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Karnataka High Court · body

2019 DIGILAW 1152 (KAR)

Iqbal v. State Of Karnataka

2019-06-07

K.NATARAJAN

body2019
JUDGMENT : K. Natarajan, J. 1. The appellant is the sole accused in Sessions Case No.94/2014 on the file of the VI Additional District and Sessions Judge, D.K., Mangaluru, wherein, he has been convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.10,000/-, in default to undergo simple imprisonment for a period of two months for the offence under Section 376 of IPC; to undergo simple imprisonment for a period of three months for the offence under Section 448 of IPC; to undergo simple imprisonment for a period of six months for the offence under Section 506 of IPC and all the sentences were ordered to run concurrently. Out of the fine amount, Rs.8,000/- was ordered to be paid as compensation to the victim. 2. The ranks of the parties before the Trial Court is retained for the sake of convenience. 3. Before adverting to the arguments of learned counsel for the appellant as well as learned High Court Government Pleader, it is necessary to mention the brief facts of the prosecution case before the Trial Court as under: PW.1/victim has filed a complaint or the first information to Belthangady Circle Police Station on 27.03.2014 as per Ex.P.1 alleging that she is residing in the house at Kakkarabettu, Ujire village along with her husband and two children. Her husband is a daily wage employee. He used to go out for work and she was rolling beedi in the house. That on the said date i.e. on 27.03.2014, at about 12.00 noon, when she was in the house, the accused came there and asked water to drink. When she gave water to drink, the accused immediately locked the door and had forcible intercourse with her and also threatened to do away with her life, if she reveals the same to any other person. He also tried to give her some money, but she refused. Thereafter, the accused went away and she went to the Police station and lodged a complaint. After receipt of the complaint, the Police registered a case against the accused in Cr.No.162/2014 for the offences punishable under Sections 448, 376, 506 of Indian Penal Code. Thereafter, the prosecutrix was subjected to medical examination. The accused was also arrested and sent to medical examination. After completion of the investigation, Police filed charge sheet against the accused. After receipt of the complaint, the Police registered a case against the accused in Cr.No.162/2014 for the offences punishable under Sections 448, 376, 506 of Indian Penal Code. Thereafter, the prosecutrix was subjected to medical examination. The accused was also arrested and sent to medical examination. After completion of the investigation, Police filed charge sheet against the accused. He has been arrested on 17.03.2014 and later, he was released on bail on 15.04.2016. Later, the Magistrate committed the case to the Court of Sessions. Accordingly, the Trial Court, after securing the presence of the accused, framed charges for the alleged offences. He has pleaded not guilty and claimed to be tried. The prosecution in order to prove its case, in all, examined 13 witnesses as per P.Ws.1 to 13 and got marked 17 documents as per Exs.P.1 to P.17 as also marked 28 material objects as per MOs.1 to 28. After completion of the prosecution evidence, the accused was also examined under Section 313 of Cr.P.C. The case of the accused was one of total denial, but not entered any defence. After hearing the arguments, learned Sessions Judge found the accused guilty, convicted and sentenced him as stated above. 4. Learned counsel for the appellant contended that except the evidence of PW.1, no other eyewitness supported the case of the prosecution. Even in the evidence of PW.1, there are lot of contradictions. The evidence of PW.1 cannot be acceptable as she is a married lady having two children. There is no injury on her personal body. She could have agitated when the accused came and tried to commit rape on her. There was no resistance from her and not raised hue and cry by PW.1 which leads to suspicion that she might be the consenting party. It appears both were caught redhanded and due to the intervention of the third party, the case has been foisted against the accused, as the accused and victim belong to different religion. The prosecutrix stated that after coming of PW.10, the neighbour, the accused went away from the back door which goes to suggest that the accused is acquainted or familiar to the house of the complainant. PW.10, who came to the spot immediately after the incident, turned hostile and not supported the prosecution case. The prosecutrix stated that after coming of PW.10, the neighbour, the accused went away from the back door which goes to suggest that the accused is acquainted or familiar to the house of the complainant. PW.10, who came to the spot immediately after the incident, turned hostile and not supported the prosecution case. Even otherwise, the version of PW.1 is so artificial that the accused by closing the door by one hand and by another hand, he removed his dress and her dress is unnatural, which cannot be believed. Therefore, prayed for acquittal of the accused. 5. Per contra, learned High Court Government Pleader contended that the evidence of prosecutrix is clear. Though PW.1, who came after the incident, has turned hostile, is not fatal to the case of the prosecution. PW.1 has clearly stated that the accused overpowered her and committed rape on her by getting into the house under the guise of asking for water to drink. The offence is a heinous one. The Forensic Science Laboratory (FSL) Report and medical report clearly go to show that seminal stains were found on the clothes of the victim which is of the accused which was proved from the evidence of FSL report. The Doctor who examined the victim also supported the case of the prosecution. Therefore, it is contended that there is no merit in the appeal and hence, prayed for dismissal of the appeal. 6. Upon hearing the arguments of learned counsel for the parties, in order to find out the legality of the findings, it is necessary to have a cursory look at the evidence of the prosecution case, which is as under: PW.1, the victim deposed in her evidence before the Court supporting her contentions stated in the complaint. She has categorically stated that on 27.03.2014, her children went out for school and her husband also went out for work. She was rolling beedi in her house and at about 12.00 noon, the accused who is a known person, came inside her house and asked about her husband and when she has told her husband went out for job and not in the house, then he has asked water to drink and she gave water to him. She was rolling beedi in her house and at about 12.00 noon, the accused who is a known person, came inside her house and asked about her husband and when she has told her husband went out for job and not in the house, then he has asked water to drink and she gave water to him. After drinking water, immediately the accused locked the main door from inside, then dragged her by holding her neck tightly, closed her mouth, made her to fall down to the ground and committed rape on her. He also threatened her not to disclose the same to anybody and he made an attempt to pay Rs.100/- to her. But she has not accepted the same and he has also threatened to do away if she discloses the same to anybody. Then she made hue and cry, at that time, the neighbour CW.3/PW.10-Vishalakshi came and peeped through the window, immediately the accused ran away from the back door. Thereafter, she telephoned to her husband and he came at 2.00 p.m. and then they went to the Police Station and lodged complaint as per Ex.P.1. Thereafter the Police came to the spot and prepared the panchanama and he has referred the accused to K.S.Hegde Hospital for medical examination. She has stated that due to forcible intercourse, she has sustained injuries on her body. She also identified her clothes as per MOs.1 to 5. PW.2-Jayananda Poojary, husband of PW.1, deposed that on the date of the incident, he went to Sajipa of Bantwal for loading stones to Lorry. At 12.30 p.m., he received a phone call and was informed that the accused committed rape on her. He came to the house and enquired her as to what had happened and she informed the incident to him. Thereafter, they both went to the Police station and lodged a complaint. PW.3-Sushila S.Hegde, is the Panchayat Development Officer, Ujire Granma Panchayath, who gave a certificate as per Ex.P.3 in respect of place of occurrence where the offence is said to be committed in the house of PW.1. There is no much discussion or denial in the crossexamination. PW.4-Premeela is the Head Constable who took PW.1 for the medial examination to K.S.Hegde Hospital on 27.03.2014. There is no much discussion or denial in the crossexamination. PW.4-Premeela is the Head Constable who took PW.1 for the medial examination to K.S.Hegde Hospital on 27.03.2014. PW.5-Aboobkar is the Police Constable, who apprehended the accused on the same day at 5.15 p.m., and produced him before the Investigating Officer and took the accused to medical examination to the K.S.Hegde Hospital and brought him back to the Police station. PW.6-Suryakanth is the Head Constable, who received the complaint from PW.1 as per Ex.P.1 and registered the case and issued the FIR as per Ex.P.4. Except the admission that he was the scribe of the complaint, nothing has been elicited. PW.7-Dr. Sheril.S is the woman medical officer, who examined PW.1. She found some scratch marks on the body of the victim. She has collected the clothes, swab, smear and blood and after packing and sealing it, she sent the same to the Investigating Officer. She also answered all the queries made by the Investigating Officer and gave her opinion as per Exs.P.5 and P.6. She identifies the Lab report as Ex.P.8. PW.8-Mahabalesh is the medical witness, who examined the accused and as per the evidence, the accused is capable of having intercourse and gave report as per Exs.P.9 and P.10. He also says he has checked the clothe and blood sample of the accused. PW.9-Rajesh Bhat is the panch witness to the spot who has given evidence that the Police visited the house of PW.1 between 4 and 4.30 p.m. and prepared the panchanama as per Ex.P.2. He has also signed as per Ex.P.2(b). PW.10-Vishalakshi, who is said to be the neighbour and came and saw the accused after hearing the hue and cry of PW.1 and the accused after seeing her is said to have ran away from the house from the back door, but this witness has turned hostile and not supported the case of the prosecution. She has also denied her statement as per Ex.P.11 except stating that she accompanied PW.1 to the Police Station and she did not know anything about the incident. Her evidence is not useful to the case of the prosecution. PW.11-Kalimaru is the ASI, who visited the spot, prepared the panchanama as per Ex.P.2. Thereafter, he has apprehended the accused and produced him before the Investigating Officer and handed over the investigation to PW.12. Her evidence is not useful to the case of the prosecution. PW.11-Kalimaru is the ASI, who visited the spot, prepared the panchanama as per Ex.P.2. Thereafter, he has apprehended the accused and produced him before the Investigating Officer and handed over the investigation to PW.12. PW.12-B.R.Lingappa is the Investigating Officer who conducted the investigation and filed the charge sheet. Pw.13-L.Purushothama is the scientific officer who conducted DNA test in respect of the seminal stains and blood of the accused. As per his evidence, there was seminal stains found on the clothe of PW.1 i.e. panty and the blood group of the accused was matching with the seminal stains found on the panty of PW.1. He gave his report as per Ex.P.7. 7. On overall perusal of the evidence of the prosecution witness that PW.1 prosecutrix categorically stated in her evidence that on 27.03.2014 when she was alone in the house by rolling the beedies at about 12.00 p.m., the accused came to her house by asking about her husband. When she told him that her husband went to attend the work, then the accused asked water for drinking. When she gave water to him and after drinking the water, the accused closed the main door by locking inside and dragged her by closing her mouth in his hand and made her to fall on the ground and also the accused kept his leg and her chest as well as near the neck and removed the cloth forcefully and committed rape on her. He also tried to give Rs.100/- and told not to disclose the same to anybody. When she refused to receive, the accused threatened to do away with her life. She also deposed that immediately after the commission of the offence, she has raised hue and cry. By hearing the same, PW.10 Vishalakshi came and saw through the window. By that time, the accused ran away from the back side of the door. Thereafter, she has informed the PW.10 and telephoned her husband. Then, her husband came, both of them along with PW.10 went to Belthangady Police Station and lodged a complaint as per Ex.P.1. 8. During the cross-examination, she has reiterated her evidence stated in the examination in chief. Thereafter, she has informed the PW.10 and telephoned her husband. Then, her husband came, both of them along with PW.10 went to Belthangady Police Station and lodged a complaint as per Ex.P.1. 8. During the cross-examination, she has reiterated her evidence stated in the examination in chief. The counsel for the appellant in the trial Court tried to bring out that there was some enmity and civil dispute between her husband and the father of the accused in respect of passage. But the same was denied by her. Except asking the details of the house of the PW.1 as to how much time the accused stayed in the house and at what time both the children went out of the house and what time they came from the school. But nothing has been elicited to disbelieve her evidence stated on oath in respect of commission of rape except denials stating that no incident occurred. 9. The counsel for the accused argued that as there is no injury found on the prosecutrix, if really she has resisted, there could be some injury on the accused as well the prosecutrix, but there is no injury found on the accused, though some minor injuries found on the PW.1. But, that itself goes to suggest that there must be consent given by the PW.1 to the accused for intercourse. To accept the argument of the learned counsel there is no admissions/material brought by the accused counsel at least to presume that the PW.1 might be a consenting party. Even otherwise, on perusal of the evidence of PW.10, though she has turned hostile, but her evidence is only to show after hearing noise, she saw inside the house through the window. At that time, the accused ran away. Then the PW.1 told the incident to the PW.10. Thereafter, PW.1 informed her husband, later all of them went to the police station for lodging complaint. But, PW.10 turned hostile and not supported the case. However, merely as PW.10 has not supported the case, that itself is not a ground to reject the evidence of PW.1. As it is well settled law by the Hon'ble Apex Court in catena of decisions, sole testimony of the prosecutrix can be acceptable for conviction, if it is reliable and trust worthy. Even, otherwise, to corroborate the evidence of PW.1, the PW.7 Dr. As it is well settled law by the Hon'ble Apex Court in catena of decisions, sole testimony of the prosecutrix can be acceptable for conviction, if it is reliable and trust worthy. Even, otherwise, to corroborate the evidence of PW.1, the PW.7 Dr. Sherile who examined the PW.1 immediately after the lodging of the complaint, she has noted down the injuries on the body of the PW.1, as per medical report Ex.P.5, which is hereunder; 1. Multiple pin head sized abrasions, reddish in colour were present on the left side of the next over an area of 5cm x 5cm, 3cm below the angle of the left mandible. 2. Multiple abrasions with bluish black scab were present over an area of 2cm x 2cm on the outer aspect of the left shoulder, 3cm below the left shoulder tip. 3. Abrasion measuring 0,5cm x 0.3cm, reddish in colour was present on the front aspect of the left arm, 6 cm above the left elbow joint. 4. Linear abrasion measuring 1.5cm x 0.1cm, reddish in colour was present on the outer aspect of the left arm, 2cm above the left elbow joint. 5. Linear abrasions, 2 in number, with bluish black scab, measuring 0.5cm x 0.1cm were present on the outer aspect of the left forearm, 7.5cm below the left elbow joint. 6. Linear abrasion, obliquely placed, reddish in colour measuring 1cm x 0.1 cm was present on the front aspect of the left forearm, 11cm below the left elbow joint. 7. Linear abrasions, 2 in number, vertically placed, reddish in colour were present on the upper one third of the back in the midline. 8. Multiple abrasions, reddish in colour were present on the upper one third of the back on the right scapular area. 9. Abrasion measuring 0,5cm x 0.2cm, reddish in colour, was present on the outer aspect of the right left 4cm below the right knee joint. 10. Abrasion measuring 0.5cm x 0.5cm, reddish in colour, was present on the front aspect of the right ankle. 10. The Doctor also collected the cloths of PW.1 including the garment under and after packing, sent to the I.O for FSL. As per her evidence before the Court, the injury Nos.2 and 5 were 2-3 days old and other injuries were fresh. 10. The Doctor also collected the cloths of PW.1 including the garment under and after packing, sent to the I.O for FSL. As per her evidence before the Court, the injury Nos.2 and 5 were 2-3 days old and other injuries were fresh. The injury No.1 Multiple abrasion on the left side of the neck measuring 5 cm x 5 cm, 3 cm below the angle of the left mandible. Injury No.3 Abrasion measuring 0.5cm x 0.3cm on the front aspect of the left arm. Injury No.4 Linear abrasion measuring 1.5cm x 0.1cm, 2cm above the left elbow joint. Injury No.6 Linear abrasion measuring 1cm x 0.1cm on the front aspect of the left forearm. Injury No.7 Linear abrasions on the upper one third of the back in the midline. Injury No.8 Multiple abrasions and reddish on the upper one third of the back on the right scapular area. Injury No.9 Abrasion measuring 05cm x 0.2cm reddish in colour on the outer aspect of the right left 4 cm below the right knee joint. Injury No.10 Abrasion measuring 0.5cm x 0.5 cm, reddish in colour on the front aspect of the right ankle and were all go to suggest that PW.1 has resisted at the time of incident and the accused over powered on her and committed rape on her. 11. The evidence of PW.1 corroborated the evidence of the medical evidence in respect of the injuries sustained by her. Therefore, the contention of the counsel that she might be a consenting party to the intercourse, cannot be acceptable. 12. Apart from that the panty of the victim has been sent to FSL through I.O which was numbered as Article No.13(e) and blood of the accused also collected and marked as Article No.22, examined by the PW.8 Dr.Mahabalesh. According to his evidence, after examining the accused, the accused is capable of performing the sexual intercourse and he issued the Certificate as per Ex.P.10. He has collected scalp hair, scalp hair combing, nail clips, swab, smear and blood of the accused. The blood of the accused has been sent to FSL which was identified as Article No.22 and as per the evidence of PW.13 L. Purushothamma, Scientific Officer, DNA Centre, Madivala, Bengaluru the seminal stains found on the underwear of the victim matched with the blood group of the accused. The blood of the accused has been sent to FSL which was identified as Article No.22 and as per the evidence of PW.13 L. Purushothamma, Scientific Officer, DNA Centre, Madivala, Bengaluru the seminal stains found on the underwear of the victim matched with the blood group of the accused. Article No.22 is the DNA test and he has given report as per Ex.P.16. Except the panty of the victim, there are no seminal stains found on any clothes either belonging to the accused or the victim. But, the blood group of the accused matches with the seminal stains found on the victim's underwear which clearly suggest that the accused committed the offence on the said date stated by the PW.1. The medical evidence both PW.7 and scientific evidence PW.13 corroborated with each other that there was a intercourse by the accused with the PW.1 and as per the evidence of PW.1 and doctor's evidence PW.7 and Ex.P.5 Medical Certificate and injuries on her goes to suggest that PW.1 was not a consenting party and due to the resistance, she has sustained injuries and thereby, the PW.7 found the injuries over body while examination. 13. Learned counsel for the accused also contended that as per the evidence of PW.8, the doctor who examined the accused and his report Ex.P.10 the history of the case where it was stated that accused went to the house of the PW.1 by asking water and thereafter, the accused asked for sexual favour initially she refused that her husband would come soon. After repeated request by him, PW.1 has agreed to have sex with him. After removal of choodidhar pant and underwear, both had vaginal sexual intercourse without using any condom or any lubricants and after having sex, he gave Rs.100/- and not to reveal anybody and then, he went out of the house and he went to his house and cleaned his private part. Thereafter, the police arrested him. On perusal of Ex.P.10, the statement of the accused, which is history of the incident given by the accused before the doctor, but the same was not questioned by the counsel for the accused with the PW.1 during cross-examination to show that she had consented for intercourse with the accused. Thereafter, the police arrested him. On perusal of Ex.P.10, the statement of the accused, which is history of the incident given by the accused before the doctor, but the same was not questioned by the counsel for the accused with the PW.1 during cross-examination to show that she had consented for intercourse with the accused. Though the doctor PW.8 who recorded the history given by the patient, the accused while examination that cannot be a ground to disbelieve the evidence of the PW.1 that she was a consenting party. On the other hand, the history given by the accused to the doctor goes to show that he had sexual intercourse with the PW.1 and that suggestion was made by the accused counsel to the PW.1 that the accused has been falsely implicated and no offence has been taken place. On the other hand, the statement of the accused to the doctor goes to show that he went to the house and had intercourse with the PW.1. Therefore, the contention of the counsel for the accused cannot be acceptable that no incident occurred in the house of the PW.1 in respect of the sexual intercourse. Thereby, the prosecution was able to prove the medical evidence with the scientific evidence that the accused had intercourse with the PW.1 and PW.1 categorically stated that it was forcible intercourse. The accused overpowered her, after he came inside the house under the guise of asking for her husband and asking for water. 14. In the case in the case of Rajindar @ Raju Vs. State of H.P, (2009) 3 Crimes(SC) 222 it is held that while appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no self respecting woman would put her honour at stake by falsely alleging commission of rape on her, and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. Even in catena of decisions, the Hon'ble Apex Court has held that the testimony of prosecutrix in a rape case is clear, cogent and trustworthy, it shall have to be accepted without seeking any corroboration. Even in catena of decisions, the Hon'ble Apex Court has held that the testimony of prosecutrix in a rape case is clear, cogent and trustworthy, it shall have to be accepted without seeking any corroboration. On perusal of the evidence of the PW.1, who is the victim having two children and living with her husband, will not lie before the Court by falsely implicating the accused because there was an enmity between the husband and father of the accused in respect of passage dispute. But no detail of litigation is elicited to show there was any civil dispute. Medical evidence, injuries on the body of the PW.1 also clearly goes to suggest that PW.1 was not a consenting party. Therefore, the contention of the learned counsel for the appellant cannot be acceptable that PW.1 was consenting party and there is no evidence brought on record to disbelieve the evidence of PW.1 and also the medical evidence. Therefore, by analyzing the entire evidence on record of PW.1 and the evidence of PW.7 and PW.8 and Investigating Officer PW.12 and Scientific Officer PW.13 coupled with the documents, I hold the prosecution successful in proving the offence of rape committed by the accused on the PW.1 and he has threatened to do away the life of PW.1 if she discloses the same to anybody. Therefore, the appeal is devoid of merits and liable to be dismissed. Accordingly, appeal is dismissed.