Mohammed Shakeel S/O Abdul Aziz vs State By Town Police Bidar
2022 Latest Caselaw 7648 Kant

                          1


         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

         DATED THIS THE 30TH DAY OF MAY, 2022

                       BEFORE

           THE HON'BLE MRS.JUSTICE M.G. UMA

         CRIMINAL APPEAL NO.200011/2016

BETWEEN:


MOHAMMED SHAKEEL
S/O ABDUL AZIZ
AGED ABOUT 21 YEARS
R/AT MANIYAR TALEEM
BIDAR.
                                          ... APPELLANT

(BY SRI: VENKATESH C. MALLABADI, ADVOCATE)


AND:

STATE BY
TOWN POLICE BIDAR
BIDAR.
                                        ... RESPONDENT

(BY SRI: H.S.SHANKAR, HCGP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CRIMINAL PROCEDURE CODE, PRAYING TO CALL
FOR THE ENTIRE RECORDS IN S.C.NO.127/2014 FROM THE
FILE OF PRINCIPAL SESSIONS JUDGE AT BIDAR; TO SET
ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
PASSED BY THE PRINCIPAL SESSION'S JUDGE AT BIDAR IN
S.C.NO.127/2014 DATED 17.11.2015 AND 26.11.2015 AND
ACQUIT THE APPELLANT IN THE INTEREST OF JUSTICE.
                                2


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

                          JUDGMENT

Appellant-accused is before this Court being aggrieved

by the judgment of conviction and order of sentence dated

17.11.2015 passed in Sessions Case No.127 of 2014 on the

file of learned Principal District and Sessions Judge, Bidar for

the offence punishable under Section 376(2)(l) of Indian Penal

Code (for short 'IPC').

2. Brief facts of the case are that, the accused was

charged for the offence punishable under Section 376(2)(l) of

IPC. It is the contention of prosecution that the accused

committed rape on the victim girl, who is mentally retarded

and the daughter of PW1, on 20.10.2013 between 10.00 to

10.45 p.m., besides a dilapidated building at Singarbagh

Street, Bidar. Thereby, he committed the offence punishable

under Section 376 of IPC.

3. The learned Magistrate took cognizance of the

offence and committed the case to the Sessions Court. The

Sessions Court framed charge and summons was issued to

the accused. The accused appeared before the Court and

pleaded not guilty and claimed to be tried. The prosecution

examined PWs.1 to 18, got marked Exs.P1 to 22 and

identified Mos.1 to 16 in support of its contention. The

accused denied all the incriminating materials available on

record in his statement recorded under Section 313 of Cr.P.C.

However, he has not chosen to lead any evidence in support

of his defence.

4. The Trial Court after taking into consideration all

these materials on record came to the conclusion that the

prosecution is successful in proving the guilt of the accused

beyond reasonable doubt. Accordingly, he was convicted and

sentenced to undergo rigorous imprisonment for a period of

twelve years and to pay a fine of Rs.10,000/- with default

sentence for the offence punishable under Section 376(2)(l) of

IPC. Being aggrieved by the impugned judgment of

conviction and order of sentence passed by the Trial Court,

the appellant is before this Court.

5. Heard Sri.Venkatesh C Mallabadi, learned counsel

for the appellant and Sri.H S Shankar, learned High Court

Government Pleader for the respondent-State. Perused the

materials on record including the Trial Court records.

6. Learned counsel for the appellant submitted that

even though it is contended that the accused has committed

sexual assault on the victim who is said to be mentally

retarded, there is absolutely no material against him to

substantiate the said charge. There are no eye witness to the

incident. The prosecution is relying only on circumstantial

witnesses. Even those circumstantial witnesses have not

supported the case of prosecution. Seizure of Mos.11 to 16

i.e., clothes of the accused is seriously disputed. The medical

records is also not helpful to the prosecution. Even the

mahazar witnesses have not supported the case of

prosecution. In spite of that, the Trial Court proceeded to

convict the accused without any basis. Therefore, the

judgment of conviction and order of sentence passed by the

Trial Court is liable to be set aside. Accordingly, he prays for

allowing the appeal.

7. Per contra, learned High Court Government

pleader supporting the impugned judgment of conviction and

order of sentence passed by the Trial Court submitted that

serious allegations are made against the appellant for having

committed the offence. The prosecution examined in all 18

witnesses to prove its contention. PW1 - the father of victim

lodged the first information as per Ex.P1. This witness

admitted lodging of first information, immediately after the

incident. However, unfortunately, he has turned hostile and

has not supported the case of prosecution. Similarly, PWs.2

to 5, 7 and 11 who are the private witnesses have also not

supported the case of prosecution. But the prosecution is

successful in proving the guilt of the accused based on the

evidence of the official witnesses and the materials that are

produced before the Court, including the medical evidence.

The medical report and FSL report specifically state about the

seminal stains, found on the banian worn by the accused at

the time of incident. This has not been denied by the

accused. There is absolutely no explanation as to why PW1

turned hostile after lodging Ex.P1 immediately after the

incident narrating the commission of offence by the accused.

Since the incident has taken place on 20.10.2013 and the

witnesses were cross examined much later, the accused might

have won over the witnesses. However, the Trial Court has

properly appreciated the materials on record and came to the

right conclusion. There are no reason to interfere with the

same. Accordingly, he prays for dismissal of the appeal.

8. In view of the rival contentions urged by learned

counsel for both the parties, the point that would arise for my

consideration is:

"Whether the impugned judgment of conviction and order of sentence passed by the Trial Court calls for any interference?"

My answer to the above point is in 'Negative' for the

following:

REASONS

9. It is the specific contention of the prosecution that

the accused taking advantage of the helpless condition of the

victim girl aged 25 years, who is mentally retarded,

committed sexual assault on her on 20.10.2013, when she

was all alone. In this regard, the first information came to be

lodged as per Ex.P1 at 00.15 hours on 21.10.2013.

Therefore, there is prompt lodging of first information by PW1

who is none other than the father of the victim girl.

10. The first informant has specifically stated that his

daughter was found missing in the house and he searched for

her in the neighbouring house and at about 10.45 p.m., he

found the accused and the victim girl together in a dilapidated

building at Singarbagh Street, Bidar. On seeing him and

others, the accused by wearing his clothes, tried to escape

from the clutches of PW1. In the meantime, the victim girl

was crying by showing her private parts. Therefore, it is

stated that the informant was sure that the accused had

committed sexual assault on the victim. The victim girl was

not examined before the Trial Court as she was not in a

position to give evidence.

11. To prove the contentions of the prosecution, it has

examined PWs.1 to 18.

(i) PW1 - Farukh is the father of victim girl who gave

first informant.

(ii) PW2 - Siddu, PW3 - Bhaskar, PW4 - Mohammed

Amer and PW5 - Chotu Baig are the witnesses to the spot and

seizure mahazars - Exs.P2, 3 and 4. They have also not

supported to the case of prosecution except identifying their

signatures found on the mahazar.

(iii) PW6 - Dr.Uma Deshmukh is the Medical Officer

who examined the victim and issued Exs.P5, 7 and 8. This

witness has supported the case of prosecution and deposed

that on 21.10.2013 at 3.00 a.m. the victim was brought to

the hospital with the history of sexual assault and she

examined the victim and issued report as per Ex.P5. She also

stated that she received the FSL report as per Ex.P6. She has

given her final opinion as per Ex.P7. The case sheet

maintained in her hospital is as per Ex.P8.

As per Ex.P5, this witness examined the victim girl as

stated above and on examination, she found that the hymen

was not in-tact. Of course, there was no external injuries nor

there were blood stains. She collected the clothes of the

victim and sent for FSL examination. Ex.P7 is the final report

issued by this witness according to which, there was an

attempt to commit rape on the victim girl, but there was no

any recent defloration injuries.

As per Ex.P6 - the FSL report, the presence of seminal

stains were detected in item Nos.1, 3 and 12. Item Nos.1 and

3 were chudidhar top and duppatta worn by the victim. Item

No.12 is the banian said to be belonging to the accused.

Absence of injuries on the body of the victim will not rule out

commission of the offence by the accused.

(iv) PW7 - Mohd.Rizwan Khan is the son-in-law of

PW1, PW8 - Shabana is the sister of the victim and PW9 -

Mohd. Fareed Qureshi is the friend of PW7. Unfortunately,

they have also turned hostile to the case of prosecution.

(v) The other material witness is PW16 - Dr.S M

Zuber Quadri, who examined the accused and gave report as

per Exs.P17 to 19. As per Ex.P18, the doctor is of the opinion

that there is evidence of sexual intercourse. Even though no

injuries were found on his body. As per the FSL report, there

were seminal stains over item No.12 - banian worn by the

accused.

12. Learned counsel for the appellant submitted that

seizure of clothes of the accused is disputed. Therefore, no

relevance could be placed to FSL report relied on by the

prosecution. I have gone through the evidence of PW16 - the

doctor who examined the accused. This witness specifically

stated that after examination of the accused, he collected the

clothes which were worn by him and forwarded the same to

FSL examination. He identified MO14 as banian that was

worn by the accused when he examined him. This fact was

never disputed during cross examination of the witness. A

bald suggestion was made to the witness that he had not

collected the clothes, which have been categorically denied by

the witness. Even there is no reason as to why the official

witness i.e., the doctor is to be disbelieved regarding

examination of the accused and collecting the clothes which

was worn by the accused.

13. As per FSL report, it is specifically stated that

seminal stains were found both on the clothes of victim as

well as on the banian that was worn by the accused. It is a

very strong piece of evidence in favour of the prosecution.

Even in the absence of supporting evidence by the

prosecution witnesses, there is absolutely no explanation by

the accused as to why seminal stains could be found on these

clothes. The accused is examined under Section 313 Cr.P.C.

wherein incriminating materials were put to him. The accused

has denied all the incriminating materials, but has not

explained anything regarding the collection of his clothes by

PW16 and forwarding the same for FSL report, nor he has

stated anything about the medical or FSL reports.

14. It is the settled position of law that the statement

under Section 313 Cr.P.C is not an empty formality. It is a

golden opportunity for the accused to explain each and every

incriminating materials available on record, which are

produced by the prosecution. In the present case, accused

has not availed such an opportunity to explain the

incriminating evidence existing against him. The relatives

including the father who lodged the first information at the

initial stage immediately after the incident, have not chosen

to support the case of prosecution for the reasons best known

to them. PW1- the father has not explained as to why he set

the criminal law into motion explaining the criminal act of the

accused against his daughter by filing the detailed first

information. Unfortunately, the victim could not be examined

before the Court as she was mentally retarded and was dumb.

But that does not mean to say that the Court has to ignore

the incriminating materials of finding the seminal stains on

the clothes of the accused and the victim, which is not at all

explained by the accused. This is one of the strongest

circumstance against the accused.

15. Therefore, I am of the opinion that it is sufficient

to record a finding of guilt of the accused for the said

offences. Even though the material witnesses have turned

hostile, the circumstances in which the offence was committed

against the helpless victim girl is to be taken into

consideration. Therefore, I am of the opinion that the

prosecution is successful in proving the guilt of the accused

beyond reasonable doubt.

16. It is to be noted that it is not the quantity of

evidence led by the prosecution is to be taken into

consideration, but it is the quality of such evidence and even

one strong circumstances against the accused which go

unexplained, is sufficient to convict the accused.

17. I have gone through the impugned judgment of

conviction and order of sentence passed by the Trial Court.

Taking into consideration all the materials on record, the Trial

Court has arrived at a right conclusion. I do not find any

reason to interfere with the well considered order passed by

the Trial Court.

The appeal being devoid of merits is dismissed.

Sd/-

JUDGE

*bgn/-