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.395/2014 BETWEEN:
THE STATE OF KARNATAKA, BY AIMANGALA POLICE – 572143 …APPELLANT (BY SRI.S.RACHAIAH, HCGP) AND:
1. DINESH, S/O B.S.LINGAPPA, AGED ABOUT 26 YEARS, AGRICULTURIST 2. SHARADAMMA, W/O B.S.LINGAPPA, AGED ABOUT 46 YEARS, HOUSEHOLD WORK 3. GANESH @ SADANANDA, S/O B.S. LINGAPPA, AGED ABOUT 31 YEARS, FDA IN KSRTC, DAVANAGERE.
ALL ARE KURUBARU BY CASTE, R/O SONDEKERE, HIRIYURU TALUK – 572143.
…RESPONDENTS (BY SRI.UMESH.P.B, ADVOCATE FOR SRI.R.B.DESPHANDE, ADVOCATE FOR R1 TO R3) THIS CRL.APPEAL IS FILED U/S 378(1) AND (3) CR.P.C BY THE S.P.P PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 10.06.2013 PASSED BY THE PRL. DIST.AND S.J., CHITRADURGA, IN S.C. NO.169/2011 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 376 AND 417 R/W 34 OF IPC.
THIS APPEAL COMING ON FOR HEARING THIS DAY, SACHIN SHANKAR MAGADUM J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is by the State challenging the correctness of the judgment and order of acquittal dated 10.6.2013 passed in S.C.No.169/2011 by the Principal District and Sessions Judge, Chitradurga.
2. The case of the prosecution is that accused No.1 was insisting the complainant namely Kenchamma to marry him and often used to express his intention before her. But the complainant had made it very clear to him that since he is already married and has three children in the wedlock, she has no intention to marry him. The further case of the prosecution is that on 4.1.2011 when she went to the field of accused No.1 for coolie work, accused No.1 again requested her to marry him on the premise that his first wife is not mentally sound and in the event of victim marrying him, he assured that he would transfer all his property and money in her name. This fact was conveyed by the complainant to her father and her father advised her not to marry accused No.1 since he was already married. On 8.1.2011, the complaint went to the field of accused No.1 to convey her opinion and on meeting him she told him that she has no intention to marry him. The accused No.1 on hearing the decision of the complainant knocked her down and committed rape on her. The complainant started raising hue and cry which attracted attention of one Chandrappa and Padmanna who were grazing cattle at some distance. The accused having seen these two persons rushing to the scene of offence fled away from that place. The said Chandrappa and Padmanna took the complainant to her house and informed the incident to the complainant’s father. The father of the complainant along with village elders met the mother and brother of accused No.1 i.e. accused Nos.2 and 3 respectively and on narrating the incident, the accused Nos.2 and 3 assured of arranging marriage of complainant with the accused. And in view of assurance given by accused Nos.2 and 3, the complainant and her father were anticipating the marriage. But however, the accused Nos.2 and 3 retracted from their assurance which ultimately forced the complainant to lodge the complaint on 28.1.2011. On the basis of the said claim, charges were framed for offence punishable under Section 376 of IPC against accused No.1 and all the accused were charged for offence punishable under Section 417 read with Section 34 of IPC. The accused denied the charges and claimed to be tried.
The prosecution in support of its case examined P.Ws.1 to 12 and got marked Exs.P1 to P14 and M.Os.1 to 6. The accused-respondents did not examine any witnesses. However, got marked Exs.D1 and D2 in the cross-examination of P.Ws.1 and 4 respectively.
Statement of accused under Section 313 Cr.P.C. were recorded.
The Court below having heard the learned public prosecution and also the defence counsel formulated the following points for consideration:-
“1.Has the prosecution proved beyond reasonable doubt that on 8.1.2011, the 1st accused committed rape on PW.1 and thereby committed the offence punishable according to section 376 IPC?
2. Whether the prosecution proved beyond reasonable doubt that the accused Nos.1 to 3 in furtherance of common intention deceitfully promised PWs.1 and 4 to perform the marriage of PW.1 with accused No.1, but later on they failed to keep up their promise and thereby committed the offence punishable according to section 417 read with section 34 IPC?
3. What order?”
The Court below having appreciated the evidence on record, answered point Nos. 1 and 2 in the negative and in answer to Point No.3 acquitted the accused of the charges leveled against them. Being aggrieved by the said judgment and order of acquittal, the State has preferred this appeal.
3. Learned SPP for the State would vehemently contend that the Sessions Court was not justified in acquitting the respondent/accused though the clinching evidence on record is corroborated by the evidence of prosecution witnesses and the guilt of the accused is proved beyond all reasonable doubt. The trial Court has totally misread the evidence on record and as such the impugned judgment and order of acquittal calls for interference by this Court.
4. Per contra, the counsel for the respondents would support the impugned judgment and order of acquittal passed by the Court below and would specifically contend that there are several material contradictions which are fatal to the prosecution case and as such there is absolutely no material on record, which warrants conviction of the accused for the offences alleged against them.
5. Having heard the learned counsel for the respective parties, the following points would arise for consideration:-
“1. Whether the impugned judgment and order of acquittal suffers from perversity and serious infirmities and the same is contrary to Exs.P1, P14 coupled with the oral evidence of P.W.1 and P.W.4?”
6. We have perused the lower Court records.
On re-appreciation of the oral and documentary evidence, it is found that the alleged incident has taken place on 8.1.2011 and the complaint is lodged on 28.1.2011. Perusal of the complaint vide Ex.P1, virtually creates a doubt with regard to the occurrence of this incident. P.Ws.2 and 3 are not the eye witnesses to the alleged incident. As per the case of the prosecution these two witnesses would rush to the place of occurrence only after hearing the hue and cry of the complainant. At this stage, it is also relevant to note that these two witnesses were at a distance of 20 to 25 Ft. from the place of alleged incident and inspite of that the complainant would allege that accused No.1 committed rape on her. This part of the evidence appears to be quite unnatural and untrustworthy. During the course of investigation, the police have produced the clothes marked as M.Os.1 to 3, which were not the clothes worn by the complainant at the time of alleged incident. It is the case of the complainant that when she had gone to meet accused No.1 on 8.11.2011 she was wearing a nighty. Whereas the clothes which were secured by the police during the investigation as per MOs. 1 to 3 are Churidhar and petticot. This material aspect indicates serious lapse on the part of the Investigating Officer and the same cannot be considered as material evidence in proof of the incident. The Court below has also taken judicial note of the conduct of the Investigating Officer who has conducted the investigation in very callous manner, even without ascertaining from the prosecutrix as to whether she had retained the clothes which she was wearing on the date of incident.
7. The FSL report at Ex.P13 is also not helpful to the prosecution case since the complainant was examined twenty days after the incident and it would be virtually impossible to detect presence of seminal stains in the vaginal swab and vaginal smear. In that view of the matter, we find it difficult to understand as to why the I.O. had sent the clothes for chemical examination when admittedly the complainant had not worn those clothes on the date of the alleged incident.
8. The prosecution has also relied on Ex.P14, which is the report given by the doctor-P.W.12 who has examined the complainant. On perusal of Ex.P14 it is evident that the complainant was examined on 20.7.2011. The date which is written at the bottom of the page on the left side does not tally with the handwriting of the doctor and it appears that it is an insertion. A plain reading of Ex.P14, clearly indicates that the doctor who has examined the complainant has opined that there is no evidence of recent sexual intercourse. On meticulous reading of the evidence of P.W.12 whose evidence is quite relevant in the context of grave allegations made against the accused, the said doctor has deposed that the complainant might have involved in sexual intercourse or an act similar to intercourse sometime ago which only leads to further doubt as to the occurrence of the alleged incident.
9. The statements of P.Ws.2 and 3 with the police and their evidence during trial are not at all trustworthy and on reassessing their evidence in their cross-examination, it is quite clear that they are planted witnesses. Further the evidence of the father of the complainant who is examined as P.W.4 is also inconsistent with the evidence of complainant who is examined as P.W.1. The complainant who is examined as PW.1 has stated in her examination-in-chief that she had gone to the land of the accused in connection with coolie work which is contrary to what she has stated in the complaint as per Ex.P1. Whereas as per Ex.D2 what is recorded is that the daughter of P.W.4 i.e. complainant went to the land of the accused to inform the first accused that she is not willing and ready to marry the accused as her father was not willing to give his consent for marriage. On having examined the evidence of the father of the complainant in his examination-in- chief it is very strange to note that he does not utter a word about his daughter seeking his opinion as to whether she could marry accused No.1. This part of the evidence is fatal to the case of the prosecution. Probably to over come this material aspect, PW.4 has gone to the extent of denying Ex.D2. If this part of the evidence coupled with Ex.D2 is examined it would virtually falsify the case of the prosecution that the complainant consulted her father.
10. The Court below having examined the evidence of the prosecution witnesses and the documents relied therein at Exs.P1 to P14 and having meticulously examined the material objects marked as per M.Os.1 to 6 has recorded a finding of fact that the complainant had visited the land of accused No.1 for coolie work and has consequently drawn an adverse interference by holding that the testimony of P.W.1 appears to be wholly unbelievable.
11. It is also relevant to note that P.Ws.2 and 3 who are cited as eye witnesses to the incident dated 8.1.2011 have failed to refer to any role played by accused No.1 and an inference has to be drawn that infact these two witnesses are planted witnesses and this possible view has to be taken by us since it is the case of the prosecution that these two witnesses were grazing cattle at a distance of 20ft. If this evidence is put to test, we are of the view that it appears to be quite unnatural as to how accused could get away with the sexual act as alleged by P.W.1 for about 15 minutes when these two witnesses were very much present at a distance of 20 to 25 feet from the scene of offence. Hence, on over all examination of the prosecution witnesses and documents produced therein if tested on the anvil and touchstone of evidence then we have to hold that it is neither natural and credible nor trustworthy. It is not only the variance in version of P.W.1-complainant and father of complainant i.e. P.W.4, but the entire case of prosecution is full of contradictions.
12. On examination of FIR and statement of Prosecutrix there are lots of infirmities and chances of false implications cannot be ruled out in the present case on hand, since it is the case of the prosecution that on the alleged date of incident itself the father would meet accused No.2 who is mother of accused No.1 along with some village elders and there were talks in regard to the marriage of the prosecutrix with the first accused. This conduct of the prosecutrix and her father would lead to inference that they have tried to falsely implicate the accused and this view further gets strengthened by the fact that the FIR is lodged 20 days after the alleged date of offence and no explanation is offered for the delay caused in lodging the FIR which would also be fatal to the case of the prosecution.
13. On re-appreciation of the evidence on record, we are of the view that the impugned judgment and order of acquittal rendered by the Sessions Court in S.C.No.169/2011 does not suffer from any perversity and infirmities and none of the grounds raised by the State would warrant interference by this Court.
14. Having examined the material on record, the point formulated by us is answered in the negative. The judgment and order of acquittal is based on proper appreciation of material on record and also in applying sound principal of law and does not suffer from any infirmity and as such does not warrant any interference by this Court.
15. In that view of the matter, the appeal being devoid of merits is liable to be dismissed and accordingly, dismissed.
Sd/- JUDGE Sd/- JUDGE *alb/-