Karnataka High Court

Sri Manjunatha vs State Of Karnataka on 10 March, 2022

Bench: Mohammad Nawaz

                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF MARCH, 2022

                        BEFORE:

       THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL NO.426 OF 2011

BETWEEN:

SRI. MANJUNATHA
S/O LATE YALLAPPA
AGED ABOUT 20 YEARS
RESIDING AT 1ST CROSS
NEAR WATER TANK, RAJIV GANDHI NAGAR
DODDABIDARAKALLU, NAGASANDRA POST,
BANGALORE-73                                ...APPELLANT

[BY SRI.A.N.RADHA KRISHNA, ADVOCATE
 AS AMICUS CURIAE FOR APPELLANT V/O DATED 17.02.2022]

AND:

STATE OF KARNATAKA
BY PEENYA POLICE                          ...RESPONDENT

[BY SRI.KRISHNA KUMAR.K.K., HCGP]

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
U/S.374(2) OF CR.P.C, PRAYING TO SET ASIDE THE ORDER
DT:5/16.3.11 PASSED BY THE XLV ADDITIONAL CITY AND CIVIL
SESSIONS     JUDGE.,   BANGALORE   IN   S.C.NO.52/10   -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 376 OF IPC AND ETC.


     THIS CRIMINAL APPEAL IS COMING ON FOR HEARING,
THIS DAY THE COURT DELIVERED THE FOLLOWING:
                                        2


                          JUDGMENT

This appeal is preferred by the accused feeling

aggrieved by the judgment and order of conviction and

sentence passed by the Court of XLV Additional City Civil

and Sessions Judge, Bengaluru City (CCH-46) in

S.C.No.52/2010, for the offence punishable under

Section 376 of Indian Penal Code (herein after referred

to as IPC).

2. I have heard the learned Amicus curiae for

appellant and learned High Court Government Pleader for

respondent-State and perused the material on record.

3. It is the case of prosecution that the

victim/P.W.1 is a handicapped woman. On 20.09.2009 at

1.00 p.m., while she had taken the cattle for grazing

near site No.8 situated at HMT layout, the accused came

near her with an intention of committing forcible sexual

intercourse and took her behind the bush and by

threatening her, committed rape and thereby committed

an offence punishable under Section 376 of IPC.

4. The complaint is lodged by the victim, which

is marked as Ex.P.1. It is averred in the complaint that

the victim is aged about 33 years and she is a

handicapped person, residing along with her mother and

sister, as her father died ten years ago. She used to take

the cattle for grazing near HMT layout. On the date of

incident at about 1.00 p.m., when she had taken the

cattle for grazing, the accused, a neighbor working as

carpenter came and called her and then dragged her by

hand. He threatened her not to scream and dragged her

to the vacant site behind the bush and forcibly

committed sexual intercourse with her. On hearing her

cries a person came and seeing him the accused ran

away from the spot. That person enquired her about the

incident and took her to her house wherein, she narrated

the incident to her mother and sister, who brought her to

the police station.

5. P.W.11 is the Police Inspector who registered

the case after receiving the complaint Ex.P.1 from the

victim. Thereafter he visited the spot and conducted spot

mahazar and recorded the statement of witnesses. On

the same day at about 10.35 p.m. accused was arrested.

6. Both the victim as well as accused were

subjected to medical examination by P.W.10 on

21.09.2009. Medical examination report of victim is

marked as Ex.P.4 and that of accused is marked as

Ex.P.5. Seized articles namely M.Os.1 to 8 were sent to

FSL for examination. Ex.P.9 is the letter along with FSL

report.

7. It is contended by the learned amicus curiae

that the complaint is lodged by the victim at the behest

of her brother who is on inimical term with the accused.

There are contradictions in the evidence of the

prosecution witnesses. He further contends that, the

victim is aged about 33 years. The medical evidence do

not support the case of prosecution. The trial court has

erroneously come to the conclusion that prosecution has

established the guilt of the accused. The reasons

assigned are not in accordance with law. Therefore,

contends that impugned judgment and order of sentence

passed by the trial Court is liable to be set aside.

8. Learned High Court Government Pleader has

contended that the victim has categorically stated that

the accused has committed rape on her. There is no

reason for her to falsely implicate him. Her evidence is

further corroborated by the evidence of P.W.5. He is an

independent witness and not related to the prosecutrix.

Therefore, he contends that the trial Court based on

acceptable evidence on record has convicted the accused

for the charged offences. Accordingly, he has sought to

dismiss the appeal.

9. The specific case of the prosecution is that

when the victim had taken the cattle for grazing at about

1.00 p.m., on 20.09.2009 near a vacant site situated at

HMT layout, the accused, her neighbor, forcibly dragged

her behind a bush situated in the vacant site and

committed forcible sexual intercourse against her will.

Victim has stated that after committing the act, the

accused ran away from the spot and on hearing her cries

a person came near her and enquired with her and then

took her to her house wherein, she narrated the incident

to her mother and sister and then she was brought to

the police station.

10. To establish the guilt of the accused,

prosecution has got examined 11 witnesses and got

marked Ex.P.1 to 9 and Mos1 to 8.

11. Victim is examined as P.W.1. P.Ws.2 and 6

are the witnesses to the spot-mahazar. P.Ws.3 and 4 are

mother and sister of P.W.1. P.W.5 is an eye-witness.

P.Ws.7 to 9 and 11 are police officials. P.W.10 is the

medical officer who conducted medical examination of

the victim as well as the accused.

12. The prosecution is mainly relying on the

evidence of P.Ws.1 and 5. P.W.1-victim in her evidence

has stated that when she had taken the cattle for

grazing, the accused took her to a corner and committed

rape on her and in this regard she has lodged the

complaint as per Ex.P.1. She has stated that she has

shown the spot to the police.

13. It is the specific defence taken by the accused

that the complaint was lodged at the behest of victim's

brother by name Ravi Kumar. In the cross examination

of P.W.1-victim, she has denied the suggestion that the

complaint was lodged at the behest of her brother

Ravikumar. PW.3 in her cross-examination has stated

that prior to the incident, the accused had fixed the

window to her house and in this regard her son-in-law

had scolded the accused saying that window was not

fixed properly. There is nothing elicited in the cross-

examination to show that there was any ill-will between

the accused and the brother of the victim. However, it is

pertinent to see that in Ex.P.1, it is specifically stated

that the victim was taken to the Police Station by her

mother and sister whereas in the cross-examination of

the victim she has admitted that complaint was written

by her brother Ravikumar and on the date of incident he

had accompanied her to the police station and he was

with her all along. Even P.W.3 in her cross-examination

admitted that it was her son Ravikumar who went to the

police and lodged the complaint. P.W.4 in her cross-

examination has stated that the incident was informed to

her by her brother Ravikumar and except him no one

informed her about the incident.

14. P.W.1 in her cross-examination has stated

that on the date of incident she had taken the cattle at

about 2.00 P.M and returned home at about 4.00 P.M

and she did not inform her mother anything but 'Tatha'

informed her mother about the incident. It is the

contention of the learned counsel for the appellant that

'Tatha' is none other than P.W.5 and therefore he has

contended that as per cross-examination of P.W.1, she

has not informed anything about the incident to her

mother or her sister and therefore the entire case of the

prosecution is false and concocted.

15. P.W.1 in her cross-examination has stated

that near the place where she had taken cattle for

grazing there were 10 to 12 boys playing at a distance of

5 to 6 feet away. P.W.6-panch witness to spot-mahazar

in his cross-examination has stated that at the place of

incident the children used to play. The admission given

by P.W.1 in the cross-examination would therefore

clearly establish that near the place of incident there

were children playing.

16. The victim was subjected to medical

examination. P.W.10 is the Doctor who examined the

victim on 21.09.2009 between 11.30 and 12.30 A.M.

Ex.P.4 is the medical report. As per the said report there

is no evidence of recent sign of sexual intercourse.

Further, the age of the victim is stated to be 30 years to

35 years which is ascertained from the physical dental

and radiological examination of victim. As per Ex.P.5,

local examination report, there are no signs of sexual

intercourse (recent or old). The report further discloses

that hymen was intact.

17. At the time of examination of victim MOs 1 to

8 were collected and sent for FSL examination. The

report along with the letter is marked as Ex.P.9. The said

report shows that the presence Seminal stain was not

detected in the article sent for examination.

18. The learned Sessions Judge has come to the

conclusion that victim has lodged complaint immediately

and she has been sent for medical test wherein she has

stated before the medical officer regarding the incident

and the evidence of prosecutrix is sufficient to constitute

the offence against the accused. It is further observed

that there is no sufficient proof of defence for filing false

complaint against accused and the prosecutrix and

material witness-P.W.5 have supported the prosecution

case.

19. P.W.5 in his evidence has stated that on the

date of incident while he was getting down from the

stair-case he saw the accused committing rape and when

he screamed, accused sped away in a cycle.

20. It is relevant to see that as per Ex.P.1, the

accused after committing rape ran way from the spot

and when the victim was sitting and crying, a person

came near her and enquired about the incident and took

her to the house. The evidence of P.W.5 is contrary to

the averments in Ex.P1. P.W.1 has not stated that the

accused after committing rape sped away in a cycle.

According to P.W.5, he saw the accused committing rape

from the balcony of his house and when he shouted at

him, accused sped away in a cycle. Later, he went and

informed the incident to her family.

21. In Ex.P.5, certain injuries are noticed on the

person of accused, which are fresh, alleged to have been

caused by the victim's brother on 20.09.2009 evening.

However, prosecution is silent about the said injuries.

22. In the case on hand, the material on record is

not sufficient to hold that the accused has committed

forcible sexual intercourse with P.W.1 against her will or

consent. Admittedly, victim is a major aged about 33

years. The medical evidence is totally silent about the

offence of rape committed on her. The evidence of P.W.5

is not sufficient to hold that the accused has forcibly

committed sexual intercourse with P.W.1. The accused is

therefore entitled to benefit of doubt.

23. For the foregoing reasons the appeal deserves

to be allowed. Accordingly, I pass the following;

ORDER

The criminal appeal is allowed.

The Judgment and order dated

05.03.2011 passed in SC.No.52/2010 on the

file of Court of the XLV Additional City Civil

and Sessions Judge, Bengaluru City

(CCH-46) convicting and sentencing the

accused/appellant for the offence punishable

under Section 376 of IPC is hereby set aside.