Rudrappa Kareppa Dhudali vs The State of Karnataka

Budihal R.B., J.—The judgment and order of conviction dated 25.06.2009 passed by the III Addl. Sessions Judge, Belgaum in S.C. No. 167/2009 is called in question in this appeal. By the said judgment and order, appellant-accused has been convicted of the offences punishable under Sections 342 and 376 read with Section 511 of IPC and the accused was acquitted of the offence punishable under Section 354 of IPC and Sections 3(1)(xi) and 3(2)(v) of Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. Being aggrieved by the said judgment and order of conviction, the appellant has preferred this appeal. In respect of acquittal of the accused for the offence punishable under Section 354 of IPC and Sections 3(1)(xi) and (2)(v) of Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, State has not preferred any appeal.

Heard the arguments of the learned counsel appearing for the appellant-accused and also the learned HCGP appearing for the respondent-State.

Learned counsel for the appellant during the course of his arguments has submitted that looking to the complaint, FIR and other materials placed on record, firstly, there is a delay in lodging the complaint Ex. P-1 and even after registration of said complaint, while discharging and submitting the same before the concerned Magistrate Court, again there is a delay. FIR (Ex. P-8) shows the endorsement made by the concerned Magistrate mentioning the Buckle number of the Police, who submitted the FIR before the Court, but as per the other materials it show that FIR was entrusted to another Police Constable, hence, there is inconsistency even so far as the submission of FIR is concerned. He has submitted that P.W.4, who is the victim in this case, has clearly admitted in her oral evidence that there was darkness when the alleged incident took place and the persons were not identifiable during that night. Learned counsel has submitted that the other witnesses, who are the relatives i.e., mother and sister of the victim, have also admitted in their evidence that there was a darkness when the incident took place. As per the evidence of P.W.4, the victim girl, there were struggle marks at the spot and in the struggle that took place, her bangles were broken and fell on the ground, she has also sustained bleeding injuries and the clothes were having the blood stains, which she has shown to the Police. It is also her evidence that when the Police came to the spot, she shown the struggle marks as well as the broken bangle pieces and Police have seized those materials. He has submitted that there is total inconsistency with the evidence of P.W.4. The doctor-P.W.5 has deposed before the Court that when the lady came to the Hospital and when he has seen her there were no blood stain marks on the clothes worn by the victim. P.W.9-Dy.S.P. has deposed that there were no blood stains seen on the clothes of the victim girl. Learned counsel has submitted that though the alleged charges leveled against the appellant-accused are punishable under Section 354 i.e., outraging the modesty of a woman and under Section 376 read with Section 511 of IPC, that appellant-accused made attempt to commit the rape on the victim girl, but looking to the evidence of P.W.5-doctor, he has deposed that victim girl herself furnished the history of the incident that there was assault on her and she has not at all referred either about outraging her modesty or that accused made an attempt to commit rape on her. He has also submitted that in the injury certificate Ex. P-2, there is a mention that there was an assault as per the history furnished by the injured and there is no reference with regard to the other alleged offences. Hence, learned counsel has submitted that all these materials clearly show that false case has been booked against the appellant-accused and prosecution was utterly failed to establish the charges leveled against the appellant-accused. These material aspects were not at all looked into by the trial Court and trial Court has wrongly proceeded to convict the accused for the offences punishable under Sections 342 and 376 of IPC. Hence, he has submitted to allow the appeal and to acquit the appellant-accused. In support of his contention, the learned counsel for the appellant/accused relied on a judgment of the Hon''ble Apex Court in Appeal (Crl.) 624 of 2005 (Radhu v. State of Madhya Pradesh, disposed of on 14.09.2007).

Per contra, learned HCGP during the course of his arguments has submitted that there is no inconsistency in the evidence of P.Ws. 1, 2 and 4. When the history has been furnished as assault, it includes other offences also. He has further submitted that M.Os.1, 2 and 3, the clothes which were seized under Ex. P-5 mahazar, they were torn and P.W.4 has already deposed before the Court that it is the accused person while making an attempt to commit rape on her, he torn her clothes. Hence, he has submitted that the trial Court has rightly appreciated the entire materials on record both oral and documentary and rightly came to the conclusion in convicting the accused and no interference is required. Hence, submitted to dismiss the appeal.

In support of its case, the prosecution, in all, examined 10 witnesses and got marked 8 documents as Exs. P.1 to P.8 and 3 material objects M.Os.1 to 3.

The case of the prosecution in brief is that on 21.10.2007 at 9.00 p.m., the victim girl appeared before the P.S.I. of Saundatti Police Station and lodged a written complaint which was got written by her through P.W.3-Paramesh. The contents of the said written complaint are that the complainant is a permanent resident of Katral village in Saundatti taluk and is residing with her mother Channavva and sister Drakshayaani and elder brothers Raghavendra and Ravi. She is aged 18 years and belongs to Hindu Madar community, which comes under scheduled caste. About 8 days earlier to the incident, she joined NUT computer training course at Munavalli village. In order to go over to Munavalli village from her village, she has to walk upto Badli cross and from there she has to go by bus or any other conveyance. On 20.10.2007, she had left for Munavalli at 12.00 noon. After completion of the computer class, she went to the market to buy pooja articles as there was Dasara festival on the following day. Thus there was delay for her to return to her village. She reached Badli cross in a tempo. When she got down at badli cross, it was about 7.00 p.m. She started walking towards her village. When she reached the land of Ramangouda, the accused came from her behind, restrained her and asked her to come along with him, but ''X'' refused to go with him. The accused physically lifted her and carried behind a bush and gagged her mouth, tried to remove her clothes, in that course, he has torn of her chudidar. In the meantime, her sister Drakshayani called her on her mobile. As the accused had gagged her mouth, she could not talk to her. After sometime, her mother and sister Drakshyani came there shouting her name. The accused, on hearing the voice of her mother and sister, ran away leaving her there. Her sister and mother came there and tried to catch hold of the accused but he ran away towards Badli village. This incident had happened in between 7.15 p.m. and 8.45 p.m. It is also alleged in the complaint that the accused knowing fully well that ''X'' belongs to scheduled caste attempted to commit rape on her. As it was late night, the complainant did not go to the police station to lodge complaint on the same night. However, on the following day she went to police station and lodged her written complaint narrating these facts.

On the basis of the complaint-Ex. P.1, a case was got registered in Saundatti Police Station Crime No. 314/2007 for the offences punishable under Sections 354, 342 of the Indian Penal Code and under Sections 3(1)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The F.I.R. was issued as per Ex. P.8. The Investigating Officer completed the investigation and filed the charge-sheet against the accused for the alleged offences. An additional charge-sheet was also filed.

Perusing the oral evidence of the parties, the victim girl, who has been examined as P.W.4, has deposed in her examination-in-chief that she used to come upto Kodli cross in a vehicle and from there, for about 1 km., she has to go by walk to her village. On the date of the incident, she had left her village at 12.00 noon, attended the computer classes at Munavalli and thereafter she went to a doctor. As there was festival on the following day, she went to the market to purchase fruits and other materials and she left Munvalli at about 6.30 or 6.45 p.m. and came to Badli cross in a tempo. When she was proceeding to her village it was about 7.00 of 7.10 p.m. As she was proceeding nearby the lands of Ramanagouda Patil, all of a sudden the accused appeared, held her and asked to go along with him. On asking as to where she has to go with him, the accused told her to have sexual intercourse and saying so, he lifted her and took her towards the hills. Even though she made an attempt to escape, the accused with the help of veil that she was wearing he held her neck tightly and dragged her and then made her to lie on the ground. Even though she requested not to do anything to her, the accused torn her chudidar pyjama and chudidar top and attempted to commit rape on her. The accused dragged her and because of that she sustained injuries to her back, stomach, thighs and to the head. But she did not give any opportunity to the accused to commit rape on her. At that time, her sister -P.W.2 called her on the mobile. Then she informed that she is nearby the hills and requested them to protect her. At that time, the accused held her and gagged her mouth and there afterwards, he sat on her chest. Her mother and sister came to the said place and on seeing them, the accused ran away from the spot. But, during the course of the cross-examination, she has deposed that on the date of the incident, at Badli cross, there were no other people except the accused. As it was ''Amavasye'', there was darkness. She admitted that it was not possible to identify the face of others. She also deposed that when she came to badli cross, she has not told the accused that there are no other person of their village and they shall go together to their village. She has deposed that as it was dark and she was alone, she could not request her sister and mother for help as there was no currency in the mobile. Looking to the evidence of P.W.1, the mother, she has also deposed in her evidence in the cross-examination that there was darkness on that day that she herself and P.W.2 went to the spot. The accused was not there. But contrary to this evidence of P.W.1, the mother, P.W.2, who is the sister of the victim girl has deposed in her evidence that when herself and her mother went to the spot, the accused was sitting on the chest of the victim girl and after seeing her, the accused ran away from the said place. Looking to the evidence of this witness it goes to show that the incident took place in the darkness and even it was not possible to identify the persons or to look at others face in the said darkness. It is not the specific case or the evidence of the prosecution witnesses i.e., the P.W.4 - the victim girl or P.Ws.1 and 2 that on hearing the voice of the person they identified that person was none other than the accused. This evidence of the prosecution witnesses, more particularly of the victim girl and of P. Ws. 1 and 2 raises reasonable doubt as to whether the victim girl has really seen the accused person at the spot and whether the accused person committed alleged offences against her.

Coming to the evidence of these three witnesses, the complaint was filed on the next day of the incident in the evening. Though it is the evidence of P.Ws. 1 and other prosecution witnesses that they went to the police station in the morning but the police told that their superior officer was not present in the police station and asked them to wait till evening, this say of P.W.4, her mother and sister is not having any supporting material except their oral statement. I have also perused the FIR-Ex. P.8. The endorsement by the concerned Magistrate is "received on 22.10.2007 at 3.40 p.m. with original complaint through P.C. No. 1600 of Saundatti police station". But the prosecution material goes to show that FIR was despatched on 21.10.2007 itself and the distance from the police station to the concerned Magistrate Court is only 25 Kms. So, why there is a delay in submitting the FIR before the concerned Magistrate Court is not satisfactorily established by the prosecution through cogent evidence and the concerned police who is said to have carried the FIR is also not examined before the Court. So, the delay in submitting the FIR before the Court is not properly explained by the prosecution.

Looking to the evidence of P.W.4 - the victim girl when she was taken before the doctor P.W.5, P.W.5 in his evidence deposed that on 21.10.2007 at 9.40 p.m. he examined the patient by name Kumari Kashawwa Madar, aged 18 years, resident of Katral village, brought by WPC No. 784 with the history of assault on 20.10.2007 at 7.30 p.m. As per the evidence of the doctor and the injury certificate-Ex. P. 2, the history furnished by the injured herself is that there was assault on her. There is no mention that the accused made an attempt either to outrage her modesty or to commit rape on her. The evidence of P.W.5, the doctor, and the injury certificate-Ex. P. 2 would go to show that the victim sustained three injuries viz., i) contusion over abdomen measuring 2 cms x 3 cms, ii) abrasion at back right side measuring 4 cms x 5 cms and iii)abrasion at right thigh measuring 2 cms. x 2 cms. As per the opinion of the doctor, the said injuries are simple in nature which might have been caused due to contact with hard and blunt object and that the age of the injuries was between 24 and 36 hours. Accordingly he issued injury certificate-Ex. P. 2. Regarding this material placed by the prosecution, while cross-examining P.W.5, the defence suggested that if victim girl falls down on hard and rough surface, the injuries of the nature is possible, but the doctor has not admitted the said suggestion. It was also suggested by the defence during the cross-examination of the victim girl so also to P. Ws. 1 and 2 that when she went to answer the nature call, she fell down and sustained the said injuries. When admittedly, according to the evidence of the prosecution witnesses, there was darkness, then the possibility of victim girl-PW4 sustaining such type of injuries cannot be completely ruled out.

As per the evidence of the victim girl, she deposed that when the accused caused injuries to her, there was bleeding in the lower portion of her chin and the blood dropped on her clothes-M.Os.1 and 2 she also deposed that in the struggle her bangles were broken and fell on the spot. There were struggle marks on the ground also and when the police came she has shown broken bangle pieces and struggle marks to the police and they had noted the same and bangle pieces were seized by the police. In this regard, looking to the evidence of P.W.5, the doctor, he has deposed that he has not seen any bloodstains on the cloth of the victim girl. So also the evidence of P.W.9 - the investigation officer deposed that there were no blood stains seen on the cloth-M.Os.1 to 3 of the victim girl. Admittedly, M.Os.1 to 3 were not sent to Forensic Science Laboratory by the investigating officer. Probably, the reason might be that there were no bloodstains on the said clothes. Looking to this evidence of the prosecution witnesses, there is no consistency in the evidence. On the contrary, they are self-contradictory to each other. In his defence, the accused person has completely denied the case of the prosecution. He has suggested to the prosecution witnesses that there is a false implication of the accused because of the land dispute.

Considering the evidence of the prosecution witnesses, more particularly of P.W.4 - the victim girl, the same does not inspire confidence of the Court that it is the accused who committed the alleged offence on her. As submitted by the learned High Court Government Pleader that as the matter goes to show that as such matters would affect the dignity of the family there might have been delay of one or two days. Even if this contention of the learned Government Pleader is acceptable insofar as filing of the complaint is concerned, but after registering the complaint, immediately, the FIR ought to have been submitted before the learned Magistrate on 21.10.2007 itself. This was not done in this case and it was submitted on the next day i.e., on 22.10.2007 that too at 3.40 p.m. this delay ought to have been explained by the prosecution properly. Under these circumstances, the Trial Court has not at all appreciated all these important material aspects, omissions and contradictions and there is wrong reading of the evidence both oral and documentary and wrongly convicting the accused. Perusing the materials, the view taken by the trial Court cannot be said to be the only possible view in the matter. The materials on record raise reasonable doubts about the case of the prosecution and the benefit of doubt has to go to the accused person. The prosecution has failed to prove its case beyond reasonable doubts. Perusing the judgment and order of conviction passed by the trial court is not sustainable in law.

Accordingly, the appeal is allowed. The judgment and order of conviction dated 25.06.2009 passed by the III Addl. Sessions Judge, Belgaum in S.C. No. 167/2009 is hereby set aside.

The bail bonds executed by the accused stands cancelled.