after seeing PW-1 rushing out from the house of the accused, but, she did not support the case of the prosecution and has pleaded her ignorance about the alleged incident. Even after treating her hostile, the prosecution could not get any support from her.
14. PW-4 – Sathish Poojary, claiming himself to be the neighbour of PW-1, in his evidence has stated that he has seen weeping PW-1 coming out of the house of the accused and after enquiring her, he came to know that accused calling her inside his house, attempted to outrage her modesty.
He was also subjected to a detailed cross- examination from the accused side.
15. PW-5 – Shalini, the sister of PW-1, has supported the case of the prosecution by stating that on the date of the incident, while her sister was fetching water for domestic purpose, the accused called her and made her to go to his house and within a short time, she saw her sister coming crying from the said house. When enquired, she stated to her that accused attempted to outrage her modesty.
The witness attempted to maintain the same stand even in her cross-examination also.
16. PW-6 – Dr.Nourin Shekh, has stated about she examining PW-1 on 13.11.2013, but, noticing no physical injuries on the person of the injured. She has stated that she has issued a medical certificate as per Ex.P-6 in that regard.
17. PW-7 - Rajendra Naik, the Investigating Officer in this case, has spoken about registering a crime based on the complaint given by the complainant-PW-1 on 14.11.2013 and thereafter preparing a FIR and submitting it to the Court as per Ex.P-7 and visiting the scene of occurrence of the offence, drawing a scene of offence panchanama as per Ex.P-3, recording the statements of the witnesses and collecting the wound certificate from the doctor as per Ex.P-6, arresting the accused and recording the statement and finally filing the charge sheet against the accused for the alleged offences.
18. From perusal of the above evidence of the witnesses, the primary thing that can be noticed is that the alleged incident is said to have occurred inside the house of the accused. It is only PW-1 who has stated as to what happened there and rest of the witnesses, more particularly, PWs.2, 4 and 5, though are projected as eye witnesses, but, they are only hearsay witnesses, who claim to have heard from the alleged victim about the incident and have given their statements thereafter.
19. PW-1 in her evidence has stated that the alleged incident began on 9.11.2013, at about 12.15 p.m. when the accused is said to have approached her when she was fetching water near her house. According to her, though she hesitated to go to his house, however, the accused would persuade her by telling that he had some personal work with her. Accordingly, she went to the house of the accused. However, the very same witness in her cross-examination has stated that, on the date of the incident, accused was in his shop at 12.15 p.m. The witness stated that it requires fifteen minutes to come from his shop to his house. Interestingly, the witness has further stated that the accused called her to come to his house when she had been to his shop. Thus, these two statements of the witness that accused called her when she was fetching water near her house and her another statement in the cross-examination that accused called her to his house when she had been to his shop, are quite contrary to each other. No effort was made by the prosecution by subjecting the witness to re-examination and eliciting any explanation in that regard. Thus, the very inception of the alleged incident is with suspicious circumstances as to where and at what manner the accused called the victim to his house.
Secondly, PW-1 in her cross-examination has stated that in her house, apart from herself, her mother, younger sister, elder brother and neighbour Sri Satish were all there. If the said version is to be believed, then, her statement made in her examination-in-chief that on the alleged date of incident, while she was in her house and fetching water, the accused went there and called her becomes unbelievable. When there were several other family members in the house and when the victim (PW-1) was in her house, how come the accused could go there and ask her to come to his house, is also a question which has remained unanswered from the prosecution side.
Thirdly, as observed above, PW-1 in her cross- examination has stated that on the said date, one Sri Satish was also there in her house. The said Satish who was examined as PW-4 has stated that, on the said day, when he had been near the house of the accused to sell vegetables, he saw weeping victim coming out from the house of the accused. Thus, the statement of none else than the victim that the said Satish was in her house and the evidence of the said Satish that he was out side and near the house of the victim selling vegetables cannot go together. In such a situation, the evidence of both PW-1 and PW-4 on the said point becomes doubtful.
Fourthly, PW-1 the victim in her evidence has stated that inside his house, the accused, apart from hugging her, also held her private part with his hand. It was brought in her cross-examination, as well in the cross-examination of the Investigating Officer i.e., PW-7 that it was an improvement made by her in her evidence, which aspect she has not stated in her complaint before the police. Thus, the very material aspect about the alleged outraging her modesty by the accused has proved to be a material improvement made by the witness in her evidence.
Fifthly, even though PW-1 has stated that after the incident, the police took her to a Magistrate, before whom also, she has given her statement, which she has identified at Ex.P-2, but, in her cross-examination, she admitted a suggestion as true as to police had told her as to what to say before the Magistrate. In that regard, the argument of learned counsel for the respondent that the alleged victim had shown that she was tutored as to what she should say in the statement before the Magistrate cannot be ignored.
Lastly, PW-1 in her evidence has stated that at the time of the incident and while resisting of his illegal act and in her attempt to rescue herself from his clutches, she raised hue and cry, but, none came there. On the contrary, PW-2, who is none else than the brother of the victim, has stated that he heard his sister i.e., the victim, raising hue and cry and he enquired her. He has also stated that at that time, people had gathered in the said place. The said statement of PW-2, who is none else than the brother of the victim, is contrary to what victim has stated on the point whether at the alleged hue and cry of the victim, the people had gathered. In this matter, when the evidence of PW-1 in its entirety is full of doubts, the evidence of other witnesses, more particularly, PW-2, PW-4 and PW-5, who have deposed based upon the knowledge they have acquired from what they have heard from PW-1, also become skeptical.
20. Thus, the evidence of PW-2 also does not inspire any confidence to believe. As already observed above, he claims to have heard about the details of the incident on enquiry with his sister i.e., PW-1. However, the very evidence of PW-1 does not inspire confidence to believe the same as a trustworthy. Further, according to PW-2, while he was returning from his work towards his home in that afternoon at 12.15 p.m., he heard yelling noise of his sister from near the house of the accused and then he went there and saw that his sister was yelling and crying. On the contrary, PW-1 who is the victim and also the younger sister of PW-2, no where has stated that when she raised hue and cry, his brother, i.e., PW-2, came there. Had really PW-2 been there, PW-1 who is his own sister and also alleged victim, would have necessarily stated about PW-2 coming to the said place. Further, as already observed, according to PW-1, at she raising an alarm, nobody were there, but, according to PW-2, a gathering of people was there outside the house of the accused. Thus, the evidence of PW-2 also proved to be not safe to rely upon.
21. The evidence of PW-4 is not worth to be believed for the reason, as observed above, that according to PW-1, he was in her house. However, PW- 4 says that he was outside and near the house of PW-1 and was selling vegetables. Further, according to PW-1, accused approached her when she was fetching water in her house. But, according to PW-4, accused is said to have approached PW-1 when she was filling the tank in the veranda. Therefore, apart from contradictions, the very statement of PW-1 shows that PW-4 was not in the place of the alleged incident at the time of the incident. Thus, the evidence of PW-4 is not trustworthy.
22. PW-5, another sister of PW-1, has stated that while PW-1 was fetching water, she was also present and it was at that time the accused had called his sister. However, the very same witness in her cross- examination has stated that she has not seen her sister going to the house of the accused. That also creates a doubt in the trustworthiness in the evidence of the said witness. If it is believed that she was along with his sister and mother, while the said sister (PW-1) was fetching water, she should have necessarily seen her sister (PW-1) going to the house of the accused. On the contrary, as observed above, the very same witness in her cross-examination has stated that she has not seen her sister going to the house of the accused. Therefore, the evidence of PW-5 is also not trustworthy and believable.
23. In the light of the above, when the evidence and material witnesses i.e., PWs.1, 2, 4 and 5, are considered to be not trustworthy, the defence of the accused that the complainant believing that he was the cause for she getting divorce from her husband and that PW-2 thinking that accused was the cause for he not getting a lease of the shop premises, were the reason for lodging a false complaint against him, goes to the background. Since the prosecution case could not stand on its own leg, the trial Court rightly appreciating the evidence placed before it, has pronounced the judgment of acquittal, in which, I do not find any reason for interference.
Accordingly, the Appeal stands dismissed as devoid of merits. The judgment of acquittal passed by the learned II Additional Civil Judge and JMFC, Udupi, in C.C.No.477/2014, dated 10.01.2017, is confirmed.
The Registry is directed to transmit a copy of this judgment to the trial Court along with lower Court records without delay.
Sd/- JUDGE bk/-