G K Lokesh vs The State Of Karnataka
2022 Latest Caselaw 2238 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 11TH DAY OF FEBRUARY, 2022
                           BEFORE
       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

                CRIMINAL APPEAL No.84/2018

BETWEEN:

G.K.LOKESH,
S/O KUSHALAPPA,
AGED 41 YEARS,
AGRICULTURIST,
GARWALE VILLAGE,
SOMWARPET TALUK,
KODAGU DISTRICT:571 236.                  ...APPELLANT

(BY SHRI B.LETHIF, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
BY CIRCLE INSPECTOR OF POLICE,
SOMWARPET CIRCLE,
REPRESENTED BY ITS
 PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE-01.                           ...RESPONDENT

(BY SMT.LEENA C.SHIVAPURMATH, HCGP)

      THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 09.01.2018 PASSED BY THE
III ADDL. DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI
IN S.C.No.37/2014 CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 506 AND 376 OF IPC AND SEC. 3 READ WITH
25 (1B) OF THE INDIAN ARMS ACT.

     THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING ON 23.12.2021 AND THE SAME HAVING BEEN HEARD
                                      2




AND RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                               JUDGMENT

Assailing the judgment and order dated

09.01.2018 passed by the Court of the III Additional

District and Se ssions Judge, Kodagu, at Madikeri, in

S.C.No.37/2014 convicting and sentencing the

accused/appellant for offences punishable under

Sections 506 and 376 of IPC and Section 3 read with

Section 25(1B) of the Arms Act, 1959, the accused

has preferred this appeal.

2. I have heard the learned counsel for

appellant, the learned High Court Government

Pleader for respondent/State and perused the

material on record.

3. Brief facts of the prose cution case are as

under:

The victim/first informant (PW -1) is a resident

of Garwale village in Somwarpet taluk, Ko dagu

district. Accused was sending messages from his

mobile phone to the mobile phone of the victim.

Initially, he use d to se nd decent message s to her.

The reafter, he started sending vulgar messages. He

got dele ted the messages sent by him and preserved

the messages re ceived from the victim and started

threatening her saying that if she did not listen to

him, he will inform the matter to her husband and

also kill her. On 30.07.2013 at about 9.30 p.m.,

when the victim was in her house along with her son

(PW-8), accused entered he r house from the back

door, holding a gun. He threatened her showing the

gun and dragged he r to the front room of the house

and pushe d her on the cot and committed fo rcible

sexual intercourse with her.

4. Complaint was lodged by the victim as per

Ex.P.1. The PSI of Somwarpe t police station, (PW-

13) registered the case and issued FIR/Ex.P.13 to

the jurisdictional Magistrate. Accused was arrested

and produced before the CPI/PW-14. The voluntary

statement of the accused was recorded as per

Ex.P.15. Spot mahazar and rough sketch were

prepared as per Ex.P.2 and Ex.P.16. The gun

(M.O.2) was seized at the instance of the accused

under Ex.P.3. The mobile phone (M.O.1) belonging

to the victim/PW-1 to which the accused was

sending messages was sei zed under Ex.P.5. The

victim was referred for medical examination and she

was examine d by PW-11 , who collected the

specimens which were sent for chemical analysis.

After receipt of the RFSL report marked as Ex.P.11,

PW -11 gave opinion as per Ex.P.12. Further

investigation was taken over by CPI/PW-15. After

receipt of the report/Ex.P.11 and opinion from the

doctor marked as Ex.P.12, he filed charge-sheet.

5. Charges were framed against the accused

for offences punishable under Sections 506 and 376

of IPC and Sections 3 and 27 of the Arms Act.

6. To establish the guilt of the accused,

prosecution got examined PWs-1 to 15 and got

marked Ex.P.1 to Ex.P.16 and M.Os.1 and 2.

7. The accused denied the incriminating

evidence appe ared against him, while recording his

statement under Section 313 of Cr.P.C. However, he

did no t lead any evidence on his behalf.

8. The learned Sessions Judge convicte d the

accused for the offe nces punishable under Sectio ns

506 and 376 of IPC and Section 3 re ad with Se ction

25(1B) of the Arms Act. The accused was acquitted

of the offence punishable under Section 27 of the

Arms Act, 1959.

9. Amo ngst the prosecution witnesses, PWs-

3, 4 and 9 have completely turned hostile and PWs-2

and 5 are tre ated partly hostile. The prosecution

has mainly relied on the evidence of PW-1 (victim),

PWs-7, 8 and 10 to prove the charges leveled

against the accused.

10. It is the specific case of the prosecution

that the accused was sending messages to PW-1

from his mobile phone to her mobile phone and

initially, he was sending decent messages and

thereafter, started se nding vulgar messages. He

retained the messages sent by the victim and

started threatening he r saying that he will inform

the matte r to her husband, if she did not listen to

him. On 30.07.2013 at about 9.30 p.m., he we nt to

the house of victim holding a gun belonging to his

father and entered the house from the back door and

by showing the gun to the victim, threatened her

and dragged her into the front room of the house

and committed rape on her.

11. PW -1 has deposed in her evidence that on

30.07.2013 at about 9 .30 p.m., whe n she was

preparing food in the kitchen, accused entered the

house through back doo r. On seeing the accused

holding a gun, she crie d. The accused showe d the

gun and threate ned her with dire consequences and

then caught hold of he r hand and dragged her to the

front room and he kept the gun near the wall

adjacent to the cot and committed fo rcible

intercourse on her. She has further deposed that

her son (PW-8) was present in the house and he has

witnessed the incident. W hile going, the accused

threatened to kill her and her children and because

of the criminal intimidation, she did no t inform the

incident to her husband.

12. It is pertinent to see that in the complaint

at Ex.P.1, she has alleged that accused was sexually

abusing her since July by threatening her and when

her husband was in Mangalore, he came to her

house in the night, when she was alone and showing

the gun committed rape on her. Since she was

scared, she did not inform the incident to others.

She has stated that the accused was initially sending

formal messages and on 11 t h August, the message

sent by him mistakenly gone to the mobile phone of

B.A.Shivakumar (PW-10), which came to the

knowledge of her husband.

13. In the chief examination, PW-1 has stated

that in the second wee k of July 2013, the accused

sent me ssage as "can I come to do intercourse" and

further the message "husband gone back" gone to

the mobile phone of her neighbour, B.A.Shivakumar

(PW-10). On 02.09.2013, her husband had gone to

the fair at Somwarpet. PW-10 who met he r husband

there, informed him regarding the message and

showe d the filthy message sent by the accused to

him. Thereafter, her husband enquired with her

about the message and she narrated the incident to

him. On 04.09.2013, she along with her husband

went to So mwarpet police station and she narrated

the incident to the Sub-Inspector. They were sent

back witho ut receiving the complaint. Then they

prepared a typed complaint and approached the

Supe rintende nt of Police and as per the instructio ns

of Superinte ndent of Police, they went back to

Somwarpet police station, wherein the CPI asked her

to give anothe r complaint. As per her instruction,

her husband wrote the complaint. The said

complaint was lodge d on 10.09.2013.

14. The learned counsel for appellant has

contended that the entire allegations are false and

accused is innocent of the offences alleged against

him. It is contended that even according to the

victim, the accused was having sexual inte rcourse

with her since July and he was sending obscene

messages. He contends that there was ample

opportunity for the victim to inform the incident to

others including her husband. He contends that only

when the message sent by the accused was received

by PW-10, who info rme d the matte r to victim's

husband, due to ill-will, a false case has been

registered against the accused. It is his further

contention that there is no material to show that the

accused was sending o bscene message s to the

victim. He would contend that the mobile phones of

the accused and PW-10 are not seized to prove the

same and there is no incriminating material found in

the mobile phone of the victim which was seized.

15. The learned counsel for appellant has

further contended, in the FIR it is not averred that

victim's so n (PW-8) is an e yewitness to the incident.

It is his contention that the statement which is

marked by the defence as per Ex.D.1, shows that he

was sleeping in the house and therefore , he being an

eyewitness is unbelievable and it is a concocted

story.

16. The learne d counsel for appellant has also

drawn the attention of the Court to the cross-

examination of PW-1, wherein she has admitte d that

both her husband and accused knew each other very

well since they belong to the same family and both

of them used to visit the house of accused whenever

there was any function. It is elicited in the cross-

examination of PW-1 that the accused is a Member

of Garwale Gram Panchayat from JDS party and

PW -1 and her husband suppo rt BJP Party. The

learned counsel would therefore contend that in

order to remove accuse d from the post of President

of Gram Panchayat, a false co mplaint was lodged.

17. The learne d counsel for appellant has also

contended that evidence of the prose cutrix is not

trustwo rthy and believable and her evidence is not

corroborated by any other acceptable evidence

including the medical evidence. He, the refore,

contends that the learned Sessions Judge was not

justified in convicting the accused, placing reliance

on the untrustworthy and highly intere sted

testimony of the prosecution witnesses.

18. The learned High Court Government

Pleader, on the other hand, has contended that the

evidence of prosecutrix inspires confidence and

appears to be natural and truthful and in the case on

hand, her e vidence is further corro borated by the

evidence of her son/PW-8, who is an eyewitness. He

contends that the discrepancy, if any, does not go to

the root of the prosecution case so as to disbelieve

the e ntire incident and the learned Sessions Judge

after appreciating the entire evidence and material

on record has rightly convicted the accused.

The refore, he conte nds that there is no illegality

committed by the learned Sessions Judge and

accordingly, he has sought to dismiss the appeal.

19. The learne d Se ssions Judge was of the

view that the evidence of PW-1 is fully corroborated

with the evidence of PW-8, who is her minor son and

the delay in lodging First Information Re port is

explained by the prosecution. It is observed that

the evidence of PWs-1 and 8 has not been diluted

during their cross-examination with regard to the

incident, and material on record show that there are

no houses around the house of PW-1. Bo th PWs-1

and 8 have stated that they have shouted fo r help

when the accused was dragging PW-1 into the front

room. The house of PW-1 is situated in inte rior

place in a village and there fore, no body can make

out if somebody enters her house. It is further

observed that many aspects stated by PWs-1, 7 and

8 are not forthcoming in the First Information

Repo rt, but the FIR is not an Encyclopedia and

me rely because the e vidence of prosecutrix is not

fully contained in Ex.P.1, it cannot be said that there

are improvements or contradictions with regard to

material particulars.

20. It is pertinent to see that in Ex.P.1, the

prosecutrix has not state d that at the time of

incident, eithe r her son was present in the house or

he too witnessed the incident. On the other hand, in

Ex.P.1, she has state d that when he r husband was

away in Mangalore and when she was alone in the

house, accused entered the house holding a gun and

committed forcible sexual intercourse. It is

pe rtinent to se e that PW-1 in her evidence has

deposed that on 02.09.2013 when PW-10 met her

husband, he informed him about the message

received by him and the reafter, her husband

enquired with her and they went to the police

station on 04.09.2013 and narrated the incident to

the police. They we re sent back without receiving

the complaint and thereafter, they met the

Supe rintende nt of Police, Madikeri, on 10.09.2013

and as per his instruction went to the police station

and lodged the complaint. Therefore, if really her

son had witnessed the incident, there was ample

time for the complainant to inform the police or to

mention in the complaint that the incide nt was

witnessed by he r son. When the prosecution has

projected her son (PW-8) as an eyewitness to the

incident to establish its case, then the same has to

be established without giving any room for doubt

regarding the genuineness of the prosecution case.

21. PW -8, was aged about 8 years at the time

of incident in question. He has deposed that on

30.07.2013 at about 9.30 p.m., he was doing his

homewo rk by sitting in the middle room of his house

and his mother was cooking food in the kitchen. The

accused came from the back door holding a gun and

his mother shouted for help and he saw the accused

holding a gun in his hand and pulling his mother

forcibly and taking her to the front room of the

house and committing fo rcible sexual intercourse.

He has state d that since he was scared, he went and

sat in the middle room of the house. In the cross-

examination, it is elicited that his father was staying

in Mangaluru and his sisters were studying at

Madikeri. His father used to visit the house once in

a month. He has stated that since he was scared,

he pretended to have slept.

22. The furthe r statement of PW-1 was

reco rde d on the next day of lodging the complaint

i.e., on 11.09.2013. In the said statement, though

she has stated that he r son was present in the

house, however, the de fence has got marke d Ex.D.1,

wherein she has categorically stated that her son

was sleeping in the middle room of the house. The

statement of PW-8 has been marked as Ex.D.2.

wherein, he has stated that the incident was

narrated to him by his mother. He has no t stated

about witnessing the accused committing the

offence. From the above mate rial, a reasonable

doubt arises in the mind of the Court about PW-8

being an eyewitness to the incident.

23. The gun/M.O.1 alleged to have been used

by the accused has been seized under a mahazar,

Ex.P.3. Admitte dly, the said gun belong to father of

the accused. He has been examined as PW -2.

PWs-4 and 5 are the recovery panchas. PW-2 has

stated that the police seized his gun under Ex.P.3

and the said gun stands in his name. He has de nied

the statement given to the police and therefo re, he

was treated hostile. He has denied that the accused

was present at the time of seizure of gun from his

house. He has stated that the accused never used

his gun and he never permitted him to use the gun.

He has state d that he was in Army and se rved for 15

years and he uses his gun for his security and not

for hunting. In the cross- examination by the

defe nce, he has stated that there is enmity between

himself and CW-7 (PW-7) and he had lodged a

complaint against him and in the said case, the gun

belonging to PW-7 was also seized.

24. PWs- 4 and 5 are the panch witnesses to

the seizure of gun. PW-4 has turne d hostile, PW-5

has stated that police called him to come to the

house of Ramappa and therefore , he went there and

signed the document (Ex.P.3). He has stated,

accused was sitting in the police Jeep.

25. In the case on hand, the prosecutrix was

examined by the doctor, PW-11 on 11.09.2013. He

has given his opinion as per Ex.P.12 after receiving

the RFSL report as per Ex.P.11. According to the

said opinion, Ex.P.12, there is no evidence to

suggest that recent sexual intercourse has taken

place. The presence of seminal stain was not

detected in the items sent for chemical analysis.

PW -11 has opined that it is not possible to say

medically whether there was sexual inte rcourse two

months' back except pregnancy, since she is a

multiparous woman. Acco rding to prosecution, the

incident took place on 30.07.2013. The prosecutrix

was e xamined by the docto r on 11.09.2013. The

learned Sessions Judge is right in observing that

since there is a time gap of about two mo nths, it is

quite natural that the me dical evidence does not

support the case of prosecution. However, the

learned Sessions Judge has proceeded to hold that

the reliable and corroborative evidence of PWs-1, 7,

8 and 10 cannot be discarded.

26. Having carefully examined the evidence on

reco rd, it is seen that the evidence of PW-8, minor

son of the victim is not trustworthy and this Co urt

finds that his evidence cannot be acted upo n and

hence, it cannot be sai d that the evidence of PW-1 is

corroborated by the evi dence of PW-8. The evidence

of PWs-7 and 10 is not helpful for the prosecution to

establish that the accused has committed fo rcible

intercourse on PW-1 on the night of 30.07.2013.

The medical evidence doe s no t suppo rt the case of

prosecution and therefore, the only evidence which

is available with regard to incident of rape is that of

the prosecutrix, PW -1.

27. The specific case of the prosecution is that

the accused was sending obscene messages to the

prosecutrix and he re tai ned the messages sent by

PW -1 and he was threatening her with dire

consequences, saying that he will inform her

husband etc., It is also the case of prosecution that

the message sent by accused to PW-1, was sent to

the mobile phone of PW-10 by mistake. However,

for the best reasons known, the mobile phones of

the accused or PW -10 are not seized in this case.

The mobile pho ne (M.O.1) of the prosecutrix was

seized but there is no incriminating mate rial found.

The refore, there is no cogent material placed to

show that the accused was sending messages to the

prosecutrix, except the oral e vidence. Even if the

said evidence is accepted, the same is not sufficient

to sho w that o n the date of incident, accused barged

into the house of PW-1 holding a gun and committed

forcible sexual intercourse on her.

28. It is well settled that conviction can be

based on the sole testimo ny of prosecutrix, provided

that the evide nce of prosecutrix inspires confidence

and appears to be natural and truthful. In case of

any doubt arises regarding the ve rsion of the

prosecutrix, the Court can look for corroboration of

he r version. The Court has to be convinced about

the truthfulness of the prosecutrix and there should

not exist any circumstance which casts a shadow of

doubt over he r veracity.

29. In the instant case, the incident has taken

place on 30.07.2013 at about 9.30 p.m. in the house

of the prosecutrix. Complaint is lodged on

10.09.2013. In Ex.P.1, the victim has stated that

since July, the accused used her sexually. According

to her, message sent to her by the accused went to

the mobile phone PW-10 by mistake and thereafter,

he informed the matter to her husband. Only after

her husband enquired with her, she narrated the

incident to him. Though, she has stated that the

accused used to threaten her saying that he will

inform the matter to her husband as he had retained

her messages in his mobile phone but mobile phone

of the accused or mobile phone of PW-10 are not

seized. The re is no incriminating material found in

the mobile phone of PW-1. In he r evidence, she has

deposed that complaint was given to the police on

04.09.2013 but the said co mplaint was not received.

The reafter, they visited the office of Superintendent

of Police on many occasions. Further, PW-7 and

herself met the Superintendent of Police on

10.09.2013 and she gave a co mplaint, which was

referre d to Somwarpet police station, with an

instructio n to registe r the FIR. The said complaint

was a typed complaint. So from her evidence, it can

be seen that only afte r her husband enquired about

the me ssage received by PW-10 and after he

enquired with her, she narrated the incident and

subsequently, the complaint came to be lodged.

30. In the cross-examination, it is elicited

from PW-1 that there are about 22 houses situated

in and around her house. She has admitted that

accused is related to her husband and she knows

him. Her husband is working as Gunman in

Mangalore and he used to visit the house during

summer and he was coming rarely during rainy

seaso n. She has also stated that the accused and

her husband belong to diffe rent political party.

Though, she has denie d that the relationship

between her husband and accused was strained, she

has admitted that the accused was removed from

the post of president of Gram Panchayat after she

lodged the complaint against him. She has admitted

that even after the accuse d had forcible sexual

intercourse with her on 30.07.2013, he continued to

send messages on her phone and she used to re ply

to him.

31. Having carefully examined the entire

evidence and material on record, I am of the

conside red vie w that evidence of PW-1 that accused

committed forcible sexual intercourse by thre atening

her, does not inspire confidence and does not appear

to be natural and truthful. The pro secutio n has

therefore, failed to establish beyond reasonable

doubt that the accused has committed fo rcible

sexual intercourse on PW-1 by showing the gun and

by cri minally intimidating her. The evidence and

material on record is not sufficient to hold the

accused guilty of the charged offences. The

impugned judgment and order passed by the learned

Sessions Judge is the refore not sustainable in law

and the same is liable to be set aside.

32. Accordingly, the following:

ORDER

i) Appeal is allowed.

ii) The judgment and o rder dated 09.01.2018

passed in Sessions Case No.37/2014 by

the III Addl. District and Sessions Judge,

Kodagu at Madikeri, is he reby set aside,

iii) The accuse d/appellant is acquitted of the

offences punishable under Sections 506

and 376 of IPC and Section 3 read with

Section 25 (1B) of the Arms Act,

iv) He shall be set at libe rty, if not required

in any other case,

v) The registry shall communicate the

operative portion of the judgment to the

concerned jail autho rity.

Sd/-

JUDGE

Jm/-