Karnataka High Court

Sharanappa S/O Satyappa vs The State Of Karnataka on 16 February, 2022

Bench: V Srishananda

                          1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

      DATED THIS THE 16 TH DAY OF FEBRUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200126/2015


BETWEEN

SHARANAPPA S/O SATYAPPA
AGE:23 YEARS, OCC:MASON WORK
R/O BANNIGOL VILLAGE
TQ:LINGASUGUR, DIST:RAICHUR
                                         ...APPELLANT

(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)

AND

THE STATE OF KARNATAKA
R/BY ADDL.SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH
THROUGH CPI MASKI P.S
DIST:RAICHUR
                                       ...RESPONDENT

(BY SRI SHARANABASAPPA M. PATIL, HCGP)

   THIS CRL.A IS FILED U/S 374(2) OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED: 02.12.2015 PASSED BY THE
PRL. DISTRICT & SESSIONS JUDGE, AT RAICHUR IN
                               2




S.C.NO.136/2014 AND ACQUIT THE APPELLANT/ACCUSED
IN THE INTEREST OF JUSTICE AND EQUITY.


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


                        JUDGMENT

Heard the learned counsel for the appellant and the

learned High Court Government Pleader for the respondent

- State.

2. The accused, who has been convicted for the

offence under Section 376 of IPC and sentenced to

undergo rigorous imprisonment for a period of seven years

and to pay fine of Rs.40,000/- with default sentence and

under Section 341 of IPC is directed to pay fine of Rs.250/-

in default to undergo simple imprisonment for 10 days, is

before this Court in this appeal.

3. Brief facts of the case are as under:

Upon a complaint lodged by the victim lady, Mudgal

police registered a case in Crime No.72/2014 initially for

the offences punishable under Sections 354-A, 341 and

509 of IPC. After registering the case, the victim lady was

sent to medical examination and her further statement

was recorded. After thorough investigation, the police filed

charge sheet against the accused for the offence under

Section 376 of IPC also.

4. In the complaint, it is contended that when the

victim lady was passing through the house of her

grandfather, the accused pulled her inside his house,

gagged her mouth and committed forcible sexual

intercourse with her. When she raised alarm, her relatives

came there and on seeing them, the accused ran away

from the spot.

5. After submitting the charge sheet, the learned

Magistrate took cognizance of the aforesaid offences and

committed the case to the Sessions Court for trial. Before

the Sessions Court, the presence of the accused was

secured. Thereafter, charges were framed. The accused

pleaded not guilty and therefore, trial was held.

6. In order to prove the case of the prosecution,

in all eleven witnesses have been examined as PWs.1 to 11

and the prosecution relied on 11 documentary evidence,

which were exhibited and marked as Exs.P1 to P11.

7. On conclusion of the prosecution evidence, the

accused statement as contemplated under Section 313 of

Cr.P.C. came to be recorded, wherein, the accused denied

all the incriminatory materials that were put to him.

However, the accused did not place his version on record

by examining himself or filing any written submission as is

contemplated under Section 313(5) of Cr.P.C.

8. Thereafter, the learned Trial Judge heard the

parties in detail and after considering the oral and

documentary evidence on record, passed an order of

conviction, convicting the accused and sentenced him as

referred to supra. Being aggrieved by the same, accused

has preferred this appeal.

9. In the appeal, following grounds have been

raised.

¾ That, the judgment of conviction and order of sentence passed by the learned judge is contrary to the facts of the case, evidence on record & against the settled principles of law.

¾ That, the Learned Sessions Judge has committed a serious error in convicting the appellant without properly appreciating the evidence in its right prospective manner.

¾ That, complainant (PW-3/CW-1) has not mentioned in her complaint Ex.P-1 about forcible sexual intercourse, alleged incident was taken place on 01- 04-2014 at about 2:45 p.m. and complaint was given on 03-04-2014, alleged further statement was recorded by the PW-9/CW-13 Head Constable of the said police station on 06-04-2014 at 2:00 p.m. in the police station as per the direction from Dy.S.P. Lingasugur included Sec 376 of IPC. So, further statement of the victim was recorded and Sec 376 of IPC was included at the behest of Dy.S.P. Lingasugur. Hence, the prosecution suppressed the real genesis of the case and falsely involved Section

376 of IPC. This fact is not been properly appreciated by the trial Court.

¾ That, as per law in case of rape, the prosecution ought to have recorded the 164 statements of the victim girl before the learned Magistrate. This kind of lacuna seriously affects the case of the prosecution. So, trial court ought to have given benefit of doubt to the appellant with respect of serious laps on the part of the I.0. That, medical evidence of the victim girl and appellant does not corroborate with each other. So, the benefit of doubt ought to have extended to the appellant by the trial court.

¾ That, trial court acquitted the appellant for the offence punishable U/s 506 of IPC and held that there is no life threat considering the fact that, the victim has not at all deposed about alleged life threat given by the accused to her at the time of incident nor PW-1, PW-2 & 4 have deposed that the victim disclosed about the life treat given by the accused to her. So, this fact clearly goes to show that, the conviction U/s 341 & U/s 376 of IPC is against the facts and law.

¾ That, trial court convicted the appellant only on the say of interested witnesses like PW-1/CW-3, PW-

2/CW-4, PW- 3/CW-1 and PW-4/CW-5. So, trial court while appreciating their evidence ought to have taken great care to evaluate their evidence.

¾ That, CW-14/PW-11 I.O. in his evidence categorically stated that he tried to record statement of witnesses residing by the side of the house of the accused and in front of his house, but they did not come forward to give evidence. So, according to law witnesses cannot avoid to give evidence, even though I.O. knowing full about the law regarding recording of statement of the witnesses, it appears that I.0. deliberately not recorded the statement of the independent witnesses. Hence, the whole investigation appears to be tainted one.

¾ That, PW-11/CW-14 I.O. categorically stated that fence U/s 376 of IPC is heinous offence and the CPI has to investigate and PW-9/CW-13 did not consult him before recording further statement of victim stating that the offence appears to be U/s 376 of IPC and L.O. not enquired the victim girl after he took up the charge of the case and not recorded her statement. So, trial court ought to have given the benefit of doubt to the appellant considering the

lacuna on the part of the I.O. in conducting the investigation.

¾ That, looking into the medical evidence absolutely no material to connect the commission of rape and moreover FSL report is in negative, even then court below convicted the appellant without appreciating the evidence on record in proper manner is bad in law.

¾ That, prosecution failed to give any explanation regarding the non examinations of material witnesses.

¾ That, trial court failed to follow the basic principles of law regarding the proving of prosecution case. It is settled law that, the prosecution must prove their case independently without depending upon the weakness or lacuna on the part of the defence. ¾ That, trial court ought to have come to conclusion that, 1.O. as conducted the tainted investigation.

¾ That, without admitting the prosecution case, the order of sentence imposed on the appellant is too higher side and exorbitant.

¾ That, court below not properly put the incriminating circumstances to the appellant while recording 313 statements.

¾ That, court below ought to have given a benefit of doubt to the appellant.

¾ That, it is respectfully submitted that, the learned Sessions Judge has not at all appreciated the case of the appellant in the light to human probabilities and the same has vitiated the findings. The reasons assigned by court in convicting the appellant is illegal and incorrect. The same has resulted in miscarriage of justice to the appellant.

10. Reiterating the above grounds, the learned

counsel for the appellant vehemently contended that

initially a case came to be filed against the accused for the

offence punishable under Section 354-A of IPC and in

order to aggravate the crime, the police in collusion with

the victim lady, concocted the further statement of the

victim lady and filed charge sheet against the accused for

the offence under Section 376 of IPC and therefore, sought

for allowing the appeal.

11. He also contended that the version of the

victim lady does not inspire the confidence of anybody that

she is victim of rape and the same has not been properly

appreciated by the trial Judge.

12. Per contra, the learned High Court Government

Pleader supports the impugned judgment contending that

the oral testimony of the victim lady coupled with the

medical examination report and also oral testimony of the

relatives of the victim lady sufficiently establishes all

ingredients to attract the offence under Section 376 of IPC

and therefore, sought for dismissal of the appeal.

13. In view of the rival contentions, this Court

meticulously perused the records. On such perusal of the

records, following points would arise for consideration:

1. Whether the prosecution has established all ingredients to attract the offence under Section 376 of IPC?

2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

3. Whether the sentence is excessive?

14. In the case on hand, the victim lady is

examined as PW.3. She has supported the case of the

prosecution by reiterating the complaint averments and

also specifically deposing before the Court that the accused

on the day of incident had committed forcible sexual

intercourse with her. In her cross examination, no useful

materials are elicited so as to disbelieve her version. The

defence of the accused is one of total denial.

15. The version of the complainant is supported by

the evidence of PWs.1 and 2, who are her relatives and

PWs.4 and 5, who are the brother in law of the deceased

and villager respectively. PW.7 is the engineer who

drafted the sketch. PW.8 is the doctor, who examined the

victim lady and issued certificates vide Exs.P6 and P7.

PW.9 is the head constable, who registered the case and

PW.10 is the doctor who examined the accused and issued

the potential certificate. PW.11 is the CPI, who

investigated the matter and laid charge sheet against the

accused.

16. In the cross examination of the victim lady,

except suggesting that the accused has not committed

forcible sexual intercourse and she deposing falsely, no

useful material is elicited so as to disbelieve her oral

testimony. The medical evidence on record also sufficiently

corroborates the version of PW.3. The learned Trial Judge

has discussed in detail the evidentiary value of PWs.1, 2

and 4 and recorded a categorical finding in paragraph

Nos.24, 25 and 26, which reads as under:

"24) PW-1, PW-2 & PW-4 who heard the cries of the victim immediately came to the house of the accused and the accused ran away from the house. This aspect is also proved. When PW-1, PW-2 & PW-4 enquired the victim she narrated the incident stating that the accused forcibly spoiled her. Even PW-4 has stated that PW-3 stated before him that accused committed rape

on her. There is no reason for the victim prosecutrix to depose falsely against the accused. Contradictions and irregularities shown in the evidence of the prosecution witnesses does not go to the root of the prosecution case. It is our common experience that no unmarried woman would come forward to allege that such and such person has committed forcible sexual intercourse with her. It cannot be held that victim has filed a false complaint at the instance of her father and brother-in-law in order to prevent the accused from obstructing in performing her marriage. No father would have got filed such a complaint of forcible sexual intercourse with his daughter in order to prevent a person from obstructing her marriage. Delay in filing complaint is explained by the victim herself in her complaint. She has stated that she discussed the matter with her father and other family members. Therefore, there is delay in filing the complaint. In a case of this nature delay cannot be made of much to discard the evidence of victim who has fully supported the complaint allegations.

         25)         Learned           counsel       for     the     accused
further           submitted that         medical           evidence       does

not corroborate the evidence of the victim. This is also not correct. Evidence of PW-8

Dr.Sridevi considered along with case sheet produced at Ex.P.7 and discharge summary at Ex.P.6, it is sufficient to prove that when she examined the victim on 06.04.2014, she noticed no external injuries over the body, but hymen was ruptured. Rupture of the hymen is one of the reasons to prove that there was forcible intercourse with her. In the cross-examination of PW-8 it is elicited that even in case of cycling or playing or some other reasons there may be rupture of hymen. But no such case is put to PW-3 stating that she used to cycling and playing sports involving physical activities due to which there may be rupture of hymen. Therefore, medical evidence to this extent is sufficient to prove the case of the prosecution regarding forcible sexual assault on the victim. Learned counsel for the accused further submitted that PW-8 Dr.Sridevi has deposed that victim herself has given history of sexual assault on 03.04.2014. Whereas alleged incident took place on 01.04.2013. It is necessary to observe that we have to consider the circumstances under which the victim was referred to the hospital and she was examined. Therefore, only because doctor has mentioned that the victim gave history of sexual assault on 03.04.2014 instead of 01.04.2014 evidence of the victim or the evidence of PW-8 cannot be discarded.

26) As already referred, police ought to have registered the case initially itself for the offence u/sec.376 IPC on reading of the complaint Ex.P.1, but it was not done so. Therefore, subsequently further statement of the complainant victim was recorded and the offence u/sec.376 IPC was included.

Considering the evidence of prosecution witnesses as a whole I have no hesitation to hold that prosecution has proved the offences u/sec.341 & 376 IPC against the accused beyond reasonable doubt. However, the victim has not at all deposed about alleged life threat given by the accused to her at the time of incident nor PW-1, PW-2 & PW-4 have deposed that the victim disclosed about the life threat given by the accused to her. Therefore, the offence u/sec.506 IPC is not proved against the accused. Under these circumstances I hold the decisions relied on by learned counsel for the accused cannot be applied to the facts and circumstances of the case. The delay is properly explained. Medical evidence cannot be held as negative. As already referred no injuries found on the body of the victim regarding recent forcible sexual intercourse is also not a ground to discard the evidence of the victim. I have already observed that the victim has no reason to

depose falsely against the accused even after her marriage. She has given such evidence at the stake of her marriage life. Under these circumstances I hold that prosecution has proved the offences u/sec.341 & 376 IPC against the accused beyond reasonable doubt and the accused is liable to be convicted for the said offences. Accordingly I answer point Nos.1 & 2 in the affirmative and point No.3 in the negative."

17. In the light of the appeal grounds, this Court

re-appreciated the material evidence on record. Since the

victim lady did not nurture any previous enmity or

animosity against the accused, why would she falsely

implicate the accused in a matter of this nature pledging

her dignity before the Court of law is a question that

remains unanswered by the appellant/accused.

18. It is also pertinent to note that no explanation

is offered by the accused while recording his statement

under Section 313 of Cr.P.C. In the absence of any

explanation offered by the accused and when there is a

version of victim lady that the accused has committed