IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF NOVEMBER, 2019 PRESENT THE HON’BLE MR. JUSTICE S.N.SATYANARAYANA AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM CRL.A. NO.460/2014(A) BETWEEN:
THE STATE OF KARNATAKA BY THE ASST. SUPERINTENDENT OF POLICE, PUTTUR SUB DIVISION, PUTTUR, D.K, MANGALORE-560 001 ...APPELLANT (BY SRI RACHAIAH.S, HCGP) AND:
1. KUSUMADHARA S/O LATE THIMAPPA GOWDA, AGED ABOUT 28 YEARS, R/AT BANJATHADKA MANE, IVARNADU VILLAGE, SULLIA TALUK-574 239 2. LOKESH S/O DHANANJAYA, AGED ABOUT 27 YEARS, R/AT KATHLADKA MANE, IVARNADU VILLAGE, SULLIA TALUK-574 239 3. PUNEETH S/O MONAPPA GOWDA, AGED ABOUT 23 YEARS, R/AT KOILA MANE, IVARNADU VILLAGE, SULLIA TALUK-574 239 …RESPONDENTS (BY SRI KARUNAKAR.P AND SRI VIGNESHWARA.U, ADVOCATES FOR R1-R3) THIS CRL.A. IS FILED U/S.378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGEMENT AND ORDER OF ACQUITTAL DATED 2.9.2013 PASSED BY THE II ADDL. DIST. AND S.J., D.K., MANGALORE IN SPL. CASE NO.9/2012 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 366, 376(2)(g), 342, 506 R/W 34 OF IPC AND U/S 3(2)(v) AND 3(1)(xii) OF SC AND ST (PA) ACT, 1989.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, SATYANARAYANA J., DELIVERED THE FOLLOWING:
JUDGMENT The Complainant-Prosecution in Special Case No.9/2012 on the file of the II Additional District & Sessions [Spl.], Judge, D.K., Mangaluru, has come up in this appeal, impugning the Judgment dated 2.9.2013 and also the order of acquittal of even date, in dismissing the complaint registered against Accused Nos. 1 to 3 and consequently acquitting them of the offences alleged against the said persons under sections 366[A], 376[2][g], 342, 506 r/w. section 34 of IPC and under sections 3[2][v] & 3[1][xii] of The Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 1989 [‘Act’, for short].
2. The brief facts leading to this appeal against the order of acquittal are as under:
The Complaint in Crime No.180/2011 registered with Sullia Police, within the jurisdiction of Sullia Circle, Sullia Taluk, is filed by PW.2 – Smt. Kusuma, mother of the victim Shashikala alleging that on 15.10.2011 at about 2.30 pm when her daughter
Ivarnadu Village to Bellare, she was subjected to gang rape by Accused Nos. 1 to 3 in the said complaint. Admittedly, the complaint is filed on 3.11.2011 i.e., nearly after eighteen days from the date of the alleged incident. The complaint which is filed by PW.2 is received and registered in the aforesaid Police Station vide Exhibit.P15 for the offences punishable under sections 376, 506 r/w. section 34 of IPC and under sections 3[2][v] & 3[1][xi] of the Act. The said complaint which is registered as FIR vide Exhibit.P15, was investigated by CW.19 and later it was taken over by PW.15 who filed charge sheet for the aforesaid offences against the very same persons against whom complaint was registered in FIR. Thereafter, the matter went into trial where on behalf of the prosecution, the victim was examined as PW.1, complainant as PW.2, her brother Bhoja as PW.3, the Doctor who examined the victim on 3.11.2011 as PW.9, the person who examined the accused Dr. Manjunatha as PW.12 and the person who filed charge sheet as PW.15 and various other witnesses who were examined in support of the prosecution. Strangely, in the instant case, there is statement of defence filed by Accused No.2 for self and on behalf of Accused Nos. 1 and 3. In addition to that, six witnesses are examined in support of their defence as DW.1 to DW.6.
3. Out of them, DW.1 is Reporter of ‘Suddi Bidugade’, a weekly magazine where there is reference to an incident which has taken place involving Accused Nos. 1 to 3 and family members of the victim is reported to have taken place on 19.10.2011 in the publication of the aforesaid magazine for the period 24th to 30th October, 2011.
4. DW.2 is the eye witness to the said commotion which has taken place between Accused Nos. 1 to 3 and family members of the victim in Muchinadka of Ivarnadu in the Hotel of Belliappa on 19.10.2011. DW.3 is also an independent witness with reference to the same incident.
5. So far as DW.4 is concerned, he is relative of first Accused, through his evidence there is an attempt to show by way of defence that there was long standing enmity between family of the victim and that of the accused with reference to the complaint registered against the family members of 2nd accused under the provisions of the Act, by the family of victim.
6. DW.5 is the owner of the place where the prosecution would say that the alleged incident has taken place on 15.10.2011, in Accused Nos.1 to 3 committing gang rape against victim PW.1. The witness DW.5 would state that the estate where building is located has a gate which is always under lock and key, he would state nobody can enter the said place without his permission and particularly on 15.10.2011, according to him, during the period when the alleged incident is said to have taken place, nobody had come to his estate and no untoward incident has been committed by anybody much less by the Accused Nos. 1 to 3 at the relevant date.
7. So far as DW.6 is concerned, he is one of the Trustee of Shri Nalvar Temple of Kanathur of Kasargodu, who would state that in the locality where accused and victims are residing, there is practice that whenever a wrong is done by anybody, on a complaint which is submitted to the Temple, an enquiry will be conducted. It is in this background, said Trustee of the Temple is examined to show that filing of the complaint against Accused Nos. 1 to 3 by PW.2, was subject matter of petition before the Temple. When the concerned persons were called upon to appear before the Temple, the complainant PW.2 and victim PW.1 and their family members have deliberately stayed away from the Temple and they have not participated in the enquiry which was conducted on the basis of the complaint which was lodged by the Accused.
8. It is on appreciation of these evidence, the Court below has come to the conclusion that the prosecution has miserably failed to establish the alleged offence is committed by the Accused Nos. 1 to 3 against victim PW.1.
9. The reasons given by the Sessions Court, on appreciation of the material on record is that; admittedly, the complaint at Exhibit.P2 would indicate that the incident of committing gang rape against PW.1 a minor girl, aged 15 years has taken place on 15.10.2011 between 2.30 pm and 3 pm within the limits of Ivarnadu Village, in an abandoned building situated within the rubber plantation belongs to DW.5. The records would indicate that though the incident has taken place on 15.10.2011, the complaint with reference to the same is lodged with Sullia Police on 3.11.2011 with delay of eighteen days. When the explanation furnished to this by the victim and her mother- complainant who are PW.1 and PW.2 respectively, is looked into, it is clearly seen that after the incident said to have taken place on 15.10.2011, the accused reached home at about 4 pm. Though she went home and felt discomfort having suffered gang rape, she does not disclose the same to her family members. She would state that she is a Kabaddi player and that the incident involving gang rape on her by three persons, namely, Accused Nos. 1 to 3 has caused severe bodily pain to her and that she was subjected to suffering in their hands. However, she does not disclose the same to her mother either on 15.10.2011 or on the subsequent days. It is only after five or six days, she would indicate to her mother that such an incident has taken place on 15.10.2011. She would also state that she took her mother to autorickshaw stand which is at some distance from her place and when she went along with her mother PW.2, accused Nos. 1 to 3 were in the autorickshaw stand along with their auto. However, neither the Accused nor her mother would have any kind of interaction with them nor they would inform the Police though on the way to the said place, they passed through Bellare Police Station. However, it is only after PW.2 would consult her brother-in-law Mr. Bhoja who is resident of Somwarpet, on his advise, they would file a complaint on 3.11.2011 at about 3 pm vide Exhibit.P2 which is registered by Sullia Police as FIR vide Exhibit.P15.
10. When this is looked into, what is required to be seen simultaneously is the incident which is said to have taken place in Muchinadka of Ivarnadu in the Hotel of Belliappa on 19.10.2011 where DW.1 and DW.2 are witnesses to the scuffle between Accused Nos. 2 and 3 and one Mayilappa, Padmayya and brother of the victim Prashanth. These three persons are said to have had a fight with Accused Nos. 2 and 3 on the pretext that they were teasing the victim Shashikala on an earlier occasion. However, though the episode is substantiated by all the witnesses, they do not know when the incident of teasing Shashikala took place which has resulted in fight between aforesaid three persons Mayilappa, Padmayya and brother of the victim Prashanth and Accused Nos.2 and 3.
11. In fact, this incident is reported in Exhibit.D1 ‘Suddi Bidugade’, a weekly magazine for the period 24th to 30th October, 2011, where there is reference to the said incident as having taken place within the said area, which is reported in it. Assuming for a moment, the incident of gang rape has taken place as contended by the complainant and victim on 15.10.2011, then the same would have been reflected in ‘Suddi Bidugade’ magazine which covered commotion between Accused Nos. 2 and 3 and relatives and family members of the victim PW.1. As could be seen, the same is conspicuously absent. The incident would only indicate regarding teasing of the victim by the Accused Nos. 2 and 3 which is said to have taken place immediately prior to 19.10.2011, thereby indicating that there was no material on record as on that date to indicate that gang rape of PW.1 had taken place either on 15.10.2011 or on any other day in the said vicinity.
12. It is long after 15.10.2011 and 19.10.2011, the complaint is filed on 3.11.2011 which is countered by the Accused as an after thought and false complaint filed at the instance of PW.3-Bhoja who is Uncle of the victim who according to the accused, is an Activist of Dalit Sangharsha Samiti, who has taken advantage of the minor scuffle between the family members of the victim and accused as an instrument to take revenge against them. At the same time, there is one more theory which is put forth by the defence that there is long standing rivalry between the family of the victim and first accused as could be seen from the evidence of DW.4 that there was pending litigation between them with reference to the alleged offences under the Act which has led to the present complaint being filed. Be that as it may, when the overall evidence available on record are looked into, there is too many inconsistency with reference to the date on which the alleged incident has taken place and subsequent events which do not refer to the incident until complaint is filed on 3.11.2011.
13. In this background, when the medical evidence and other evidences are appreciated, evidence of PW.9 – Doctor who treated the victim on 3.11.2011 would indicate that the hymen of the victim is ruptured. According to her, it is possibly due to the intercourse which victim may have undergone earlier to that date. While doing so, she also declined that there are any injuries on her body which could be traceable to forcible intercourse. In the cross examination, the very same PW.9 at the end of paragraph-1 has accepted that there is no multiple tear in the hymen of the victim and the possibility of forcible gang rape is not seen in the victim though the possibility of the same being ruptured in the process of intercourse, thereby creating one more doubt with reference to the incident as could be seen from the evidence of Expert, namely, the Doctor who conducted the test of the victim PW.1.
14. When it comes to the MOs which are relied upon by the prosecution to substantiate the alleged occurrence of the incidence, the inconsistencies which are noticed by the Sessions Court is that the statement of the accused while lodging the complaint is that at the time of alleged incident, she was gagged and taken in an autorickshaw where her clothes she was wearing were removed and thereafter she was subjected to forcible intercourse by all the three accused.
15. However, there is inconsistency in the statement given by her before the Police and evidence recorded on her behalf with reference to the clothes which was used at the time of her gang rape and the clothes which she was wearing at the relevant time of the incident. What could be seen is that there is reference to the victim stating that her pyjama was torn in the middle and that her undergarment, namely, brief was also torn. However, in the evidence, she would state that the upper garment i.e., bra worn by her was also torn in the said incident. When the said MOs are looked into, it is clearly seen that the tear which she referred to and the actual tear which is seen in the MOs are inconsistent. It is seen that she wore same clothes and came home.
16. In her evidence, she would state that there were semen stains present on the clothes. However, after coming home she has washed the same and worn the same clothes more than once and when they were seized as MOs in the said proceedings, admittedly there could be no semen stains on any of the clothes and naturally her complaint that said clothes were stained is not proved in any report of the Forensic Science Laboratory. Incidentally, though these clothes were sent to Forensic Science Laboratory, the prosecution has not bothered to secure FSL report and present the same before the Court to substantiate the same.
17. One another glaring deficiency on the part of the prosecution is that though they contend that the ghastly crime has taken place within the farmhouse of DW.5, the prosecution, for the reasons best known to them, have not examined the owner of the farmhouse as prosecution witness. However, the said witness is examined by the accused as defence witness to substantiate their innocence. The said witness would state on oath that on 15.10.2011 his farmhouse was secured with lock to the gate provided to the said property and the house which is situated in the said property was not visited by anybody and no incident has taken place during the period when the alleged gang rape is said to have committed against PW.1 by Accused Nos. 1 to 3.
18. The said evidence of DW.5-Sathish M.K., owner of the said land where incident is said to have taken place, has remained unchallenged by the prosecution. Further, it is seen when such serious doubt was raised by the accused through their defence evidence DW.5, prosecution, at the same time, has miserably failed to demonstrate as to how they entered the said premises on the date when they conducted mahazar at the spot. The said mahazar and statement recorded is not established beyond all reasonable doubt to indicate that the same was recorded with reference to the place of alleged incidence said to have taken place. These are all crucial loopholes which are seen in the prosecution theory by the Sessions Court, which has refused to believe the theory of the prosecution.
19. It is in this background, the learned Sessions Judge while appreciating the complaint as well as the consequential evidence which have come on record, has felt that there is no material to show the alleged offence as having been committed by the accused either on 15.10.2011 or on any other day in the vicinity, as indicated by the victim PW.1. As informed to the Police by complainant-PW.2, complaint which is at Exhibit.P2 is submitted, which is subsequently registered in the form of FIR vide Exhibit.P15.
20. In the background of the aforesaid inconsistency between the complaint and the evidence as could be seen, the Court below has rightly held that the prosecution has failed to establish the offences alleged against Accused Nos. 1 to 3 beyond all reasonable doubts and consequently acquitted them of the offences alleged and also by its Judgment and order of acquittal which is subject matter of the appeal in this proceedings.
21. Therefore, in the fact situation, no justifiable grounds are made out to interfere with the Judgment dated 2.9.2013 passed in Spl. Case No.9/2012 on the file of the II Additional District & Sessions [Spl.], Judge, D.K., Mangaluru and consequential order of acquittal passed therein.
Accordingly, this appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE AN/-