Sri A.D. Ashoka vs State of Karnataka

Subhash B.Adi

Appeal by the accused against the judgment of conviction in S.C. No, 40/2004, dated 26.09.2005 on the file of Additional Sessions Judge. Past Track Court II Hassan.

Accuoed-A.D. Ashoka was chargesheeted and tried for the offences punishable under Sections 342, 366, 354 and 506 of IPC.

The case of the prosecution is that on 11.02.2003, the victim-PW4 Kum, A.T. Pavithra.resident of Achcharadi village in Sakaleshpur Taluk was alone at home as her brother- PW2 and mother had gone for coolie work. On that day, at about 3.00 p.m. she locked the door and left the house to go to her grand-mother''s house in the same village. At that time, accused came there, forcibly look and gagged her mouth with her vale, took her to the forest land belonging to Shivappagowda. He tied her hands with the rope to a trce and kissed on her cheek and embarrassed her and tried out rage her modesty, He left the victim there only at 5,00 p.m. and came back again at 7.00 p.m., he threatened her that he will murder her. On account of dark and threatening she could not know what happened thereafter. On the next day, i.e., on 12,02.2003 at about 7.00 a.m when she regained consciousness she found herself sleeping in her house and her brother and mother were present. They enquired as to what happened. PW4-victim revealed the incident that took place on the previous day, PW2-the brother of the victim took her to Sakaleahpur Government Hospital where she was treated by PW3-Doctor. The police came to the hospital and recorded her statement and registered a case and went to spot, conducted spot mahazar at a place where she warn tied to the tree and also at cattle shed under Ex P2 Statement of PW4 was marked as Ex. P4. Ex. PS-F.I.R was sent to the learned Magistrate on 12.2.2003 at 8,00 p.m. PW7 Constable arrested the accused. PW8-PSI investigated the mater and filed the charge.

Learned Magistrate committed the case to the learned Sessions Judge, The learnered Sections Judge Fast Track Court II, Hassan framed the charges for the offences punishable under Sections 366, 342, 354 and 506 of IPC. Accused pleaded not guilty and claims to be tried. Accordingly accused was tried,

To prove the guilt of the accused, the prosecution examined PW1 to PW8, marked Exs. P1 to P7 and produced MO1 to MO5 i.e., rope, bangle piece Vale, Chudidar Pant. On the defence side statement of PW4 was marked as Ex. D1 and P.F. was marked as Ex, D2. Trial Court on appreciation of the entire evidence convicted the accused punishable under Sections 366, 342, 354 and 506 of IPC, It is against the said judgment of conviction, the accused is before this Court.

Heard Sri, H.P. Leeladhar, learned Counsel for the accused and learned High Court Government Pleader for the State.

Ex, F4 is a complaint, which is registered at 12.30 p.m. on 12.2.2003. In the complaint, PW4-victim has stated that, on 11.02.2003 at about 3,00 p.m., after locking her house, she was standing near the road to go to her grand mother''s house. At that time, accused came and dragged her hand and took her on his shoulder and by threatening that he will kill her, He took her to forest land belonging to Shivappagowda which is about one furlong away from her house There he tied her hands to a tree and embarrassed and also kissed on her cheek, At about 5.00 p.m.. he left the place and again came back at about 7,00 p.m., he threatened her. Since it was dark she did not know what happened thereafter. On 12.02.2003, at about 7.00 a.m when she woke up she was at home and her brother and mother were present.

Complaint-Ex. P4 is registered on the basis of the statement of the victim. It was recorded between 11.45 a.m. to 12.15 a.m in the hospital of PW3.

According to PW2-brother of the victim when he and his mother came back from the land at about 5.00 p.m. PW4 was not present in the home. They were tinder impression that she might have gone to grand-parent''s house, they enquired but they did not find. However, at about 1.00 a.m. i.e., on 11/12.02.2003, they heard the noise from the poultry shed, when they went there, they saw victim was lying in the shed on a platform at the height of 5 feet and they brought her to the house. On enquired, the victim revealed the incident. PW2 also says that he saw accused at 1,00 a.m. on 11/12.02.2003 running torn the shed but he did not chase the accused. PW4-victim gave the statement to the police at 11,45 a.m. she was not aware as to what transpire during night, till her brother PW2 revealed in the morning at 7,00 am on 12.2.2003 but complainant is silent as to her brother chasing the accused at I o''clock on 11/12.02.2003.

PW4 in her cross-examination she has stated that there are houses of Subramanya Yoshodamma, Akku at short distance It is not her case that her hands were tied when the accused took her or his shoulder, hut states that she was tied to a tree and her alleged that her hands had become red, FW3-Doctor, who examined PW4, in her evidence has stated that she did not find any injury on any part of the body of the PW4, in no injuries even at the private part of the viction or on the chest, no signs of any sexual abuse.

PW4 evidence is accepted. She says that she was forcibly taken by the accused, it was 3.00 p.m. and PW2 admits that there are 50 houses in the village, PW2 says that Submmanya''s house is adjacent to their house. No witnesses have been examined from the village or nearby. According to PW4, the place where accused took PW4 was one furlong away from her house whereas PW2 stated that it is about 1 k.m. According to PW4 incident took place on the previous evening between 3.00 p.m., to 1.00 am i.e., 11/12.02.2003. On the next day morning, at about 7.00 a.m. victim had revealed the incident to PW2 and her mother. They had taken the victim to the Sakaleshpur by jeep. However, there is no explanation as to why they took the victim at 12.30. Whereas evidence of PW3-Doctor shows that on 12.02.2003 at 9.30 p.m. when she was in the hospital, the police brought the victim. Whereas the evidence of PW2 shows that he took the victim to the hospital in a jeep i.e., at II,45 a.m. PW5 who registered the case, has stated that on 12:02:2003 at about 11.15 a.m. while he was in police station he received the information from the hospital Evidence of doctor shows that, police brought the victim at 9.30 p.m. on 12.02.2003, whereas PW5 says that, he got the information from the hospital and went to the hospital and recorded the statement between 11.45 a.m. to 12, 15 noon on 12.02.2003, however the case is registered at 12.30 p.m. on 12.02.2003 but the FIR has reached the learned Magistrate at 8.00 p.m. There is a detay in lodging the complaint and also in sending the FIR to the learned Magistrate, though police station and house of learned Magistrate are of being in the same town the FIR -was sent nearly after 7 hours, The Wound Certificate-Ex. P3 does not reveal the time, at which, the PW4 was examined by the PW3.

Further PW4 in her cross-examination has stated that she was taken to the hospital once in the morning and again in the evening at 6.30 p.m. Serious doubt arises as to whether the victim was taken to the hospital in the morning or in the evening or was examined at 9.30 p.m. If she was examined at early morning there is no medical. report as regard to the same It ie also doubtful as to whether the police, after receiving the complaint, took the victim to the hospital, Even otherwise Ex. P3 does not mention any injury nor it shows any sign of sexual abuse. There is suggestion to PW2 and PW4 in the cross-examination that, the accused had refused to marry PW4 as such a false complaint has been lodged though it is denied but PW4 alleges that she was kidnapped at 3.00 p.m., and place where she was taken was a forest land at distance of one furlong. Even there in no injury on her wrist for having tied with the rope nor she had made any attempt to escape.

Bangle piece and rope was found on the spot as per the spot mahazar Ex. P2 but PW4 in her cross-examination states that her brother and mother brought the bangle piece end rope and if. was handed over to the police. Fact that, on 12.02.2003 at about 7.00 a.m. victim was found in her house is not in dispute. But to prove that she was kidnapped on 11.02.2003 there is serious contradiction in the evidence of PW4 and PW2. PW4 says that she would not go to anybody''s house without informing her brother and mother, PW2 stated that PW4 had no restriction to go to her friend''s house, as PW4 used to go to her friend''s house and stay there. There is no attempt made by PW2 to search for PW4. The village is very small village having 50 houses.

Trial Court while considering this evidence has committed an error in not noticing that victim''s evidence and the complaint which axe mutually contradicting each other and further victim does not explain as to how she was brought to the poultry shed and does not sustain any injury when she was physically lifted on the shoulder of the accused at 3.00 p.m. When PW2 states that Subramanya''s house is next to the house of the victim but nobody has been examined, no evidence shows as to how accused came and took her. FW3 doctor''s evidence does net corroborated with the evidence of PW5 PW2 and PW4. There Is not even a scratch on the body of PW4 and even according to PW4 she was found in her house. It is a tiny village consisting of 50 houses and even if the victim is missing, PW2 could have easily searched for PW4.

When the evidence of PW4 herself does not inspire and does not even prove that she has been kidnapped, the trial Court without considering the evidence, has erroneously convicted the accused. Conviction of the accused in not based on any evidence, much less evidence which proves the offence. Hence, findings of the trial Court are perverse and liable to be set aside. Hence. I pass the following order:

ORDER

i) Appeal is allowed.

ii) Judgment of conviction in S.C. No. 40/2004 passed by Additional Sessions Judge, Fast Track Court II, Hassan is hereby set aside.

iii) Accused is acquitted,

iv) Ball bond stands discharged.