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2010 DIGILAW 1161 (KAR)

State of Karnataka v. Nasarulla @ Babu

2010-11-09

K.N.KESHAVANARAYANA, K.SREEDHAR RAO

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JUDGMENT K.N. KESHVANARAYANA, J.—This appeal by the State is directed against the judgment and order dated 2.11.2004 passed by the Additional Sessions Judge, Mandya in S.C. No. 93/2002, acquitting the respondent-accused of the charges levelled against him for the offences punishable under Sections 376 and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. The case of the prosecution in brief is as under: The prosecutrix examined as P.W. 7 is the daughter of P.W. 9-Rani and they are members of scheduled caste. Husband of P.W. 9 one Raju left her about 3 years prior to March 2002 and thereafter P.W. 9 came to her parental village in Arakere in Mandya District and started living with her daughter P.W. 7 in a house belonging to the father of P.W. 8-Madamma. Thereafter P.W. 9 developed illicit relationship with the accused Nasarulla @ Babu, resident of Arakere and he also started residing with P.W. 9 in the same house. On 20.3.2002 morning P.W. 9 left the house for coolie work. At that time P.W. 7, aged about 10 years and the accused were in the house. At about 2.00 p.m., the accused committed forcible rape on P.W. 7 inside the house. At that time, P.W. 8-Madamma, who came to the house of her father for some work, pushed the door of the house where P.Ws. 7 and 9 were residing and since the door got opened, she saw accused lying on P.W. 7 on a gunny bag spread on the floor. Thereafter the accused went away from the place. On the next day at about 4.00 p.m., P.W. 9 returned to the house and at that time P.W. 7 disclosed the incident to her mother. Thereafter P.W. 9 went to the Police Station and made an oral complaint about the incident which was reduced into wiring by P.W. 4-B. Puttaswamy, ASI of Arakere Police Station as per Ex. P6 and on the basis of Ex. P6, the case in Crime No. 42/2002 came to be registered and the investigation was taken up. P.W. 4 immediately apprehended the accused and handed over the further investigation of the case to P.W. 10 George B. Fernadis, Dy. S.P. During the investigation, P.W. 10 sent the victim girl P.W. 7 to the Hospital for examination. The victim girl was examined by Senior Specialist P.W. 1-Dr. P.W. 4 immediately apprehended the accused and handed over the further investigation of the case to P.W. 10 George B. Fernadis, Dy. S.P. During the investigation, P.W. 10 sent the victim girl P.W. 7 to the Hospital for examination. The victim girl was examined by Senior Specialist P.W. 1-Dr. Prema Kumari in Cheluvamba Hospital, Mysore at about 2.30 a.m. on 22.3.2002 and on examination, a detailed report was sent in that regard. During the spot mahazar conducted by P.W. 10, a Nighty said to have been worn by the victim girl at the time of the incident was also seized and the same was sent for forensic examination. The forensic examination of the Nighty revealed the presence of seminal stains on the said article. During the investigation, the Investigating Officer recorded the statements of P.Ws. 7, 8 and other witnesses and after completing the investigation filed the charge sheet. 3. On committal of the case to the Court of Sessions, the accused pleaded not guilty for the charges levelled against him and claimed to be tried. The prosecution to bring home the guilt of the accused examined P.Ws. 1 to 10 and relied on documentary evidence Exs. P1 to P10 and M.Os. l to 3. The accused denied all the incriminating circumstances appearing against him in the evidence of the prosecution witnesses when he was examined under Section 313 Cr.P.C. The accused did not choose to lead any defence evidence. The defence of the accused was one of total denial and that of false implication. 4. After hearing both sides and on assessment of the oral and documentary evidence, the learned Sessions Judge by the judgment under appeal held that the prosecution has failed to establish the guilt of the accused for the charges levelled against him beyond reasonable doubt. The learned Sessions Judge was of the view that the evidences of P.Ws. 7, 8 and 9 are not worthy of reliance. Having regard to the discrepancies and inconsistencies in their evidence, more so, in the back ground of negative medical evidence with regard to the alleged incident, the learned Sessions Judge was of the view that the accused has been falsely implicated in the case with a view to get compensation under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Therefore, the learned Sessions Judge held that the accused is not guilty of the charges levelled against him. In that view of the matter, the accused was acquitted of all the charges. Being aggrieved by the said judgment of acquittal, the State is in appeal. 5. Upon service of notice of this appeal, the respondent has appeared through his counsel. We have heard Sri P.M. Nawaz, Additional State Public Prosecutor for the State and Smt. Parinitha, Amicus Curiae appearing for the respondent. We have perused the records and closely scrutinized the evidence, both oral as well as documentary and also read the judgment under appeal. 6. In the circumstances, the points that arise for our consideration are: (1) Whether the learned Sessions Judge is justified in holding that the prosecution has failed to prove the charges levelled against the accused and in acquitting him? and (2) Whether the judgment under appeal suffers from any perversity or illegality calling interference by this Court? 7. As could be seen from the case of the prosecution, the criminal law was set on motion on the basis of the oral complaint said to have been made by P.W. 9 before P.W. 4 and reduced into writing as per Ex. P6. As per the contents of Ex. P6, the incident occurred at about 2.00 p.m. on 20.3.2002 and at that time P.W. 9 was away from the house on coolie work and she returned to the house only at about 4.00 p.m. on the next day, at which time P.W. 7 disclosed the incident to her and thereafter P.W. 9 went to the Police Station and lodged the complaint. Thus as per the contents of Ex. P6, the incident was disclosed to P.W. 9 by her daughter P.W. 7. However, when it came to the stage of giving evidence, according to P.W. 9 on the next date, i.e., on 21.3.2002 when she came near the provision stores to purchase some household articles, P.W. 8-Madamma informed her about the incident and thereafter her daughter also informed her and then she went to the Police Station. Name of Madamma does not find place in the complaint Ex. P6. The evidence of P.W. 8 as eye-witness has been disbelieved by the learned Sessions Judge on the ground that she is not a trustworthy witness. Name of Madamma does not find place in the complaint Ex. P6. The evidence of P.W. 8 as eye-witness has been disbelieved by the learned Sessions Judge on the ground that she is not a trustworthy witness. According to the evidence on record, there was some ill-will and differences between the accused and P.W. 8 with regard to Neera transaction. Therefore, according to the learned Sessions Judge there is every possibility of P.W. 8 falsely involving the accused in the case taking advantage of the said difference. This is further fortified by the fact that her name was not disclosed in Ex. P6. If according to P.W. 9, the incident was disclosed to her first by P.W. 8, when she went near the provision stores on 21.3.2002, P.W. 9 certainly would not have omitted to mention the said fact in her complaint Ex. P6. Since the name of P.W. 8 has not been disclosed in Ex. P6 as eye-witness and in the back ground of the differences and ill-will between the accused and P.W. 8, in our opinion, the learned Sessions Judge is justified in disbelieving the testimony of P.W. 8. 8. Then what remains is the evidence of P.Ws. 7 and 9. P.W. 9 is not an eye-witness. She comes to know about the incident only through her daughter P.W. 7. Therefore, her evidence is of no significance in establishing the incident alleged. P.W. 7 is the victim. The learned Sessions Judge on careful analysis of the evidence of P.W. 7 has come to the conclusion that her evidence is full of inconsistencies and discrepancies. According to the contents of Ex. P6, at the time of the alleged incident, the victim was wearing a chudidar pyjama. However, during her evidence, P.W. 7 has stated that at the time of incident she was wearing a nighty and that nighty was used to gag her mouth so as to prevent her from raising alarm. Very strangely, the said nighty was seized during the investigation from the scene of occurrence by P.W. 10 and the same was subjected to forensic examination. The report of the forensic expert indicates the presence of seminal stains on the nighty. If the nighty, according to P.W. 7, had been used to gag her mouth, it is not understandable as to how it could contain seminal stains. The report of the forensic expert indicates the presence of seminal stains on the nighty. If the nighty, according to P.W. 7, had been used to gag her mouth, it is not understandable as to how it could contain seminal stains. It is under these circumstances, the learned Sessions Judge has observed that the seminal stains on the nighty is concocted one. The learned Sessions Judge has also opined that possibility of the said nighty belonging to P.W. 9 who had illicit relationship with the accused cannot be ruled out, in which event, the presence of seminal stains on the nighty cannot be connected to the alleged crime. Chudidar pyjama said to have been worn by the victim at the time of the incident as per the contents of Ex. P6, were also seized during the investigation as M.Os. 2 and 3, but they were not subjected to forensic examination. According to the evidence of Ex. P. 7, she was raped 5 times by the accused. As she was hardly aged about 10 years, she was a girl of tender age. If really such an incident had occurred, it would have resulted in some injury on her private part. However, the medical evidence indicates that there was absolutely no injury on her private part and there was no evidence of any sexual act. According to P.W. 1 when she examined the victim P.W. 7 at about 2.30 a.m. on 22.3.2002, she did not find any external injuries anywhere on her body; the Abdomen was normal; On local examination, external genitalia was found normal. Hymen was intact. No injuries, no bleeding, no swelling or tenderness were present. No tear in the genital area and no discharge. Thus the medical evidence did not indicate any act of rape on P.W. 7. According to P.W. 1, the history given by the victim girl was to the effect that at about 2.00 p.m. on 20.3.2002 when she was alone in her house the accused came to her house and attempted to commit rape but he did not penetrate but touched the vagina. Having regard to glaring discrepancies and inconsistencies in the evidence of P.Ws. 7 and 9 and the negative medical evidence, the learned Sessions Judge, in our opinion, has rightly disbelieved the evidence of these witnesses. The evidence of these witnesses do not inspire the confidence of this Court. Having regard to glaring discrepancies and inconsistencies in the evidence of P.Ws. 7 and 9 and the negative medical evidence, the learned Sessions Judge, in our opinion, has rightly disbelieved the evidence of these witnesses. The evidence of these witnesses do not inspire the confidence of this Court. Though in sexual offence cases, the evidence of the prosecutrix commends acceptance even without any corroboration, the test is whether the evidence of such victim inspires the confidence of the Court. In the case on hand, in the light of various circumstances indicated above, evidence of P.W. 7 do not inspire the confidence of the Court. It is pertinent to note that admittedly P.W. 9 has received compensation amount from the Government payable as per the Rules framed and has left the company of her daughter P.W. 7. This subsequent conduct of P.W. 9, probabalises the defence theory that a false complaint was filed only with a view to get compensation. Under these circumstances, in our opinion, the learned Sessions Judge has not committed any error inacquitting the accused. The judgment of acquittal recorded by the learned Sessions Judge on proper appreciation of evidence is sound and is in accordance with the well settled principles of law. Therefore, we find no ground to interfere with the judgment of the learned Sessions Judge. Accordingly, the appeal is dismissed. The remuneration of the Amicus Curiae is fixed at Rs. 7,000/-.