Karnataka High Court

Sangappa vs The State on 16 March, 2023

Bench: S Rachaiahpresided Bysrj

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                                                      CRL.A.No.200145 of 2018




                           IN THE HIGH COURT OF KARNATAKA

                                   KALABURAGI BENCH

                        DATED THIS THE 16TH DAY OF MARCH, 2023

                                          BEFORE
                          THE HON'BLE MR JUSTICE S RACHAIAH
                         CRIMINAL APPEAL NO.200145 OF 2018

                 BETWEEN:

                 SANGAPPA S/O NINGAPPA HIREKURUBAR
                 NOW AGED 33 YEARS, OCC:TRUCK DRIVER,
                 R/O RATNAPUR, TQ. & DIST.VIJAYAPURA -
                 586101.
                                                                  ...APPELLANT
                 (BY SRI. VISHAL PRATAP SINGH, ADVOCATE)


                 AND:
                 THE STATE
                 THROUGH CPI VIJAYAPURA RURAL CIRCLE,
                 BY THE ADDL. SPP HIGH COURT OF KARNATAKA,
Digitally
signed by        KALABURAGI BENCH.
KHAJAAMEEN                                                       ...RESPONDENT
L MALAGHAN
Location: High   (BY SRI.GURURAJ V. HASILKAR, HCGP)
Court of
Karnataka

                       THIS   CRIMINAL APPEAL IS FILED UNDER    SECTION 374
                 (2) OF CR.P.C. PRAYING TO ALLOW THE APPEAL AND   SET-ASIDE
                 THE JUDGMENT OF CONVICTION DATED 24.09.2018 FOR OFFENCES
                 PUNISHABLE UNDER SECTIONS 366, 376 AND 506 OF IPC AND
                 ORDER OF SENTENCE DATED 24.09.2018 OF PRL. SESSIONS JUDGE,
                 VIJAYAPURA IN S.C.NO.39/2015 AND ACQUIT THE APPELLANT
                 HEREIN FOR THE CHARGES FOR WHICH HE WAS CONVICTED AND
                 ETC.,

                      THIS APPEAL IS COMING ON FOR FINAL HEARING, THIS DAY,
                 THE COURT DELIVERED THE FOLLOWING:
                                   -2-
                                          CRL.A.No.200145 of 2018




                            JUDGMENT

Heard Sri. Vishal Pratap Singh, the learned counsel

for the appellant and Sri. Gururaj V. Hasilkar, the learned

High Court Government Pleader for the respondent -

State.

02. This appeal is filed by the appellant aggrieved

by the judgment and order of sentence dated 24.09.2018

in S.C.No.39/2015 passed by the Prl. Sessions Judge,

Vijayapura.

03. For the sake of convenience, the ranking of the

parties henceforth will be considered and referred as per

their ranking before the Trial Court.

04. It is case of the prosecution that on

13.06.2014, the husband of the prosecutrix was not in the

station. At that time, at about 01.00 a.m., when the

prosecutirx was sleeping along with her children in front of

farm house at Ratnapur village, the accused came to the

spot along with two associates and showed her knife, tied

CRL.A.No.200145 of 2018

cloth to her mouth and asked her to follow him. He has

also threatened that if she makes any noise, she would be

killed. It is further alleged in the complaint that, the

prosecutrix was taken to Vijayapura on motorcycle,

thereafter, she was taken to Goa by bus. It is further

stated in the complaint that, she was confined in Goa at

the house of the friend of the accused and the accused

committed rape on her every day. It is further stated that

on 22.06.2014, when the accused and his friend were not

in the house, the complainant stated to have escaped from

the place and came to Vijayapura. It is stated in the

complaint that the complainant called her brother and

husband over telephone and all the three persons have

gone to the police station, the complainant lodged a

complaint against the accused before the respondent /

Police. The police have registered the case for the

offences punishable under Sections 366, 376 and 506 of

Indian Penal Code (for short 'IPC'). After conducting the

investigation, the respondent - police have submitted the

charge-sheet.

CRL.A.No.200145 of 2018

05. To prove the case of prosecution, the

prosecution has examined 12 witnesses as PWs.1 to 12,

got marked Exs.P.1 to 15 and identified M.Os.No.1 to 4.

On the other hand, there are certain documents have been

marked as Exs.D.1 to D.9 by the defence.

06. The Trial Court after appreciating the oral and

documentary evidence on record, convicted the accused

for the offences punishable under Sections 366, 376 and

506 of IPC. Being aggrieved by the same, the appellant is

before this Court and sought to set-aside the judgment of

conviction and order of sentence passed by the Trial Court.

07. Sri. Vishal Pratap Singh, learned counsel for the

appellant submits that, the judgment of conviction and

order of sentence passed by the Trial Court is erroneous

and against the evidence on record. Hence, it is liable to

be set-aside.

CRL.A.No.200145 of 2018

08. It is further submitted that, the evidence of

complainant i.e., PW.1 is inconsistent and contradictory in

nature. There is ambiguity in respect of the alleged

incident. The said ambiguity and contradiction ought to

have been considered by the Trial Court while appreciating

the evidence of PW.1. It is further submitted that, PW.1

traveled on motorcycle and thereafter in the bus upto Goa.

Even though, it is assumed that she was confined in the

house of the friend of the accused at Goa, who is

examined as PW.12, there is no any whisper regarding the

noise while she was being kidnapped by the accused and

his associates. Except the evidence of this PW.1, there are

no cogent and corroborative evidence in respect of alleged

incident. It is further submitted that the Trial Court has

committed grave error in accepting the evidence of PW.1

and also the documentary evidence. Hence, the judgment

of conviction and order of sentence is liable to be set-

aside.

CRL.A.No.200145 of 2018

09. In support of his contention the learned counsel

for the appellant has relied upon the judgments of the

Hon'ble Supreme Court in the cases of (1) Santosh

Prasad @ Santosh Kumar vs. The State of Bihar in

Criminal Appeal No.264/2020, (2) Rai Sandeep @

Deepu vs. The Staet of NCT of Delhi in Criminal

Appeal No.2486/2009 and (3) Tameezuddin @

Tammu vs. The State of NCT of Delhi in Criminal

Appeal No.1289/2004. Accordingly, the learned counsel

for the appellant prays to allow the appeal.

10. Per contra, Sri. Gururaj V. Hasilkar, the learned

High Court Government Pleader vehemently opposed the

appeal and submits that the alleged offences are heinous

in nature and it is against the woman. The evidence of

PW.1 certainly inspires the confidence of the Court and it

is in the nature of 'sterling quality'. It is further stated that

the evidence of presucutrix should be considered at par

with other injured witnesses. It is further submitted that

the evidence of prosecutrix and the evidence of PW.12

CRL.A.No.200145 of 2018

proved that she was in Goa and confined in the house of

PW.12. Therefore, the Trial Court has rightly appreciated

the evidence of prosecutrix and other relevant

circumstances, and convicted the accused / appellant for

the offences stated supra. Making such submissions,

learned High Court Government Pleader prays to dismiss

the appeal.

11. In view of the rival contentions urged by the

learned counsel for both the parties, the points that would

arise for my consideration are:-

A. Whether the judgment of conviction and order of

sentence passed by the Trial Court is

sustainable?

B. Whether the appellant has made out grounds to

interfere with the judgment of conviction and

order of sentence passed by the Trial Court?

CRL.A.No.200145 of 2018

12. Before adverting to the materials on records, it

is necessary to refer the evidence of the witnesses and

their role in the said case.

PW.1 is the victim / complainant, PWs.2 and 3 are

the witnesses to the spot panchanama and recovery

panchanama. Both have turned hostile. PW.4 is the

witness to the spot panchanama, not supported the case

of the prosecution. PW.5 is the husband of the prosecutrix.

He has supported the case of the prosecution. PW.6 -

Gurulingappa is the Assistant Engineer, PWD Sub-Division,

Vijayapura, he has prepared the sketch map of the alleged

scene of occurrence. PW.7 - Basavaraja is the

Investigation Officer stated to have conducted the

investigation partly. PW.8 - Dr.Shashikala working as

Senior Specialist in District Hospital, in Gynecology

Department. She has examined the victim and issued

medical certificate as per Ex.P10 and final report as per

Ex.P11. PW.9 - Dr.Ramesh who is said to have examined

the accused and issued medical certificate as per Ex.P13

CRL.A.No.200145 of 2018

and final opinion as per Ex.P14. PW.10 -

B.P.Chandrashekar is the Investigating Officer stated to

have recorded the statement of the victim and her further

statement. PW.11 - Anand is the Investigating Officer

stated to have recorded the further statement of the

victim. PW.12 is the friend of the accused and he has

stated that the appellant and the prosecutrix were staying

in his house and both the appellant and the prosecutrix

were sleeping separately.

13. On careful reading of the above gist of the

evidence of the witnesses, it is relevant to refer the

evidence of PW.1, who is the prosecutrix. According to

her, she was forcibly taken to Vijayapura on a motorbike

and thereafter, she was taken to Goa by bus. Further she

has stated that, she stayed at the house of PW.12 almost

for eight days and the same has not been corroborated by

the evidence of PW.12. It is stated in her examination-in-

chief that, when the appellant and PW.12 were not there

at the house in Goa, she escaped from the house and

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CRL.A.No.200145 of 2018

reached Vijayapura and informed and contacted her

brother and her husband over phone. Thereafter, she has

lodged the complaint.

14. On careful reading of the evidence of PW.1, it is

obvious that, even though she is stated to have been

kidnapped by the accused and his associates, the case is

made out against only the accused person. Even if it is

believed that she was taken to Vijayapura on a motorbike,

she did not raise any alarm nor tried to escape from the

clutches of the accused. Thereafter, it is stated in the

evidence that she went to Goa by bus along with the

accused. If she was really kidnapped by the accused,

PW.1 had every possibility to raise alarm or inform

anybody who were in the bus. It is needless to say that,

the complainant is a married woman and she is matured

enough to understand the consequences. Having

considered the travel of the complainant from her house

till reaching Goa, it can be inferred that, the ingredient of

Section 366 of IPC does not attract.

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CRL.A.No.200145 of 2018

15. Now it is relevant to refer the evidence of

PW.12, who is the friend of the accused, in whose house

the complainant and the accused were staying. According

to PW.12, both the accused and the complainant stayed in

his house for two days and they were sleeping separately.

There is a contradiction regarding the length of stay at the

house of PW.12. Be that as it may, there is an allegation

that the accused has committed rape when the prosecutrix

was staying at the house of PW.12.

16. On careful reading of the evidence of PW.8 -

Doctor who is stated to have examined the prosecutrix

and submitted a report regarding the examination which is

marked as per Ex.P10 and the opinion of the said Doctor is

marked as Ex.P11. Further the FSL report has also been

marked through her which is marked as Ex.P12. Ex.P10 -

opinion column reads thus:

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CRL.A.No.200145 of 2018

OPINION

1. On examination of Baiyawwa w/o. Tukaram, Hirekurubar, she aged between 26 years to ___ years as per own statement, radiological and general physical examination.

2. Recent signs of sexual intercourse - Present / Absent

3. ______ Is used to act like that of sexual intercourse

4. On examination of _____ There is nothing to suggest that he is incapable of performing sexual intercourse.

The final opinion kept pending for forensic science laboratory report.

Final opinion which is marked as Ex.P11 reads thus:

Final Opinion:-

A victim name, Baiyawwa, w/o Tukaram, Hirekurubar, examined on 23/06/2014, concerned to police station, Tikota with Cr.No.75/2014 u/s. 366, 354, 506 IPC - 34, there are no signs suggestive of penetration.

On careful reading of the above medical reports and also

the evidence of the prosecutrix, it appears that there are

no signs of sexual intercourse. Such being the fact, it

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CRL.A.No.200145 of 2018

would be inappropriate at this stage to consider the

evidence of PW.1. Of course, the conviction can be held

on the basis of the evidence of prosecutrix alone, provided

if the evidence of the said prosecutrix inspires the

confidence of the Court. In other words, the said evidence

should be in the nature of 'sterling quality".

17. In the present case, the evidence of PW.1 does

not inspire the confidence of the Court in any manner. On

careful perusal of the evidence, the contradictions and

inconsistencies which amounts to material contradictions

and therefore, it certainly affects the case of the

prosecution. In other words, the evidence of PW.1 creates

a doubt of the alleged offences. Obviously, such doubt

should benefit the accused in the form of benefit of doubt.

18. In view of the observation made above, the

points which arose for my consideration are answered as

follows:

Point No.(a) in the 'negative'

Point No.(b) in the 'affirmative'

Hence, I proceed to pass the following:

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CRL.A.No.200145 of 2018

ORDER

(i) The Criminal Appeal is allowed.

(ii) The judgment of conviction and order of

sentence dated 24.09.2018 passed by the

learned Principal Sessions Judge at

Vijayapura in Sessions Case No.39/2015 is

set aside.