Karnataka High Court
Tirupathi vs State Of Karnataka on 1 April, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
-1-
NC: 2024:KHC:13655
CRL.A No. 123 of 2018
C/W CRL.A No. 140 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 123 OF 2018
C/W
CRIMINAL APPEAL NO. 140 OF 2018
IN CRL.A NO.123/2018
BETWEEN:
1. TIRUPATHI,
S/O. HANUMANTHAPPA,
AGED ABOUT 25 YEARS,
OCCUPATION: COOLIE,
R/O. ISLAMPUR,
HARAPANAHALLI TOWN,
DAVANAGERE DISTRICT - 577 001.
2. HANUMANTHAPPA,
Digitally
signed by V S/O. NINGAPPA,
KRISHNA AGED ABOUT 25 YEARS,
Location: High OCCUPATION: COOLIE,
Court of
Karnataka R/O. HIREHADAGALI VILLAGE,
HUVINAHADAGALI TALUK,
BELLARY DISTRICT - 583 101.
3. BASAVARAJA,
S/O. HALAPPA,
AGED ABOUT 26 YEARS,
OCCUPATION: COOLIE,
R/O. KOOLALLI VILLAGE,
-2-
NC: 2024:KHC:13655
CRL.A No. 123 of 2018
C/W CRL.A No. 140 of 2018
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT - 577 001.
...APPELLANTS
(BY SRI. S.G. RAJENDRA REDDY, ADVOCATE)
AND:
STATE OF KARNATAKA
BY HARAPANAHALLI STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI. RAHUL RAI K., HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 21.12.2017 AND SENTENCE DATED 22.12.2017 PASSED
BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
DAVANAGERE IN S.C.NO.93/2016 - CONVICTING THE
APPELLANT/ACCUSED NO.1 TO 3 FOR THE OFFENCE P/U/S
376(D) OF IPC AND TO ACQUIT THE APPELLANTS/ACCUSED OF
THE CHARGES LEVELED AGAINST THEM.
-3-
NC: 2024:KHC:13655
CRL.A No. 123 of 2018
C/W CRL.A No. 140 of 2018
IN CRL.A NO.140/2018
BETWEEN:
1. DYAMAPPA,
S/O DURUGAPPA,
AGED ABOUT 25 YEARS,
COOLIE,
R/O KOOLHALLI VILLAGE,
HARAPANAHALLI TALUK,
DAVANAGERE DISTRICT.
2. BASAVARAJU @ GOUDA,
S/O MYLAPPA,
AGED ABOUT 26 YEARS,
COOLIE,
R/O. KOOLHALLI VILLAGE,
HARAPANAHALLI TAUK,
DAVANAGERE DISTRICT.
...APPELLANTS
(BY SRI. S.G. RAJENDRA REDDY, ADVOCATE)
AND:
STATE BY HARAPANAHALLI POLICE,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BANGALORE - 560 001.
...RESPONDENT
(BY SRI. RAHUL RAI K., HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED
21.12.2017 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DAVANAGERE IN S.C.NO.93/2016 -
CONVICTING THE APPELLANT/ACCUSED NO.4 AND 5 FOR THE
-4-
NC: 2024:KHC:13655
CRL.A No. 123 of 2018
C/W CRL.A No. 140 of 2018
OFFENCE P/U/S 376(D) OF IPC AND TO ACQUIT THE
APPELLANTS OF THE CHARGES LEVELED AGAINST THEM.
THESE APPEALS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are preferred against the judgment and
order dated 21/22.12.2017 passed by the Court of
I Additional District and Sessions Judge, Davanagere in
Sessions Case No.93/2016, whereby the learned Sessions
Judge has convicted accused No.1 to 5 for an offence
punishable under Section 376(D) of IPC and sentenced them to
undergo Rigorous Imprisonment for a period of twenty years
and to pay fine of Rs.10,000/- each, in default, to undergo
Simple Imprisonment for a period of six months.
2. Crl.A No.123/2018 is preferred by accused No.1 to
3 and Crl.A.No.140/2018 is preferred by accused Nos.4 and 5.
3. It is the case of prosecution that on 19.03.2016 the
victim/PW1 along with her younger sister (PW7) and her
daughter (CW9) went to Sri Goni Basaveshwara fair at Koolalli
village of Harapanahalli Taluk. At about 9.30 p.m. When she
NC: 2024:KHC:13655
was talking with PW6 - Kotresh, accused Nos.1 to 5 caught hold
of her. PW6 escaped from the spot. The accused took the victim
near a burial ground and accused Nos.1 to 3 committed rape
on her one after another without her will and consent and
accused Nos.4 and 5 were waiting for their turn.
4. The accused were charge-sheeted for an offence
punishable under Section 376(D) of IPC. They denied the
charges and claimed to be tried. The prosecution, in order to
establish the guilt of the accused, got examined PWs.1 to 25
and got marked Ex.P1 to P.43 and M.O.Nos.1 to 40. The
defence of the accused was one of total denial. However, they
did not choose to lead any evidence on their behalf.
5. The learned Sessions Judge after appreciating the
oral and documentary evidence on record came to the
conclusion that the prosecution has established the guilt of the
accused and accordingly, convicted and sentenced them for the
charged offences as noted supra.
6. The learned counsel for the appellants has
contended that the victim in this case has categorically denied
in her evidence regarding any incident having taken place as
alleged by the prosecution and therefore, the learned Sessions
NC: 2024:KHC:13655
Judge was not justified in convicting the accused. He contended
that all the material witnesses have also turned hostile to the
prosecution and the medical evidence also does not support the
prosecution case and therefore, the conviction and sentence
passed by the Trial Court is bad in law.
7. It is contended that when the prosecutrix gives
different versions, then her evidence cannot be accepted unless
corroborated with other evidence. It is the further contention of
the learned counsel that, the victim is a major aged about 27
years at the time of alleged incident and since she has totally
turned hostile in the cross examination, the accused are
entitled for benefit of doubt. It is his further contention that
when a serious charge, like one in the present case, is levelled
against the accused, the prosecution has to prove the said
charge beyond reasonable doubt. Since the prosecutrix has
categorically denied the incident in question in the cross
examination, the learned Sessions Judge was not justified in
convicting the accused. He has therefore, sought to allow the
appeal and acquit the accused/appellants.
8. The learned High Court Government Pleader has
argued in support of the impugned judgment, contending that
NC: 2024:KHC:13655
the accused have committed a heinous offence of gang rape,
wherein, one of the accused was caught by the public. The
prosecutrix has identified all the accused in the test
identification parade and she has given the evidence in support
of the prosecution case. He contended that by the time when
cross examination was conducted, victim was either tutored or
threatened by the accused persons and therefore, her cross
examination can not be taken into consideration to hold that
the accused are innocent of the charges levelled against them.
He contended that in her chief examination, the prosecutrix has
categorically stated about the heinous act committed by the
accused persons and she has admitted having given her
statement as per Ex.P5, recorded under Section 164 of Cr.P.C.
before the learned Magistrate. He has further contended that
the sole evidence of the prosecutrix is sufficient to convict the
accused. The learned Sessions Judge having appreciated the
oral and documentary evidence on record in the proper
perspective has rightly convicted the accused. He has
therefore, sought to dismiss the appeal.
9. Ex.P1 is the complaint lodged by the victim PW.1.
The gist of the complaint averments are that the victim was
NC: 2024:KHC:13655
married to one Manjappa of Kasavanahalli village about 8 years
prior and in their wedlock they have two daughters. Due to
some misunderstanding, since 2 years, the victim was staying
separately, in Haralu village with her mother and her
daughters. On 19.03.2016, as there was Goni Basaveshwara
fair, she had been to Koolalli village, along with her younger
sister Kariyamma (PW.7) and her daughter-Lakshmi (CW-9) at
about 05:00 p.m. They had dinner in the temple at about
08:00 p.m. The victim left her sister and daughter near the
temple and went out looking for a place to stay where one
Choudappa of their village was staying. Near Hadagali-
Harappanahalli road, she met a villager by name Kotresh
(PW.6). When she was talking to him, at about 09:30 p.m., five
persons came from behind and held them. Kotresh ran away
from the spot. The said persons threatened her and dragged
her to a little distance and out of them 3 persons committed
rape on her one after the other. Two others were sitting at a
little distance. Kotresh (PW.6) and Siddeshi (PW.24) came to
the spot along with others and caught hold of one of the
accused and the remaining accused escaped in the dark. She
informed the matter to them. The accused by name Tirupathi
NC: 2024:KHC:13655
(A1), who was caught at the spot revealed the names of other
accused persons who ran away. The persons who were present
there assaulted him and then Siddeshi went and brought her
sister and daughter.
10. The complaint was lodged on 20.03.2016, at about
10:30 a.m., PW-23 is the PSI who received the complaint
Ex.P1. He registered a case and forwarded the FIR-Ex.P31 to
the jurisdictional Court. He has stated that on the same day all
the accused were apprehended and produced before the CPI.
11. PW.22-CPI has deposed about conducting of spot
Mahazar as per Ex.P2 and arrest of the accused and recording
of their voluntary statements. He has further deposed about
the investigation conducted by him and filing of charge sheet
against accused Nos.1 to 5.
12. After the arrest of the accused, test identification
parade was conducted by PW.14-Taluka executive Magistrate,
on 25.04.2016. The investigation officer-PW.22, has stated that
he sent a requisition to the learned JMFC for permitting him to
conduct the test identification parade and then informed the
Tahsildar and thereafter, on 28.04.2016, Tahshildar sent a
report.
- 10 -
NC: 2024:KHC:13655
13. PW.14 has deposed about the test identification
parade conducted by him on 25.04.2016, at Huvina-Hadagali
sub jail. He has stated that out of 12 persons, the victim
identified the accused by name Tirupathi(A1), Dhyamappa(A4),
Basavaraju(A3) in the first round and Dhyamappa (A4),
Basavaraju (A3) and Tirupathi(A1) in the second round and
Basavaraju(A3), Tirupathi (A1) , Hanumanthappa (A2),
Basavarju(A5) and Dhyamappa (A4) in the Third round. The
report issued by him is marked as Ex.P6.
14. PW.22 has also deposed about forwarding the
victim to the learned JMFC for recording her statement under
Section 164 of Cr.P.C. marked as Ex.P5.
15. The victim who is examined as PW.1, has deposed
in her chief examination in consonance with the complaint
averments. She has deposed that she along with her sister and
daughter had been to Koolahalli temple fair and after the pooja,
as it was dark they could not return to their village. Since one
Choudappa from her village had come to the fair in his bullockcart,
she went to meet him as they wanted a place to stay that
night. On the way she met Kotresh (PW.6). While she was
talking to him, 5 persons came and assaulted Kotresh and sent
- 11 -
NC: 2024:KHC:13655
him away. The said persons dragged her in the dark and out of
them 3 persons committed rape on her one after the other and
other 2 were standing and waiting. By that time, Kotresh
(PW.6) and Siddeshi (PW.24) came to the spot along with
others at about 09:30 p.m., on seeing them, 4 accused persons
ran away and one of the accused by name Tirupathi (A1) was
caught. He revealed the names of the accused who ran away as
Basavaraja, Dhyamappa, Hanumantha and Hanumanthappa.
She has deposed that they lodged the complaint on the next
day and police conducted the Mahazar at the spot as per Ex.P2
and took photos marked as Ex.P3 and Ex.P4. She has also
deposed about giving statement before the learned Magistrate
as per Ex.P5 and identifying the accused in the test
identification parade and attesting her signature on Ex.P6. She
identified the accused persons present in the Court as the
persons one who dragged her and committed rape on her and
whom she identified in the test identification parade.
16. In the further chief examination of the victim, she
failed to identify the clothes worn by her and therefore, she
was treated hostile. In the cross examination conducted by the
learned public prosecutor, she has entirely denied the
- 12 -
NC: 2024:KHC:13655
prosecution case. She has stated that she saw the accused
persons first time in the Court and since it was dark when the
incident took place, she could not identify the accused. She has
stated that she was not raped and she did not sustain any
injuries and she did not lodge any complaint as per Ex.P1. She
has further stated that the complaint was prepared by Kotresh
and she signed the said complaint and not aware of the
contents of Ex.P1. She has further stated that she has not
signed any Mahazar, but signed Ex.P2 in the Police Station. She
has stated that as per the say of Kotresh and Police, she has
given her statement before the learned Magistrate and she was
not taken to the prison and did not participate in the test
identification parade and not signed any document.
17. In Ex.P1-complaint, the victim has stated that she
met one Kotresh(PW.6) on the date of incident and when she
was talking to him, the accused persons came and held them
and at that time the said Kotresh escaped and the accused
dragged her in the dark and 3 of them committed rape on her
one after the other and 2 of the accused were sitting at a
distance. Further, Kotresh(PW.6), Siddappa(PW.24) along with
other public came to the spot and they caught hold one of the
- 13 -
NC: 2024:KHC:13655
accused by name Tirupathi (A1). The said accused revealed the
names of other accused persons.
18. PW.6-Kotresh and PW.24-Siddappa, have not
supported the case of prosecution. PW.6 is a material witness
in this case, since according to prosecution, the victim first met
him and the accused persons caught hold of the victim as well
as PW.6 and at that time, PW.6 ran away and returned to the
spot along with PW.24 and others and caught hold of one of the
accused by name Tirupathi (A1). Both PWs.6 and 24 have
admittedly not seen the accused persons committing rape on
the victim. According to prosecution, the victim revealed about
the incident to the said witnesses. Since both the said
witnesses have completely denied the prosecution case, their
evidence is not helpful to the prosecution.
19. According to prosecution, the prosecutrix went to
Koolahalli for Goni Basaveshwara fair along with her younger
sister Kariyamma(PW.7) and her daughter-Lakshmi(CW.9). A
perusal of Ex.P1, clearly shows that Siddappa(PW.24) went and
brought them to the spot, which was obviously after the
incident. Victim's sister who is examined as PW.7 has deposed
about her sister informing to her about the incident of rape
- 14 -
NC: 2024:KHC:13655
committed on her. She has stated that her sister did not reveal
the names of the accused persons. In the cross examination
conducted by the Public Prosecutor, she has stated about her
sister informing to her about the incident and revealing the
names of the accused. Once again in the cross examination
conducted by the defence, she has denied the prosecution case
stating that her sister did not reveal to her about the rape
committed and also the names of accused persons. She has
stated that she has deposed in her chief examination as per the
say of the police.
20. Another material witness examined by the
prosecution is PW.8 i.e., uncle of the victim. He is a hearsay
witness. In the cross examination conducted by the defence, it
is elicited that he has not given any statement to the police.
From his evidence it can be seen that he was informed by his
sister about the victim being present in the Police Station and
thereafter, he went to the Police Station on the next day at
about 11:00 a.m. In the cross examination he has stated that
the victim brought a typed complaint to the police station.
21. PWs.2 and 3 are the witnesses to the spot Mahazar-
Ex.P2, prepared on 20.03.2016. PWs.4 and 5 are the witnesses
- 15 -
NC: 2024:KHC:13655
to the spot Mahazar - Ex.P7 i.e., spot shown by the accused
persons on 21.03.2016. PW.9 is the doctor who examined the
victim and issued the certificate as per Ex.P20. PW.10 is a
Junior Engineer who prepared the spot sketch-Ex.P28. PW.11 is
the Village Accountant who issued the documents relating to
the place of incident. PW.12 is the Scientific Officer who issued
the FSL report as per Ex.P30. PW.14 is the Tahshildar who
conducted the test identification parade. PWs.17 and 18 are
two other independent witnesses. However, they have turned
hostile. PW.23 is the PSI who registered the case and PWs.15,
16, 19 to 21 and 25 are the other Police officials who assisted
the investigation of the case.
22. It is the contention of the learned High Court
Government Pleader that the victim has categorically supported
the case of prosecution in her chief examination and she has
also deposed about her participation in the test identification
parade and giving her statement before the learned Magistrate
as per Ex.P5 and therefore, the prosecution has proved it's case
against the accused beyond all reasonable doubt.
23. The trial Court has observed that the prosecutrix in
her evidence has clearly deposed that the accused have forcibly
- 16 -
NC: 2024:KHC:13655
taken her to a open space and committed rape on her. So, the
evidence of prosecutrix and medical evidence as well as the
evidence of Scientific Officer and his report clearly proves that
there was sexual intercourse. It is further observed that it is
not stated in the evidence of the accused that the prosecutrix
was a consenting party. On the other hand, it is a defence
taken that at the instigation of Kotresh, the prosecutrix has
given false complaint and false evidence before the Court. It
is further observed that there is no explanation by the accused
that the accused and the said Kotresh are not in good terms
and therefore, there was no necessity for him to instigate the
prosecutrix to file a false complaint and give false evidence
before the Court. The trial Court has also observed that the
prosecutrix in her evidence has clearly deposed that the
Tahsildar has conducted the test identification parade and she
has identified the accused and there is nothing elicited to
disbelieve the version of PW14.
24. The learned High Court Government Pleader has
relied on a judgment of the Hon'ble Apex Court in the case of
'Hemudan Nanbha Gadhvi v. State of Gujarat' reported in
(2019) 17 SCC 523 to contend that the prosecutrix turning
- 17 -
NC: 2024:KHC:13655
hostile and failing to identify the accused, by itself is not
sufficient to efface evidence including the identification in test
identification parade. He contended that the prosecutrix has
supported the case of the prosecution in her chief examination
and subsequently after more than 1½ months, while giving
evidence, she has turned hostile to the prosecution. He,
therefore contended that the said period was sufficient for the
accused to win over the prosecutrix.
25. It is well settled that in a case of this nature, sole
evidence of the prosecutrix is sufficient and no corroboration is
required, if her evidence inspires confidence of the Court.
Apart from the evidence of PW1, the prosecution has also
placed reliance on her statement recorded under Section 164
Cr.P.C., the medical evidence and the test identification parade
conducted by PW14 and the report submitted by him marked as
Ex.P6.
26. It is the specific case of the prosecution that on
19.03.2016 at about 9.30-10.00 p.m., the accused persons
caught hold of PW1-victim and dragged her to the nearby
graveyard and accused Nos.1 to 3 raped her one after the other
- 18 -
NC: 2024:KHC:13655
while accused Nos.2 and 3 were sitting at a distance waiting for
their turn.
27. As already discussed, PWs.6 and 24 as well as
PWs.17 and 18 who are the other material witnesses have not
supported the prosecution case. The learned Sessions Judge
while examining the evidence of PW1 and she turning hostile in
the cross-examination, has relied on a decision reported in
2010 Crl.L.J 1515, in the case of 'Krishna v. State of
Karnataka.' In the said case, it was held that,
"Evidence Act, Sec. 3 hostile witness - credibility -
witness fully supports prosecution case in his
examination-in-chief as to any material and relevant
fact - But turns hostile to prosecution in his cross-
examination made on behalf of accused on a later date
and states contrary to his evidence in his examination-
in-chief as to the said fact -evidence of such hostile
witness in his examination-in-chief has to be accepted
as true if it is not shown that what he stated in his
examination-in-chief was not stated by him at the
earliest opportunity, in his statement recorded U/Sec.
161 of Cr.P.C., by Investigating Officer."
28. Further, relied on a decision in the case of Nara
Peddi Reddi Raju v. State of Andhra Pradesh reported in
2011 (4) Crimes 639 wherein it is held that,
- 19 -
NC: 2024:KHC:13655
"Indian Penal Code, 1860 - Section 376 - Rape
of married woman- prosecutrix though supported
charge in examination-in-chief but turned hostile in
her cross- examination which was taken up
adjournment date- Husband of prosecutrix also turned
hostile-sustainability of conviction - when cross-
examination of prosecutrix was tainted by crude
manouvring of witness, such cross-examination lost its
weight - Fact that prosecutrix when examined in chief
gave evidence in support of prosecution case in spite
of husband having turned hostile reinforced truth in
her evidence-her evidence was corroborated by FIR
and medical evidence-conviction and sentence of 10
years imprisonment called for no interference."
29. The learned Sessions Judge has observed that in
both the decisions, it is clearly held that if the witness has
given evidence in examination-in-chief as per the prosecution
case and counsel for the accused has taken adjournment for
cross-examination and on the adjournment date if the witness
completely turned hostile to the prosecution, the evidence
given by the witness in the examination-in-chief is required to
be accepted.
30. In the case on hand, the chief-examination of PW1
was conducted on 02.02.2017. A perusal of her evidence
shows that the accused did not take time on that day for cross-
- 20 -
NC: 2024:KHC:13655
examination, on the other hand, it was the public prosecutor
who took time for further chief examination. Further chief was
conducted on 25.03.2017 wherein, the prosecutrix failed to
identify the cloths worn by her and also the articles collected by
the doctor. Hence, she was cross-examined by the public
prosecutor. The trial Court has failed to take into
consideration this relevant aspect. In her cross-examination,
she has completely denied the prosecution case and she has
stated that no such incident of rape was committed on her and
she has only signed the complaint prepared by Kotresh, as per
Ex.P1. She has further stated that as per Kotresh and the
police, she gave statement before the learned Magistrate as per
Ex.P5. She has denied having visited the jail and identified the
accused persons.
31. PW14-Tahsildar has spoken about conducting of
test identification parade and issuance of report as per Ex.P6.
In the cross-examination, he has deposed that he has not
prepared a separate mahazar for having conducted the test
identification parade. He has not obtained the signature of the
victim on the first page of Ex.P6 and he has not taken any
signatures of the jail authority. He has stated that he has not
- 21 -
NC: 2024:KHC:13655
mentioned in his report that he has made to stand other
persons who are of the same age of the accused.
32. It is relevant to see that accused No.1, according to
prosecution was apprehended at the spot and it is he who
revealed the names of other accused persons who ran away.
None of the witnesses including the police officials have stated
as to whether accused No.1 was arrested on the same day. If
accused No.1 was apprehended at the spot by PW6, PW24 and
others, then certainly he would have been handed over to the
police by them. The prosecution is silent as to what happened
on that night after accused No.1 was apprehended and whether
he was handed over to the police etc. Strangely, according to
PWs.21 and 22, all the accused including accused No.1 were
arrested on 21.03.2016, i.e., the following day of lodging the
complaint.
33. Ex.P7 is the mahazar conducted by PW22-I.O. after
the arrest of accused Nos.1 to 5. As per Ex.P7, the accused
showed the spot where the offence was committed. The
photographs of the accused were taken, which are marked as
Exs.P8 to 17. In the said photographs, all the accused can be
- 22 -
NC: 2024:KHC:13655
seen. Test identification parade is conducted on 25.04.2016
after their photographs were taken. Moreover, as per chief
examination of PW1, about 8-10 persons were present at the
time of conducting test identification parade, whereas PW14
has stated that there were 12 persons. In the first and
second round, PW1 is said to have identified accused Nos.1, 3
and 4 and in the third round, she is said to have identified
accused Nos.1 to 5. Hence, a reasonable doubt arises as to the
manner in which the test identification parade is conducted and
regarding identification of the accused by PW1.
34. The learned HCGP has contended that as per PW12
seminal stains were found on the article Nos.4, 5, 10, 17 and
23 namely the clothes of the victim and accused Nos.1 to 3.
He has therefore contended that the said evidence is significant
to establish the prosecution case.
35. The learned counsel for the appellants on the other
hand has vehemently contended that as per the medical
examination conducted on the victim, she has not sustained
even scratches and if she was subjected to gang rape in an
open space, she would have certainly sustained injuries.
- 23 -
NC: 2024:KHC:13655
36. PW9 is the Doctor who examined the victim on
20.03.2016 i.e., on the following day of the incident in
question. PW9 has deposed that the age of the victim is
approximately 27-28 years and it is possible that she would
have had sexual intercourse, but clear report is difficult to
specify in multiparous lady. The exact time and date of
intercourse cannot be specified, however there are features of
having contact in 0-12 hours approximately. He has stated
that there is no evidence of external injuries or scratches
anywhere over the body and there is no other evidence of other
injuries following any act of forcible intercourse phenomena.
Further, as per FSL report-Ex.P20, he has given his opinion
stating that as seminal stains are detected on her saree and
petticoat, there is possibility that there was an act of sexual
intercourse.
37. As per PW9, as seminal stains were detected in her
saree and petticoat as per FSL report, he opined that there is
possibility of act of sexual intercourse and he has clearly stated
that there is no evidence of external injuries or scratches
anywhere over the body. Under the circumstances, there is
some force in the contention of the learned counsel for the
- 24 -
NC: 2024:KHC:13655
appellants that if any act of gang rape has been committed on
the victim, against her will or consent, in an open field there
would have been some injuries or scratch marks on her body.
38. Admittedly, the incident has taken place at about
9.30 p.m., near a burial ground in an open space. According to
prosecution, the accused persons dragged the victim near joly
bush and laid her on the ground and accused Nos.1 to 3
committed rape one after the other against her will. The
prosecutrix, examined as PW1 has completely turned hostile
when her further chief examination was conducted by the
public prosecutor. She has denied any such incident having
taken place as alleged. It is not the case of prosecution that
the defence took time for conducting cross-examination. On
the other hand, it was the public prosecutor himself who took
time for further chief examination. She has completely denied
the accused persons committing rape on her and having
identified them in the test identification parade. She has
stated that the statement given before the learned Magistrate
was as per the say of PW6 and police. There is no evidence or
material placed by the prosecution that the prosecutrix was
either won over or threatened by the accused. It is also
- 25 -
NC: 2024:KHC:13655
established that the written complaint was prepared by PW6.
She has stated that she is not aware of the contents of Ex.P1.
The medical examination report-Ex.P20 issued by PW9 shows
that there is no evidence of any external injuries or scratches
anywhere over her body. The manner in which the test
identification parade conducted also gives rise to a reasonable
doubt with regard to the identification of the accused by PW1.
The accused are therefore entitled for benefit of doubt.
39. In the light of the above discussion, I pass the
following:
ORDER
i. Appeals are allowed.
ii. The Judgment and Order dated 21/22.12.2017
passed by the Court of I Additional District and
Sessions Judge, Davanagere, in SC No.93/2016 is
hereby set aside.
iii. Accused Nos.1 to 5 are acquitted of the offence
punishable under Section 376-D of IPC.
iv. Accused Nos.1 to 3 shall be released, if they are not
required in any other case.
- 26 -
NC: 2024:KHC:13655
v. The bail bonds of accused Nos.4 and 5 stand
cancelled.
Sd/-
JUDGE
LDC,TL
