Eshwar vs State By Karnataka
2022 Latest Caselaw 1914 Kant

                                        Crl.A.No.1831/2016

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF FEBRUARY 2022
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                        BEFORE

        THE HON'BLE MRS JUSTICE K.S.MUDAGAL

          CRIMINAL APPEAL No.1831/2016
BETWEEN:
ESHWAR
S/O LATE KRISHNAPPA
AGED ABOUT 36 YEARS
R/AT KERE ROAD, 2ND CROSS
NEAR SHANI MAHATMA TEMPLE
DEVARA BEESANAHALLI
BENGALURU - 560 094                           ...APPELLANT
(BY SRI RAKSHITH JOIS, AMICUS CURIAE)
AND:

STATE BY KARNATAKA
THROUGH H.A.L. POLICE
REPRESENTED BY S.P.P
HIGH COURT CAMPUS
BANGALORE - 560 001                        ...RESPONDENT

(BY SMT.RASHMI JADHAV, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT,
ORDER     OF   CONVICTION    AND    SENTENCE    DATED
21/22.09.2016 PASSED BY LIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE CITY IN SPL.C.C. NO.597/2014
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 376 OF IPC AND UNDER
SECTION 5(n) READ WITH SECTION 6 OF PROTECTION OF
CHILDREN FROM SEXUAL OFFENCES ACT, 2012.

      THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED
THE FOLLOWING:
                                          Crl.A.No.1831/2016

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                     JUDGMENT

Heard.

2. Aggrieved by the order of conviction and

sentence passed against him for the offence punishable

under Section 376 of IPC and Section 5(n) read with

Section 6 of the Protection of Children from Sexual

Offences Act, 2012 ('the Act' for short), the accused in

Special C.C.No.597/2014 on the file of LIV Additional City

Civil & Sessions Judge, Bengaluru has preferred the

above appeal.

3. The appellant was prosecuted in Special

C.C.No.597/2014 before the trial Court for the aforesaid

offences on the basis of the charge sheet filed by HAL

Police, Bengaluru City in Crime No.724/2014 of their

police station.

4. The appellant is the father of PW.2 who is

aged 13 years. PW.1 is the elder sister of the mother of

PW.2. PW.3 is the maternal uncle of PW.2. During

September 2014, PW.2's mother Rukkamma was ailing

and bedridden.

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5. PW.1 filed the complaint Ex.P.1 before the

respondent police alleging that the appellant was alcohol

addict and Rukkamma was working to maintain the

family. It is further alleged that the house of herself and

Rukkamma were close to each other, on 28.09.2014,

PW.2 revealed to her that during the night of 27.09.2014,

the appellant sexually assaulted her. She alleged that on

learning about the incident, she kept PW.2 in her house

and the appellant made galata forcing to send PW.2 to his

house. She alleged that after discussing with her sister,

mother and others, she has filed the complaint.

6. PW.10 Sub-Inspector of police of HAL police

station on receiving the complaint registered the first

information report as per Ex.P8, conducted the spot

mahazar as per Ex.P2. He got the victim medically

examined and got recorded her statement through

learned Magistrate under Section 164 of Cr.P.C. He

handed over further investigation to PW.14. PW.14 after

conducting further investigation, filed the charge sheet

against the appellant.

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7. The trial Court on conducting the trial, by the

impugned judgment and order convicted the appellant for

the offence punishable under Section 376 of IPC and

Section 5(n) read with Section 6 of the Act. Further the

trial Court has sentenced the appellant to rigorous

imprisonment of 10 years and fine of Rs.2,000/- for the

offence punishable under Section 5(n) read with Section 6

of the Act.

8. The above appeal was preferred by the

appellant by engaging Advocate of his choice. However,

later his Advocate failed to appear. Since the appellant is

in custody, this Court appointed Sri Rakshith Jois, learned

Counsel as Amicus Curiae to assist the Court on behalf of

the appellant.

Submissions of Sri Rakshith Jois, learned Amicus Curiae assailing the impugned judgment and order:

9. There is no explanation for the delay in filing

the complaint. There are lot of contradictions in the

complaint, the statement of the victim under Section 164

of Cr.P.C. and the evidence of PWs.1 and 2. The evidence Crl.A.No.1831/2016

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of PW.1 shows that she tutored PW.2. The evidence of

PW.1, PW.2 and PW.7 the doctor with reference to the

injuries on PW.2 was totally inconsistent. PW.2 says that

she informed the incident to her grandmother and her

mother was also present in the house. The Investigating

Officer has not examined the mother and the

grandmother. Since there was no cogent and consistent

evidence to prove the charge beyond reasonable doubt,

the trial Court was not justified in convicting the

appellant.

Submissions of Smt.Rashmi Jadhav, learned HCGP supporting the impugned judgment and order:

10. PW.2 victim who is none else the daughter of

the appellant himself has cogently and consistently

spoken about the overt acts of the appellant. Her

evidence was further corroborated by the evidence of her

aunt PW.1 and PW.7 the doctor and the medical evidence.

There was no inordinate delay in filing the complaint. In

the cases of this nature, the delay in filing the complaint

itself does not demolish the case of the prosecution. The

victim's mother died on the ninth day of filing of the Crl.A.No.1831/2016

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complaint. The evidence of PW.2 shows that her mother

was not in a position to speak and the grandmother of the

victim also died. Therefore non recording the statements

of mother and grandmother is not fatal to the

prosecution. PW.2 has no reasons to falsely implicate her

father. The appellant has no explanation for the injuries

found on his daughter or about the observations in her

medical report. Therefore the trial Court has rightly drew

presumption under Sections 29 and 30 of the Act. The

appellant did not rebut the said presumption. The order of

the trial Court does not call for any interference.

11. Having regard to the submissions of both side

and the material on record, the point that arises for

consideration is "whether the impugned order of

sentence is sustainable in law"?

Analysis

12. To sustain the charge under Section 5(n) read

with Section 6 of the Act, the prosecution has to prove

the following:

(i) The appellant was the father of PW.2;

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(ii) They were living together;

(iii) The appellant has committed penetrative

sexual assault on PW.2.

13. To sustain the charge under Section 376 of

IPC, the prosecution has to establish that the appellant

has committed rape on PW.2.

14. The appellant did not dispute the prosecution

case that he is the father of PW.2. PW.1 aunt and PW.3

maternal uncle of PW.2 deposed that PW.2 is the

daughter of the appellant and Rukkamma. They also

deposed that the appellant, Rukkamma and PW.2 were

living in their house together. The appellant did not

dispute his relationship with PW.2 or PW.1 and PW.3. He

also did not dispute that himself, his wife and PW.2 were

living together.

15. The evidence of PWs.1 to 3 that the houses of

PW.1 and appellant were in close proximity was also not

disputed. He did not even dispute that his wife as on the

date of the alleged offence was bedridden due to her Crl.A.No.1831/2016

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medical condition. PW.1 in her deposition states that his

sister Rukkamma was suffering from tuberculosis and she

died on the ninth day of filing of the complaint. PW.2 in

her chief examination deposed that at the time of

incident her mother was bedridden and in vegetative

state. Even that fact was not disputed in her cross-

examination.

16. The appellant himself suggests to PW.2 in her

cross-examination that her mother and PW.1 were

admonishing him on the ground that he was not going to

work. Her evidence further shows that her mother was

working and looking after the family. She further deposed

that after returning from the work, her mother was

staying with her in the same house is also not disputed.

Therefore the fact of the appellant was the father of PW.2

and they were living together in the house where scene of

offence situated stood proved.

17. Further the prosecution is required to prove

that the victim was aged 13 years. To prove that fact, the

prosecution relied on the evidence of PWs.1 and 2, PW.4 Crl.A.No.1831/2016

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Head Mistress and PW.7 the doctor, Ex.P4 the school

certificate. As per the evidence of PW.4, the date of birth

of PW.2 as per the school records is 06.12.2000. The date

of offence is the intervening night of

27.09.2014/28.09.2014. She was not cross-examined.

PW.7 the doctor deposed that the victim was aged 13

years. Accused did not dispute the evidence of

prosecution witness that the victim was aged 13 years.

Therefore the fact of the age of the victim was also

proved beyond reasonable doubt.

18. The next question is whether the appellant

committed aggravated sexual assault on PW.2. To prove

that fact, the prosecution relies on the evidence of PWs.1

and 2 the complainant and the victim, the evidence of

PW.7 the doctor who examined the victim and the police

officer. The prosecution further relied on Ex.P3 the

statement of PW.2 recorded by Magistrate under Section

164 of Cr.P.C. and the medical report Ex.P5.

19. In the complaint Ex.P1, PW.1 has stated that

PW.2 revealed to her that during the intervening night of Crl.A.No.1831/2016

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27.09.2014 and 28.09.2014, when PW.2 was sleeping in

her parental house, the appellant sexually assaulted her.

She has further stated in the complaint that on

28.09.2014 in the morning the appellant came to her

house, made galata insisting PW.1 to send back PW.2 to

his house. Apprehending some untoward incident, she did

not send PW.2 to her house. She further states that after

discussing with her sister, mother and others, she decided

to file the complaint. That was first version of sexual

assault.

20. The first information report Ex.P8 is said to be

registered on 29.09.2014 at 3.00 p.m. It is no doubt true

that PW.1 once states she filed complaint at 10.30 a.m.,

but reference to filing of the complaint in the first

information report is at 3.00 p.m. However, that itself

does not give rise to any doubt unless the evidence of the

victim itself creates doubt or uncorroborated by other

evidence.

21. PW.7 the medical Officer has examined the

victim on 29.09.2014 at 6.30 p.m. and issued medical Crl.A.No.1831/2016

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report as per Ex.P5. He also reported the history of sexual

assault by the appellant on 28.09.2014 at 1.00 a.m. in

his house and that the appellant was under the influence

of alcohol at the time of incident, following that she came

to the house of PW.1 informed her grandmother about

the incident.

22. After such medical examination, on

01.10.2014, the victim was examined before the learned

Magistrate under Section 164 of Cr.P.C. PW.2 has stated

that about 3 days back, during the night at 1.00 a.m., the

appellant gagging her mouth committed sexual assault on

her.

23. Soon after the incident all along there was

cogent and consistent assertion that the appellant during

the night of 27.09.2014 committed sexual assault on the

victim. The evidence of PW.7 and his report Ex.P5 show

that there were three external injuries/abrasions on the

body of the victim and her hymen was ruptured. The

doctor also opined that there was evidence of recent

sexual intercourse.

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24. Referring to the statement of PW.2 in her

cross-examination that she does not know what rape

means, it was argued that she was tutored. At the time

of incident, the victim was aged hardly 13 years.

It is very disheartening to expect particulars and

nomenclatures of such sexual activities from the mouth of

tender aged child. She has stated before the police and

the learned Magistrate what the appellant has done to

her. To explain her statement that she does not know

what rape means, she was re-examined by the Public

Prosecutor. In re-examination she has stated that the

appellant made her to lie down, denuded her and did

some bad things to her. Such evidence of PW.2 was

corroborated by the evidence of PW.7 and her medical

report Ex.P5.

25. Under Section 29 of the Act, the moment the

accused is prosecuted for commission of the offences

under Sections 3, 5, 7 and 9 of the Act, the Court shall

presume that such person has committed offence as

alleged against him unless the contrary is proved. Section Crl.A.No.1831/2016

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30 of the Act imputes presumption of culpable mental

state of the offence to the accused. Therefore if there is

evidence to raise such presumption and the burden shifts

to the accused to rebut the presumption, by evidence of

PWs.2, 7 and the medical report, the prosecution

discharged its initial burden to raise the presumption

under Sections 29 and 30 of the Act.

26. The appellant being father of the victim girl, it

was for him to explain how his daughter suffered injuries

and how there was rupture of hymen of his daughter.

Absolutely, there was no explanation from him either in

the cross-examination of the witnesses or by way of his

explanation under Section 313 of Cr.P.C. or by way of

defence evidence.

27. Only suggestion to PWs.1 to 3 were that he

was demanding his wife's share in the property of his

mother-in-law, therefore they have falsely implicated him

in the case. But such explanation was not given in his

examination under Section 313 of Cr.P.C. Needless to say

that all those suggestions were denied by the witnesses.

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Thereby the appellant failed to rebut the presumption by

leading any contrary evidence as contemplated under

Sections 29 and 30 of the Act.

28. Under the circumstances, the trial Court was

justified in holding that the prosecution has discharged

the initial burden of proving the charges and the appellant

has failed to rebut the presumption as required under

Sections 29 and 30 of the Act.

29. Time and again the Hon'ble Supreme Court

has held that the offence of rape casts shame and

humiliation on the victim and her family members, there

will be hesitation for the family members to take the

matter to the police station. Therefore it was held that

delay in filing the complaint in such cases should not be

blown out of proportion.

30. In this case the victim's mother was in

vegetative state and the grandmother also died soon

thereafter. The parties hail from the poverty stricken

background. To crown all these, the father himself was Crl.A.No.1831/2016

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the predator. Under the circumstances, the delay in filing

the complaint itself does not demolish the case of

prosecution.

31. So far as the contents in the complaint

lacking the material particulars about sexual assault, it is

settled proposition of law that the first information report

is not encyclopedia. Therefore non mentioning of

meticulous overt acts of the appellant itself does not

falsify the prosecution case. The alleged contradictions

do not destroy the core of the prosecution case. Therefore

that contention is also unacceptable.

32. The trial Court considered the effect of

discrepancies and contradictions in the evidence, about

the contents of the first information report, delay in filing

the complaint, defects in the investigation, in the light of

several precedents and ultimately overruled all those

contentions. The impugned judgment and order is sound

and sustainable. This Court does not find any ground to

interfere with the same. Therefore the appeal is

dismissed.

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This Court places on record the able assistance

rendered by Sri Rakshith Jois, learned Amicus Curiae.

Registry shall pay him remuneration of Rs.15,000/-.

Sd/-

JUDGE KSR