IRAMMA vs MAHANTESH & ANR

These two appeals are filed by the victim of the offence challenging the judgment and order of acquittal dated 12.08.2014 rendered by the

Principal Sessions Judge, Koppal in Sessions Case Nos.72/2013 and 79/2013. By the impugned judgment, the accused Nos. 1 and 2, who were

tried for the offences punishable under Sections 376, 366, 342 and 506 R/w. Section 34 of the IPC were acquitted of all the charges.

The case of the prosecution is that;

(i) The victim (PW5) was a permanent resident of Bhairapur village. Her marriage with PW1 (complainant) had taken place on

27.04.2009. They were having two children aged about 3 years and 3? months as on the date of incident. Accused No.1 started

residing near the house of the victim about three months earlier to the incident.

(ii) On 22.03.2013 at about 12.00 noon, the victim along with her child were proceeding to Alwandi hospital for treatment of her

child who was then 3? months old. When she was waiting for the bus at Bhairapur cross, accused No.1 is stated to have came to the

spot in a car driven by accused No.2 and forcibly took the victim and her child in the car. They were taken to a house in Badami,

where the victim and the child were kept in unlawful confinement and subjected to sexual intercourse.

(iii) The husband of the victim, namely, PW1 having failed to trace her, lodged a complaint before Alwandi police on 29.03.2013. On

the same day, the accused and the victim along with the child were traced. The statement of the victim was recorded. She was

subjected to medical examination.

(iv) On completion of investigation, charge sheet was filed against the accused for the offences punishable under Sections 376, 506,

366, 342 R/w. Section 34 of the IPC. Accused No.2 having remained absconded, the case against him was spilt up. The case

against accused No.1 was committed to the Sessions Court for trial and the same was registered in S.C.No.72/2013. Subsequently,

accused No.2 was traced and a separate case was registered against him in S.C.No.79/2013. Both the cases were clubbed and tried

together.

(v) Accused Nos.1 and 2 denied the charges. In order to bring home the guilt of the accused, the prosecution examined in all 15

witnesses and marked in evidence 11 documents as Exs.P1 to P11(a) and the material objects at M.Os. 1 to 7. In the course of

crossexamination of the prosecution witnesses, Exs.D1 to D2 were marked on behalf of the accused.

(vi) During their examination under Section 313 Cr.P.C., both the accused took up the defence of total denial. Accused No.1

submitted his written statement taking up a plea that on the request of the victim herself, he took her to Badami and at her insistence,

had sexual intercourse with her. He further contended that the victim herself had written various love letters to him, but since these

were personal matters, he had burnt them.

(vii) Considering the evidence produced by the prosecution and the explanation offered by the accused during his examination under

Section 313 Cr.P.C., the learned Sessions Judge found it proper to acquit both the accused of all the charges framed against them.

The trial Court was of the view that the prosecution has failed to prove either forcible abduction or forcible rape as contended by the

victim. Further, the trial Court held that the victim was not kept under unlawful confinement and on her own accord, she consented

for the alleged sexual intercourse and hence, acquitted both the accused of the above charges.

(viii) The State has not preferred any appeal questioning the acquittal order passed by the trial Court. However, the victim has filed

the above appeals inter alia contending that the trial Court has committed serious error in acquitting the accused.

The learned counsel appearing for the appellant would submit that the evidence of the prosecutrix, namely PW5, convincingly establishes that

she was forcibly abducted along with the child and was kept in unlawful confinement for seven days. Her evidence indicate that she was subjected

to forcible rape. She has narrated the events preceding the incident, wherein accused No.1 committed forcible intercourse on her. She being a

victim of the sexual offence, the trial Court could not have discarded her evidence on the basis of the minor discrepancies noted in the judgment.

The victim has clearly stated in her evidence that, out of the fear and to preserve the prestige of her family, she did not disclose the incident to

anyone. Therefore, the delay in lodging the complaint or the reaction of the victim to the situation could not have been taken as a circumstance to

disbelieve her evidence. Further, the learned counsel has submitted that, if the incident was not true, the prosecutrix would not have taken upon

herself the stigma of sexual assault at the hands of accused No.1. The evidence on record clearly indicate that accused No.2 actively abetted the

commission of offence and hence he has sought for reversal of the impugned judgment and conviction of accused Nos.1 and 2 for all the offences

charged against them.

The learned Addl. SPP, however, submits that the trial Court has considered all the facts and circumstances of the case and having regard to the

nature of the evidence adduced by the prosecution, has come to the conclusion that the evidence adduced by the prosecution is not sufficient to

record conviction against the accused and therefore, the State has not preferred any appeal against the impugned judgment.

The learned counsels appearing for accused Nos.1 and 2 have argued in support of the impugned judgment. They submit that the evidence of

the prosecutrix is totally unbelievable. The circumstances brought out in her evidence indicate that, at her own volition she accompanied accused

No.1. There was absolutely no force or compulsion whatsoever either in taking the victim or in the sexual act alleged by the prosecutrix. Therefore,

the trial Court was justified in acquitting the accused. The learned counsel further submit that the appeals having been filed against an order of

acquittal, merely because alternative view is possible, cannot be a ground to reverse the judgment of acquittal and hence they seek for dismissal of

the appeals.

We have carefully considered the submissions of the learned counsels and have meticulously scanned the evidence produced by the prosecution.

There is no dispute with regard to the fact that the victim was a married lady. She was having two children as on the date of the alleged incident.

According to prosecution, she was forcibly abducted by accused No.1 from Bhairapur cross, where she was waiting for the bus. In order to prove

abduction, prosecution has examined PW9, a resident of the same village where the victim was residing.

(i) According to PW9, he knew PW1, the complainant as well as accused Nos. 1 and 2. He deposed that, about one year prior to

his examination before the Court, at about 12.00 noon, when he was waiting for bus at Bhairapur cross, the victim was standing in the

bus stand holding her child; after about 10 minutes, a car came from Bochanahalli side; Accused No.1 asked the victim to get into the

car; When she resisted, he closed the mouth of the victim and the child and forced them into the car; At that time, the victim raised

alarm, but the accused took her in the car; By then, PW1, namely, the husband of the victim, reached the spot; He informed PW1

that both the accused have taken the victim and child in the car.

(ii) If this evidence is analysed in the backdrop of the evidence of PW1, namely the husband of the victim, it is relevant to note that,

PW1 has unequivocally stated in his deposition that on the date of the incident, when he had gone to his field for work, his father, his

wife namely PW5 - the victim and the children were in the house; At about 12.30 pm, his brother (PW14) informed him that the

victim had proceeded to the hospital as the child was not keeping well and he asked PW1 to immediately take his motorcycle and go

to Bhairapur cross. Immediately PW1 rushed to Bhairapur cross and he did not find his wife there; He was told by PW9 (CW11)

and one Vibhuti Veerayya (CW12), that accused Nos. 1 and 2 have forcibly taken the victim and child along with them in the car.

(iii) The above evidence clearly indicates that on the date of the incident itself, the complainant was aware that the victim and child

were taken by accused Nos. 1 and 2. It is not the case of the prosecution that accused Nos. 1 and 2 were not known to PW1 or

PW9. According to PW1 as well as PW9, accused No.1 was residing close to the house of the complainant along with his parents.

Though the complainant (PW1) and PW9 were aware that the victim was taken by accused Nos. 1 and 2 along with them, neither

PW1 nor PW9 complained the matter to the police or other relatives. On the other hand, PW1 has stated in his evidence that, he

searched the victim for about a week and having failed to trace her, he was constrained to lodge the complaint. When PW9 has

specifically informed PW1 about the victim accompanying accused No.1, there was absolutely no necessity for PW1 to search for

the victim, that too for a long period of a week. His conduct in this regard appears to be highly unnatural. There is absolutely no

explanation by the prosecution for the delay in lodging the complaint. The explanation given by PW1 that on his failure to secure the

victim, he was constrained to lodge the complaint on 29.03.2013, is inconsistent to the very case of the prosecution and the evidence

of PW9 and PW1. Therefore, this circumstance itself throws doubt about the case of the prosecution.

Coming to the evidence of PW5, her evidence indicate that she has rather willingly accompanied the accused on her own accord. This is evident

from the reading of her evidence wherein in her chiefexamination itself she has stated that on 22.03.2003 at about 12.00 noon, while she was

waiting for the bus, the accused No.1 came in a car and asked her to get into the car and when she resisted, he closed her mouth and forcibly

pushed her into the car. She has stated that accused No.2 was driving the car and she was taken to Badami. On the way, Rangesh (PW7) took

them to the house of one Sayyadsab(PW8). PW8 handed over key to accused No.1 and they stayed together in the house. During these days,

everyday accused No.1 used to commit intercourse on her. She further deposed that as and when accused No.1 was going out of the house, he

used to take the child with him and because of the threats given by accused No.1 and on account of the safety of the child, she did not raise any

alarm or make any effort to escape from the said house. This evidence on the face of it appears to be highly unbelievable.

First and foremost, she is totally silent about the treatment of the child, making it evident that there was nothing wrong with the health of the child

and it is only on the pretext of taking the child to the hospital, she left the house and was waiting for accused No.1 to take her with him. She herself

has admitted in her evidence that continuously for seven days she was kept in the house of PW8. The circumstance in which this house was kept

reserved for the stay of accused No.1 and the victim itself indicates that much prior to the said incident, accused No.1 had planned to take the

house on rent for their stay. This could be gathered from the evidence of PW7-Rangesh who has stated before the Court that about a month earlier

to the incident, accused No.1 requested him to look for a house and on the date of incident, he picked them in the bus stand and took them to the

house of PW8. All these circumstances indicate that everything was preplanned and the story of forcible abduction is weaved only after they were

traced by the police.

The evidence of PW5 is silent as to the place where they met Rangesh. It is not clear from her evidence whether she was directly taken to the

house of PW8 or whether accused No.2 dropped them to the bus stand. According to PW7, accused No.1 and the victim along with the child

were picked up by him from the bus stand and were taken to the house of PW8 in an auto rickshaw. Be that as it may, it cannot be believed that

PW8 would straightaway admit them into the house, if the house was not kept ready for their common stay much earlier to the incident. In this

regard, if the evidence of PW8 is perused, he has clearly deposed that PW7 told him that a house is required for the occupation of a person. It is

pertinent to note that, this witness has stated that, on the date of incident, accused No.1 along with the victim came to his house along with PW7

and on the same day he fixed the rent at Rs.2,000/- and handed over the key of the house to them. If this evidence is believed, it goes to show

that, even the house was kept ready for the stay of accused No.1 and the victim. All these circumstances therefore undoubtedly point out that

accused No.1 and the victim had planned to stay together and in pursuance of the said plan, on the date of the incident she accompanied accused

No.1 to Badami and stayed with him for seven days until they were apprehended by the police.

The theory put forward by the prosecution that the victim was kept in unlawful confinement is falsified by the evidence of PW14 ? the police

constable, who apprehended the victim and accused No.1 on 29.03.2013. In his evidence, PW14 has categorically stated that on credible

information, he proceeded to the house of PW8 and when he knocked the door, accused No.1 came out and the victim followed accused No.1

and came out of the house. This evidence indicates that she was not under any confinement. There was ample opportunity for the victim to escape

from the clutches of the accused No.1, if she wanted.

All these circumstances point out that the victim had accompanied accused No.1 on her own accord and after they were traced to cover up

the disgrace, apparently to save the reputation of the family and the marital status of the victim, the story of abduction and rape appears to have

been engineered. This conclusion gets fortified from the very defence taken up by the accused as well as the previous conduct of the victim as

narrated by her in her evidence. She herself has stated that, even earlier to the incident accused No.1 had sexual intercourse with her. It cannot be

believed that she would keep quiet if in fact she was subjected to forcible rape by accused No.1 as contended by her.

Taking into consideration all these facts and circumstances, we are of the view that the trial Court was justified in disbelieving the version of the

prosecutrix. The case set up by the prosecution is replete with doubtful circumstances and improbabilities. The evidence of the prosecutrix does

not establish either the factum of forcible abduction or forcible rape attracting the offences under punishable under Sections 366, 376, 342 and

506 of I.P.C. She has turned out to be a false and scheming witness. Therefore, we do not find any reasons to interfere with the well considered

judgment rendered by the trial court. We do not find any illegality or perversity in the findings recorded by the trial Court. We do not find any merit

in the appeals. In the result, the appeals are liable to be dismissed. Hence we pass the following:

ORDER

The appeals are dismissed.

The judgment and order dated 12.08.2014 passed by the Principal Sessions and Sessions Judge, Koppal in S.C.Nos.72/2013 and

79/2013 is confirmed.