Karnataka High Court
Tukaram And Ors vs The State on 12 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1 Crl.A.No.200010/2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200010 OF 2018 (374)
BETWEEN
1. TUKARAM S/O DEVALA CHAVAN,
AGE: 40 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
2. MAINABAI W/O DINESH RATHOD,
AGE: 20 YEARS, OCC: COOLIE WORK,
R/O ANADUNAYAK TANDA,
GADININGADALLI VILLAGE,
TQ. CHINCHOLI, DIST.KALABURAGI-585305.
3. PARIBAI @ PARVATIBI W/O TUKARAM CHAVAN,
AGE: 32 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
4. CHANDRAKANTH S/O DEVALA CHAVAN,
AGE: 35 YEARS, OCC: HELPER WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
5. MANIK S/O DEVALA CHAVAN,
AGE: 30 YEARS, OCC: DRIVER,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
6. ANIL S/O SOMLA RATHOD,
2 Crl.A.No.200010/2018
AGE:19 YEARS, OCC: HOTEL WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
7. BHADRU @ BADDU S/O JAYARAM,
AGE: 26 YEARS, OCC: HOTEL WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
8. SANTOSH S/O REKHU CHAVAN,
AGE: 25 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
9. UMESH S/O VITHAL CHAVAN,
AGE: 19 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
10. PANNU S/O DHANAJU CHAVAN,
AGE: 31 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
11. NEELKANTH S/O MANSINGH RATHOD
AGE: 29 YEARS, OCC: AGRICULTURE,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
12. MUKHESH @ MAKHYA @ MUKUND
S/O TARASINGH CHAVAN
AGE: 23 YEARS, OCC: STUDNET,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
13. TARASINGH S/O DEVALA CHAVAN
AGE: 43 YEARS, OCC: COOLIE WORK,
R/O MALASAPUR TANDA,
TQ. & DIST. KALABURAGI - 585313.
...APPELLANTS
(BY SRI NANDKISHORE BOOB, ADVOCATE)
3 Crl.A.No.200010/2018
AND
THE STATE THROUGH CHINCHOLI P S
NOW REPRESENTED BY ADDL. SPP,
HCKB AT KALABURAGI.
...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C. PRAYING TO
CALL FOR THE ENTIRE RECORDS, ALLOW THIS CRIMINAL APPEAL
BY SETTING ASIDE THE JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE WITH FINE FOR THE OFFENCES UNDER SECTIONS
143, 147, 323, 365, 342 AND 114 R/W 149 IPC, AGAINST
A.NOS.1 TO 10, 14 AND 16 (APPELLANT NOS.1 TO 10, 12 AND
13) AND FURTHER FOR THE OFFENCE UNDER SECTION 376 OF
IPC AGAINST A.NO.13, (APPELLANT NO.11), PASSED BY THE
LEARNED IIND ADDITIONAL SESSIONS JUDGE AT KALABURAGI,
IN SPECIAL CASE (SC/ST) NO. 35/2016 DATED 23.12.2017, IN
VIEW OF THE REASONS AS STATED ABOVE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 11.01.2024. COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
4 Crl.A.No.200010/2018
JUDGEMENT
This appeal is filed by the appellants who are arrayed
as accused Nos.1 to 10, 13, 14 and 16 challenging the
judgment of conviction and order of sentence passed by the
II Additional Sessions Judge, Kalaburagi in Special Case
(SC/ST) No.35/2016 dated 23.12.2017.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them before
the Trial Court.
3. The brief factual matrix leading to the case are as
under:
That P.W.1/prosecutrix has lodged a complaint alleging
that her son i.e., P.W.3 was married to accused No.2 and
accused Nos.1 and 3 are the parents of accused No.2 and the
marriage was solemnized about 2 years 3 months earlier. It
is further alleged that accused No.2 quarreled with P.W.3 for
petty reasons and left for parental house at Malasapur
Tanda and all the efforts made for reconciliation went in vain.
It is further asserted accused Nos.1 and 3 were quarreling
with the complainant on that ground.
4. As per the case of the prosecution on 24.10.2015
at about 11-30 p.m. the complainant, her husband P.W.2,
son Dinesh P.W.3 and daughter after dinner went to bed and
at around 11-30 p.m., complainant heard the sound of
knocking the door and on opening the door, she saw two
jeeps and 16 accused. When she enquired with them, they
trespassed in their house alleging that accused P.W.1 to
P.W.3 have tortured accused No.2 Mainabai and she was
slapped and they have abducted P.W.1 to P.W.3 in two jeeps
and took them to Malasapur Tanda. It is further asserted
that at about 02-00 a.m. they were confined on a Katta in
front of the house of Tarasing by tying their legs and hands
with ropes. It is further alleged that they were also assaulted
by hands and were kicked with legs regularly and at about
03-00 a.m. accused No.12 came to her, untied and intimated
her that Dalapati of her village made a call and asked her to
speak to him and under said guise, he took her behind the
house in a open space and left there her with accused No.13.
It is further alleged that there accused No.13 sought a sexual
favour, but when she refuses, she was forced to lie on the
ground and accused No.13 committed sexual assault by
raping her against her will. Later, she escaped from there
and returned to the spot wherein her son and her husband
were confined and there accused No.14 in front of her
husband, squeezed her breast and scratched and then she
was again tied with rope. It is also alleged that
subsequently, somebody passed message to the police and
they rushed to the spot and set them free. In this regard,
she lodged a complaint against the accused. On the basis of
this complaint, the investigating officer registered the case
and subsequently, investigated the crime and submitted the
charge-sheet for the offences punishable under Sections 143,
147, 323, 342, 363, 376, 354A (1) and (2), 114 of Indian
Penal Code, 1860 and Section 3(1) (xi) and 3(2) (v) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
5. After submission of the charge-sheet, the learned
Sessions Judge has taken cognizance of the offences and the
accused were produced before the learned Sessions Judge
and they were subsequently enlarged on bail. The
prosecution papers were furnished to them. The learned
Sessions Judge has framed the charge against the accused
for the aforesaid offences and the accused pleaded not
guilty.
6. To prove the guilt of the accused, the prosecution
has examined in all 24 witnesses as P.W.1 to P.W.24 and
relied on 38 documents marked at Exs.P.1 to P.38 and 10
material objects. After conclusion of the evidence of the
prosecution, the statements of the accused under Section
313 of Cr.P.C. are recorded to enable the accused to explain
the incriminating evidence appearing against them in the
case of the prosecution. The case of the accused is of total
denial.
7. Then the learned Sessions Judge after hearing the
arguments and after appreciating the oral and documentary
evidence convicted accused Nos.1 to 10, 14 and 16 for the
offences punishable under Sections 143, 147, 323, 365, 342
and 114 read with Section 149 of IPC while accused No.13
was convicted for the offence under Section 376 of IPC. He
has also imposed the sentence of imprisonment as well as
fine. The learned Sessions Judge has further acquitted
accused Nos.11, 12 and 15 for the offences under Sections
143, 147, 504, 323, 365, 342 and 114 read with Section 149
of IPC and Section 3(i) (xi) and 3(i) (xv) of the SC/ST Act.
8. Being aggrieved by this judgment of conviction
and order of sentence, accused Nos.1 to 10, 13, 14 and 16
are before this Court by way of this appeal. It is also
important to note here that though accused Nos.11, 12 and
15 were acquitted, the said judgment of acquittal was not
challenged by the State and it has reached finality.
9. Heard the arguments advanced by the learned
counsel for the appellants/accused and the learned High
Court Government Pleader for the respondent/State. Perused
the records.
10. The learned counsel for the appellants/accused
would contend that though 24 witnesses have been
examined, but except P.W.1 and medical officer P.W.11, all
other witnesses have turned hostile including victims P.W.2
and P.W.3. He would contend that the evidence of P.W.1 is
also not trustworthy as she exaggerated the incident and
improved her version and went on changing her stances in
the examination-in-chief as well as the cross-examination.
Hence, her evidence is not trustworthy and the injuries on
her body were not corresponding to allegations made in the
prosecution. He would also assert that though the police
were alleged to have got released the victim, they have not
registered any case and the complaint was lodged later on
next day and this delay was not at all explained. He would
contend that the learned Sessions Judge only on the basis of
uncorroborated and inconsistent statement of P.W.1 ignoring
the other proof of evidence, proceeded to convict the
accused which has resulted in miscarriage of justice. He
would also contend that when the learned Magistrate has not
accepted her evidence so far as it relates to accused Nos.11,
12 and 15 are concerned, what is the base for accepting her
evidence only against these appellants is not forthcoming.
Hence, he would seek for allowing the appeal by setting
aside the impugned judgment of conviction.
11. Per contra, the learned High Court Government
Pleader would support the judgment of conviction and order
of sentence passed by the Sessions Judge. He would contend
that the evidence of the complainant clearly establish
individual overt act of the accused and further initially she
has supported, but subsequently, she has turned hostile and
again later on, she has given the verdict in favour of the
prosecution and hence, her evidence cannot be ignored. He
would assert that the Trial Court has appreciated the oral
and documentary evidence in proper perspective and has
rightly, convicted the accused. Hence, he would seek for
dismissal of the appeal.
12. Having heard the arguments and after perusing
the oral and documentary evidence, now the following point
would arise for my consideration:
"Whether the judgment of conviction and
order of sentence passed by the learned II
Additional Sessions Judge, Kalaburagi in Special
Case (SC/ST) No.35/2016 dated 23.12.2017 is
perverse, arbitrary and erroneous so as to call
for any interference by this Court?"
13. At the outset, it is to be noted here that the
alleged incident is said to have taken place on 24.10.2015
and continued upto 25.10.2015. The further allegation is
that the police rushed to the post and got released the
victims, but the complaint was lodged on 26.10.2015. There
is a delay of more than 24 hours in lodging the complaint
and there is no attempt made by the prosecution to explain
this delay.
14. The records disclose that the complainant is a
resident of Gadilingadalli Tanda. It is further admitted fact
that accused No.2, the daughter-in-law of the complainant
and accused Nos.1 and 3 are the parents of accused No.2. It
is further evident that P.W.2 is the husband of the
complainant and P.W.3 is the son of the complainant who
has married to accused No.2. As per the allegations of the
prosecution, on 24.10.2015 at 11-30 p.m., when she was
sleeping in the house along with her husband, son and
daughter, the accused came there and knocked the door and
when she has opened the door, she was assaulted and she,
her husband and son were abducted by the accused in two
jeeps. It is further asserted that the accused were taken to
Malasapur Tanda and were confined on a Katta in front of the
house of accused No.16 by tying their hands and legs with
ropes. It is further alleged that at 03-00 a.m., the
complainant was untied and she was raped by accused No.13
and accused No.14 committed sexual assault on her in the
presence of her husband. It is further asserted that the
police came to the spot and they were got released.
Interestingly, when the police have rushed to the spot and
got released the victims, there is no evidence as to why the
victims were not sent to the medical examination on the
same day. Further there is no explanation as to why the
police have not registered the case.
15. P.W.1 to 10 and 12 are the eyewitnesses, but
except P.W.1, all these material witnesses have turned
hostile. They denied the entire case of the prosecution and
the prosecution is now relying only on the evidence of P.W.1
and evidence of P.W.11 who is the doctor who has examined
the victims. It is important to note here that pancha
witnesses have also not supported the case of the
prosecution.
16. The victim complainant is examined as P.W.1, in
her evidence, she deposed that on the earlier year next day
of the Dasara, she was sleeping in the house along with her
husband, son and daughter and at about 12-30 in the mid-
night somebody knocked the door by stumps and when she
opened the door, she found two jeeps and 16 accused and
then she narrated regarding she being assaulted and
abducted along with her husband and son and they have
taken to Malasapur Tanda. She further deposed that she
was tied in front of house of accused No.16 and she was
assaulted by stick, hands and Chappal up to 03-00 O' clock.
Her further evidence discloses that later on accused No.12
untied under the guise that she is required to attend a phone
call of Dalapati and took her in an open space and left her
with accused No.13 where she was raped.
17. The complaint is marked as Ex.P.1. It discloses
that accused No.13 alone raped her who was present there,
but in examination-in-chief, she has not only implicated
accused No.13, but accused Nos.14 and 15 were also
implicated and asserted that they all made her to lie on the
ground and they committed sexual assault and then, she was
raped by accused No.13. This is completely inconsistent and
contrary evidence.
18. Her further evidence discloses that morning at
06-00 O' clock when she demanded water, accused Nos.5, 9,
14 and 16 and ladies have poured urine stored in a bottle on
her head and accused Nos.2 and 3 were assaulted by fist. All
these aspects stated in examination-in-chief were not found
place in her complaint or further statement and there are lot
of improvements in her evidence in this regard. Apart from
that, it is the specific assertion of the prosecution that they
were tied on Katta, but in her examination-in-chief, she
deposed that they were tied to a tree in front of the house of
accused No.16 which is again a new version put forward by
the witness. Apart from that, she further deposed that
evening at 04-00 O'clock Chincholi police called accused No.4
and asked them to produce the victims, but accused No.4
lied them asserting that they were already left, but they
were shifted to different place and they were tied in land.
She further asserted that when police have insisted for the
produce of the victims, then P.W.1 to P.W.3 were taken on
two bikes by accused No.4 and another person and produced
before the PSI and the PSI has taken them to police station,
wherein she lodged a complaint. This version is completely
inconsistent and contrary to the allegations made in the
complaint marked at Ex.P.1. The evidence of the complainant
clearly discloses that it consist lot of improvements and
omissions. However, during cross-examination of P.W.1 by
defence, she has given gobye to the case of the prosecution
and stated that there was certain dispute between herself
and accused Nos.1 to 3 and she was never raped and she
was not abducted and she do not know who has raped her
etc., and virtually she denied the entire case of the
prosecution. She further admitted that she cannot identify
accused No.13 regarding rape. Further in examination-in-
chief, she asserted that her statement was recorded by the
Magistrate, but further in the cross-examination she claims
that the contents were not read over and explained to her.
Again subsequently, in the cross-examination of the accused,
she admitted the case and the defence of the accused and in
the re-examination-in-chief, she further asserts that
whatever she has stated in her examination-in-chief is the
fact. If this version of complainant-P.W.1 is taken into
consideration, it is evident that she went on changing her
stances as per the convenience. No doubt, initially, her
examination-in-chief was deferred and subsequently, in the
cross-examination by defence, later on she has turned
hostile. The learned Sessions Judge has come to the
conclusion that in this period she was won over. Even if this
aspect can be taken note of, but there is no explanation as to
lot of improvements and shifting the place of offence,
involvement of other accused regarding rape etc., and these
material improvements were not explained. Apart from that,
she has further gone to the extent that they were produced
before the police by accused No.4 and they were taken to
police station, wherein she lodged a complaint, but the case
of the prosecution is entirely different. Hence, it is evident
that the complainant is not sticking on to a particular stand
and went on changing her stances as per her convenience.
19. The prosecution has also placed reliance on the
evidence of Dr.Kaveri P.W.11, who has deposed that there
was an attempt on victim for rape. Her evidence discloses
that she has given history before the doctor that on
26.10.2015 night the incident has occurred. But as per the
case of the prosecution, the incident has occurred on the
intervening night on 24/25.10.2015 and the history was
given entirely different. She further given a history that
some persons has committed sexual assault on her and she
escaped from there and the police have set her free and she
washed her private part. If this version is taken into
consideration, the version given before the doctor is
completely inconsistent and contrary. The complainant has
given a different history before the doctor, in the complaint
and in her examination-in-chief, but in the cross-
examination, she gives a gobye to all these aspects.
20. Apart from that, the evidence discloses that she
suffered certain injuries on knees, forehead, arms and
scratch marks on the chest and abrasion over the left labia
majora measuring 0.25 cm. On the basis of this opinion, she
gives an opinion that there is an attempt of rape. She also
asserts that the injuries were more than three days. The
witness was examined on 27.10.2015 and the alleged
incident has taken place on 25.10.2015 early morning and
the question of these injuries being three days old does not
arise at all. The medical evidence does not support the case
of the prosecution. Her cross-examination further discloses
that she is not able to say the natures of the injuries and
were tested by the other doctor, who was not cited as
charge-sheet witness and examined. She admits that the
entire history was not recorded by her and further admits
that if a rustic villager fails to maintain hygiene, the injuries
in labia majora are possible. If this evidence is taken into
consideration, then, it is evident that her evidence is not a
conclusive proof of rape on her. Further her own
examination-in-chief discloses that accused No.5, 13 and 14
pressed her breast but accused No.5 was not prosecuted for
the offence under Section 354A of IPC and accused No.14
was acquitted.
21. The learned Sessions Judge only on the basis of
the evidence of P.W.1 proceeded to convict the accused by
taking the evidence of P.W.11 as corroborative evidence. In
the instant case, spot mahazar is also not proved and the
complainant herself tried to shift the place of offence to a
land also. Apart from that, the specific allegation is that they
were all fisted regularly for a considerable long period and
were also assaulted by sticks and kicked, but no such
corresponding injuries were found on their body. Even the
allegations are that their legs and hands were tied, but no
such injuries were found on the legs and tied hands. Though
the learned Sessions Judge has opined that tying may be by
soft rope with loose knot, but that cannot be accepted since
they are being tied and intention of tying their hands and
legs was to see that they should not escape and hence, the
learned Sessions Judge did not appreciate the oral and
documentary evidence in proper perspective.
22. The order of conviction passed by the learned
Sessions Judge is based on the examination-in-chief of
P.W.1, but the examination-in-chief of P.W.1 itself discloses
that it consists lot of contradictions, omissions and her
evidence is contrary to complaint allegations and case of the
prosecution. She goes on changing her stances and
improved her version, but in cross-examination, went on
denying the case of the prosecution. Further, the medical
evidence is also not supporting the case of the prosecution.
The delay is also not properly explained and police having
rushed to the spot, did not register a crime immediately and
this aspect is also not explained. None of these aspects were
taken note by the learned Sessions Judge and only accepting
the portion of the evidence of the complainant, proceeded to
convict the accused ignoring the other portion,
improvements and contradictions. Hence, on perusal of
these facts and circumstances, it is evident that the learned
Sessions Judge is carried out with emotions and the
judgment of conviction suffers from perversity as the
prosecution has failed to bring home the guilt of the accused
beyond all reasonable doubt. Considering these facts and
circumstances, it is evident that the learned Sessions Judge
has erred in convicting the accused and considering the
evidence on record, the accused are entitled for acquittal.
Since the judgment of conviction suffers from perversity, it
calls for interference and as such, I am constrained to
answer the point under consideration in the Affirmative. As
such, the appeal needs to be allowed and accordingly I
proceed to pass the following:
ORDER
The Appeal is allowed.
The impugned judgment of conviction and
order of sentence passed by the learned II
Additional Sessions Judge, Kalaburagi in Special
Case (SC/ST) No.35/2016 dated 23.12.2017 is
set aside.
Accused Nos.1 to 10, 14 and 16/appellant
No.1 to 10, 12 and 13 are acquitted for the
offences under Sections 143, 147, 323, 365, 342
and 114 read with Section 149 of Indian Penal
Code.
Accused No.13/appellant No.11 is acquitted
for the offence under Section 376 of Indian Penal
Code.
The accused/appellants are set free.
The bail bonds shall stand cancelled.
The fine amount, if any, deposited by the
accused shall be refunded to them.
Sd/-
JUDGE
RSP
