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2020 DIGILAW 965 (KAR)

State Of Karnataka v. Ningappa

2020-06-04

P.KRISHNA BHAT, R.DEVDAS

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JUDGMENT 1. The State has come up in appeal against the judgment dated 06.06.2012 passed by the learned Special Judge and Additional District and Sessions Judge, Bidar in Special C.C. (SC/STs) No.15/2011 by which the accused has been acquitted. 2. The accused was charge sheeted by Basavakalyan Rural Police Station for the offences punishable under Sections 366(A), 376 of Indian Penal Code (for short IPC) and Section 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocity) Act, 1989 (for short SC/ST Act). The accused, who is the sole respondent before us, appeared before the Court and the learned trial Judge duly framed charges against him for the offences punishable under Sections 366, 376 of IPC and Sections 3(1)(x), 3(1)(xv) and 3(2)(v] of SC/ST Act. The accused denied the charges and entered defence. During the trial, the prosecution has examined PWs.1 to 19. Exs.P1 to P26 were marked and MOs.1 to 3 were also marked. The accused was examined under Section 313 of Cr.P.C. and he denied the incriminating circumstances appearing against him in the deposition of prosecution witnesses. He did not examine any witness on his behalf and his defence was one of total denial. 3. After hearing, the learned trial Judge, by the impugned judgment dated 06.06.2012 has found the accused not guilty of the offences punishable under Sections 366, 376 of IPC and Sections 3(1)(x), 3(1)(xv) and 3(2)(v) of SC/ST Act. 4. Being dissatisfied with the judgment of acquittal passed by the trial judge against the accused/respondent, the State has come up in appeal. 5. We have heard learned Additional SPP for the State and Sri Ananth S. Jahagirdar, learned counsel for the respondent/accused. 6. After hearing, the point that arises for consideration in the disposal of the above appeal is as follows: 'Whether the State has made out a case to interfere with the judgment of the trial Court?' 7. PW.3 Laxuman is the father of the victim girl. It is the case of the prosecution that the victim girl was aged about 11 years on the date of the incident and she was a dumb girl. PW.3 had two other children, who were going to school and he was a coolie. On the day of the incident i.e., 10.01.2011, as usual his two other children had gone to school and he had gone out on his coolie work. PW.3 had two other children, who were going to school and he was a coolie. On the day of the incident i.e., 10.01.2011, as usual his two other children had gone to school and he had gone out on his coolie work. He had lost his wife some years ago. The victim girl was alone in the house. When PW.3 returned at about 4.30 p.m. for taking his meals, he did not find the victim girl in the house and he made enquiry with his neighbour Gangamma (PW.15) and was in turn told that at about 4.00 p.m. on that day, accused had come near his house and through gestures told her that her father (PW.3) had cut fuel wood and he was waiting for her to carry the same to their house. The accused further requested her to accompany him to the field. Accordingly, victim girl had gone with him. On hearing the same, PW.3 became alarmed and he started searching for his daughter, who is the victim girl, along with Sharanamma (PW.11), Venkamma (PW.6) and Nagamma (PW.7) and they went near the field of one Pinjar. When they reached the field of Pinjar, they heard the screaming sound of the victim girl and immediately they rushed towards the said place and saw the accused committing rape on the victim girl. On seeing PW.3 and others rushing towards the spot, accused abandoned the victim girl and ran towards toor dal (pigeon pea) field. The victim girl was lying there and her clothes were torn and she was bleeding from her private part. They lifted her and carried to his house. The victim girl was in shock and when she became normal, on enquiry, she conveyed through gestures that accused had committed rape on her. 8. As per the case of the prosecution, accused had gone to the house of PW.3 and had taken the victim girl for the purpose of committing forcible sexual intercourse and thereafter had taken her to the field of one Pinjar and had committed rape on her. The prosecution has examined PW.15 Gangamma as a witness, who had seen the accused taking victim girl from her house and thereafter taking towards the field of Pinjar. However, PW.15 had turned hostile to the case of the prosecution. 9. The prosecution has examined PW.15 Gangamma as a witness, who had seen the accused taking victim girl from her house and thereafter taking towards the field of Pinjar. However, PW.15 had turned hostile to the case of the prosecution. 9. PW.3 is the father of the victim girl and he is stated to be an eyewitness to the incident of rape. In his examination- in-chief, he stated that PW.15, who is his sister-in-law told him that the accused had taken away his daughter and thereafter he secured PW.11 Sharanamma, PW.14 Suganda and PW.12 Manemma and they all went to Pinjar land near Khanegana Gida. They all saw accused committing rape on victim girl and thereafter running away from there. The cross-examination was deferred for the following day and when cross-examined, has completely given go-bye to his version in the examination in chief. He has stated that he was seeing the accused for the first time before the Court. He further stated that MOs.1 and 2 did not belong to his daughter Nagamma. He further admitted to the suggestion put by the learned defence counsel to the effect that he had returned home only late in the night after finishing coolie work and further he did not know raping of his daughter by the accused. He further admitted that the police had taken his signature on a blank paper and he did not know the contents of the complaint. The learned Public Prosecutor treated PW.3 as hostile and cross-examined him. He denied all the suggestions put by the learned Public Prosecutor. In the circumstances, evidence of PW.3 is not at all helpful to the case of the prosecution. PW.6 Venkamma, PW.7 Nagamma, PW.8 Ramabai, PW.11 Sharnamma, PW.12 Manemma, PW.13 Sushilamma and PW.14 Suganda are the other eyewitnesses examined for the prosecution. They have all turned hostile. 10. Surprisingly, the Investigating Officer has not recorded the statement of the victim girl. If she was a dumb girl as noted in the complaint Ex.P3, it was incumbent upon the Investigating Officer to have recorded her statement with the assistance of a speech expert who could interpret the sign language. It is a shocking failure of duty on the part of the Investigating Officer. If she was a dumb girl as noted in the complaint Ex.P3, it was incumbent upon the Investigating Officer to have recorded her statement with the assistance of a speech expert who could interpret the sign language. It is a shocking failure of duty on the part of the Investigating Officer. Further, the lady Medical Officer PW.9 who had examined the victim girl on the same day at 11.45 p.m. has stated that victim girl was not a deaf and dumb girl. On the other hand, PW.18 who had registered the complaint in this case has stated that victim girl was not capable of talking and she was completely disturbed. Even this does not explain as to why the statement of the victim girl was not recorded subsequently. If she was speech impaired or if she was a dumb girl - according to PW.9 (Medical Officer) she was not a deaf or dumb girl - the Investigating Officer ought to have sought the assistance of a speech expert to record her version through sign language. In any event, the fact remains that the best version of the case through the mouth of the victim girl is not available in this case. 11. On an entire consideration of the evidence placed on record, there is absolutely no material to hold that the judgment of acquittal recorded by the learned trial Judge is erroneous or illegal. Accordingly, we proceed to uphold the judgment of acquittal passed by the trial Judge and answer the point for consideration in the negative. Hence, the following: ORDER The above appeal is dismissed. Registry is directed to send a copy of this judgment to Director General and Inspector General of Police, Karnataka, to take note of the observation at paragraph No.10 above and to further take correctional steps to avoid recurrence of similar mistake resulting in miscarriage of justice.