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2011 DIGILAW 322 (KAR)

Mohammed Yusuf v. State of Karnataka

2011-03-21

B.V.PINTO

body2011
JUDGMENT B.V. PINTO, J.—This appeal is filed challenging the judgment dated 16.1.2010, passed by the Fast Track Court No. 8, Bangalore City in S.C. No. 1064/2006 convicting the appellants for the offence punishable under Section 376 read with 34 IPC and sentencing them to undergo R.I. for 7 years and to pay fine of Rs. 5,000/- each in default of payment of fine, to undergo R.I. for a period of one year six months. 2. The case of the prosecution is that on 12.8.2006, the accused entered into the house of C.W. 1 Sunitha wife of Rehamath Ali, who were residing in Koramangala, within the limits of Koramangala Police Station and thereafter, committed rape on the said Smt. Sunitha against her will and without her consent, thereby, they are alleged to have committed offence punishable under Section 376 read with 34 IPC. 3. The prosecution in order to prove the case has examined in all 13 witnesses, P.Ws. 1 to 13 and got marked documents Exs. P1 to P23 and produced M.Os. 1 to 18. 4. The defence of the accused was one of total denial. However, after hearing the prosecution and the defence, the learned Sessions Judge was pleased to convict the appellants and sentenced them as herein before mentioned. The convicted accused have filed this appeal. 5. Heard Sri A.A. Pathan, learned Counsel for the appellants and Sri Vijaya Kumar Majage, learned HCGP for the respondent-State. 6. Learned Counsel for the appellants submits that it is a false case filed by the complainant who is examined as P.W. 2. He submits that the complainant has married to P.W. 3 and the accused No. 1 had married one Karuna who hails from Belgaum and both the marriages of Smt. Sunitha P.W. 2 and Accused No. 1 are inter-caste marriages and that P.W. 3 who is the husband of P.W. 2 had instigated the parents of the wife of accused No. 1 to force Karuna to leave Bangalore and go back to Belgaum. In this connection, accused No. 1 was having grudge against P.W. 3 and hence, on the date of the offence, it is alleged that accused had come to the house of P.Ws. 2 and 3 and has committed the offence. It is submitted by him that accused No. 1 criminally trespassed into the house of P.W. 3, to commit the murder of P.W. 3 and the complainant. 2 and 3 and has committed the offence. It is submitted by him that accused No. 1 criminally trespassed into the house of P.W. 3, to commit the murder of P.W. 3 and the complainant. As a retaliation to the intention of accused No. 1, P.W. 3 has instigated his wife P.W. 2 to file a false case against the accused. He submits that the evidence of P.W. 2-the victim is not supported by the medical evidence and also not supported by the evidence of the neighbours. He submits that P.W. 4 Karnalamma is the immediate neighbour of P.W. 2 who has stated that immediately on hearing the cry, when she came out of the house, she has not seen the accused at all. Hence, the probability of accused coming to the house of the victim-P.W. 2 is remote. He further submits that P.W. 7 doctor has admitted that the injuries found on P.W. 2 can be self-inflicted. P.Ws. 2 and 3 have filed a false case, which is concocted and is filed in order to counter act the plan of accused No. 1 to assault or murder P.W. 3 for sending wife of accused No. 1 Karuna back to her native place. It is further submitted by the learned Counsel that except the Chudidhar. other clothes of the victim and the materials in the house of P.W. 2 were not stained with seminal stains and therefore, the probability of the victim being raped is ruled out. He further submits that P.W. 2, being the lady and married, was living with the husband during the relevant period, the stains alleged to have been found in the clothes of the victim could be that of her husband and therefore, he submits that the prosecution has not proved the case against the accused beyond reasonable doubt. It is also submitted by him that accused No. 1 surrendered before the Court on 26.8.2006 and the test identification parade was conducted on 17.10.2006 after a lapse of about two months. Hence, the T.I.P. loses its evidentiary value. Therefore, he submits that on these grounds, A2 is entitled for an order of acquittal. It is also submitted by him that accused No. 1 surrendered before the Court on 26.8.2006 and the test identification parade was conducted on 17.10.2006 after a lapse of about two months. Hence, the T.I.P. loses its evidentiary value. Therefore, he submits that on these grounds, A2 is entitled for an order of acquittal. It is further submitted that though the IO has found seminal stains in the Chudidhar of the victim, the same is not subjected for DNA test to find out as to whom the said seminal stains belongs, since three persons are involved in this matter, namely, Al, A2 and the husband of P.W. 2. In the absence of any such conclusive proof, accused cannot be convicted for the offence for which they are not charged. Learned Counsel for the appellants relies on the following rulings :- (i) Bibhishan vs. State of Maharashtra, 2007 SAR (Crl.) 866 (SC) (ii) Hayat Singh vs. The State, 2005 Cri. L.J. 2473 (Uttar) (iii) Ashok @ Pappu vs. State, 2005 Cri. L.J. 2301 (MP) (iv) State of Jharkhand and another vs. Pradeep Kumar Dey and another, 2005 Cri. L.J. 2304 (Jhr.) (v) Ravi @ Ravichandran vs. State Rep. By Inspector of Police, 2007 SAR (Crl.) 507 (SC). Hence, he submits that the accused may be acquitted of the offence levelled against them and prays to allow the appeal. 7. Sri Vijaya Kumar Majage, learned HCGP for the respondent State on the other hand submits that in this case the evidence of the prosecutrix herself is sufficient to convict the accused for the offence for which they stood charged. The evidence of the complainant P.W. 2 Sunitha is corroborated by the evidence of P.W. 7 Dr. Narayana Swamy, who has stated that when the victim was examined at about 7 p.m., on 12.8.2005, she was found having injuries on her head, face, neck, lips and other parts of the body, apart from this semen was found on her private parts. He further submits that the evidence of P.W. 7 fully corroborates the version of P.W. 2 and therefore, the order of conviction passed by the trial Court is based on the evidence on record. It is further submitted that the accused themselves have suggested in the cross-examination of P.W. 2 that they were present in the house of P.W. 2 at the alleged date and time of incident. It is further submitted that the accused themselves have suggested in the cross-examination of P.W. 2 that they were present in the house of P.W. 2 at the alleged date and time of incident. It is the submission of the learned HCGP that though the accused had surrendered before the Court on 26.8.2006 and the test identification parade was conducted on 17.10.2006, it is not the case of the defence that during the intervening period P.W. 2, had any chance to look at the face of accused No. 2. It is not suggested to P.W. 2 that she had seen the accused No. 2 in the intervening period between the date of surrender before the Court and the date of conducting test identification parade. He also further submits that the evidence of the prosecution witnesses clearly establishes that the accused has committed the act alleged against them. Hence, he submits that the accused have been rightly convicted by the trial Court and therefore, submits that the appeal may be dismissed. It is also further submitted that the FSL report states that the Chudidhar worn by P.W. 2 was stained with seminal stains with corroborates the version of P.Ws. 2 and 7. 8. The prosecution in this case commenced with the filing of the complaint by the victim Smt. Sunitha on 12.8.2006 at about 9.30 p.m., before the Koramangala Police, Bangalore. It is stated in her complaint that she had married about 10 months before the date of giving the complaint and she was staying in Koramangala, 8th Block, with her husband. Her husband is working as an accountant in a private firm. She has studied up to B.A. and was working at Brigade road as an Office Assistant. She is pregnant for two months as on the date of giving complaint. Accused No. 1-Yusuf is a distant relative of her husband and on 11.1.2006, he and his wife Karuna had come to her house for Bakrid and they stayed in their house. On 12.8.2006, her husband went, to work in the morning and at about 2 p.m., the aforesaid Yusuf came along with another person aged between 24 to 28 years and she requested them to have food, the accused refused to take food. Thereafter, they asked where her husband has gone and she replied that her husband has gone to work. On 12.8.2006, her husband went, to work in the morning and at about 2 p.m., the aforesaid Yusuf came along with another person aged between 24 to 28 years and she requested them to have food, the accused refused to take food. Thereafter, they asked where her husband has gone and she replied that her husband has gone to work. Accused No. 1 phoned to her husband from his mobile and she had gone to the kitchen. Thereafter, the accused Yusuf got up and closed the front door and bolted the same and she asked as to why he was closing the door. Yusuf came near her and held her tightly and anticipating some mishaps, she requested him to leave her and since she is like his sister. However, the accused Yusuf felled her down on the floor and she raised noise. At that time, the person who was along with Yusuf assaulted on her forehead and thereafter, thrusted her veil in her mouth. Yusuf removed the Chudidhar of P.W. 2 and thereafter, committed forcible intercourse with her. After Yusuf committed rape on her, the other person who had come along with Yusuf also committed rape on her. Thereafter, Yusuf phoned her husband and informed her husband that they had done everything to his wife and gave the phone to her. At that time, she told to her husband in a weeping tone that the entire incident took place and immediately Yusuf snatched the phone from her and opened the door and went away. Her husband telephoned to the police control room and after some time, her husband came to the house. A little thereafter, the Koramangala Police came to the house and she explained the incident to the police. The police took her to the police station and immediately shifted her to Vanivilas Hospital. The doctor at the Vanivilas Hospital examined her and thereafter, she was again brought to the police station. She requested for taking action against Yusuf and another friend. 9. The police on receipt of the aforesaid complaint at 9.30 p.m., registered the case in crime No. 431/2006 for the offence punishable under Section 376 read with 34 IPC and commenced investigation. It is seen from the prosecution papers that the accused surrendered before the Court on 28.6.2006, where after the police took them into custody from the Court. 9. The police on receipt of the aforesaid complaint at 9.30 p.m., registered the case in crime No. 431/2006 for the offence punishable under Section 376 read with 34 IPC and commenced investigation. It is seen from the prosecution papers that the accused surrendered before the Court on 28.6.2006, where after the police took them into custody from the Court. investigation came to be completed after getting the accused examined through the doctors and after obtaining the necessary certificates and reports from the authorities. 10. P.W. 1 is Dr. K.H. Manjimath who is working as a professor in Bangalore Medical College. He has stated that on 27.8.2006, at about 9 a.m., the accused Mohammed Yusuf and Mohammed Sameer were sent to him for examination. On examination, he has found that both the accused are capable of having sexual intercourse. However, there was no evidence on their person of having committed recent sexual intercourse. P.W. 2 is the victim, she has stated as per her complaint before the police. She has identified her complaint as Ex. P3 and Ex. P3(a) is her signature. She has stated that police have visited her house. Thereafter, one neighbour by name Kamalamma and her husband Rahmath Ali were present when police prepared spot panchanama Ex. P4. It is in her evidence that on 17.10.2006, the Thasildhar summoned her to the Central Prison, Bangalore. Accused No. 2 was made to stand in between 8 to 10 other persons who were of same height and she was asked to identify accused No. 2. She has identified A2 in the said TIP proceedings which are at Ex. P5 and signed at Ex. P5(a). She has also signed Ex. P6 in front of Thasildhar. She has identified the clothes worn by her at the time of commission of rape, namely, Chudidhar top and bottom and white coloured veil (Dhupatta) as per MOs. 1 to 3. She has also identified the clothes worn by the accused as per MOs.4 to 10. In the cross-examination, she has stated that she belongs to Dharwad and since, she was not well she left the employment. She has stated that Al had come to her house 2 to 3 times before Bakrid. 1 to 3. She has also identified the clothes worn by the accused as per MOs.4 to 10. In the cross-examination, she has stated that she belongs to Dharwad and since, she was not well she left the employment. She has stated that Al had come to her house 2 to 3 times before Bakrid. She knows that Al is loving Karuna and further stated that accused No. 1 and Karuna were living as husband and wife and this fact was known only to her and her husband. She is not aware as to whether her husband had separated Karuna from Yusuf but she states that when the parents of Karuna had come to her house, her husband had gone to Belgaum to leave them back to Belgaum. It is suggested that accused No. 1 was angry on her husband for separating accused No. 1 from Karuna. It is further suggested that accused No. 1 had planned to finish her husband but she has denied the fact about that suggestion. It is further suggested that on the date of the incident, accused did not enter inside and were outside the house. She has denied that she had fought with accused No. 1 on the date of the incident. It is suggested that she has filed a false complaint against the accused. She has stated that she has sustained pain in her back but there were no visible injuries and she has not stated to the doctor about the pain. It is suggested that she herself as inflicted injuries on the front side of her body and she denies said suggestion. She has stated that she was sleeping till her husband came to the house. It is also elicited that P.W. 2 has not seen accused No. 2 before the incident. She has not given any identification features of A2. She has stated that she was summoned to the police station after their surrender. However, she has stated that both their faces were covered with black cloth. It is suggested that before the TIP, police have shown A2 to her and to the said suggestion has been denied by her. It is also stated by her that she has not gone to the Court when accused surrendered before the Court, P.W. 3 Rahmath Ali is the husband of P.W. 2. It is suggested that before the TIP, police have shown A2 to her and to the said suggestion has been denied by her. It is also stated by her that she has not gone to the Court when accused surrendered before the Court, P.W. 3 Rahmath Ali is the husband of P.W. 2. He has stated that on the date of the incident, he received the phone call from mobile No. 9880695028 to his phone No. 9980829687. He has further stated that from the same number he spoke to his wife P.W. 2 and at that time P.W. 2 told him that accused and another person had committed rape on her and thereafter, he has phoned to police control room and reached the house, his wife was lying with shock, there was no pyjama on the body of his wife and thereafter, they went to the police station and the police sent them to hospital. In the cross-examination, it is suggested that the first accused had married Karuna out of love and this fact was known only to himself and his wife. However, he has stated that even the parent of Yusuf and Karuna were knowing about the said love affair. He has also denied that he had left Karuna to Belgaum and he has committed breach of trust. It is also denied that accused No. 1 was planning to kill him after coming to know about this plan and he has filed a false complaint through his wife. It is elicited that on the date of incident, first accused had phoned him up twice. P.W. 4 is Kamalamma who has stated that on the date of the incident in the afternoon, she heard a loud scream from the house of the complainant and when she came to the house of complainant. Complainant told her that she was raped and thereafter, police came to the scene of occurrence. P.W. 5 Smt. Sara is the women police constable of Koramangala Police Station, who had accompanied the victim to the Vanivilas Hospital and after procuring the medical examination report, brought her back to the police station. P.W. 6 Mohan Kumar is the constable who has carried the articles to the FSL Bangalore. P.W. 7 Dr. P.W. 5 Smt. Sara is the women police constable of Koramangala Police Station, who had accompanied the victim to the Vanivilas Hospital and after procuring the medical examination report, brought her back to the police station. P.W. 6 Mohan Kumar is the constable who has carried the articles to the FSL Bangalore. P.W. 7 Dr. Narayana Swamy stated that on 12.8.2006 at 7 p.m., victim was examined by him and he has observed the following injuries: (i) Lacerated wound were found on the neck, head, face, lip, chest. (ii) Seminal stains over the pubic region/thigh/Anal region. (iii) No injuries over the anal region/vaginal region. (iv) The patient came with a history of pregnancy for two months for this he advised for tests. He has also collected the nail clippings, pubic hairs, vaginal swab, veginal smear, cervical smear from the body of the victim including the clothes of the victim and the same was sent for examination. In the cross-examination, it is suggested that the injuries found on P.W. 2 could be caused by self-infliction, P.W. 8 Aziz and P.W. 9 Vijay Kumar have turned hostile to the case of the prosecution. P.W. 10 is the PSI of Koramangala Police Station who has registered the case in crime No. 431/2006 against the accused for the offence punishable under Section 376 read with 34 IPC and sent the FIR to the Court. On 29.8.2006, he has taken the accused to Hubli and in Hubli the accused have shown the mobile No. 9880695028 made of Nokia Company. In the presence of witnesses, he has seized the said mobile phone as per Ex. P13. Later on, he assisted in the investigation of the case. P.W. 11 B. Nanjundappa is the Deputy Director of FSL, Mysore who on examination of the articles sent by the Investigation Officer has given opinion as per Ex. P14. According to him, the presence of seminal stains was found positive in item No. 3. 1(b) which is the Chudidhar bottom worn by P.W. 2. In the cross-examination, he has stated that no DNA analysis was conducted since, he was not asked to conduct the same by the Investigating Officer. He has admitted that the DNA test gives a conclusive proof as to the fact of originality of the seminal stains. 1(b) which is the Chudidhar bottom worn by P.W. 2. In the cross-examination, he has stated that no DNA analysis was conducted since, he was not asked to conduct the same by the Investigating Officer. He has admitted that the DNA test gives a conclusive proof as to the fact of originality of the seminal stains. He has further stated that any married women after having intercourse there may be possibility of having seminal stains on the bottom of the Chudidhar. It is also further admitted by him that if any woman is having intercourse by two persons there may be possibility of seminal stains at the place of incident. However, the witness further states that the seminal stains may be found or may not be found in the spot of the incident because all depends on the health of the suspected person. P.W. 12 K.B. Chikka Bettaiah is the Thasildhar during the relevant period who has conducted the test identification parade on 17.10.2008 to identify accused No. 2 by P.W. 2. He has stated that accused No. 2 was identified by P.W. 2 at the test identification parade and he has given report as per Exs. P5 and P6 regarding holding of test identification parade. In the cross-examination, it is suggested that the Inspector of Central Jail had called all the 8 names of person who were made to stand along with accused No. 2 for test identification parade and the accused No. 2 was shown to him by the Central Jail Authority. It is suggested that he is deposing falsely at the instance of the Investigating Officer. P.W. 13 is the Inspector in the Koramangala Police Station during the relevant period. He has continued the investigation in this case and after completion of the same filed the charge-sheet. He has collected the materials to hold that accused No. 1 had telephoned to P.W. 3 on the date of incident as per the details given by the department in Exs. P22 and P23. He has stated that mobile used by the accused stood in the name of Karuna. P. Mishrakoti and there is evidence of conversation between accused No. 1 and P.W. 3 on the date of the incident. 11. Based on the above evidence of the prosecution the trial Court has found that the accused have committed the offence of rape against the victim P.W. 2. P. Mishrakoti and there is evidence of conversation between accused No. 1 and P.W. 3 on the date of the incident. 11. Based on the above evidence of the prosecution the trial Court has found that the accused have committed the offence of rape against the victim P.W. 2. The accused in the statement under Section 313 Cr.P.C. have stated that accused No. 1 has married inter-caste and that this fact was known only to P.Ws. 2 and 3. P.W. 3 has informed the police and brother of his wife and was blackmailing him. The parents of his wife were threatening her and his wife had told him about the same. It is further mentioned in the Section 313 Cr.P.C. statement that P.Ws. 2 and 3 were present at the time of his marriage with Karuna and thereafter, P.W. 3 has actually taken Karuna to her parent’s house and has threatened her. However, she has come back and was residing with him. He has further stated that on 12.8.2006, he has phoned up to Rahmath Ali P.W. 3 and called him to his house. P.W. 3 has threatened that he would kill them and thereafter, they came to know about the incident only when the police came to their house. Accused No. 2 has also given the statement in writing stating that he is permanent resident of Dharwad and never seen P.W. 2 and has never gone to the house of P.W. 2 and has seen her for the first time in the Court. He has not even gone to Bangalore prior to 26.8.2006. 12. The learned Sessions Judge after considering the entire material on record has found the accused guilty and has sentenced them as hereinbefore mentioned. 13. On a thorough re-appreciation of the entire material on record, 1 find that the evidence tendered by P.W. 2 is trust worthy and reliable. The evidence of P.W. 2 is supported by P.W. 7 Dr. Narayana Swamy who has examined P.W. 2 at 7 p.m., on. same day of the incident. Though the learned Counsel for the appellant states that FIR has been received belatedly on 12.8.2005; it is in fact found in the FIR that the learned Magistrate has noted the FIR as having received on 12.8.2005. Ex. Narayana Swamy who has examined P.W. 2 at 7 p.m., on. same day of the incident. Though the learned Counsel for the appellant states that FIR has been received belatedly on 12.8.2005; it is in fact found in the FIR that the learned Magistrate has noted the FIR as having received on 12.8.2005. Ex. P.3 is the complaint of the victim which specifically states the date as 12.8.2006 and the said complaint is also initialed by the learned Magistrate with the words “seen” and date as “1.2/8”. The endorsement of the police is also to the effect that the FIR is received on 12.8.2006. Therefore, the endorsement by the learned Magistrate is an innocent mistake, which does not carry the accused anywhere, since, it is nobody’s case that the incident has happened on 12.8.2005. The FIR is recorded at 9.30 p.m., after P.W. 2 was taken to Vanivilas Hospital where she was examined by P.W. 7, at about 7 p.m. 14. Under the circumstances, I am of the opinion that there was absolutely no scope or time to P.Ws. 2 and 3 to concoct a false case. The documents of the telephone department marked as Ex. P22 indicate that on 12.8.2006, there were phone calls between P.W. 3 and accused No. 1. The said calls were received in the Koramangala area as per the explanation as mentioned in Ex. P22. The said telephone has originated in the name of Karuna P. Mishrakoti. addressed at Shivajinagar, Belgaum. Under the said circumstances, it is clear that there was conversation between P.W. 3 and accused No. 1 at or about 13 to 16 hours namely in the afternoon of the date of the incident which corroborates the evidence of P.Ws. 2 and 3. The evidence of P.W. 7 doctor also confirms the version of P.W. 2 that she was assaulted by accused No. 2 and also that she was raped. Observations No. 2 in Ex. P9 indicates the presence of seminal stains over the pubic region/anal region of victim. Under the circumstances, I have no hesitation to hold that the victim was subjected to sexual intercourse on the date of the incident as stated by the victim. 15. Observations No. 2 in Ex. P9 indicates the presence of seminal stains over the pubic region/anal region of victim. Under the circumstances, I have no hesitation to hold that the victim was subjected to sexual intercourse on the date of the incident as stated by the victim. 15. The defence of the accused is that because of prestige, he was intending to wreck vengeance against P.W. 3 Rahmat Ali and P.W. 3 has joined with his wife P.W. 2 and have concocted a false case against the accused. It is to be seen that no married person would involve his own wife in the incident of this nature and tender his wife as a victim of rape, committed by two persons and thus invite shame and insult of the public. Normally in such cases, the family would hide the incident so as to keep the honour of the family. It cannot be believed that P.Ws. 2 and 3 would put their own honour and prestige in the society, only for taking revenge against Al and A2. Under the circumstances, I hold that the prosecution has proved the case against the accused beyond reasonable doubt and the finding of the trial Court in this aspect does not call for interference. However, in so far as the sentence is concerned, it is stated by the learned Counsel for the appellant No. 1 that appellant No. 1 is married and he is having a child of two years. Having regard to the said fact situation, I deem it fit that under the circumstances, as a special case thought the incident had happened in a ghastly manner where two male persons, one aged of 28 years has committed rape upon a women P.W. 2, the sentence against the accused No. 1 is reduced to four years as observed by the Hon’ble Supreme Court in Utpal Das and another vs. State of West Bengal, (2010) 3 SCC (Crl.) 167. However, the learned HCGP objects for reducing the sentence to less than 5 years on the ground that the act of the accused amounts to gang rape within the Section 276(2)(g). However, having regard to the teen age of the wife of Al and that they had married inter-caste, I am of the opinion that the sentence of imprisonment be reduced to four years R.I. without altering the sentence of fine and default sentence. However, having regard to the teen age of the wife of Al and that they had married inter-caste, I am of the opinion that the sentence of imprisonment be reduced to four years R.I. without altering the sentence of fine and default sentence. Accordingly, the appeal is allowed in part, the order of conviction passed against the accused is hereby confirmed and the sentence of imprisonment is reduced to 4 years R.I. The sentence of fine and default, sentence is kept intact. Accused appellants are entitled for set off for the period undergone by them during the pre-trial and post-trial stage as ordered by the trial Court.