Muzahid Pasha @ Muju vs State Of Karnataka By
2022 Latest Caselaw 67 Kant

                                          CRL.A.No.1567/2018


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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF JANUARY 2022

                       BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

         CRIMINAL APPEAL NO.1567/2018


BETWEEN:

MUZAHID PASHA @ MUJU
S/O ABDUL AJIJ @ ABDUL PASHA
NOW AGED ABOUT 33 YEARS
RESIDING AT GULLENAHALLI VILLAGE
SALAGAME HOBLI
HASSAN TALUK
HASSAN DISTRICT - 573 219                 ... APPELLANT

(BY SRI.NARAYANA REDDY M, ADVOCATE FOR
    SRI.SHIVAYOGI B HALLUR, ADVOCATE)

AND:

STATE OF KARNATAKA BY
HASSAN RURAL POLICE STATION
HASSAN - 573 201
REPRESENTED BY S.P.P.
HIGH COURT BUILDING
BENGALURU - 01                         ... RESPONDENT

(BY SMT. RASHMI JADHAV, HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 04.08.2018,
PASSED BY THE 5TH ADDITIONAL DISTRICT AND SESSIONS
COURT AT HASSAN IN S.C.NO.236/2013, CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 448, 323, 376, 506 OF IPC.
                                                  CRL.A.No.1567/2018


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

                          JUDGMENT

Aggrieved by the order of conviction and sentence

recorded against him for the offences punishable under

Sections 448, 323, 376, 506 of IPC, the accused in SC

No.236/2013 on the file of 5th Addl. District & Sessions

Court at Hassan has preferred the above appeal.

2. The appellant was tried in SC No.236/2013 by

the trial Court for the offences punishable under Sections

448, 323, 376, 506 of IPC on the basis of the charge sheet

filed by Hassan Rural police in Crime No.70/2004 of their

police station. Crime No.70/2004 was registered against

the appellant on the basis of the complaint Ex.P1 filed by

PW.1.

3. The case of the prosecution in brief is as

follows:

(i) The appellant was interested in marrying PW.1

but her family member declined the proposal. On

14.05.2004 at about 7.30 am when PW.1 was alone at CRL.A.No.1567/2018

Gullenahalli village in her house, the appellant trespassed

in to the house, gagged her mouth, dragged her into the

house and committed rape on her. He threatened her of

her life if she reveals the incident to anybody;

(ii) During the course of the offence, he assaulted

her and caused simple injuries. When the appellant was

assaulting PW.1, her brother PW.2 came home. On seeing

him the appellant fled away. PW.3 is the mother of PW.1.

PW.9 is the head constable of Hassan rural police station.

PW.9 visited the hospital and recorded the complaint of

PW.1 as per Ex.P1. On the basis of Ex.P1 he registered

first information report as per Ex.P6.

(iii) PW.9 conducted spot mahazar as per Ex.P2 on

15.05.2004 in the presence of PWs.4 and 5. On

16.05.2004 he handed over further investigation to PW.8

i.e., Police Sub-inspector of Hassan Rural Police Station.

(iv) PW.8 claims to have enquired PW.1 on

22.05.2004 in the police station. Initially first information

report was registered for the offences punishable under

Sections 323, 354, 448 and 506 of IPC. On 22.05.2004, CRL.A.No.1567/2018

the victim allegedly revealed that the accused committed

rape on her. He said to have referred her again for medical

examination. On such medical examination he claims to

have collected material objects from the Medical Officer

and sent them to FSL, arrested the accused and collected

the wound certificate-Ex.P5 and handed over further

investigation to PW.6.

(v) PW.6-Police Inspector of Hassan Rural Police

Station collected Ex.P3 the FSL report, Ex.P4 the Khatha

extract-Ex.P4 of the scene of offence and filed the charge

sheet for the offences punishable under sections 323, 354,

448 and 506 of IPC before the Additional civil Judge

(Junior Division), JMFC II Court, Hassan.

4. The Magistrate took cognizance of the offences

and registered the case in C.C.No.495/2007 and framed

charges against the accused for the offences punishable

under Sections 323, 354, 448 and 506 of IPC and

proceeded to conduct trial. During trial before the

Magistrate, PW.1 deposed that the accused committed

rape on her. She further deposed that she did not reveal CRL.A.No.1567/2018

the offence of rape to her father or before doctor due to

embarrassment and she was treated for two days in the

hospital.

5. On such development, the Assistant Public

Prosecutor filed an application before learned Magistrate

under Section 323 Cr.P.C., for committal of the case to the

Sessions Court. Learned Magistrate committed the case to

the Sessions Court. On such committal the matter was

registered in S.C.No.236/2013 on the file of V Addl.

District and Sessions Judge, Hassan.

6. The learned Sessions Judge on hearing both

sides framed charges against the appellant for the offences

punishable under Sections 448, 323, 376 and 506 of IPC.

To prove its case, the prosecution examined PW.1 to PW.9

and got marked Ex.P1 to Ex.P6.

7. The trial Court on examining the appellant

under Section 313 of Cr.P.C., and on hearing both the

parties, by the impugned judgment and order convicted

the accused for the offences punishable under Sections CRL.A.No.1567/2018

448, 323, 376 and 506 IPC and sentenced him as per the

chart below:

               Convicted for                      Fine
   Sl.          the offence     Sentence of     amount          Default
   No.          punishable     imprisonment        in          Sentence
               under Section                    Rupees
    1          448 of IPC      Rigorous          1,000/-   Simple
                               imprisonment                imprisonment
                               of 1 year                   of one month
    2          323 of IPC      Rigorous          1,000/-   Simple
                               imprisonment                imprisonment
                               of six months               of 15 days
    3          506 of IPC      Rigorous          1,000/-   Simple
                               imprisonment                imprisonment
                               of one year                 of one month
    4.         376 of IPC      Rigorous         30,000/-   Simple
                               imprisonment                imprisonment
                               of seven years              of one year

8. The trial Court based its order of conviction

and sentence on the following grounds:

(i) The solitary evidence of the victim-PW.1 was

acceptable;

(ii) The evidence of PW.1 was further corroborated

by the evidence of her brother-PW.2.

9. Sri.Narayana Reddy, learned counsel for the

appellant seeks to assail the impugned order of conviction

and sentence as follows:

(i) There was delay in filing the complaint.

CRL.A.No.1567/2018

(ii) At the first instance, PW.1 did not complain of

commission of rape. Even the alleged eyewitness/PW.2 did

not speak of offence under Section 376 of IPC.

(iii) After about 6 years, PW.1 came up with the

version of commission of rape. The medical evidence and

forensic evidence was totally negative. Except the

interested testimony of PW.1 to PW.3 there was no

incriminating evidence.

(iv) PW.3 was not an eyewitness. The evidence of

PWs.1 and 2 was totally inconsistent and they went on

improvising the case stage by stage. There were lot of

unexplained contradictions in the evidence.

(v) Even evidence of PW.8 was not consistent and

there was no material to substantiate the contention that

he referred the victim to medical examination or collected

material objects.

(vi) The trial Court committed error in appreciating

the evidence of witnesses. The evidence of PW.1 was not

of sterling quality. Therefore, the Trial Court was not right

in relying on her solitary evidence.

CRL.A.No.1567/2018

10. In support of his contentions, he relies upon

the following judgment:

(i) Santosh Prasad @ Santosh Kumar v. The State of Bihar1

11. Per contra, Smt.Rashmi Jadhav, learned HCGP

seeks to justify the impugned order of conviction and

sentence on the following grounds:

(i) In heinous crimes like rape the delay in filing

the complaint, faulty investigation are not ground for

acquittal.

(ii) PW.1 being the victim, there was no reason to

disbelieve her evidence. All along her evidence was cogent

and consistent. She not revealing the commission of rape

at the first instance cannot be blown out of proportion

having regard to the stigma attached to the victim due to

such offences, that too, when she comes from very

conservative family.

12. Having regard to rival contentions the point

that arises for consideration is:

AIR 2020 SC 985 CRL.A.No.1567/2018

"Whether the impugned order of conviction and sentence is sustainable in law?"

13. So far as the offences under Sections 448,

323, 354 and 506 of IPC, there were clear and consistent

allegations against the appellant in the complaint-Ex.P1

and the statement of PW.2 and there was evidence before

the Court also. There is no dispute that the accused and

PW.1 to PW.3 belong to the same village. As per the

complaint, the appellant proposed to marry PW.1 but, her

family members declined that proposal. That goes to show

that PW.1 to PW.3 and the accused were closely known to

each other.

14. According to PW.1 to PW.3, since they declined

the proposal of the accused, to take revenge he committed

the offence. According to the appellant he was falsely

implicated in the case due to some old rivalry. As rightly

pointed out by the trial Court, neither in the cross

examination of PW.1 to PW.3, nor in his examination under CRL.A.No.1567/2018

Section 313 of Cr.P.C, the accused did not explain what

was that old rivalry.

15. Having regard to the nature of the offence the

delay in filing the complaint or registering the FIR itself

does not discredit the evidence of PW.1 about the

appellant entering into the house and assaulting her.

16. The case of the prosecution is based on the

evidence of PW.1-victim, PW.2-her brother who came to

the scene of offence when the appellant was assaulting

her. PW.3-mother of the victim is not the eyewitness, she

is only hearsay witness.

17. The case of the prosecution is further based on

evidence of PW.4 and PW.5 spot mahazar witnesses, but

they turned hostile. Moreover, there was no recovery of

any incriminating material during the spot mahazar. The

other evidence was that of PW.7-Medical Officer, PW.8 and

PW.9, the police who registered FIR conducted

investigation.

CRL.A.No.1567/2018

18. As already pointed out at the first instance in

the complaint PW.1 clearly stated that when she was

washing utensils at home, the appellant accosted her,

dragged her by gagging her mouth and attempted to

ravish her and in that course he slapped her. She also

stated that her brother came, on seeing him appellant ran

away. She also stated that PW.2 chased him but he

escaped. She further stated that she had suffered bleeding

injuries on her lips and her father took her to hospital and

got her treated.

19. PW.7-Medical Officer, Senior Specialist of the

J.C.Hospital stated that on 14.05.2004, PW.1 visited

hospital at 1:45 pm with a history of assault. He examined

her and gave wound certificate as per Ex.P5. He further

deposed that he found abrasion over her lower lip and

tenderness in neck and shoulder which were simple in

nature. Nothing was elicited to disbelieve such evidence of

PW.1.

CRL.A.No.1567/2018

20. The prosecution's own witness PW.7 and Ex.P5

state that PW.1 reported before him with a history of

scuffle and not with a history of rape. Further, PW.1

deposed that due to shame she did not reveal about rape

before the doctor and her father. However, in the

complaint which was registered, before the medical

examination, she has stated that the appellant attempted

to commit rape on her. Therefore, the evidence of PW.1

with regard to attempted rape, trespass and assault was

cogent and consistent. That was further corroborated by

the evidence of her brother-PW.2.

21. PW.8 claims that PW.1 appeared before him

on 22.05.2004 and he referred her to the Government

hospital through PC.No.110 for medical examination and

collected the material objects from the hospital and sent to

FSL through PC.No.60. He claims that on that day PW.1

revealed that the appellant committed rape. However, to

that effect PW.8 has not recorded her further statement.

PC.No.110 and PC No.60 who allegedly escorted the victim

to the hospital and carried the material objects to FSL CRL.A.No.1567/2018

were not examined. Those material objects were also not

marked.

22. PW.8 handed over the further investigation to

PW.6 on 10.09.2007 and he had three months time from

22.05.2004 to 24.08.2004 in the investigation. He did not

file any requisition to the Magistrate to incorporate the

offence of Section 376 of IPC in the place of Section 354

IPC. Therefore, the evidence of PW.8 about PW.1 revealing

about commission of rape, he sending her to the

Government Hospital, Hassan for medical examination,

collected material object etc., is without any basis.

23. To crown the shaky evidence of PW8, the

alleged medical officer who examined PW.1 on 22.05.2004

is not cited as charge sheet witness. No medical records

pertaining to medical examination dated 22.05.2004 were

collected by the investigating officers. Atleast after the

matter was committed to the Sessions Court, the Public

Prosecutor has not summoned any such medical records.

Therefore, PW.1 revealing the commission of offence of CRL.A.No.1567/2018

rape on 22.05.2004 and PW.8 referring her to medical

examination and collecting the material objects are all

without any basis.

24. If there was any such material in the case

diary about the offence of rape atleast PW.6 could have

filed charge sheet for offence under Section 376 of IPC.

PW.6 also did not whisper anything about any material

being found in the investigation file for the offence under

Section 376 IPC. But, he has filed charge sheet for the

offence under Section 354 IPC. Even FSL report Ex.P3 does

not bear any incriminating findings in proof of offence of

rape. Despite the aforesaid doubtful circumstances the trial

Court relying on the judgments of the Hon'ble Supreme

Court in Sudha Renukaiah and others V. State of Andra

Pradesh ((2017) 13 SCC 81) and Ranjit Hazaraka V. State

of Assam ((1998) 8 SCC 635) holds that the solitary

evidence of PW.1 is sufficient to convict the accused for

the offence punishable under Section 376 of IPC.

CRL.A.No.1567/2018

25. It is no doubt true that in those judgments it

was held that the solitary evidence of the prosecutrix is

sufficient to convict the accused for the offence under

Section 376 IPC provided her testimony is cogent and

consistent.

26. The Hon'ble Supreme Court in Paragraphs

5(4.2), 5(4.3) and 6 of judgment in Santosh Prasad's case

referred to supra held that the solitary evidence of the

prosecution is sufficient to convict the accused for the

offence under Section 376 IPC, provided the same inspires

the confidence and appears to be absolutely trustworthy

and unblemished. It was held that such witness must be

sterling witness of a very high quality so as to persuade

the Court to accept the evidence on its face value. It was

held that such evidence should be truthful and

consistent right from the starting point till the end.

It should be natural and there should not be any pre-

variation and should not give room to any doubt as to the

factum of occurrence. It was also held that the said version CRL.A.No.1567/2018

shall consistently match with the version of every other

witness.

27. At the time of offence, PW.1 was aged 20

years. She subscribed her signature in the complaint and

in her deposition before the Sessions Court in Urdu and in

the deposition before the Magistrate in Kannada. Despite

that the trial Court believes the evidence of PW.1 that she

did not know Kannada and police did not read the

complaint to her. Even the recording of the complaint-

Ex.P1 is also not unblemished. PW.9 claims to have

recorded the complaint Ex.P1 in the hospital. But, Ex.P1

does not bear any endorsement of the hospital to show

that it was recorded in the hospital. PW.7 does not speak

of recording any statement before him.

28. It is not that PW.1 was alone and helpless.

PW.1 states that her brother came to the spot

immediately. Atleast he has not registered the complaint

for the offence under Section 376 IPC. Under such

circumstances, the appreciation of evidence of PW.1 by the CRL.A.No.1567/2018

trial Court to state that she is sterling witness for proof of

charge for the offence under Section 376 IPC is not sound

and sustainable.

29. However, the evidence of PWs.1, 2 and 7 that

PW.1 had suffered bleeding injury on lips, tenderness on

neck and shoulder is un-impeached. The evidence that

appellant trespassed into house and assaulted her and

attempted to commit rape on her is not discredited.

Therefore, the order of conviction and sentence for the

offence punishable under Sections 323, 448 and 506 IPC

does not call for any interference of this Court.

30. So far as conviction under Section 376 of IPC,

there is material to show that the appellant attempted to

commit the offence of rape and not the offence of rape.

Therefore, only that part of the impugned order requires to

be modified from the offence under Section 376 of IPC to

Section 376 r/w Section 511 of IPC. Therefore, the appeal

is partly allowed.

CRL.A.No.1567/2018

i) The impugned order of conviction and sentence

for the offences punishable under Sections 448, 323, 506

of IPC is hereby confirmed.

ii) The impugned order of conviction and sentence

for the offence under Section 376 IPC is modified as

follows:

The appellant/accused in addition to the offences

punishable under Sections 323, 448 and 506 IPC is

convicted for the offence punishable under Section 376 r/w

511 IPC.

(iii) The punishment prescribed for the offence

under Section 376 IPC at the relevant time was

imprisonment not less than 7 years and which may extend

upto life imprisonment and fine. Section 511 prescribes

awarding half of the sentence prescribed for the

substantive offence.

Having regard to the nature of the injuries found on

the victim for the offence under Section 376 r/w 511 IPC,

the appellant is sentenced to undergo rigorous

imprisonment of 5 years with fine of Rs.30,000/-. In CRL.A.No.1567/2018

default to pay fine amount the appellant/accused shall

undergo simple imprisonment for 3 months.

The matter is referred to the Victim Compensation

Committee, Hassan District for determination of

compensation payable to PW.1.

The trial Court is directed to issue the modified

conviction warrant accordingly.

Transmit the records to trial Court forthwith.

Sd/-

JUDGE

PKN/RKA