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2013 DIGILAW 1087 (KAR)

STATE OF KARNATAKA v. GANESHA

2013-09-11

H.S.KEMPANNA, N.K.PATIL

body2013
JUDGEMENT H.S. KEMPANNA, J.-The State has preferred this appeal challenging the judgment and order of acquittal of the respondent/accused. 2. The respondent/accused was tried on the charges for the offences punishable under Sections 341, 342, 354, 504, 506 and 376 of IPC. 3. It is the case of the prosecution on 30.9.2005 at about 8.30 p.m. when PW1, the victim, was proceeding to attend to second calls of nature from her house and was in front of the shop of the accused situated at Alpahalli village, he wrongfully restrained her, picked up quarrel with her, abused her in vulgar language and thereafter took her inside his shop forcibly, wrongfully confined her, molested and had forcible sexual intercourse with PW1, thereby he has committed the aforementioned offences. 4. It is the case of the prosecution PW1 is the daughter of PW2 and sister of PWs 3 and 8. They are residents of Alpahalli village coming within the jurisdiction of K.R. Sagar Rural police station. 5. The accused is also a resident of Alpahalli village. He has married one Shobha, through whom he has two children. He is running a petty shop at the said village. 6. It is the case of the prosecution that about 15 days prior to 30.9.2005, PW1-the victim had quarreled with Shobha, the wife of the accused, and had abused her. In this connection all was not well between PW1 on the one hand and the accused and his wife on the other hand. 7. Such being the position, on 30.9.2005 at about 8.30 p.m. PW1 left her house to attend to second calls of nature. On the way when she was in front of the shop of the accused, she was wrongfully restrained by the accused and was questioned by him as to why she abused his wife. In this connection a wordy dual took place between them. Thereafter it is the case of the prosecution the accused abused her in filthy language, forcibly took her by closing her mouth with his hands to his shop, wrongfully confined her in his shop by threatening her with dire consequences, there apart from molesting her had forcible sexual intercourse till about 1.00 a.m. on the intervening night on 30.9.2005 and 1.10.2005. It is further the case of the prosecution thereafter PWs 4 to 11 traced the victim in the shop of the accused, rescued her from the shop and thereafter she went to her house. Thereafter, PW1 on the morning of 1.10.2005 proceeded to K.R. Sagar police station along with the villagers and there she filed her complaint as per Ex.P1 before PW18-Mahadevappa-ASI. PW18 on the basis of Ex.P1 registered case in Crime No. 115/05 for the offences under Sections 341, 504, 354 and 342 of IPC initially against the accused and issued FIR as per Ex.P11. Thereafter PW18 came to Alpahalli village and there he drew up the panchanama as per Ex.P2. After completing Ex.P2 he forwarded PW1 to the hospital for subjecting to medical examination along with the requisition. In pursuance of the same PW15-the medical officer examined her and issued the wound certificate as per Ex.P8. He also recorded the statements of some of the witnesses, thereafter, he handed over further investigation to the PSI-PW19. PW19 after taking over investigation, recorded further statement of PW1 on 2.10.2005 and on the basis of the same he forwarded the report as per Ex.P12 to the jurisdictional Magistrate to add Sections 376 and 506 of IPC in the case registered earlier in their police station. Thereafter he proceeded to the shop of the accused and there he drew up the panchanama as per Ex.P3 in the presence of the panchas. Thereafter, he forwarded PW1 for subjecting her to medical examination along with a requisition. In pursuance of which PW14-medical officer examined her and issued the Medical certificate as per Ex.P6. PW19 continuing the investigation recorded the statements of some of the witnesses. He also forwarded the seized articles in the case for subjecting them to chemical examination. Thereafter he handed over further investigation of the case to PW20, the investigating officer. PW20 on taking over investigation recorded the statements of the witnesses examined by the prosecution and also cited in the charge sheet. He arrested the accused on 5.10.2005 and after subjecting him to medical examination at the hands of PW17, he got him remanded to judicial custody after completion of arrest formalities. PW20 thereafter, on securing the relevant documents and on completion of the investigation submitted final report against the accused before Jurisdictional Magistrate. 8. He arrested the accused on 5.10.2005 and after subjecting him to medical examination at the hands of PW17, he got him remanded to judicial custody after completion of arrest formalities. PW20 thereafter, on securing the relevant documents and on completion of the investigation submitted final report against the accused before Jurisdictional Magistrate. 8. The prosecution in support of its case in all examined PWs 1 to 20 and got marked exhibits P1 to P12 and MOs 1 to 6. The accused during the course of examination of the prosecution witnesses got marked exhibits D1 to D3. 9. After closure of the prosecution evidence the accused denied all the incriminating circumstances in his examination under Section 313 of Cr.P.C. He also submitted that he has no defence evidence to lead. Total denial of the prosecution case is the defence of the accused. 10. The learned trial Judge on consideration of the oral and documentary evidence placed on record came to the conclusion that the prosecution has failed to establish the charges leveled against the accused and accordingly by the impugned judgment and order acquitted the respondent/accused. The State being aggrieved by the judgment and order of acquittal is in appeal before this Court. 11. The learned Addl. SPP assailing the impugned judgment and order contended the evidence of PW1 clearly establishes that she had been wrongfully restrained, threatened, confined, molested and raped by the accused by threatening her with dire consequences. The evidence of PW1 is consistent on this aspect. It is fortified not only from the first information Ex.P1, but also from Ex.P12 which was prepared and sent on the basis of the further statement of PW1 by PW19. He further submitted that the evidence of PW1 is fortified from the evidence of PWs 2, 3 and 8 who are her mother and brothers and also PWs 4 to 7 and 11 who are the villagers who have seen both accused and PW1 in the shop on that night. Their evidence also clearly goes to show that the accused on the day, time and place of occurrence had wrongfully restrained PW1, taken her inside his shop and had confined her. He had also subjected her to molestation and rape after threatening her with dire consequences. Their evidence also clearly goes to show that the accused on the day, time and place of occurrence had wrongfully restrained PW1, taken her inside his shop and had confined her. He had also subjected her to molestation and rape after threatening her with dire consequences. The learned Trial Judge without appreciating the evidence of these witnesses in its right perspective has committed an error in coming to the conclusion that the prosecution has failed to establish the charge leveled against the accused which finding is contrary to the evidence on record. Therefore, a case for interference is made out. 12. Per contra, the learned counsel for the respondent/accused supported the impugned judgment and order of acquittal.13. In the light of the aforementioned facts, rival contentions, the evidence and the documents placed on record, the point that arises for our consideration is:- "Whether the impugned judgment and order of acquittal of the respondent/accused calls for any interference" 14. The prosecution in order to establish that the accused on the day, time and place had wrongfully restrained PW1, abused her in filthy language, took her inside his shop, wrongfully confined her and thereafter on threatening her with dire consequences not only molested her, but subjected her to forcible sexual intercourse. 15. The prosecution in order to establish their case have relied upon the evidence of PW1-the victim herself apart from other witnesses. PW1 is the complainant in the case. Her evidence reveals that on 30.9.2005 at about 8.30 p.m. while she was proceeding to answer to second calls of nature from her house and when she was in front of the shop of the accused situated at Alpahalli village, the accused wrongfully restrained her, abused her in vulgar language saying as to why she has abused his wife, thereafter, he forcibly took her inside his shop, wrongfully confined her and on threatening her with dire consequences, he not only molested her, but also subjected her to forcible sexual intercourse. As already pointed out she is the complainant in this case. She has filed her complaint-Ex.P1 before PW18-ASI on the morning of 1.10.2005 at about 9.15 a.m. A perusal of Ex.P1 filed by her does not reveal that the accused had subjected her to forcible sexual intercourse as claimed by her in her evidence. As already pointed out she is the complainant in this case. She has filed her complaint-Ex.P1 before PW18-ASI on the morning of 1.10.2005 at about 9.15 a.m. A perusal of Ex.P1 filed by her does not reveal that the accused had subjected her to forcible sexual intercourse as claimed by her in her evidence. Ex.P1 further reveals that after she was forcibly taken by the accused inside his shop, she was rescued by one Mooganna and Siddegowda, examined as PWs 4 and 5 in the case. A reading of Ex.P1 discloses that she has not been either subjected to forcible sexual intercourse or she has been molested by the accused in the case. The case of PW1 that she was molested and subjected to forcible sexual intercourse has been made out by her in her further statement before PW19-PSI on 2.10.2005 at about 7.30 p.m. i.e. nearly about two days after the date of occurrence and nearly about 11/2 days after she has filed her complaint-Ex.P1 before PW18. In her further statement she claims that she could not divulge what had been committed on her by the accused in the presence of the villagers and she reported the same to her mother and brother who came to her house after she filed the complaint Ex.P1 before the police and returned to her house on 1.10.2005. The evidence of PW2-her own mother discloses that on the very night of the occurrence, she had come near the shop of the accused at about 1.00 a.m. She was asked to go to her house. She went to her house. Her evidence reveals that next day morning her daughter proceeded to file complaint. Her evidence also reveals her son-PW8 was in the house on that day. In the light of this evidence of PW2 it is difficult to accept the testimony of PW1 that she was threatened not divulge about the accused having subjected her to forcible sexual intercourse in his shop on the night of 30.9.2005. Her evidence also reveals her son-PW8 was in the house on that day. In the light of this evidence of PW2 it is difficult to accept the testimony of PW1 that she was threatened not divulge about the accused having subjected her to forcible sexual intercourse in his shop on the night of 30.9.2005. Further the evidence of PW8 himself discloses that he was in the house on that day and he left the house at about 7.30 p.m. and he returned to the house at about 10.00 p.m. Thereafter on finding his sister not present in the house, he searched for her along with other villagers and ultimately at the instance of PW11, they traced his sister in the shop of the accused. This evidence of PW8 also is unnatural. However, this will have an adverse effect on the evidence of PW1 in respect of she having not come out with the version of the accused committing rape on her. According to her the occurrence took place at about 8.30 p.m. on 30.9.2005, that too in the village Alpahalli. The evidence on record reveals that there are residential houses in and around the shop of the accused and the victim. To be specific, in between the house of the victim and that of the shop of the accused, there are two residential houses. Apart from this the evidence of PW9reveals that the accused is living with his wife in the shop/residence in a room in the house where he is living with his wife. With this background and location of the houses in the village, it is unthinkable that the accused would have ventured to drag PW1 inside his shop and either molested her or committed rape on her by threatening her with dire consequences till about 1.00 a.m. on 1.10.2005. This itself is an unnatural conduct on the part of PW1. Apart from the same Ex.P1 is silent. It discloses that she was rescued immediately by the villagers comprising of PWs 4 & 5. The evidence of PWs 6 to 11 goes to show that she was traced in the shop of the accused at about 1.00 a.m. which evidence in the light of the material that is available on record is unbelievable and unacceptable. It discloses that she was rescued immediately by the villagers comprising of PWs 4 & 5. The evidence of PWs 6 to 11 goes to show that she was traced in the shop of the accused at about 1.00 a.m. which evidence in the light of the material that is available on record is unbelievable and unacceptable. If according to PW1 she had been wrongfully restrained, taken inside the shop by the accused, confined, subjected her to molestation and rape, hue and cry could have been raised in the village and the accused would not have been spared by the villagers. On the other hand, we find that Ex.P1 is silent about rape committed on her. This is fortified from the evidence of PW14, the medical officer who has examined PW1 and has issued the wound certificate Ex.P6 wherein in unequivocal terms the medical officer has stated that she did not notice any injuries on the person of PW 1 and the FSL report which was sent to her does not disclose that PW1 has been subjected to an act of rape. Apart from this PW1 in her evidence has admitted that she filed the complaint against the accused since the wife of the accused, mother-in-law of the accused, sister of the accused and brother of the accused quarreled with her the next day i.e. on 2.10.2013. Further the evidence of PW9 discloses that there was relationship between PW1 and the accused. The material on record reveals that the accused and PW1 had relationship with each other and on that particular day since it was exposed, in order to save her skin she has filed a false complaint against the accused. The evidence of PW1 in our view taking from any angle does not inspire confidence to place reliance on her testimony as it is not corroborated from any independent quarters much less from the evidence of her mother PW2. Apart from this according to PW1 on the night of the occurrence she was wearing a nightie and that she was threatened at knife point. Either the nightie or the knife has been seized during the course of investigation by the police. Apart from this according to PW1 on the night of the occurrence she was wearing a nightie and that she was threatened at knife point. Either the nightie or the knife has been seized during the course of investigation by the police. Having regard to the conduct of PW1 in not coming out with the version at the first instance in her complaint before the police stating that she has been subjected to forcible sexual intercourse by the accused and that she having come out with the said version two days later, that too on account of the wife, mother-in-law, brother-in-law and sister-in-law of the accused quarrelling with her, her testimony taking from any angle does not inspire confidence to rely upon the same. The evidence of PWs 4 to 11 on a close scrutiny, in our view, also does not inspire confidence to place any reliance on the same to hold that the accused has committed the offences alleged against him.16. PWs 12 and 13 are the panchas for the spot panchanama. The rest are the police officials viz. PWs 18,19 and 20. On a close scrutiny of their evidence also in our view it does not further the case of the prosecution pointing towards the guilt of the accused. The learned trial Judge on an appreciation of the entire evidence on record has come to the right conclusion in holding that the prosecution has failed to establish the charge leveled against the accused. The said finding having been based on facts and evidence on record does not suffer from any infirmity calling for interference in this appeal. Accordingly, we do not find any merit in the appeal and it is dismissed.