IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.282/2018 BETWEEN:
The State of Karnataka By Yelahanka Police, Bengaluru, Represented by State Public Prosecutor, High Court of Karnataka, Bengaluru – 560 001.
... Appellant (By Sri.K. Nageshwarappa, HCGP) AND:
H.S. Thimme Gowda, S/o Late Narayanappa, Age: 62 years, R/at Honnadevipura Village, Shyakaladevanapura, Doddaballapura Taluk, Bengaluru Rural District – 561 203.
... Respondent (By Sri. A.N. Radhakrishna, Advocate for Sri. A.H. Bhagavan, Advocate) This criminal appeal is filed u/s. 378(1) and (3) of Cr.P.C., praying to grant leave to appeal against the judgment and order dated 02.12.2017 passed by the LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru in Spl. C. C. No.197/2011 acquitting the respondent/accused for the offence p/u/s 354 of IPC and Section 3(1)(x)(xii) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), 1989.
This criminal appeal coming on for Admission, this day, the Court delivered the following:
J U D G M E N T Though this matter is posted for admission, with the consent of learned High Court Government Pleader and learned counsel for respondent – accused, the matter is taken up for final disposal.
2. The present appeal has been preferred by the State being aggrieved by the judgment of acquittal passed by LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru City in Spl.C.C. No.197/2011 dated 02.12.2017.
3. Before considering the submissions, the case of the prosecution in brief is that on 06.01.2011, 14.02.2011 and 05.03.2011, the victim, who was working as a Teacher of Government Higher Primary School, Kodigehalli, Bengaluru, went to the chambers of accused, who was working as a Block Education Officer, in order to invite him for the inauguration function of Kishore Training Centre. The accused misused his power and has committed sexual assault on her and when the victim opposed the illegal conduct, the accused got enraged and tried to outrage the modesty of the victim. The same was resisted by the victim and as such, the accused abused her in filthy language taking the name of the caste of the victim, insulted and humiliated her in a public place. On the basis of the complaint, a case has been registered in Crime No.96/2011.
4. Thereafter, after investigation, the chargesheet was laid against the accused. The Court below took cognizance and secured the presence of the accused and after hearing the learned Public Prosecutor and learned counsel for the accused, charge was framed. Accused denied the same and he claims to be tried and as such, the case proceeded for trial.
5. In order to prove its case, the prosecution has got examined 11 witnesses and got marked 7 documents. Thereafter, the statement of the accused was recorded under section 313 of Cr.P.C. Accused has not lead any evidence however, during the course of cross-examination of the prosecution witnesses, he got marked Exs.D1 to D8, D7(a) to (c) and D8(a). After hearing the learned public prosecutor and learned counsel for the accused, the impugned judgment of acquittal came to be passed. Assailing the same, the State is before this Court.
6. The main grounds urged by the learned HCGP is that the impugned judgment of the trial Court is contrary to the law and contrary to the evidence on record. It is further submitted that the Court below has come to the wrong conclusion that there is no evidence to connect the accused to the alleged crime. Further it is submitted that PW.5 is the victim, who deposed about the alleged incident. Without appreciating the evidence of PW.5, the Court below has acquitted the accused in a illegal manner. It is his further submission that the order of acquittal is erroneous and improper. On these grounds, he prayed to allow the appeal and to set aside the impugned order and convict the accused for the alleged offences.
7. Per contra, learned counsel appearing on behalf of the respondent – accused vehemently argued and submitted that there is a delay of 5 ½ months in filing the complaint and no explanation has been given for the said delay. It is his further submission that independent witnesses have not supported the case of the prosecution and the only evidence, which is available is that of PW.5, she is an interested witness and has filed the complaint after 5 ½ months, she has gone to the police station and has filed a complaint, which is not believable and trustworthy. It is further submitted that the investigation has also not been completed within 30 days as per Rule 7 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Rules (for short “the Rules”). In that light also, the trial Court has come to a right conclusion and has rightly acquitted the accused. On these grounds, he prayed to dismiss the petition.
8. I have carefully and cautiously gone through the submissions made by the learned counsel for both the parties and I have also perused the materials, which is made available by the learned High Court Government Pleader.
9. PWs.1 and 2 are the panch witnesses to Ex.P1-mahazar. They have not supported the case of the prosecution and they have been treated as hostile. PWs.3 and 4 are the Superior Officers and they also deposed that they do not know anything about the alleged incident and they have also been treated as hostile.
10. PW.5 is the victim/complainant, she has deposed that she belongs to scheduled caste community and the accused belongs to Gowda community and on 13.12.2010, 06.01.2011, 14.02.2011 and 05.03.2011, the accused abused her in the name of caste, lustfully caught hold of her hand, pulled her and outraged her modesty. She has further deposed that she has given the complaint as per Ex.P2 and has reported the alleged incident immediately to her superior officer PW.3 – Krishnappa. But during the course of cross- examination, nothing has been elicited in this behalf but she admitted the fact that she has filed the complaint after 5 ½ months.
11. PWs.6 to 8 are the witnesses, who have deposed that they came to know about the alleged incident only through the TV channel. They have also not supported the case of the prosecution and have been treated as hostile.
12. PW.9 is the police inspector, who registered the case and issued FIR. PW.10 is the A.C.P., who investigated the case and filed chargesheet. PW.11 is also an another witness, who has not supported the case of the prosecution and turned hostile.
13. The only evidence, which is available before the Court is that of PW.5. In her evidence, she has deposed that immediately, after the alleged incident, she has reported the same to PW.3, but no documents have been produced for having intimated to PW.3 and no complaint has also been registered in this behalf against the accused. Be that as it may. PW.3, who came to be examined before the Court has not supported the case and has deposed that he do not know anything about the incident. In that light, PW.5 telling to her superiors cannot be accepted.
14. Even the alleged incident has taken place on 05.03.2011 and admittedly, the complaint was registered on 25.05.2011. There is delay in filing the complaint and even no proper explanation has been given to explain the said delay. Though in the said complaint, she has deposed the presence of PWs.6 to 8, but they have stated that they are not aware of the said incident and they came to know about the said incident only through T.V. Channel.
15. When all the material witnesses have not supported the case of the prosecution and they have been turned hostile and even they have deposed that they did not know anything about the said incident, under such circumstance, that too, when the complaint has also been registered after the delay of 5 ½ months, the evidence of PW.5 is also not acceptable in this behalf.
16. Be that as it may, even as could be seen from the records, the investigation has also not been completed within 30 days as per the Rules. All these materials create a doubt in the case of the prosecution. It is a well settled proposition of law that if any doubt arises in the case of the prosecution, then the benefit of doubt would go to the accused. The trial Court after considering the said evidences, has come to the right conclusion and has rightly acquitted the accused.
17. It is well settled proposition of law that whenever an appeal is filed against the order of acquittal, the appellate Court must be very cautious in exercising the power and can exercise its power only when the judgment is erroneous and illegal and it has not appreciated the evidences in its right perspective.
18. Keeping the above facts and circumstances, I am of the considered opinion that the Court below has come to the right conclusion and has rightly acquitted the accused.
19. The appellant has not made out any good grounds to interfere with the impugned judgment. The same is being devoid of merits and is liable to be dismissed. Accordingly, it is dismissed.
Sd/- JUDGE VBS CT:RG