Karnataka High Court

The State Of Karnataka vs Shankara on 5 January, 2024

Author: H.B.Prabhakara Sastry

Bench: H.B.Prabhakara Sastry

                             -1-
                                     CRL.A. No.281 OF 2017




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
      DATED THIS THE 5TH DAY OF JANUARY, 2024
                          PRESENT
     THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
                             AND
          THE HON'BLE MR. JUSTICE ANIL B KATTI
                  CRL.A No.281 OF 2017 (A)

BETWEEN:

      THE STATE OF KARNATAKA
      THROUGH HOLEHONNUR POLICE STATION
      BHADRAVATHI
      REPRESENTED BY
      STATE PUBLIC PROSECUTOR
      HIGH COURT OF KARNATAKA
      BENGALURU 01
                                              ...APPELLANT
(BY SRI B.N.JAGADEESHA, ADDL. SPP)

AND:

1.    SHANKARA
      @ SHANKARJIRAO,
      S/O D RAMARAO,
      AGED ABOUT 38 YEARS,
      R/O TATTIHALLI
      VILLAGE, BHADRAVATHI TALUK


2.    KARIYAPPA
      S/O SHIVALINGAPPA
                               -2-
                                      CRL.A. No.281 OF 2017




      AGED ABOUT 34 YEARS,
      R/O TATTIHALLI VILLAGE,
      BHADRAVATHI TALUK 577301


3.    SMT.VEENA
      W/O LATE PRAKASH
      AGED ABOUT 46 YEARS
      BENKINAGAR
      SHIVAMOGGA
                                              ...RESPONDENTS
(BY SRI.S.JAVEED, ADVOCATE
     [APPPOINTED AS AMICUS CURIAE ON BEHALF OF R1 & R2]
     Ms.LEKHA G.D., ADVOCATE
     [APPPOINTED AS AMICUS CURIAE ON BEHALF OF R1 & R2])
                             ------


       THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
21.07.2016 PASSED BY THE I ADDITIONAL SESSIONS JUDGE
AND    SPECIAL    JUDGE,   SHIVAMOGGA    IN   SPL.(A)   CASE
NO.18/2014- ACQUITTING THE RESPONDENT/ACCUSED FOR
THE OFFENCE P/U/S 376, 506 R/W 34 OF IPC AND SEC.3 (2)
(V) AND 3 (1) (X) OF SC/ST (POA) ACT 1989.


       THIS CRIMINAL APPEAL HAVING BEEN HEARD THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING FOR FURTHER
ARGUMENTS AND RESERVED ON 27.09.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY ANIL B. KATTI, J.,
DELIVERED THE FOLLOWING:
                             -3-
                                      CRL.A. No.281 OF 2017




                        JUDGMENT

Appellant/State feeling aggrieved by judgment of

Trial Court on the file of I Additional Sessions Judge and

Special Judge at Shivamogga in Special (A) Case

No.18/2014 dated 21.07.2016 preferred this appeal.

2. Parties to the appeal are referred with their

ranks as assigned in the Trial Court for the sake of

convenience.

3. The factual matrix leading to the case of

prosecution can be stated in nutshell to the effect that

complainant is permanent resident of Shivamogga. There

was naming ceremony of daughter of complainant's

(PW.1-victim) brother Mahesh. In order to attend said

naming ceremony on the invitation of her brother-Mahesh,

complainant after her work in APMC Factory, Shivamogga,

on 27.03.2014, left Shivamogga at 8.00 p.m. and got

down in Kaimara at 8.45 p.m. Complainant was talking

with her brother Mahesh over phone to pick her from

CRL.A. No.281 OF 2017

Kaimara. At that time, two persons came on Motorcycle

and told that her brother Mahesh has informed them to

drop his sister to the house. Complainant refused to go

with them since they are unknown to her. However, one of

them introduced himself as Shankara s/o.Ramarao,

belongs to Marathi caste and another one as Kariyappa

s/o.Shivappa, belongs to Uppar caste and they also got

confirmed with complainant saying that she is the

daughter of Nagappa belongs to Valmiki caste. On

disclosure of their names and father name of complainant

by the persons on Motorcycle, complainant traveled with

them on motorcycle. On the way, when they turned the

bike after Arahatholalu Village, complainant questioned

them as to why they turned the vehicle, they informed her

that it is the short cut road to reach the village. Rider of

motorcycle stopped the motorcycle on the bed of the lake

near Tattihalli, then dragged the complainant to the

garden land of Haleshappa. Complainant made hue and

cry but they administered threat to kill her by pushing her

into the lake. The mobile of complainant was switched off

CRL.A. No.281 OF 2017

by them. In spite of resistance of complainant, accused

No.1 has committed sexual assault on her and accused

No.2 caught hold of her hands. Thereafter, accused No.1

caught hold of her hands and accused No.2 committed

sexual assault on her and they committed sexual assault

on complainant one after another. Thereafter, they took

complainant on their motor cycle and left near Kariyamma

Temple by administering threat not to disclose about the

incident to anybody, otherwise they will kill her. While

complainant was near temple, her junior uncle's children,

Shivu and Diwakar through mobile of complainant,

telephoned to her brother Mahesh and immediately,

another brother Raghu took her from the temple on his

motorcycle and left to the house of complainant. On these

allegations made in the complaint, case was registered in

Holehonnur police station Crime No.119/2014. The

Investigating Officer after completing investigation filed

charge sheet for the offences punishable under Sections

376, 506 r/w.34 of IPC and Section 3(2)(v) and 3(1)(x) of

CRL.A. No.281 OF 2017

the Schedule Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (SC & ST (POA) Act for brevity).

4. In response to summons, accused 1 and 2 have

appeared through their counsel. The trial Court on being

prima facie satisfied of charge sheet materials, framed

charge against accused 1 and 2 for the offences alleged

against them. Accused 1 and 2 pleaded not guilty and

claimed to be tried. Prosecution in order to prove the

allegations made against accused 1 and 2, relied on oral

testimonies of PWs.1 to 20 and documents Exs.P.1 to P.31

so also got identified M.O.Nos.1 to 5. The documents at

exhibits D1 and D2 came to be marked through the

evidence of PWs.4 and 6.

5. On closure of prosecution evidence, statements of

accused under Section 313 of Cr.P.C. came to be recorded.

Accused denied all the incriminating material evidence

appearing against them and claimed that a false case is

filed. The trial Court after appreciation of

CRL.A. No.281 OF 2017

evidence on record acquitted accused 1 and 2 for offences

alleged against them.

6. Appellant/State challenging the judgment of

acquittal passed by Trial Court contended that Trial Court

has not properly appreciated the evidence of PW.1-victim

which is duly corroborated by the evidence of PWs.3 to 9.

The medical evidence in the form of PW.10-Dr.Kavitha

with wound certificate Ex.P.11 and the final opinion

Ex.P.13 would go to show that PW.1-victim was subjected

to sexual assault. The place of incident shown by PW.1-

victim under spot panchanama Ex.P.2 has been duly

corroborated by the evidence of PW.2- Mahadeveppa,

PW.3- Raghupathi, PW.4-Gayathri and that of the evidence

of PW.8-Haleshappa, owner of the land, coupled with the

evidence of PW.20-Sadananda B Naik, Investigating

Officer. The circumstantial evidence brought on record by

the prosecution relating to the post incident substantiate

allegations made against accused 1 and 2. PW.1-victim

has identified accused 1 and 2 during the course of her

evidence before the court and she had ample opportunity

CRL.A. No.281 OF 2017

to see accused 1 and 2, who took her on the motorcycle.

The Trial Court without appreciation of above referred

material evidence on record has erroneously recorded

finding in acquitting accused 1 and 2 from the charges

leveled against them. Therefore, prayed to allow the

appeal and to set aside the judgment of Trial Court,

consequently to convict accused 1 and 2 for offences

alleged against them.

7. In response to notice, respondents/accused 1

and 2 have appeared through their counsel. In view of

order of this Court on I.A.2/2023 dated 30.8.2023,

complainant was made as party respondent No.3 in this

appeal. This court by order dated 15.9.2023 appointed

Ms.Lekha G D as Amicus Curiae to represent respondent

No.3 and further by order dated 21.9.2023 also appointed

Sri Javeed.S as Amicus Curiae to represent respondents

No.1 and 2. Trial Court records have been secured.

8. Heard arguments of both sides.

CRL.A. No.281 OF 2017

9. After hearing both sides and on perusal of Trial

Court records, including the impugned judgment, following

points arise for consideration:

1. Whether the prosecution has proved beyond all reasonable doubt that on 27.3.2014 at about 8.45 p.m., accused posing themselves that they were sent by her brother Mahesh, took PW.1-victim on their bike to the field belongs to PW.8-Haleshappa and committed rape, thereby committed an offence punishable under Section 376 R/w. 34 of IPC ?

2. Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, accused gave life threat and thereby committed offence punishable under Section 506 R/w.34 of IPC.

3. Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, that accused knowing fully well that PW.1-victim belongs to schedule caste committed rape on her and thereby committed offence punishable under Section 3(2)(v) of SC/ST (POA) Act?

4. Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, that accused knowing fully well that PW.1-victim belongs to schedule caste given life

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CRL.A. No.281 OF 2017

threat and thereby committed offence punishable under Section 3(1)(x) of SC/ST (POA) Act?

5. Whether interference of this Court is required?

10. A careful perusal of oral and documentary

evidence placed on record, it would go to show that on

27.03.2014, PW.1-victim, complainant, left Shivamogga at

8.00 p.m. and got down at Kaimara at 8.45 p.m. from the

bus and while she was talking with her brother Mahesh

over phone to pick her from Kaimara, at that time, two

persons came to the spot on Motorcycle and told that her

brother Mahesh had informed them to drop his sister to

the house. When complainant questioned, both of them

introduced themselves by saying their names and father

name. It is only thereafter PW.1-victim traveled along with

the said two persons on the two wheeler. On the way, as

they turned the bike instead of going on the straight way,

PW.1-victim questioned them as to why they turned the

vehicle, they informed her that it is the short cut road to

reach the village. Thereafter, they took PW.1-victim to the

garden land of PW.8-Haleshappa and have committed

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CRL.A. No.281 OF 2017

sexual assault on her. Thereafter, they took PW.1-victim

on their motor cycle and left her near Kariyamma Temple.

One Raghu took her from the temple on his motorcycle

and left to the house where PW.1-victim narrated the

entire incident to her mother PW.9-Shanthamma and

thereafter, they went to the police station and PW.1 victim

filed complaint Ex.P.1.

11. Learned Additional SPP has argued that oral

testimony of PW.1-victim is not shaken in the cross-

examination and she has identified accused 1 and 2 who

have committed sexual assault on her. When accused on

their motorcycle left PW.1-victim near the temple, PWs. 6

and 7, who were working in the temple, saw PW.1-victim

and she requested them to switch on the mobile as it was

in switch off mode. Thereafter, PW.6-Shivakumar, through

the mobile of PW.1-victim has spoken to brother of PW.1-

victim, Mahesh. One Raghupathi came to the spot on

motorcycle and picked up PW.1-victim and dropped her to

house. PW.1-victim has narrated about the incident

before her mother, PW.9-Shanthamma and the same is

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CRL.A. No.281 OF 2017

further corroborated by the evidence of PWs. 4 to 7. The

medical evidence of PW.10-Dr.Kavitha has given opinion

that PW.1-victim was subjected to sexual assault. The

evidence of PW.20-Sadananda B Naik, Investigating

Officer also corroborate with the evidence of PW.1-victim

and the medical evidence of PW.10-Dr.Kavitha. The Trial

Court without properly appreciating the evidence on record

has erroneously recorded finding in acquitting accused 1

and 2. The observations and findings recorded by the Trial

Court cannot be legally sustained, since the same is

contrary to law and evidence on record.

12. Per contra, learned Amicus Curiae for

respondents No.1 and 2/accused 1and 2 has argued that

there is delay in filing the complaint and the evidence of

PW.10-Dr.Kavitha would go to show that no dead human

sperms found and also no injuries were found on the

victim. Prosecution witnesses have not spoken that victim

and accused were known to each other and there are no

witnesses to say that accused 1 and 2 have carried PW.1-

victim on their motorcycle. The evidence of PWs. 6 and 7

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CRL.A. No.281 OF 2017

and their presence at the temple is highly improbable.

The Trial Court has rightly appreciated the evidence on

record and the findings recorded are based on material

evidence placed on record by the prosecution which does

not call for any interference by this court.

13. The learned Amicus Curiae representing

respondent No.3/victim has argued that presence of injury

is not necessary, so also collecting of call details is totally

unwarranted. The final opinion given by PW.10-Dr.Kavitha

would speak about sexual assault on PW.1-victim. The

motorcycle used for commission of offence has been

seized at the instance of accused under the panchanama

Ex.P.8 and the recovery pancha PW.5-T.N.Suresh has

supported the case of the prosecution. The sole testimony

of prosecutrix can be relied. The Trial Court without

properly appreciating the oral testimony of PW.1-victim

and medical evidence on record, has erroneously recorded

the finding and same needs to be interfered with by this

Court.

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14. Before proceeding further in analysing the

evidence led in the matter, it is to be borne in mind that it

is an appeal against the judgment of acquittal of the

accused from the alleged offence punishable under

Sections 376, 506 r/w.34 of IPC and Section 3(2)(v) and

3(1)(x) of SC & ST (POA) Act. Therefore, the accused has

primarily the double benefit. Firstly, the presumption

under law that, unless the guilt is proved, the accused has

to be treated as innocent in the alleged crime. Secondly,

the accused is already enjoying the benefit of judgment of

acquittal passed under the impugned judgment. As such,

bearing the same in mind, the evidence placed by the

prosecution in the matter is required to be analysed.

(a) Our Hon'ble Apex Court, in its judgment in the

case of Chandrappa and others -vs- State of Karnataka,

reported in (2007) 4 Supreme Court Cases 415, while

laying down the general principles regarding powers of the

Appellate Court while dealing in an appeal against an order

of acquittal, was pleased to observe at paragraph 42(4)

and paragraph 42(5) as below:

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CRL.A. No.281 OF 2017

" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

(b) In the case of Sudershan Kumar -vs- State of

Himachal Pradesh reported in (2014) 15 Supreme Court

Cases 666, while referring to Chandrappa's case (supra),

the Hon'ble Apex Court at Paragraph 31 of its Judgment

was pleased to hold that, it is the cardinal principle in

criminal jurisprudence that presumption of innocence of

the accused is reinforced by an order of acquittal. The

Appellate Court, in such a case, would interfere only for

very substantial and compelling reasons.

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CRL.A. No.281 OF 2017

of Kerala, reported in (2022) 8 Supreme Court Cases 440,

at Paragraph 25 of its judgment, the Hon'ble Apex Court

was pleased to observe as below:

"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."

The above principle laid down by it in its previous

case was reaffirmed by the Hon'ble Apex Court, in the

case of Ravi Sharma -vs- State (Government of NCT of

Delhi) and another reported in (2022) 8 Supreme Court

Cases 536.

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The Hon'ble Apex Court in another latest judgment in

Roopwanti Vs. State of Haryana and others reported

in 2023 SCC online 179, wherein it has been observed

and held in paragraph No.7 that:

"In cases where a reversal of acquittal is sought, the Courts must keep in mind the presumption of innocence in favour of the accused, on grounds of it surviving to rigorous of full trial is strengthened and stands forfeited. The prosecution then while still working under the same burden of proof, is required to discharge a more onerous responsibility to annual and reverse the forfeited presumption of innocence. This fortification of the presumption of innocence has been held in a catena of judgment by this Court".

It is keeping in mind the above principles laid down by

the Hon'ble Apex Court, we proceed to analyse the

evidence placed in this matter.

15. PW.1-victim has deposed to the effect that she

knows accused 1 and 2, she belongs to Valmiki caste

which falls in the category of scheduled caste, accused

No.1 belongs to Marathi Caste and accused No.2, Uppar

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CRL.A. No.281 OF 2017

caste. Accused 1 and 2 knew that PW.1-victim belongs to

Valmiki caste. Husband of PW.1-victim died about 15

years back and she is working in a factory situated behind

APMC of Shivamogga. Further she has got two children

out of her marriage and CW.7-Mahesh is her brother. Her

parental house is in Tattihalli of Bhadravathi, so also

accused belongs to Tattihalli village.

15(a) On 27.3.2014, she left Shivamogga bus-stand

at 8.00 p.m. for proceeding to Tattihalli village and she

alighted from the bus at 08.45 p.m. in Kaimara.

Thereafter, she was calling her brother over phone to pick

up her by standing near mobile shop. At that time, both

accused came on motorcycle and enquired her as to

whether she is daughter of Nagappa of Tattihalli village

and on confirming the same, they stated that her brother

Mahesh asked them to pick up her and drop her to his

house. PW.1-victim did not agree to accompany them and

they disclosed their identity with their father's name.

Therefore, PW.1-victim accompanied them on their

motorcycle. On the way near Aratholalu village, rider of

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CRL.A. No.281 OF 2017

motorcycle took turn and she questioned as to why they

are going on the other road. They stated that it is short

cut road. They stopped their motorcycle on the lake bed

and asked PW.1-victim to co-operate with them, but she

did not agree for the same and started making hue and

cry. Accused 1 and 2 threatened PW.1-victim of killing her

and by force have taken her to the garden land of PW.8-

Haleshappa near dry hay stack. Accused No.2 closed her

mouth and accused No.1 committed sexual assault on her.

Thereafter, accused No.1 closed her mouth and accused

No.1 committed sexual assault on her. They committed

sexual assault on PW.1-victim 2 or 3 times. Thereafter,

accused took PW.1-victim on their motorcycle and left

near Kariyamma temple by threatening her not to disclose

the incident to anybody or else they will kill her.

15 (b) The mobile of PW.1-victim was switched off

by accused No.1-Shankar and while she was in the temple,

one Shivu and Diwakar came to her and questioned and

she revealed the incident before them. They called her

brother Mahesh over phone of PW-1 victim and spoke

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with him. Thereafter, friend of her brother one Raghupathi

came to the spot on his motorcycle and left PW.1-victim to

the house.

15(c) On reaching home, PW.1-victim narrated about

the incident to her mother PW.9-Shanthamma and then

went to the police station and filed complaint Ex.P.1.

Thereafter, has shown the place of incident to police and

they prepared spot panchanama Ex.P.2 in presence of

PW.3-Raghupathi, PW.4-Gayathri and PW.6-T.N.Suresh.

PW.1-victim identified one Panche as MO.1 and the

photographs taken at the time of preparing spot

panchanama was identified by her as Ex.P.3. Thereafter,

she was subjected to medical examination, she also

identified the photographs Exs.P4 to P7 of the motorcycle

on which she was taken by accused. Further, she

identified her clothes worn at the time of incident as MO

Nos.2 to 5.

16. PW.9-Shanthamma is the mother of PW.1-

victim and she has narrated about the incident before her

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mother. PW.9-Shanthamma during the course of her

evidence has deposed about the fact of incident revealed

by her daughter PW.1-victim and she also identified

accused 1 and 2 before the court as Shankar and

Kariyappa.

17. Prosecution to prove the place of incident,

relied on oral testimony of PW.2-Mahadevappa, panch

witness to the spot panchanama Ex.P.2; PW.3-Raghupathi,

PW.4-Gayathri, apart from being the panch witnesses to

the spot panchanama Ex.P.2 were also present in the

house of PW.9-Shanthamma while PW.1-victim was

narrating about the incident. The seizure of panche-MO.1

under the panchanama Ex.P.2 has been identified by them

as MO.1. They have also spoken about actual place where

the incident took place and it is recited in the panchanama

Ex.P.2 that it is by side of dry hay stack and foot prints of

movement were found at place of incident.

17(a) The sketch map Ex.P.26 has been prepared at

the time of drawing spot panchanama Ex.P.2 by PW.20-

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Sadananda B Naik, Investigating Officer and during the

course of his evidence, he has substantiated about

drawing of spot panchanama Ex.P.2 shown by PW.1-victim

and seizure of MO.1 under the said panchanama. PW.8-

Haleshappa, owner of the garden land has deposed to the

effect that about 1 year and 9 months back, police came

to the garden land and prepared panchanama. P.W.20-

Sadananda B Naik has also spoken about the sketch map

prepared by PWD Engineer Ex.P.30. If the above referred

evidence placed on record by the prosecution is

appreciated, then, it would go to show that prosecution

has proved the place of incident.

18. On 28.3.2014, PW.1-victim was examined by

PW.10-Dr.Kavitha, who was accompanied by her mother,

PW.8-Shanthamma, at 03.00 p.m. in General hospital

Bhadravathi. PW.14-Sarvamangala took PW.1-victim to

hospital for medical examination on the direction of

PW.20-Sadananda B Naik. PW.1-victim has given history

of incident stating that, "when she came to Kaimara stop

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from Shivamogga alone at 8.45 p.m. on 27.3.2014,

Kariyappa and Shankar came on bike and took her saying

that they will drop her to house; later, in the field near

Aratholalu, at 9.00 p.m. she was raped by both of them

after closing her mouth and she was dropped to her home

by them". PW.10-Dr.Kavitha has deposed to the effect

that she has collected article Nos.1 to 8 pertaining to

PW.1-victim at the time or medical examination and

accordingly, given certificate Ex.P.11. PW.10-Dr.Kavitha

has replied to queries of Investigating Officer Ex.P.12 and

given final opinion on the basis of RFSL report dated

7.6.2014 that the findings are suggestive that the victim

had a recent sexual intercourse. However, quite contrary

to the said opinion, during the course of her cross-

examination, states that through oversight she mentioned

in Ex.P.13 that victim had a recent sexual intercourse

instead of writing "used to act like that of sexual act and

PW.1 was not subjected to recent sexual assault". This

opinion of PW.10-Dr.Kavitha is also against the oral

testimony of PW.1-victim.

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19. The evidence of PW.16-Dr.Mallikarjuna would go

to show that on 28.3.2014 he has examined accused

No.1-Shankar s/o.Rama Rao and collected samples for

evidence :

1. Swab around corona glandis

2. Swab around urethra

3. Combed and cut pubic hairs

4. Underwear (brown colour full)

On the same day, he has examined accused No.2-

Kariyappa s/o.Shivalingappa and collected samples for

evidence :

1. Swab around corona glandis

2. Swab around urethra

3. Combed and cut pubic hairs

4. Underwear (light blue full)

All these collected items from Sl.Nos.9 to 16 shown

in the FSL report and articles collected belonging to PW.1-

victim Nos.1 to 8 were also subjected to FSL examination.

19(a) On perusal of RFSL report Ex.P.29, it would go

to show that seminal stains was detected on item No.12

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(underwear of accused No.1), seminal stains were not

detected on items 1 and 3, 4 to 11 and 13 to 17.

Spermatozoa was not detected on item No.2. In view of

there being seminal stains found in the underwear of

accused No.1, the oral testimony of PW.1-victim and in

the absence of any explanation of accused No.1, it will

have to be held that underwear of accused No.1 found

with seminal stains, it has to be inferred from the above

evidence that incident of sexual assault has occurred as

deposed by PW.1-victim. In a case of sexual assault,

evidence of PW.1-victim assumes much importance and if

the said evidence is found to be trustworthy, the same will

have to be accepted.

20. PW.20-Sadananda B Naik, Investigating Officer

of the case has deposed to the effect that he has directed

PSI of Holehonnur Police Station to trace accused 1 and 2

and produce before him. The evidence of PW.12-

Manjunatha PSI of Holehonnur Police Station would go to

show that on the direction of PW.20-Sadananada Naik, he

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has arrested both accused at Kallihala circle and produced

before PW.20-Sadananada B Naik and accordingly, given

report Ex.P.16. The evidence of PW.12-Manjunatha and

the report Ex.P.16 would go to show that both accused 1

and 2 on 28.3.2014 at 9.00 A.M. were arrested and

produced before Dy.S.P. of Holehonnur Police Station.

20(a) PW.20-Sadananada Naik has deposed to the

effect that during enquiry, accused No.1 gave voluntary

statement that he will produce the motorcycle bearing

No.KA.19-L-9430 which was parked in front of Bhavani

hotel of his brother-in-law. Thereafter accused No.1 led

the police officials and pancha PW.5-Suresh and CW.5-

Nagarajappa and shown the place where he had parked

the aforesaid motorcycle in front of Muregeppa complex,

wherein his brother-in-law was running a Marata Military

hotel. It is at the instance of accused No.1, the aforesaid

motorcycle came to be seized under the panchanama

Ex.P.8.

20(b) PW.5-Suresh is the panch witness for the

seizure of motorcycle bearing No. KA.19-L-9430 at the

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instance of accused No.1. PW.5-Suresha has deposed to

the effect that himself and CW.5-Nagarajappa were called

by the police for the purpose of panchanama. Accused 1

and 2 were in custody of police and they lead to place in

front of Bhavani Military hotel and shown the parked

motorcycle bearing No.KA.19-L-9430 which came to be

seized under the panchanama Ex.P.8 and he identified the

photographs taken at that time Ex.P.9.

20(c) PW.13-Dasharatha, brother of accused No.1,

owner of motorcycle bearing No.KA.19-L-9430, has not

supported the case of the prosecution. The defence

counsel has subjected both PW.5-T.N.Suresh and PW.20-

Sadananada Naik to cross-examination. However, nothing

worth material has been brought on record so as to

discredit their evidence regarding seizure of motorcycle

bearing No. KA.19-L-9430 at the instance of accused No.1

under the panchanama Ex.P.8.

21. Learned Amicus Curiae counsel for

respondents No.1 and 2 has vehemently argued that

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accused 1 and 2 are unknown to PW.1-victim and

Investigating Officer has not conducted any test

identification parade. Therefore, prosecution has failed to

establish identity of accused 1 and 2 who are responsible

for committing sexual assault on PW.1-victim. On the

other hand, the learned Additional SPP has argued that

conducting of test identification is not mandatory. PW.1-

victim has identified both accused before the Court as

persons who have committed sexual assault on her.

Accused 1 and 2 according to evidence of PW.1-victim

have disclosed their identity with their names and father

name and they belong to Tattihalli village, further

projected before PW.1-victim that her brother Mahesh has

asked them to pick up PW.1-victim and drop her to house.

PW.1-victim had ample opportunity to see the faces of

accused 1 and 2. In support of such contention, reliance

is placed on the judgment of Hon'ble Apex Court in

Malkhansingh and others vs. State of M.P. reported in

(2003) 5 SCC 746.

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"7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and

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these parades are essentially governed by section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration."

In view of the principles enunciated in this decision,

identification of accused 1 and 2 by PW.1-victim during

the course of her evidence is a substantive evidence who

had sufficient opportunity to see the faces of accused 1

and 2. The said evidence cannot be discarded merely

because the Investigating Officer has not conducted the

test identification parade of accused 1 and 2. The

evidence of PW.1-victim and narration of incident of

sexual assault on her, would repose confidence of court in

accepting her evidence in identifying accused 1 and 2 who

have committed sexual assault on her.

22. Learned Amicus Curiae for respondents No.1 and

2 also argued that evidence of PW.1-victim is not

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supported by medical evidence of PW.10-Dr.Kavitha and

the medical certificate Ex.P.11 and the final opinion

Ex.P.13 rules out the possibility of PW.1-victim being

subjected to sexual assault.

23. Learned Additional SPP has argued that if the

evidence of PW.1-victim is found to be consistent and

reliable, then, her sole testimony can be relied in proof of

the sexual assault on her. In support of such contention

reliance is placed on the judgment of the Hon'ble Apex

Court in Moti Lal vs. State of Madhya Pradesh

reported in (2008) 11 SCC 20

"It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian women has a

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tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station and lodge a case. In the instant case the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting (sic scathing) her own prestige and honour."

The Hon'ble Apex Court having so observed affirmed

the judgment of conviction of accused.

24. In the present case also PW.1-victim is a widow

having two children pursuing their studies in Shivamogga.

PW.1-victim to attend naming ceremony of daughter of

her brother, travelled alone from Shivamogga and reached

Kaimara at 8.45 p.m. While she was contacting her

brother Mahesh over phone to pick up her from Kaimara,

accused 1 and 2 approached PW.1-victim and projected

themselves as persons sent by her brother Mahesh only

to pick up PW.1-victim and to drop to the house. PW.1-

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victim after enquiry and being satisfied with the disclosure

made by accused 1 and 2 that they also belong to her own

village Tattihalli, accompanied them on their motorcycle.

Accused 1 and 2 have taken undue advantage of helpless

position of PW.1-victim, and committed sexual assault on

her. The evidence of PW.1-victim is consistent with regard

to the manner in which the incident of sexual assault was

committed on her by accused 1 and 2. PW.1-victim has

also disclosed names of accused 1 and 2 while giving the

history of incident before PW.10-Dr.Kavitha and same has

been recorded by her in Ex.P.11. Therefore, there are no

chances of PW.1-victim falsely implicating accused 1 and 2

in this case.

25. Learned Amicus Curiae representing Respondent

No.3-complainant has argued that there is no necessity

that PW.1-victim should suffer injuries at the time of

sexual assault on her. The facts and circumstances of the

case will have to be looked into and whether offence has

been committed has to be appreciated with reference to

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evidence of PW.1-victim. In support of such contention,

reliance is placed on the judgment of Hon'ble Apex court in

State of T.N. vs. Ravi alias Nehru reported in (2006)

10 SCC 534

"14. In Madan Gopal Kakkad v. Naval Dubey, the accused was charged with the rape of a minor girl of eight years. This Court held that even slightest penetration of penis into vagina without rupturing the hymen would constitute rape.

15. We may also notice the opinion expressed by Modi in Medical Jurisprudence and Toxicology (21st Edn.) at p. 369 which reads thus:

"Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda, with or without emission of semen, or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape, is crime and

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not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one."

16. In Parikh's Textbook of Medical Jurisprudence and Toxicology, the following passage is found:

"Sexual intercourse.-In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."

17. In Encyclopaedia of Crime and Justice (Vol. 4) at p. 1356, it is stated:

"... even slight penetration is sufficient and emission is unnecessary."

18. It is now well-accepted principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. It is also well-

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accepted principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence. A woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion treating her as if she were an accomplice. (See State of Punjab v. Gurmit Singh.)

19. So also in Ranjit Hazarika v. State of Assam, this Court observed that non-rupture of hymen or the absence of injury on the victim's private parts does not belie the testimony of the prosecutrix.

20. The evidence of a victim of sexual assault stands on a par with the evidence of an injured witness. Just as a witness who has sustained an injury is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offender is entitled to great weight, absence of corroboration notwithstanding. (See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat.)"

In view of the principles enunciated in this judgment of

Hon'ble Apex Court, the contention of the counsel for

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accused that no injuries were found on PW.1-victim and as

such possibility of accused having committed sexual

assault is totally ruled out, cannot be legally sustained.

The evidence of PW.1-victim would go to show that both

accused one after another have committed sexual assault

on her and there are no reason to disbelieve her evidence.

26. Prosecution out of the above referred evidence

on record has proved that accused 1 and 2 have

committed sexual assault on PW.1-victim in garden land of

PW.8-Haleshappa and same is duly corroborated by

evidence of PW.10-Dr.Kavitha and RFSL report Ex.P.29

which further corroborates that in the underwear of

accused No.1 seminal stains were detected in item No.12.

The collecting of articles belonging to PW.1-victim and that

of accused 1 and 2 by PW.10-Dr.Kavitha and PW.16-

Dr.Mallikarjun would go to show that articles of PW.1-

victim and accused 1 and 2 respectively -Ex.P.11, Ex.P.21

and Ex.P.20 have been proved by the prosecution. In

pursuance of the voluntary statement of accused No.1

Ex.P.27, at his instance the motorcycle used by accused 1

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and 2 bearing No.KA-19-l-9430 has been seized in the

presence of PW.5-T N Suresh and PW.19-Nagaraj.

Further, the said evidence has been corroborated by

evidence of PW.20-Sadananda B Naik, Investigating

Officer. If the said evidence placed on record by

prosecution is appreciated with oral testimony of PW.1-

victim, then, it would go to show that prosecution has

proved beyond all reasonable doubt that accused 1 and 2

have committed sexual assault on PW.1-victim which

attract penal action in terms Section 376 of IPC.

27. The prosecution alleges that PW.1-victim is

belonging to Valmiki caste falling in the category of

scheduled caste. Accused No.1 belonging to Marathi Caste

and Accused No.2 of Uppar Caste. PW.20-Sadananda B

Naik, the Investigating Officer has deposed to the effect

that he has collected caste certificates of accused 1 and 2

from Tahsildar Ex.P.14. PW.11-Siddamallappa, the then

Tahsildar, Bhadravathi, would go to show that he has

issued caste certificates of accused 1 and 2 Ex.P.14. The

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caste certificate of PW.1-victim has not been collected by

PW.20-Sadananda B Naik, the Investigating Officer.

28. Prosecution alleges that accused Nos.1 and 2

knowing fully well that PW.1-victim belongs to Valmiki

caste falling under the scheduled caste, have committed

sexual assault on her. Further they have intentionally

intimidated with an intention to humiliate PW.1-victim she

being a member of schedule caste in any public place with

public view. The alleged act of accused 1 and 2 in

committing sexual assault on PW.1-victim is not because

PW.1-victim belongs to schedule caste. In fact, the

evidence of PW.1-victim would go to show that she was

unknown to accused 1 and 2. On the other hand, accused

1 and 2 themselves got introduced by disclosing their

names and father name of PW.1-victim and stated that

they are also residents of Tattihalli village, further they

projected that brother of PW.1-victim Mahesh has asked

them to pick up PW.1-victim from Kaimara and drop her to

house. The said evidence on record would go to show that

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accused 1 and 2 have no knowledge that PW.1-victim

belonged to scheduled caste and because of she being a

scheduled caste, they committed sexual assault on her.

The place of incident is the garden land of PW.8-

Haleshappa during night hours.

28(a). It is profitable to refer the judgment of Hon'ble

Apex Court in Hitesh Varma vs. State of Uttarakhand

reported in (2020) 10 SCC 710 has held as under :

"17. In another judgment reported in Khuman Singh vs. State of M.P. (2020) 18 SCC 763 : 2019 SCC Online SC 1104, this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that deceased belonged to scheduled caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to scheduled caste. The court held as under :

"15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of scheduled caste and

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         scheduled tribe.      In the present case, the
         fact   that     deceased        was   belonging     to

"Khangar" scheduled caste is not disputed. There is no evidence to show that the offence was committed only on the ground that victim was a member of scheduled caste and therefore, the conviction of the Appellant-accused under Section 3(2)(v) of the Scheduled caste and Scheduled Tribes (Prevention of Atrocities) Act, is not sustainable."

In view of principles enunciated in the aforementioned

judgment of Hon'ble Apex court, even in the absence of

caste certificate of PW.1-victim that she belongs to

Valmiki caste is to be accepted then also her evidence is

falling short to prove the legal requirement that accused 1

and 2 have committed sexual assault on her only because

she belongs to Valmiki caste. Therefore, the offence

under Section 3(2)(v) of the SC/ST (POA) Act, has not

been proved by the prosecution.

29. There is no evidence on record that accused have

intimidated with an intention to humiliate a member of a

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scheduled caste in any place within the public view.

Therefore, section 3(1)(x) and 3(2)(v) of SC & ST (POA)

Act has no application to the facts of the case. The

evidence of PW.1-victim is also insufficient to prove the

offence under Section 506 of IPC. Thus, the prosecution

has failed to prove beyond reasonable doubt that accused

has committed offence under Section 3(1)(x) and 3(2)(v)

of the SC & ST (POA) Act and 506 of IPC. The material

evidence placed on record by prosecution as referred to

above, would go to show that the prosecution has proved

the offence under Section 376 of IPC against accused 1

and 2.

30. The Trial Court without properly appreciating the

evidence on record and by misreading the evidence of

PW.1-victim and the evidence of PW.10- Dr.Kavitha, so

also the evidence of PW.16-Dr.Mallikarjun and RFSL report

Ex.P.29 has erroneously recorded finding in acquitting

accused 1 and 2 for the offence alleged against them

under Section 376 of IPC. Therefore, to this extent,

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interference of this Court is required. Consequently, we

proceed to pass the following :

ORDER

Appeal filed by the appellant-State is hereby partly

allowed.

Acquittal of the accused Nos.1 and 2 for the offence

under Section 376 of IPC is set aside.

Accused 1 and 2 are convicted for the offence under

Section 376 of IPC.

The judgment of Trial Court acquitting accused 1

and 2 for the offences under Section 506 of IPC, section

3(1)(x) and 3(2)(v) of SC & ST (POA) Act stands

confirmed.

Call on to hear on quantum of sentence.

SD/-

JUDGE

SD/-

JUDGE

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DR.HBPSJ & ABKJ DATE:05.01.2024

HEARING ON SENTENCE

Heard both sides on quantum of sentence.

Learned HCGP for Additional SPP appellant/State

submits that accused 1 and 2 have committed heinous

offence of sexual assault against PW.1-victim by taking

undue advantage of her helpless position and on assurance

of dropping her to the house, as requested by her brother-

Mahesh only has been proved by the prosecution. Accused 1

and 2 are not entitled for any leniency with respect to the

offence proved against them.

Per contra, learned counsel for respondents 1 and

2/accused 1 and 2 submits that the incident in question took

place in 2014 and entire family is dependent on the income

of accused 1 and 2 and they are not habitual offenders.

Therefore, prayed for taking a lenient view.

It is the sentencing policy that the sentence ordered

must be proportionate to the proved offence against the

accused. The imposition of sentence shall be neither

exorbitant nor flee bite sentence. In the present case,

accused 1 and 2 are found guilty for the offence

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punishable under Section 376 R/w. 34 of IPC. Looking to

the facts and circumstances of the case, coupled with the

allegations against accused 1 and 2, we proceed to pass

the following :

ORDER ON SENTENCE

Accused No.1, Shankara @ Shankarjirao, S/o

D.Ramarao, Aged about 38 years and Accused No.2-

Kariyappa S/o Shivalingappa, aged about 34 years, both

R/o Tattihalli Village, Bhadravathi Taluk 577 301 are

sentenced to undergo rigorous imprisonment for 7 years

and a pay a fine of Rs.20,000/- each and in default of

payment of fine amount, Accused 1 and 2 shall undergo

additional rigorous imprisonment for 6 months for the

offence under Section 376 R/w.34 of IPC.

Accused 1 and 2 are entitled for the benefit of set-off

under Section 428 of Cr.P.C. for the period having

undergone by them in judicial custody, if any, in the

matter.

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On realisation of fine amount, the entire fine

amount is ordered to be paid to PW.1-victim.

Accused 1 and 2 shall surrender before the Sessions

Court within 30 days from today to serve the sentence.

Accused 1 and 2 are entitled for free copy of this

judgment immediately.

Services rendered by Amicus Curiae who represented

respondents No.1 and 2/accused 1 and 2 and respondent

No.3/PW.1-victim is placed on record and their honorarium

is fixed at Rs.5,000/- each payable by the Registry.