Karnataka High Court
Sri Jagadisha @ Jagadisha vs State Of Karnataka on 2 August, 2023
Bench: Shivashankar Amarannavar
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CRL.A No. 985 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 985 OF 2018
BETWEEN:
SRI.JAGADISHA @ JAGADISHA,
S/O MALLIKARJUNA,
AGED ABOUT 27 YEARS,
RESIDING AT KARADIGERE VILLAGE,
SORAB TALUK,
SHIVAMOGGA DISTRICT
KARNATAKA-577 429.
...APPELLANT
(BY SMT. PHILOMENA ROSS, ADVOCATE)
Digitally signed by AND:
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH
COURT OF STATE OF KARNATAKA,
KARNATAKA
REPRESENTED BY
SORAB POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU-560 001.
...RESPONDENT
(BY SRI. RENUKA RADHYA R.D, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 26.04.2018, PASSED BY THE V ADDITIONAL DISTRICT AND
SESSIONS JUDGE, SHIVAMOGGA SITTING AT SAGAR IN
S.C.NO.52/2017, CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 376(2)(L) AND 506 OF IPC.
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CRL.A No. 985 of 2018
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment of
conviction and order of sentence dated 26.04.2018 passed
in S.C No.52/2017 by V Additional District and Sessions
Judge, Shivamogga Sitting at Sagar, convicting the
appellant/accused for the offences punishable under
Sections 376(2)(l) and 506 of IPC, sentencing to undergo
rigorous imprisonment for a period of 10 years and to pay
a fine of Rs.15,000/- for the offence punishable under
Section 376(2)(l) of IPC and to undergo simple
imprisonment for a period of six months for the offence
punishable under Section 506 of IPC.
2. The factual matrix of the case are that:-
PW.1 victim girl is the complainant and she is
residing with her mother, brother, sister-in-law and their
children in Karadigere Village of Soraba Taluk. PW.1 is
blind and she is staying at home and her mother, brother
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CRL.A No. 985 of 2018
and sister-in-law were going for coolie and her brother's
children are also going to school. The appellant was the
accused and he was neighbor of the victim girl and he
used to go to their house oftenly, when victim girl was
alone. The victim girl asked him many times not to come
to their house when she is alone. In spite of that, he used
to come to her house when she was alone.
3. On 18.03.2016 at about 12.00 Noon, the
appellant/accused came to the house of the victim girl
when she was alone and asked her to give him empty
bottle for filling petrol. He entered the house when the
victim girl was going near the granary, came behind her
and caught hold her. When she tried to scream, he
threatened her and covered her mouth tightly and he had
forcibly had sexual intercourse with her. He threatened
her not to disclose this incident to anyone, otherwise, he is
going to put the act which he committed, in the internet
through mobile. The victim girl did not disclose this
incident to her family members and after 3 months, she
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told the incident to her mother and other family members.
Thereafter, a complaint came to be filed by her as per
Ex.P6. A case came to be registered and after
investigation, the police filed charge sheet against the
accused/appellant for the offences punishable under
Sections 376(2)(l) and 506 of IPC. The case has been
committed to the Court of Sessions.
4. The Sessions Court framed the charge against
the appellant/accused for the offences punishable under
Sections 376(2)(l) and 506 of IPC. The accused denied
the charges and claimed to be tried.
5. The prosecution in all examined 7 witnesses as
PWs.1 to 7 and got marked Exs.P1 to P15. The statement
of the accused had been recorded under Section 313 of
Cr.P.C. The appellant/accused denied the incriminating
evidence and did not lead any defence evidence.
6. After hearing the arguments of both the sides,
the Trial Court framed the points for consideration and
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convicted the appellant/accused for the offences
punishable under Sections 376(2)(l) and 506 of IPC. The
said judgment of conviction and order of sentence had
been challenged by the appellant/accused in this appeal.
7. Heard the argument of learned counsel for the
appellant and learned HCGP for the respondent-State.
8. Learned counsel for the appellant argued that
there is a delay in filing the complaint. The alleged incident
occurred on 18.03.2016 and a complaint came to be
registered on 03.07.2016. There was a dispute between
the accused and the villagers with regard to pathway. The
accused has been boycotted by the villagers and in spite of
that the accused had not come forward to settle the issue
with the villagers and therefore, a false case has been
foisted against him. Except the sole testimony of victim
girl-PW.1, there are no other evidence to prove the alleged
incident. There is no medical evidence supporting the
testimony of the victim girl. The victim girl is aged more
than 30 years, but her age is wrongly shown as 26 years
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CRL.A No. 985 of 2018
in the complaint. The victim girl is blind and the said
blindness was due to nerves weakness, when the victim
girl was aged 20 years. The victim girl is able to identify
the persons on their voice since she is not blind by birth.
PW.2-mother in her statement stated that she came to
know about the alleged incident through the villagers who
received the video clip through the mobile. The victim girl
in her statement recorded under Section 164(5) of Cr.P.C
as per Ex.P5 has stated that the accused has recorded the
act of committing forcible sexual intercourse on the victim
girl and he has uploaded the same in the Facebook and
the villagers came to know about the same and thereafter,
she intimated the same incident to her mother. Even
though such act was committed, the Investigation Officer
has not made any investigation in that regard, not
recorded the statement of any villagers to ascertain the
same. PW.1 in her cross examination had admitted that
there was a dispute between the accused and the
villagers. The villagers were not visiting the house of the
accused. The testimony of PW.1 is tutored by the villagers
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CRL.A No. 985 of 2018
as they intended to take revenge against the
appellant/accused as he has not agreed to resolve the
dispute between him and the villagers, in spite of
boycotting him from the village. In such circumstance, the
sole testimony of the victim cannot be relied upon without
corroboration, either by medical evidence or the ocular
evidence. The Trial Court erred in believing the sole
testimony of the victim girl and in convicting the
appellant/accused for the said offences.
9. The learned HCGP argued that the Trial Court
on appreciation of the evidence on record, has rightly
convicted the appellant/accused. He has supported the
reasons assigned by the Trial Court and he further argued
that the sole testimony of the victim girl is sufficient to
convict the appellant/accused for the offences leveled
against him. On these grounds, he sought for dismissal of
the appeal.
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10. On the grounds made out and considering the
argument advanced, the following point arises for my
consideration:
Whether the Trial Court erred in convicting the
appellant/accused for the offences punishable
under Section 376(2)(l) and 506 of IPC?
11. My answer to the above point is in affirmative
for the following reasons;
PW.1 is the victim girl and as per the complaint-
Ex.P6, she is aged about 26 years. The victim girl became
blind when she was in the age of 20 years. As per the
victim girl, the alleged incident occurred on 18.03.2016. A
complaint as per Ex.P6 came to be registered on
03.07.2016. There is a delay of nearly 3½ months in filing
the complaint. In the complaint-Ex.P6, it is stated that the
accused has threatened her that he will upload the
incident in the internet through his mobile and he said not
to disclose the same to any one and as such, due to fear
she had not intimated about the incident to anyone.
However, as she could not control her mind and she
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intimated the same to her mother on 02.07.2016 i.e., one
day prior to the filing of the complaint.
12. The statement of the victim girl has been
recorded under Section 164 of Cr.P.C as per Ex.P5. In
the said statement, the victim girl has stated that the
accused has recorded the act of committing sexual
intercourse on her in his mobile and he has uploaded the
same in the Face book and the villagers came to know
about the same and thereafter, she intimated the said
aspect to her mother. In the said statement - Ex.P5, the
victim girl has not stated about any threat given by the
accused. The victim girl who is examined as PW.1 has
deposed that the accused has recorded the act of
committing forcible sexual intercourse on her in his mobile
and he threatened her that he will be showing the same to
others if she discloses the said incident to anyone. She
had not intimated the same to her family members
thinking that the said act may affect her image. She
however deposed that after 2-3 months, the accused has
sent the said video clip of his act of committing forcible
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sexual intercourse on her to his friends and her mother
came to know the same and when her mother asked, she
intimated regarding the incident. Therefore, there is
material contradiction in the averments of complaint -
Ex.P6, the statement of the victim girl recorded under
Section 164 of Cr.P.C - Ex.P12 and her evidence given
before the Court.
13. The mother of victim girl has been examined as
PW.2. She deposed that she came to know regarding the
forcible sexual intercourse committed by the accused on
her daughter and the same was told by the villagers that
they received video clip of the same in their mobile. She
has deposed that the accused himself has told about the
incident to his friends and to some other villagers. At that
time, she enquired the victim girl who told regarding the
alleged incident to her.
14. Further, the Investigation Officer has been
examined as PW.7 and his evidence regarding
investigation of uploading the alleged act of forcible sexual
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intercourse in the Face book and sending the same to the
mobiles of other villagers by the accused. The
Investigation Officer has not conducted any investigation
in that regard and he has not recorded the statement of
any of the villagers and not seized the mobile of the
accused and mobiles of the villagers. If the said mobile of
the accused or the mobiles of the villagers have been
seized, could have revealed whether the act of the
accused on the victim girl was forcible sexual intercourse
or otherwise.
15. The defence of the appellant/accused was that
there was a civil dispute between him and the villagers
regarding some pathway and at the instigation of the
villagers, a false case has been foisted against him to
eliminate him from the village. PW.1 in her cross
examination has admitted that there is a civil dispute
between accused and the villagers, even PW.2 - mother of
the victim girl in her cross examination stated that there
was a dispute with regard to pathway in the land between
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the family members of the accused and the villagers and
the villagers have imposed social boycott and instructed
the villagers not to go to the house of accused. The said
aspect itself goes to show that there was enmity between
the villagers and the accused and his family members.
16. In view of the said enmity, the sole testimony
of the victim girl cannot be relied on without corroboration
either by medical evidence or other ocular evidence. The
victim girl has been examined by the PW.4-Doctor. PW.4-
Doctor deposed that on 03.07.2016 at about 1:30 p.m. he
examined victim girl and collected articles and sent them
for examination to FSL through Investigation Officer. He
further deposed that after receiving the FSL report, he has
given opinion that there was no any forcible sexual
intercourse on the victim girl 48 hours prior to her
examination. The Assistant Director of FSL was examined
as PW.5 and she has deposed that she examined the
articles sent by the Doctor and after examination she has
issued report as per Ex.P9. She however deposed that she
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had not found any blood stains on article No.4 and 5
(Pubic hair and underwear) and no seminal stains were
detected on items Nos.1, 3, 4 and 5 (i.e., vaginal swab,
pubic hair and underwear). She had deposed that the skin
tissues was not detected in item No.2, finger nails and
vaginal secretion were not detected on items Nos.4 and 5
(public hair and underwear). On considering the evidence
of PWs.5 and 6 there is no medical evidence supporting
the testimony of the victim girl. PW.3 is the scribe who
has written the complaint - Ex.P6, as per the instructions
of victim girl.
17. On perusal of complaint as per Ex.P6, the
alleged date of incident i.e., 18.03.2016 has been inserted
in the margin and there is over-writing by the words about
3 months back over the words 20 days back. The said
aspect also creates doubt regarding what is the alleged
date of incident, because the victim girl is totally blind as
deposed by her and whether she is able to give the date of
alleged incident after 3 months. The inordinate delay of
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3½ months in filing the complaint has not been explained.
In view of the enmity between the villagers and the
accused there are chances of his false implication in the
case. Considering all these aspects, the sole testimony of
the victim girl does not inspire the confidence of the Court.
Therefore, the prosecution has not proved the guilt of the
accused beyond reasonable doubt and the accused is
entitled for benefit of doubt.
18. Without considering all these aspects, the Trial
Court has erred in convicting the appellant/accused for the
offences punishable under Sections 376(2)(l) and 506 of
IPC. Therefore, the impugned judgment of conviction and
the order of sentence passed by the Trial Court requires to
be set-aside and accused has to be acquitted of the
charges leveled against him. In the result, the following:-
ORDER
(i) The appeal is allowed.
(ii) The judgment of conviction and the
order of sentence passed in S.C.
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No.52/2017 dated 26.04.2018 is
set-aside. The appellant/accused is
acquitted of the offences punishable
under Sections 376(2)(l) and 506 of
IPC.
(iii) The fine, if any, paid by the
appellant/accused is ordered to be
refunded to him.
(iv) If the appellant/accused is not required
in any other case, he shall be set at
liberty.
Sd/-
JUDGE
HKV
