Sadashiv S/O Shivanappa vs The State Of Karnataka
2022 Latest Caselaw 1167 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 27TH DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

         CRIMINAL APPEAL NO.200030/2016


BETWEEN:

SADASHIV
S/O. SHIVANAPPA,
AGE: 31 YEARS, OCC: COOLIE WORK,
R/O. NAGALAPUR VILLAGE,
TQ: & 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 YERAGERA PS,
DIST: RAICHUR.)
                                   ... RESPONDENT

(BY SRI SHARANABASAPPA M. PATIL, HCGP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.PC PRAYING TO ADMIT THIS APPEAL, CALL FOR
THE RECORDS FROM THE COURT BELOW AND SET ASIDE
THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 17.2.2016 PASSED BY THE PRL.
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DISTRICT AND SESSIONS JUDGE AT RAICHUR IN SC
NO.34/2015 AND ACQUIT THE APPELLANT/ACCUSED,

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

                       JUDGMENT

1. Heard the learned counsel appearing for the

parties and perused the records.

2. The present appeal is filed by the accused who

suffered an order of conviction in SC No.34/2015 passed

by Principal District and Sessions Judge, Rajchur dated

17.2.2016 whereby the accused came to be convicted for

the offence punishable under sections 448, 376 and 506 of

IPC and sentenced as under:

Offence Sentence            Fine if any    Default
                                           sentence


448      Rigorous           -              -
IPC      imprisonment
         for three months


376      Rigorous           Rs.1,00,000/- Simple
IPC      imprisonment                     imprisonment
         for seven years                  for one year





506        Rigorous              Rs.1,000/-          Simple
IPC        imprisonment                              imprisonment
           for two years                             for three
                                                     months




      3.     Brief facts of the case are as under:

A complaint came to be lodged by the victim lady

that on 25.7.2014 with Yeragera police station which is

registered in Crime No. 131/2014 for the offences

punishable under sections 506, 376 and 448 IPC. In the

complaint, it is revealed that she is resident of Nagalapura

village, Raichur District and she is married to one Shivappa

and they had three sons. Accused is a married man and

was residing in the opposite house. When the matter

stood thus, on 25.5.2014, at about 8.30 p.m., when her

husband had been to Eshwara temple for Bhajan, the

accused taking advantage of the said circumstance,

illegally entered the into her house and pulled her into the

shed adjacent to her house and tried to misbehave with

her and when she resisted for the same, he made her to

fall down and thereafter, he had committed forcible sexual

intercourse with her and when she raised alarm, her

younger brother Nagaraja and her neighbour Hanumantha

came to the place of incident and on seeing them, the

accused ran away from the spot by threatening them with

dire consequences. In order to keep her dignity, she did

not reveal the same to her husband on the same day.

However, on 25.7.2014, she informed the same to her

husband and her maternal uncle and both of them not only

consoled her but also told her that she did not fear for the

life threat given by the accused and decided to lodge a

complaint with the Yeragera Police Station. Her maternal

uncle drafted the complaint as per the say of the

complainant and lodged the complaint. Police after

registering the case, conducted a thorough investigation,

interalia arrested the accused and sent him to judicial

custody and filed charge sheet for the offences punishable

under section 448, 506 and 376 IPC against the accused.

4. Learned Trial Magistrate committed the matter

to the Sessions Court and before the Sessions Court, the

cognizance of the aforesaid offences are taken and

presence of the accused was secured. Thereafter following

charges were framed:

"That you accused on 25-05-2014 at about 08-00 p.m. when victim CW-1 was in her house situated at Nagalapur village trespassed into her house and putting her under threat took her in a tin shed located besides her house in order to have sexual intercourse with her thereby you have committed an offence punishable U/sec.448 of IPC within the cognizance of this court.

That you accused on the aforesaid date, time and place in order to have sexual intercourse with victim CW-1 committed Criminal intimidation by threatening her stating that if she did not co-operate with you, she would be committed murder by you thereby you have committed an offence u/sec. 506 of IPC within the Cognizance of this Court.

That you accused on the aforesaid date, time and place in order to have forcible sexual intercourse with victim CW-1 gained entry into her house, took her in a tin shed, felled her on the

ground, removed her Saree & Langa and threatened her with dire consequences and committed forcible sexual intercourse with her inspite of her resistance and against her wishes thereby you have committed an offence of rape punishable U/sec.376 of IPC within the cognizance of this court. "

5. Accused pleaded not guilty. Therefore, trial

was held. In order to prove the case of the prosecution,

the prosecution in all examined 14 witnesses as PWs.1 to

14 comprising of victim, her brother Nagaraj, her maternal

Uncle and scribe of the complaint Sri Tayappa and Doctors

who examined the victim and the accused and the

investigation officers. Prosecution also relied on 15

documentary evidence which were exhibited and marked

as Exs.P1 to P15. On conclusion of the prosecution

evidence, accused statement as contemplated under

section 313 Cr.PC., was recorded, wherein the accused has

denied all the incriminatory materials that were found

against him in the prosecution evidence. Except for

question No.41, wherein he has answered that husband of

the complainant had nurtured ill-will against him and in

order to lower down his strength, a false case has been

filed against him by the complainant. However, accused

did not examine himself as a witness nor filed any written

submissions as is contemplated under section 313(5)

Cr.PC.,

6. Thereafter, learned Sessions Judge, heard the

parties in detail and convicted the accused for the

aforesaid offences and passed a sentence as referred to

supra. The said order is under challenge before this court

in this appeal.

7. In the appeal, following grounds have been

raised:

"GROUNDS x 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.

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

x That, as per complaint averments alleged incident was occurred on 25-05-2014 and the complaint was lodged on 25-07-2014, there is a delay of two months in filing the complaint. The prosecution utterly failed to explain regarding the delay in filing the complaint. So, trial court utterly failed to appreciate this fact in proper prospective manner.

x That, while recording the 164 statement of the victim, police have submitted a requisition to Civil Judge (Sr. Dn) JMFC-I Court at Raichur and victim was produced before Devdurga Court having sitting at Devdurga. However, said court directed the learned JMFC at Devdurga to record the statement of victim. So, while recording 164 statement prosecution utterly failed to follow the mandatory provisions of law. This fact is not been considered by the trial court.

x That, statement made in the complaint and statement given in 164 statement by the complainant/victim is contradictory and there are a lot of improvements made by the complainant just to convict the appellant. So, this fact is not been appreciated by the trial court.

x That, independent witness like neighbour are called to the court to led evidence. However, learned Judge asked the independent witness regarding the alleged incident, when said witnesses were not supporting the prosecution case, learned prosecutor given up to record their evidence. So, it clearly goes to show that prosecution is one or the

other way trying to convict the accused. Hence, this kind of attitude is not permissible under law.

x That, prosecution ought to have cited the name of learned Magistrate in the column of charge sheet witnesses and ought to have led evidence of learned Magistrate to prove the statement record U/s 164 of Cr.P.C.

x That, I.O. failed to follow the mandatory amended provisions contemplated U/s 154 of Cr.P.C. and I.0. ought to have recorded the statement of victim by the use of VCD.

x That, as per prosecution PW-2 being the eye witness to the alleged incident, even he too failed to file the complaint within reasonable time. So, totally it creates doubt regarding the veracity of the prosecution case.

x That, while recording 313 statement, appellant has stated that husband of the complainant use to pickup quarrel with him oftenly and in order to harass him complainant husband has got filed a false case against him. This fact is not proper appreciated by the trial court.

x That, trial court convicted the appellant only on the say of interested witnesses like PW-1/CW-1, PW-2/CW-2 and PW- 4/CW-10. So, trial court while appreciating their evidence Ought to have taken great care to evaluate their evidence.

x 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 inlaw.

x 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.

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

x 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.

x That, trial court ought to have come to conclusion that, I.O. as conducted the tainted investigation.

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

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

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

8. Re-iterating the above grounds, learned

counsel for the appellant Sri Shivanand V. Pattanshetti,

vehemently contended that the learned Trial Judge has not

properly appreciated the material evidence on record and

wrongly convicted the accused. He pointed out that there

is a huge delay of two months in filing the complaint which

has not been properly considered by the Trial Court while

convicting the accused and thus sought for allowing the

appeal.

9. He also pointed out that in a matter of this

nature, the delay assumes great importance and why they

kept quiet for a long period of two months to lodge a

complaint about the incident is a question that remains un-

answered by the prosecution and therefore, in view of the

answer given by the accused to question No.41, that the

husband of the complainant nurtured ill-will and in order to

lower his strength in the society, he used his wife to lodge

a complaint and sought for allowing the appeal.

10. Per contra, learned High Court Government

Pleader contended that the victim has supported the case

of the prosecution and so also her younger brother and

neighbour who has arrived on the scene on hearing the

alarm raised by the complainant. They have also

supported the case of the prosecution and so also the

scribe of the complaint has supported the case of the

prosecution. He has further pointed out in a matter of this

nature the statement given by the victim lady on oath

assumes a great deal of significance in adjudging the guilt

of the accused and no married lady would pledge her

dignity for the sake of obtaining a wrong conviction against

the accused and therefore, sought for dismissal of the

appeal.

11. He also pointed out that though accused has

taken a defence that there was a previous enmity nurtured

by the husband of the complainant, to probabalise such a

theory no evidence of whatsoever is placed on record and

therefore, a false explanation is an added factor for the

Trial Court to convict the accused and therefore, sought for

dismissal of the appeal.

12. In view of the rival contention, following

points would arise for consideration:

(1) Whether the prosecution has successfully established all ingredients to attract the alleged offences by placing cogent and convincing evidence on record beyond all reasonable doubt?

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

(3) Whether the sentence is excessive?

13. In the case on hand, the oral evidence of the

complainant who is examined as PW-1 assumes a great

importance. While proving an offence under section 376

IPC, it is the victim's statement that is of great significance

as is held in catena of judicial pronouncements by various

Hon'ble High Courts and apex courts and this court. In the

case on hand, PW-1 is a married lady.

14. According to the complaint averments, when

she was watching TV, her husband had been to Eshwara

temple on 25.5.2014 at about 8.30 p.m., accused forcibly

entered her house and pulled her into the tin shed despite

her resistance. Thereafter, he used the force and made her

to fall on the floor and committed forcible sexual

intercourse. The action of the accused was resisted by the

victim by raising alarm. On hearing the hue and cry of the

victim, the younger brother of the victim and the

naighbour by name Hanumantha arrived on the scene. On

seeing them, accused ran away from the spot. The above

complaint averments has been re-iterated by PW-1 on oath

with graphic details. She withstood the detailed cross

examination on behalf of the defence. She has answered

that the scribe of the complaint is her maternal uncle Sri

Thayappa. She also answered that she did not

immediately revealed the incident to her husband on

account of maintaining her dignity. The delay in lodging

the complaint is put to her and she has successfully

answered stating that she could not immediately reveal

the incident to her husband on the date of the incident in

order to maintain her dignity. She denied the suggestion

that she has filed a false case at the behest of her husband

to nurture previous enmity and ill-will against the accused.

15. The younger brother of the victim Nagaraj is

examined as PW-2. He has also supported the case of the

prosecution and he has narrated that on the date of the

incident, on hearing the hue and cry, he went to the scene

of occurrence along with Hanumantha who is a neighbour

of the victim and they saw accused running away from the

place of incident and on enquiry they came to know about

the forcible sexual intercourse accused had with the victim.

16. PW-3 Veeresh is the panch witness to spot

panchanama, who has supported the case of the

prosecution. PW-4 Thayappa is the scribe and maternal

uncle of the victim has also supported the case of the

prosecution. In their cross examination, no useful material

is elicited so as to disbelieve the version of the

prosecution. Dr.Vasudev Jahagirdhar is examined as PW-

5. He has examined the accused and issued Potency

certificate. His evidence is formal in nature. PW-6 Abdul

Basheed is the Police Constable who carried the seized

materials to the FSL. Dr. Narsubai who is examined as

PW-7 is the doctor who examined the victim lady and

issued the certificate vide Ex.P-8. She has answered that

there was no presence of spermatozoa detected in viginal

swab, cervical swab, public hair and undergarments and

she has given her opinion as per Ex.P-7. Pampanna is

examined as PW-8. He is the PDO who has given the

Revenue register extract in respect of the place of incident.

His evidence is formal in nature. Nagaraj is the Jr.

Engineer who is examined as PW-9. His evidence is also

formal in nature. Shivappa is examined as PW10 who has

drawn the spot mahazar as per the instruction of the

investigation officer. His evidence is also formal in nature.

Shivanna is examined as PW-11. He is the police

constable who carried the FIR to the learned Trial

Magistrate. PW-12 Lakshmi is the Women Head Constable

who has taken the complainant to the Hospital. Suresh is

examined as PW-13. He is the investigation officer who

has deposed about the investigation carried out by him

and after the investigation he has instructed the PSI of

Yeragera Police Station to apprehend the accused. In his

cross examination, he has denied having filed a false

charge sheet and his evidence is perfunctory in nature.

Dr. Pratibha Hullur is examined as PW-14. She has

deposed that initially she examined the victim lady and

thereafter referred her to Dr. Narsubai, a Gynecologist for

her examination. Her evidence is also formal in nature.

The above evidence on record is sought to the re-

appreciated by the learned counsel for the appellant and

allow the appeal.

17. The documentary evidence in the case are in

the form of complaint, spot mahazar as well as medical

records. The complaint averments is re-iterated by the

medical records and spot sketch and FSL report.

18. This court in the light of the appeal grounds

referred to supra re-appreciated the materials available on

record. It is settled principles of law that in order to

prove the offence under section 376 IPC, the statement of

the victim on oath that the accused has forcibly inserted

the male organ into the female organ is a sine qua non. In

the case on hand, the victim on examination before the

court as PW-1 has categorically deposed in line with the

complaint averments with graphic details. She has

specifically stated that accused forcibly entered the house

and pushed her on the ground, pulled her on to the tin

shed and pushed her on ground and thereafter committed

forcible sexual intercourse. In the cross examination, she

has answered to a specific question that why she has not

lodged a complaint early, she has answered that in order

to maintain her dignity, she has not reported the same to

her husband immediately. She has also answered that her

husband has left her and gone away elsewhere and she

has not made any efforts and she has not filed any missing

complaint. It is pertinent to note that the defence has

taken a specific stand that husband of the complainant

nurtured ill-will and there is a previous enmity between the

husband of the complainant which resulted in filing a false

complaint. In order to proababalise the said defence,

accused has not placed any material on record nor

examined himself as a witness before the court. However,

the scribe and the younger brother of the victim have also

supported the case of the prosecution in toto and in their

cross examination, no useful material is elicited that they

are deposing falsely against the accused.

19. No doubt, from the medical evidence, there is

no proof that the accused has committed forcible sexual

intercourse. Admittedly, complaint came to be filed two

months after the incident and Dr.Narsubai, examined the

victim on 25.7.2014 at 7.30 p.m., Admittedly, when the

victim is examined after two months, the presence of

spermatozoa detected in the vaginal swab, cervical swab,

public hair as is found in the FSL report. Therefore, the

opinion given by the doctor vide Ex.P7 is not of much avail

in accepting the grounds urged on behalf of the appellant.

The final opinion given by the doctor is to the effect that

there is no recent sexual assault. The said opinion is

based on the report received by the FSL.

20. As could be seen from the above discussion,

when the victim has categorically stated about the forcible

sexual intercourse accused having with her on the day of

the incident. Taking advantage of the fact that the

absence of her husband in the house at the time of

incident, stands established and therefore, this court is of

the considered opinion that none of the grounds urged in

the appeal memorandum holds merit and accordingly Point

No.1 is answered in the Affirmative and Point No.2 is

answered in the Negative.

21. Regarding Point No.3: Learned Trial Judge

has imposed minimum punishment available for the

offence punishable under section 376 IPC in sentencing the

accused for a period of seven years. Therefore, having

regard to the peculiar facts and circumstances of the case,

this court is of the considered opinion that there is no

scope for alteration of the sentence to any extent. Hence,

Point No.3 is answered in the Negative and pass the

following:

ORDER

Appeal sans merit and hereby dismissed.

Accused/appellant is granted time till 15.2.2022 to

surrender before the Trial Court for serving remaining part

of the sentence.

Ordered accordingly.

Sd/-

JUDGE

PL*