Nazarulla vs State of Karnataka

B.V. Pinto

This appeal has been filed by the accused challenging the judgment dated 10th November, 2004 passed by the II Addl. Sessions Judge, Tumkur, in S.C.No. 127/98 convicting the appellant of the offence under Secs. 448 and 376 IPC and sentencing him to undergo rigorous imprisonment for one year for the offence under Sec. 448 IPC and rigorous imprisonment for 7 years and to pay a fine of Rs. 1000/- for the offence under Sec. 376 IPC with default clauses.

It is the case of the prosecution that on 6.7.1995 at about 2 p.m., the accused illegally entered the pump house of CW-1 Smt. Haseen Banu situated in Puramanikere in Sy. No. 114/2 with an intention of committing rape on her and thereafter, he has committed rape on Smt. Haseena Banu thereby he is alleged to have committed an offence under Secs. 448 and 376 IPC.

The prosecution in order to prove the case has examined in all 13 witnesses PWs.1 to 13 and has got marked Ex.P-1 to P-11, and have produced MOs-1 and 2. The defence of the accused was one of total denial. However, after hearing the prosecution and the defence, the learned Sessions Judge, was pleased to convict the appellant and sentenced him as herein before mentioned. The convicted accused has filed this appeal.

Heard Sri Hashmath Pasha, the learned counsel for the appellant and Sri Sathish R Giriji, learned HCGP for the State.

The learned counsel for the appellant submits that all the witnesses who are relevant in this case have turned hostile to the case of the prosecution including the victim PW-1. There is no material to hold that the accused has entered into the pump house of PW-1 and has committed illegal intercourse with her. He, therefore submits that the order of conviction is against the evidence on record and submits that the accused may be acquitted.

The learned HCGP on the other hand, submits that the order of conviction is according to the evidence on record and does not call for interference. Hence, he submits that the appeal may be dismissed.

The prosecution in this case commenced with the filing of complaint Ex.P-1 by Smt. Haseena Banu. In the said complaint it is stated by her that she is residing in Chanduru, Dandishivanara hobli, Turuvekere taluk and her husband. Mohammed Peer is working in Bombay and comes often to the village. On 6.7.95 her brother-in-law Kareemvali had gone to Turuvekere and his wife had gone to Bangalore. She was alone in the house along with her children and she had gone to oversee sugarcane crop at about 1.30 p.m. along with her son aged 21/2 years. When she was in the pump house along with her son, she went inside the pump house, and opened to start the motor of the pump, the motor did not start. At that time, there was current. When she was waiting near the pump house at about 2 p.m., the accused Nazarulla was grazing his sheep and was coming to his land. He asked her why the motor did not start, then she told that her brother-in-law will come and see. She was standing in front of the pump house along with child. The accuse suddenly dragged her inside the pump house and held both her hands and felled her down. She abused him and tried to escape from his clutches. But he forcibly made her to lay-down and thereafter, he committed forcible intercourse on her. Her child was weeping at the door. Thereafter, the accused went away. She informed the incident to Khurshid Begum and Shakeela Barn and they advised her not to go to the police station till her husband came. At about 5 p.m., community people came near her house and she informed about the act of the accused even they also advised not to go to the Police Station and therefore, she did not go to the Police Station on the same day. Thereafter, on 9.7.95, after three days of the incident, she went to the police station and gave a complaint with request to register the case and to investigate the matter. After investigation, charge sheet came to filed.

The complainant has been examined as PW-1 before the court. However, in the court, she has not stated regarding the alleged rape committed by the accused on her. She has only stated that the accused has spoiled her. Subsequently, the learned Public Prosecutor sought permission of the court to treat this witness as hostile Permission was granted. In the cross examination by the P.P. she has admitted that the accused had dragged her and squeezed her neck. Though she admits the contents of the complaint given by her, she categorically states that the accused has not committed rape on her. In the cross examination, she has also stated that the accused has not committed rape on her. It is suggested to her that they have compromised the matter but she has denied the same. It is also elicited that she has no inclination to give any punishment to the accused or send him behind bars. It is also elicited that she has not stated before the court wholeheartedly and has stated as per the instructions given by the Police.

PW-2 Madaiah is the signatory to Ex.P-2 spot mahazar. PW-3 Mohammed Peer is the husband of PW-1. He has stated about the panchayath held regarding ''the incident. PW-4 Karimlik is the relative of PW-1. However, he has not stated regarding the incident in his evidence and has turned hostile to the case of the prosecution.

PW-5 Khurshid Begum is the relative of PW-1 who states that PW-1 came by weeping. When she enquired her, she told that she was raped by the accused. However, it is a hearsay evidence. PW-7 Dr. P. Nagaraj has examined PW-1 on 9.7.95. He has stated that there were scar marks on the body of the victim and that the injuries were of 2 or 3 days old. He has opined that there was no evidence of forcible intercourse committed on the victim. He has also examined the accused and stated that there was no injuries on the body of the accused and no evidence of recent intercourse.

PW-8 Rajagopal, Asst. Engineer has drawn the sketch of the scene of occurrence. PW-9 is the clerk in the Taluk Office who has stated that the property bearing No. 114/2 of Talakere circle is in the name of one Karim Sab as per Ex.P-7.RTC extract.

PW-10 Shivabasavarajaiah, Head Constable has traced the accused and produced him before the C.P.I. PW11 is the Head Constable who has registered case in Crime No. 83/95 on the basis of the complaint of PW-1 and issued FIR to the court. PW-12 R. Narayan was the CPI during the relevant time, who has conducted investigation and filed charge sheet. PW-13 H.R.Mahadevaiah has also conducted part of investigation and received the records from the FSL on the basis of which he has filed charge sheet. The FSL report is marked as Ex.P-11 which states the test for seminal stains is found negative on all the articles sent for examination.

I have gone through the judgment of conviction and sentence passed by the Trial Court. It is seen that the complainant (victim) PW-1 Haseena Banu has given a clear go-by to her complaint and has stated that the matter has been compromised between herself and the accused long before her coming before the court to give evidence. The learned Sessions Judge has convicted the accused on the basis of the averments made in the complaint and on the evidence of PW-1 that the accused has spoiled her. However, in the cross examination PW-1 has stated whatever she has stated is based on the instructions given by the police and it is not her wholehearted testimony It is also in the evidence of PW-1 that she has no inclination to punish the accused and that the matter has been compromised. The FSL report is also not in favor of the prosecution, so also the evidence of the doctor. Under the circumstances, I am of the opinion that the accased is entitled for an order of acquittal giving him benefit of lapses on the part of the prosecution case. It is also to be noted that the incident has happened on 6th and no complaint came to be filed for three days and therefore, this inordinate delay of three days on the background of PW-1 saying that her husband has reached on the same day evening creates doubt as to the manner in which the incident would have happened. Under the circumstances, it may not be safe to hold that the accused is guilty and he is entitled for an order of acquittal.

In the result, the appeal Is allowed. The order of conviction passed against the appellant is hereby set aside and the accused is acquitted of the offence under Sec. 448 and 376 IPC. Bail bonds executed, if any, shall be cancelled. The fine amount deposited, if any, shall be refunded to the appellant.