Kuppa @ Johny @ Muniyappa, Venkataswamy @ Patela, Marappa @ Marga and Muniyappa vs State

N. Ananda, J.—The appellants (hereinafter referred to as accused Nos. 1, 4 to 6) were tried along with accused Nos. 2, 3, 7 and 8 for offences punishable under Sections 143, 147, 148, 427, 448, 342, 395 and 376(g) r/w 149 IPC in S.C. No. 56/2008 on the file of Fast Track Court-V, Bangalore. The learned Sessions Judge held accused Nos. 1 to 8 guilty of the offences punishable under Sections 427, 448, 342, 395 and 376(g) IPC and sentenced them to undergo imprisonment for various periods ranging from 6 months to 10 years for the afore-stated offences. The accused Nos. 2, 3 and 8 had filed Crl.A. No. 1136/2010 and accused No. 7 had filed Crl.A. No. 896/2011 against the judgment of conviction and sentence passed in S.C. No. 56/2008. This court by judgment dated 13.06.2013, acquitted accused Nos. 2, 3, 7 and 8 of the afore-stated offences. The instant appeal is filed by accused Nos. 1, 4 to 6.

I have heard Sri. R. Srinivasa, learned counsel for accused Nos. 1, 4 to 6 and learned SPP for the respondent-State.

The charges framed against accused Nos. 1 to 8 are common. The prosecution has adduced common evidence in proof of the charges framed against accused Nos. 1 to 8.

In Crl.A. No. 1136/2010 and Crl.A. No. 896/2011, this Court has acquitted accused Nos. 2, 3, 7 and 8. This court while acquitting the said accused, has held; the evidence of victim is not trustworthy; the evidence of the victim is not supported by medical evidence; the victim has deposed that she was dragged by accused Nos. 1 to 8 at a distance of one furlong from the house and yet the victim had not suffered injuries or scratches; the evidence of victim that she was gang raped by 5 amongst 8 accused, however she had not suffered any injuries on her private parts or other parts of the body. There is discrepancy regarding the place of incident; The spot mahazar prepared by the police does not lend corroboration to the evidence of victim regarding the place of incident.

The evidence of PW-1 Dr. Kamalakshi would reveal that the victim did not bear signs of sexual intercourse since two or three days prior to her examination by medical officer. Therefore, the evidence of victim that accused Nos. 1 to 5 had committed gang rape on her cannot be accepted. The clothes worn by the victim did not bear symptoms of rape (traces of seminal stains or blood stains). The victim and other prosecution witnesses have deposed that public had catch hold of accused Nos. 3, 7 and 8, whereas final report was filed against accused Nos. 1 to 8. Even regarding the arrest of accused Nos. 3, 7 and 8, the evidence is discrepant. The victim has stated that accused Nos. 3, 7 and 8 were arrested by public and brought to police station. However, PW-19 Satyanarayana PSI has deposed that he arrested accused Nos. 3, 7 and 8 on the next day at 2 p.m., on 13.10.2007. Accused No. 2 had suffered multiple injuries. He gave the history of injuries due to assault by public at 9 a.m. on 17.10.2007. Accused No. 8 Dharma was examined by PW-2. He had suffered multiple injuries. He also gave the history of injuries was due to assault by public at 7 a.m. on 17.10.2007. Accused No. 3 had suffered multiple injuries and he gave the history of injuries due to assault by public at 8 a.m. on 17.10.2007. These accused had been assaulted by the public and they were brought to police station. Thereafter, the first information was registered. Thus, the evidence of PW-19 that they had arrested accused Nos. 2, 3 and 8 at 2 p.m. on the following day is false.

PW-1 Dr. Kamalakshi has deposed that PW-1 had not been subjected to sexual intercourse since two or three days prior to the date of examination. There were no evidence of presence of seminal stains or blood stains in the clothes of victim which would have been occurred if she had been subjected to gang rape by five persons. The medical evidence does not support the case of prosecution that the victim was subjected to gang rape.

The evidence of PWs 5 and 6 regarding the place of incident is not consistent. PW-4 has deposed that she was dragged to a distance of 1 km. from her house, whereas PWs 5 and 6 has deposed that accused committed rape on PW-4 at a place which is 20-30 ft away from their house. There was no dilapidated house at the place which is at distance of 20-30 ft from the house of PWs 4 to 6. The incident is alleged to have taken place at 11 p.m. on 16.10.2007. The first information was registered at 1 p.m. on 17.10.2007. If the alleged incident had taken place on 16.10.2007 as deposed by PWs 4, 5 and 6 and other witnesses, it looks highly improbable that PWs 4 to 6 and other villagers had waited till the afternoon of following day to lodge first information. The inordinate delay in lodging the first information has not been explained by the prosecution.

In view of acquittal of accused Nos. 2, 3 7 and 8, these appellants who are accused Nos. 1, 4 to 6 cannot be convicted for the afore-stated offences as the charges framed against accused Nos. 1 to 8 and the evidence adduced by the prosecution against accused Nos. 1 to 8 are one and the same. Therefore, the appeal is accepted. Accused Nos. 1, 4 to 6 in S.C. No. 56/2008 are acquitted of the offences punishable under Sections 427, 448, 342, 395 and 376(g) IPC.