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Karnataka High Court · body

2019 DIGILAW 1521 (KAR)

Fakeerappa v. State of Karnataka

2019-07-02

B.A.PATIL

body2019
JUDGMENT : B.A. Patil, J. 1. The present appeal has been preferred by the appellant/accused No. 1 challenging the judgment of conviction and order of sentence, dated 18.01.2011, passed by the Fast Track Court-I, Koppal, in Sessions Case No. 46/2010. 2. I have heard learned counsel for the appellant/accused No. 1 and the learned High Court Government Pleader for the respondent-State. 3. The genesis of the complaint is that the complainant along with the daughter of her brother-in-law had been to the land on 30.01.2010 to pluck chilli grown on the land. The complainant was busy in doing the field work and, at about 5.00 p.m. after completing her work, she found that the victim was not present there. She heard the scream of the victim from the land of the accused. She immediately went and found that the victim was crying; and accused No. 1, on seeing the complainant, ran away from that place. On enquiry, the victim told that accused No. 1 committed sexual assault on her. Subsequently, the complainant informed the said fact to the elders of the family and lodged a complaint. On the basis of the said complaint a case was registered. 4. After investigation a chargesheet came to be filed against accused Nos. 1 to 3. The matter was committed to the Sessions Court. The Sessions Court took cognizance of the matter, secured presence of the accused and, after hearing the learned Public Prosecutor and the learned counsel for the accused on the charge, framed the charge, read over the same to the accused. The accused denied the same. Thereafter, case was fixed for trial. 5. In order to prove its case, prosecution got examined thirteen witnesses as PWs. 1 to 13, got marked Exs.P.1 to P.19 and got marked M.Os.1 and 2. After hearing the arguments of the learned Public Prosecutor and the learned counsel for the accused, the Court below came to the conclusion that there is material as against the appellant/accused No. 1 and he has been convicted for the offence punishable under Section 376 of the Indian Penal Code. Further, the Court below acquitted accused Nos. 1 to 3 of the offences punishable under Sections 341, 504, 506, 323 read with Section 34 of IPC. Challenging the legality and correctness of the same, appellant/accused No. 1 is before this Court. 6. Further, the Court below acquitted accused Nos. 1 to 3 of the offences punishable under Sections 341, 504, 506, 323 read with Section 34 of IPC. Challenging the legality and correctness of the same, appellant/accused No. 1 is before this Court. 6. It is the submission of the learned counsel for the appellant/accused No. 1 that M.O.1 underwear of the victim, was given in the hospital and, at the time, it was stained with blood, but when the Investigating Officer was examined before the Court, he has deposed that M.O.1 was given in the police station, and thus there is contradiction in the statement of the Investigating Officer and PW-1. He further submitted that there is no corroboration in the evidence of PW-1 complainant, PW-4 (victim) and the doctor who came to be examined as PW-9. It is his further submission that in Ex.P.12, no such injuries were found over the body of the victim for having been sexually assaulted. It is his further submission that PW-4, the victim girl, is a minor and her entire evidence clearly goes to show that PW-4 is a tutored witness and she has accordingly deposed before the Court. It is his further submission that though Exs.D.1 and D.2 have been got marked, but surprisingly, the same is not found in the evidence of PW-1 or PW-4. It is his further submission that if the entire evidence of Investigating Officer is perused, it is seen that there is no consistency and the entire case of the prosecution when looked closely cannot be believed. It is his further submission that in the final report, which has been got marked as Ex.D.3, the doctor has opined that the possibility of attempt of sexual intercourse cannot be excluded and the same shows that it is only an attempt and not a sexual assault as alleged by the complainant and the victim. On these grounds, he prayed to allow the appeal and set aside the impugned judgment of conviction and order of sentence. 7. On these grounds, he prayed to allow the appeal and set aside the impugned judgment of conviction and order of sentence. 7. Per contra, learned High Court Government Pleader vehemently argued and submitted that the evidence of PW-1 and PW-4 clearly goes to show that the appellant/accused No. 1 was present when the complainant went to the spot and thereafter, when she questioned PW-4, she stated that accused No. 1 sexually assaulted her; the evidence of PW-1 corroborates with the evidence of PW-4 and the medical evidence produced in this behalf. It is his further submission that the doctor has also clearly opined that there is every possibility of attempt of sexual intercourse and that itself shows that the appellant/accused has sexually assaulted the victim. It is his further submission that suggestions were made by the accused during the course of cross-examination which goes to prove the case of the prosecution beyond all reasonable doubt. Hence, he submitted that there are no grounds to interfere with the judgment and order of the Trial Court and prayed to dismiss the appeal. 8. I have carefully and cautiously considered the submissions made by the learned counsel appearing for the parties and perused the records. 9. In order to substantiate its case, the prosecution got examined 13 witnesses. PW-1 is the complainant. In her evidence, PW-1 has deposed that on Saturday, 30.01.2010, at about 12.30 p.m. she along with PW-4 were in their lands plucking the chilli, at that time, the victim was playing at a distance and, at about 5.00 p.m. when she was doing the field work, she heard the screaming voice; she went to the said place and found that the victim was screaming lying on the land of the accused; accused No. 1 was also present nearby the victim and on seeing her, he ran away from that place; when she examined her private part, she saw blood on the private part of the victim and her inner garment was thrown nearby her; she immediately made her to wear the inner garment and thereafter asked the victim as to what had happened and, at that time, the victim disclosed that by asking her to come with him to play, the accused No. 1 sexually assaulted her. This witness has been cross- examined at length and, during the course of cross-examination, it was suggested that in the hospital, the blood of the victim was taken and the same was smeared to the inner garment of the victim and it was also suggested that when she saw the private part of the victim, the blood was oozing out, the inner wear was by the side of the victim and that she made it to be worn by the victim and that when she asked the victim as to what happened, the victim told the complainant about the sexual assault. Except this nothing has been elicited. 10. PW-2 is a panch witness to Exs.P.1, 2 and 3. He has also supported the case of the prosecution and nothing has been elicited so as to discard his evidence. PW-3 is also a panch witness to Exs.P.4 and 5. PW-3 has not supported the case of the prosecution and he has been treated as hostile. 11. PW-4 is the star witness, who is the victim in this case. She has deposed before the Court that at about 12.30 p.m. her aunt was plucking chilies and she was playing at a distance; it was 2.00 p.m. when accused No. 1 came there and he took her to his land by saying that they shall play; accused No. 1 made her to lie on the ground, removed her clothes and sexually assaulted and at that time, she was having pain in her private part; thereafter, on hearing her screaming voice, PW-1 came there and on seeing PW-1 coming, accused No. 1 ran away from that place; PW-1 asked about the incident and she narrated everything to PW-1. During the course of cross-examination of this witness, it has been suggested that in the police statement, she has stated that accused No. 1, by removing her inner clothes has put them on the ground, accused No. 1 also removed his clothes and he was nude and thereafter, accused No. 1 put his private part into her private part. Though this witness has been cross-examined at length, other cross-examination is irrelevant for the purpose of discussion by this Court. 12. PW-5 is the father of the victim girl. He has reiterated the evidence of PW-1. PW-6 is the mother of the victim and she has also deposed in the line of the evidence of PW-5. Though this witness has been cross-examined at length, other cross-examination is irrelevant for the purpose of discussion by this Court. 12. PW-5 is the father of the victim girl. He has reiterated the evidence of PW-1. PW-6 is the mother of the victim and she has also deposed in the line of the evidence of PW-5. PW-7 is the father-in-law of PW-5, and he has deposed that when PW-5 said that he will be taking the victim to the hospital, the accused assaulted him and threatened him with dire consequences that, if any complaint is filed, they (accused) would take away his life. 13. PW-8 is the Junior Engineer who prepared the sketch of the scene of crime. PW-9 is the doctor who examined the victim and gave the Opinion Report as per Ex.P.12 and another Report as per Ex.P.13. PW-10 is the doctor who examined accused No. 1 and issued certificate as per Ex.P.14 and another report as per Ex.P.15. 14. PW-11 is the police constable who carried the First Information Report to the jurisdictional Court. PW-12 is the PSI who registered the case and sent the FIR to the jurisdictional Court. PW-13 is the Investigating Officer who investigated the case and filed chargesheet against the appellant/accused. 15. I have given my conscious thought to the entire evidence which has been produced before this Court. It is the specific contention of the learned counsel for the appellant/ accused No. 1 that there is no corroboration of the evidence of PWs. 1, 4 and the medical evidence and there are so many contradictions in the evidence of these witnesses. Though it is contended that there are so many contradictions in the evidence of the witnesses, the manner in which those contradictions have to be brought on record has not been done in accordance with law. The Hon'ble Apex Court in the case of V.K. Mishra and Another vs. State of Uttarakhand and Another, (2015) 9 SCC 588 , at paragraphs 18 and 19, has observed as under: "18. Section 145 of the Evidence Act reads as under: "145. The Hon'ble Apex Court in the case of V.K. Mishra and Another vs. State of Uttarakhand and Another, (2015) 9 SCC 588 , at paragraphs 18 and 19, has observed as under: "18. Section 145 of the Evidence Act reads as under: "145. Cross-examination as to previous statements in writing - A witness may be cross- examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." 19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo moto make use of statements to police not proved in compliance with Section 145 of Evidence Act that is, by drawing attention to the parts intended for contradiction." 16. On a close reading of the said paragraphs, it has been elaborately discussed that when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial Court, to ensure that the part of the police statement with which it is intended to contradict the witness, is brought to the notice of the witness in his cross-examination. The attention of witness is drawn to that part, which must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition and thereafter, the same has to be contradicted to the Investigating officer. Then only the same can be relied upon under Section 145 of the Evidence Act. 17. On a close reading of the evidence which has been produced before the Court, though it is brought to the notice of this Court by the learned counsel for the appellant/accused No. 1 that there are so many improvements and contradictions in the evidence of PWs. 1 and 4 and the doctor, but no such procedure has been followed as laid down by the Hon'ble Apex Court in the case of V.K. Mishra (quoted supra). Under the said facts and circumstances now, this Court cannot look into those contradictions and improvements and other materials which is brought to the notice of this Court and the same does not help the appellant/accused. Under the said facts and circumstances now, this Court cannot look into those contradictions and improvements and other materials which is brought to the notice of this Court and the same does not help the appellant/accused. Be that as it may. 18. A close reading of the evidence of PW-1 and 4, it is seen that the presence of PW-1 at the place of incident is also suggested during the course of cross-examination and the said witness has admitted the said fact. PW-4 has also corroborated the evidence of PW-1 and her presence is also stated. It was also suggested to PW-4, during her cross-examination, regarding presence of the accused, that he removed her clothes; accused removed his clothes also and thereafter he inserted his private part into her private part and he had sexual intercourse. When the cross-examination itself suggests about the happening of said incident, as stated before the police and the case of the prosecution, the contradiction which has been made to the witness which is a fact is said to have been proved and the fact remains that the accused has committed sexual assault on the victim and thereby it attracts the provisions of Section 376 of IPC. 19. Though during the course of arguments, the learned counsel for the appellant/accused No. 1 brought to the notice of this Court Ex.D.3, which is issued by the doctor, the doctor therein has opined that possibility of attempt of sexual intercourse cannot be excluded and that corroborates with the evidence of the victim and the suggestion made in this behalf. But, looking from any angle, the evidence of the victim appears to be trustworthy and reliable and it is also corroborated with the evidence of PW-1 and the doctor who came to be examined as PW-9 coupled with the documents marked at Exs.P.12 and 13. Though during the course of arguments, it is submitted by the learned counsel for the appellant/ accused No. 1 that PW-13, the Investigating Officer has admitted so many contradictions and improvements in his evidence, but those improvements and contradictions admitted by the Investigating Officer during the course of his cross-examination will not be of any help to the accused since the provisions of Section 145 of the Evidence Act has not been followed. Looking from any angle, the contentions taken up by the learned counsel for the appellant/accused No. 1 does not stand to any reason and the prosecution has established its case beyond all reasonable doubts. 20. I have carefully and cautiously gone through the judgment and order of the Trial Court. Though there are minor irregularities in passing the order, they would not go to root of the case and it cannot be held as an illegality in passing order so as to set aside the same. The impugned judgment and order deserves to be confirmed. Accordingly, the appeal is dismissed as devoid of merits and the order of the Court below is confirmed.