Kadappa Suvarna Talageri vs State Of Karnataka
2021 Latest Caselaw 5268 Kant

        IN THE HIGH COURT OF KARNATAKA
                DHARWAD BENCH

 DATED THIS THE 02nd DAY OF DECEMBER, 2021

                        BEFORE

        THE HON'BLE MRS.JUSTICE M.G.UMA

               CRL.A.NO.100015/2019
BETWEEN :

KADAPPA SUVARNA TALAGERI,
AGE: 29 YEARS, OCC: DRIVER,
R/O: KULALI,
TAL: MUDHOL, DIST: BAGALKOT.
                                         ... APPELLANT
(BY SRI S. C. BHUTI, ADVOCATE)

AND :

STATE OF KARNATAKA,
BY CPI MUDHOL, REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
                                       ... RESPONDENT
(BY SRI PRAVEEN K. UPPAR, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CRIMINAL PROCEDURE CODE, PRAYING THIS
COURT TO SET ASIDE THE JUDGMENT AND ORDER OF
SENTENCE PASSED BY THE COURT OF I ADDL. DISTRICT AND
SESSIONS JUDGE, BAGALKOT TO SIT AT: JAMKHANDI, AT:
JAMKHANDI   IN   SESSIONS     CASE   NO.16/2017 DATED
17.12.2018 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 451 & 376(I) OF INDIAN PENAL CODE.

      THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                               2




                     : JUDGMENT :

The accused has preferred this appeal, being

aggrieved by the judgment of conviction and order of

sentence dated 17.12.2018 passed in S.C.No.16/2017

on the file of the First Additional District and Sessions

Court at Bagalkot, sitting at Jamakhandi, convicting

the accused for the offence punishable under Sections

451 of the Indian Penal Code ("IPC" for short) to pay

fine of Rs.5,000/- and under Section 376(L) of IPC

sentencing him to undergo rigorous imprisonment for

a period of 10 years and to pay fine of Rs.50,000/- in

default to pay fine the accused shall undergo simple

imprisonment of three months.

2. Brief facts of the case are that, the

informant-PW.1 lodged the first information as per

Ex.P.1 against accused No.1 alleging that her

daughter aged 17 years is mentally and physically

retarded. On the intervening night on 18/19.10.2016,

the victim girl was alone in the house as the

informant and other family members have gone out

from their house as one of the villager had died. The

informant came back to the house at 1.45 in the

midnight. She heard screaming by the victim inside

the house. The door was latched from inside. The

informant raised alert, knocked the door asking as to

who is inside and asked to open the door. After

hearing her voice her son Muttappa, daughter-in-law

Chanda, her relative Suresh and her neighbour

Basappa have rushed to the spot and all of them

insisted for opening the door. The door was opened

and the accused who was inside, hurriedly ran away

from the spot. When the informant went inside, she

found the victim girl lying naked in a helpless

condition. There was bleeding from her private part.

Since she was deaf-and-dumb she made gesture

stating that the accused had committed rape on her.

3. On the next day morning, the informant

lodged the first information as per Ex.P.1 requesting

the police to register the case and to initiate legal

action against him. Accordingly, the police have

registered the case in Crime No.275/2016 and took

up investigation. After investigation, the charge sheet

was came to be filed for the above stated offences.

The learned magistrate took cognizance of the

offence. The accused denied the charges leveled

against him and claims to be tried.

4. The prosecution examined PWs.1 to 17.

Got marked Exs.P.1 to 32 and identified MOs.1 to 3 in

support its contention. Accused had denied all the

incriminating materials available on record in his

statement recorded under Section 313 of Cr.P.C. But

not led any evidence in support of his defence. The

Trial Court after taking into consideration on all these

materials on record came to the conclusion that the

prosecution is successful in proving the guilt of the

accused beyond reasonable doubt and convicted the

accused for the offences above stated.

5. Being aggrieved by the judgment of

conviction and order of sentence, the accused is

before this Court seeking to set aside the same and

acquit the accused in the interest of justice.

6. Hear Sri S.C.Bhuti, learned counsel for the

appellant and Sri Praveen K.Uppar, learned High

Court Government Pleader for respondent-State.

7. Learned counsel for the appellant

submitted that initially the FIR was registered for the

offence punishable under the provisions of Prevention

of Children from Sexual Offices Act, 2012 ("POCSO

Act" for short) but subsequently while filing the

charge sheet the said provisions were dropped as it

was found that the victim was a major. Admittedly,

the victim is mentally retarded and physical

handicapped. She never stated anything about the

incident that alleged to have occurred.

8. PWs.2 and 3-pancha witnesses have not

supported the case of the prosecution. PW.5 is the

neighbor and PWs.6 to 8 are circumstantial witnesses.

They have also not supported to the case of the

prosecution. PW.10-the doctor who examined the

victim specifically stated that there were no external

injuries found on the body of the victim. PW.12-the

Special Teacher, deposed that the victim was not in a

position to explain the incident. Under such

circumstances the Trial court could not have

proceeded to convict the accused. The evidence of

PWs.1 and 4 cannot be relied on as they are

interested witnesses. There are no materials either

oral or documentary, to support the case of the

prosecution. Under such circumstances, the benefit of

doubt should have been given to the accused.

9. Learned counsel further submitted that,

the informant was having ill-will and motive as the

brother of the appellant was a press reporter and he

had published a report in the newspaper regarding

the sister of the informant. Therefore a false

complaint came to be lodged against the accused. The

Trial Court ignoring all these facts and circumstances

proceeded to convict the accused without any basis.

Hence, he prays for allowing the appeal by setting

aside the judgment of conviction and order of

sentence passed by the Trial Court and acquit the

accused extending the benefit of doubt.

10. Per contra, learned High Court

Government Pleader opposing the submission made

by learned counsel for the appellant submitted that

the accused being a married man has committed

gruesome act of rape of the mentally and physically

retorted girl aged about 18 years. PWs.1 and 4 are

the eyewitnesses who have came to the spot and saw

the accused inside the house. He committed rape on

the victim by latching the door. When the witnesses

have insisted to open the door, the accused opened

the door and ran away from the spot. MOs.1 to 3 i.e.,

undergarment, shirt and mobile belonging to the

accused were found at the scene of occurrence and

the same were identified by PWs.1 and 4. PW.10 who

is doctor examined the victim issued Ex.P.9-

provisional report specifically stating that there was

rupture of hymen. Ex.P.12 is the final report where he

specifically stated that there was signs of recent

sexual intercourse. PW.12 also states that she is

specially trained in understanding the sign language

and questioned the victim regarding the incident. The

victim had explained about the incident. There are

absolutely no contradictions in the evidences of the

material witnesses who are examined before the

Court. PWs.17 is the Investigating Officer who also

spoke about the investigation under taken by him.

The Trial Court took all these materials on record into

consideration and rightly convicted the accused.

There are no reasons to interfere with the same and

prays for dismissal of the appeal as devoid of merits.

11. Perused the materials including the Trial

Court records.

12. On the rival contentions of both the

parties, the point that would arise for consideration of

this Court is as follows:

"Whether the impugned judgment of conviction and order of sentence dated 17.12.2018 passed in S.C.16/2017 by the Trial Court calls for any interference by this Court?"

13. My answer to the above point is in the

'negative' for the following:

: REASONS :

14. It is the specific contention of the

prosecution that on the intervening night

18/19.10.2016 at 1.45 the accused found the victim

girl alone in the house and took advantage of the

situation as the victim was also mentally and

physically challenged, committed rape on her. When

PW1, 4 and others came to the spot and insisted for

opening the door, he opened the door and ran away

leaving his underwear, shirt and mobile at the spot.

15. The prosecution examined PW.1 mother of

the victim who lodged the first information which is as

per Ex.P.1. In Ex.P.1 the witness stated about the

incident that the victim who is mentally and physically

retarded was alone in the house, when she was came

back her house, she found the door was latched from

inside and the victim was crying. When she raised

hue and cry, PWs.4 and others came to the spot and

insisted for opening the door. The accused opened the

door and ran away. The victim was lying naked in a

helpless condition with bleeding from her private part.

The informant who is examined as PW.1 fully

supported to the case of the prosecution. She also

identified MOs.1 to 3 which belong to the accused and

stated that those were found at the scene of

occurrence and were seized by the police. She also

identified the photos taken at the spot.

16. This witness was cross-examined at length

by learned counsel for the accused. Major portion of

cross-examination relates to one Champavva and she

claiming grant of land on the ground that she is

devadasi. It is suggested to the witness that the

brother of the accused being the press reporter had

published an article in the news paper that the said

Champavva, the sister of the informant had furnished

false information and filed an application for grant of

land. The said suggestions were denied by the

witness. It is suggested that since the informant could

not lodge any complaint against the said Sadashiva, a

false complaint was came to be lodged against the

accused. The said suggestion was also denied.

Witness stated that, there was light in her house

when the incident had occurred. She identified the

accused clearly when he ran away from the scene of

occurrence. Witness admitted that earlier to the

incident the accused had fallen from the motor cycle,

but denied the suggestion that he had fracture and

underwent surgery. It is also denied that, he was not

in a position to walk or run on the date of incident. It

is denied that MOs.1 to 3 were not at the scene of

occurrence and the same were not seized by the

police. Witness also denied the suggestions that she

obtained Rs.75,000/- from the government on filing

the complaint.

17. PWs.4 is another eyewitness who is the

brother of the victim. This witness also corroborates

the evidence of PW.1 and also identifies MOs.1 to 3.

This witness was also subjected to cross-examination

at length, but the witness with stood the cross-

examination. Nothing has been elicited from him

expect suggesting the defence about ill-will on the

part of the informant against Sadashiva who is the

brother of the accused and filing of the false

complaint. All those suggestions were denied by the

witness.

18. PW.10 is the doctor who examined the

victim and found that her hymen was ruptured and

she was aged above 18 years. Witness stated that the

victim was mentally retarded and physically

handicapped. He gave a provisional report as per

Ex.P.9 and final opinion as per Ex.P.10. As per his

opinion there was evidence of recent intercourse as

mentioned in Ex.P.12. The witness was cross-

examined by the learned counsel for the accused.

Witness stated that there were no injuries on the

private part, but hymen was ruptured and here were

signs of recent sexual intercourse.

19. PW.12 is the Special Teacher who stated

that she was called for by the Investigating Officer

and asked to enquire the victim girl as she is not in a

position to speak. Accordingly, he enquired the

victim. She gave gestures stating that a person had

came to her house in the night, he removed her dress

and committed rape on her. But however, when the

victim was taken to the Court for recording her

statement, she has given the gesture stating that she

was sleeping in the house. Therefore, her statement

was not recorded.

20. The learned counsel for the accused has

cross-examined this witness also, but nothing has

been elicited from the witness.

21. PW.17 is the Investigating Officer who

spoke about the investigation undertaken by him and

filing of the charge sheet.

22. Ex.P.9 is the provisional medical certificate

for having examined the victim of rape. It is stated

that the mother of the victim gave history and the

hymen was found ruptured, final opinion was kept

pending, awaiting the FSL report. Ex.P.10 is the final

report, wherein the opinion is given as evidence of

recent intercourse present (hymen ruptured).

23. Ex.P.11 is the FSL report according to

which the seminal stain and spermatozoa were not

detected in any of the articles sent for examination.

Ex.P.12 is the final report issued by medical officer

regarding the evidence of recent intercourse present

and the hymen was ruptured when the victim was

examined. Ex.P30 is CDR details found that MO.3-

mobile belonging to the accused was active at the

scene of occurrence.

24. The statement of the accused was

recorded under Section 313 of Cr.P.C highlighting the

incriminating materials available against him. The

accused has denied all such incriminating materials

and has not led any evidence in support of his

defence.

25. If the materials that are highlighted above

are taken into consideration, it is seen that PWs.1 and

4 are the eye witnesses, who have seen the accused

inside the house where the victim was all alone and

he had latched the door from inside. When PWs.1, 4

and others insisted the for opening the door, the

accused opened the door and ran away. PWs.1 and 4

specifically identified the accused as the person, who

was inside the house and had ran away.

26. It is pertinent to note that immediately

after the incident, the FIR was came to be registered.

The informant specifically mentioned the name of the

accused, as the miscreants. The presence of PW.4 at

the spot is also mentioned by PW.1 in the first

information. Even though, these witnesses were

cross-examined at length by learned counsel for the

accused, nothing has been elicited from them to

disbelieve the same. There is consistent corroboration

between the evidence of all these witnesses regarding

the act committed by the accused. Their version is

also supported by PWs.10 and 12 and also by the

medical records i.e., Exs.P9, 10 and 12.

27. On consideration of the oral and

documentary evidence that are placed before the

Court, I do not find any inconsistency with regard to

the commission of the offence by the accused. Even

though, there were several suggestions put to PWs.1

and 3 regarding ill-will, PW1 was having against one

Sadashiva-brother of the accused, the same are

categorically denied by the witnesses. I do not find

any reason to discard the evidence of these

witnesses. The accused even though has taken

several defences including the defence that the

informant having ill-will against him and about filing

of the false complaint failed, to probablise the same.

He has also not stepped into the witness box to speak

about those facts. The contention of the learned

counsel for the accused that the victim has not stated

anything regarding the incident is a farce, as

admittedly the victim girl is mentally and physically

retarded. It is the specific contention of the

prosecution that the helpless condition of the victim

was taken advantage by the accused and he

committed the offence. When there are strong

materials placed before the Court in support of the

case of the prosecution and when there is absolutely

no reason to reject those clinching materials, I am of

the opinion that the prosecution is successful in

proving the guilt of the accused for the above said

offences. Even though, the accused has taken several

defences, he failed to probablies the same. Hence,

the accused is liable to be conviction.

28. I have gone through the impugned

judgment of conviction and order of sentence passed

by the trial Court. It has taken into consideration all

the materials on record and arrived at a right

conclusion. I do not find any reason to interfere with

the same. Hence, I answer the above point in the

'negative' and accordingly the appeal is hereby

dismissed.

Sd/-

JUDGE EM/para.1 to 21 AM/para.21 to end