1
IN THE HIGH COURT OF KARNATAKA AT
D3'; 11 Lhits the 9th day of A1) '.1. 2008__ "
PRESENT mm
THE HON'BLE MR.JUSTICE_V r30SA%B;H"AH01T0v é
THE HON'BLE MR.JUsT1r:.E_1, NARAYAN£'-;_ sw.-Tuygvj
CRIMINAL APPEAL 1T§;':1003009r 20'01T_(A)
Between:
S'I'A'I'E BY
MAHILA " '
AND'.
HARI @ M;ARIGOWD'A Ts;/'o LATE NINGEGOWDA
_____
Ego 3«;0K:~:,.A.I42EHuzx:D1 VII.-AGE
ARKERE' HQBLI .0 '
SRiR':'xI~i€SiAPixTf€.£\ 'I.iALUK RESPONDENT'
(B? 31%; .:Y. S SI-IIVAPRASAD — ADVOCATE)
WVIVIRLQAA. man U/S. 3’78(1)&.(3) CR.P.C. BY THE spp FOR THE
A “j &§TATE§ PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO
..0i§ANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT DT.
13.10.2000 PASSED BY THE 11 ADDL. S.J.. MYSORE IN so NO.73/99
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ACQUITFING THE RESPONDENT’/ACCUSED FOR THEV.’o41:*i:jsNcE
PUNISHABLE U/S.376(F). ”
-P. ‘ I -. 4- .
This appeal eorrurig on for pronouncement ~_G1~.jULCI.”‘1T1C?1L
after hearing and reserved before Co’u.,._,goc ;{:\,I?_’»’1,YA}NA§4.__
SWAMY, J., delivered the following:
JUDGMENT i
This is a State appeal of acquittal dated
13/10/2000 in sVcj:e1′-19.73/”disses LpaV1jssed’ the II Additional
Sessions J11dge,~ “I»1’§;?.sore’;’–_Voi’ punishable under Section
375(1) ofI P
‘ 1998 at about 1 13.111. Manja @ Shashikumar,
V(P’W–?l)’ (fiarvasllarigala) came and informed PW–1, that
_ie.’A.o4n’eHari reeiovecl the clothes of Nandini, the victim. lied down
i ‘VV.a1i-zkdoing somethmg. The eomplainan PW-1 i_or1;n.s PW–4 1:…at
x T’ ” ‘ 11 .1 .-1
~..NandL11 13 staid a smau gm, ufiu
— ….., …..-1.. :
:5′ _y ::n.LL;1.1 .
V her back. When, the victim was brought back she was
crying. her frock was bloodstained. there were injuries on the chest
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and bleeding in her private part. P’W–1 informed to her husbaiid.
Husband Went in Search of accused. Thereafter viejtim taken
‘3’
*-s
LE4 1
5
her for treatment. It is stated inthe Corripiaint oT;ne”H:a’1*,it
S/O Ramanna Galagala Hundi has comrr1ittedaeeaL11’t on her
daughter and prayed for ac-tio1j1.zigai,w1:St. him.
the aforesaid compiaiiqit Em at 22 p.111. recovered the
frock (Mod) A’ (:a;3ei11 Crime N0.192/1998 and
submitted the FLIR. has sent Nandini alongwith PW-
}. for Medical Cheluvamba Hospital. Since the
. it E?he1::1v_ A V
mba Hosptial were on strike, she was sent to
P” – go-wu~-. ‘iiomital. PW–}–r ‘v’1S}.t6d the spot on the very same
She«..co1f1dL1cted spot Mahazar Ex.P2. Recorded the statenilent
Chinhaswamy (husband of the complairiant) and his son
Thereafter on 25/ 12/ 1998 she again visited the spot
i incident and recorded the statement of PW–5 Thayamma, PW–10
On 26/12/1998 at 8-30 pm.
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“–‘a’t”ufy’ p”””’ ‘* Cfi””C. T””‘ dOC'”‘I’ ad” “ed ti.°'”w. -550 “at her trea 9”
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1.11 the Government Hospital, lodge the 5.:;om:p1a._i11ut-oiaiid*thc11..r _’_’L’vv<)Cl3p1".;1'l1g"—
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arrested. PW-4 was called to Police station, who identflied_:”}}§1~i as
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the one who has committed the offence thereby further’
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not be medically examined. The accused”!5fee prod’n’ced_.be_i§ore
Court. On. 16/ 1/ 1999 she obtainedvhwound Ex.P4 issued
by Dr.Sudha. Dr.Sudha W«’§:E.;.’.5T1:}.0t {é:1va:g’i1Aaib!e»to’.give clarification and
therefore Dr.Ravi.chandra (PWH-3:}_wa€.%_requestedgto give clmrification.
PW–3 osnre hi.” opiniori r=.er’ EXP5′. 30,’3/1999 an r
co”‘:p1″”on of investigation,’ charge sheet before the
4. The T_’1*ia1uuCourt”fraimcd charge against the accused for the
oirénca Vpu1:1i$ha.b1e’_u_/s 376m IPC. T11e accused pleaded not guilty
9 d C1-“iL_.-_»f.’-Ci toewbe triceii.
” 5. p In iorder to prove the guilt of the accused, the prosecution
PW-1 to PW-14 and also got marked 13 documents
to P13 and produced MO–1 frock of Nandini. The Trial
Court on appreciation of the materials on record was p1_a_eed_ L
‘cal examination. S”‘”ce the doctors were on” str–£keT’he could
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acquit the accused of the charges leveled against
benefit of doubt.
6. We have heard the learned,’ High ‘fircxiernmenti
Pleader for the State and the learned counsel
accused and perused the records. Vidiwde were ‘-taken through the
deposition of the witnesses and}-cori_tents’ ofrthe. documents.
are:
i) Whether theiT1erosecution__ has proved beyond all reasonable
doubt that victim :g4’i1?,1′:”xi7.as sexually assaulted by the
accused? ‘and,’
2 as per the order for the foilowing reasons.
-1 is the mother of the victim. She has reiterated the
averments in her deposition. Thereafter she has stated
that she does not knew anvthim: abo,,t the accused before the
hum.-5 a. .p. – – .- —-V ——_-.-3
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there is any link between the incideilt and the accused before the
the witness. It is eiicited in her crosS=gexami;natio’n.’bytheIearr1ed*-_ I
Public Prosecutor that it is true ihereelf barrd
searched for accused Haiti and coiild trtgce him after
two days they lodged the to “the”po1ice. It is elicited in
End
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Shamanna of _Iiasj;committed the offence. She
did not know Vthéit.eper:éor1_. _
9. -L2 Chimv1_ia’siWaii1y. is father of the victim. He was not
Viibefore the c;:m~,t;* He was informed when he returned to the house
;.t’h.eV/eniglitiat 8 p.m that her daughter Nandini was sexually
e_1e.ea1Vi1tcd’i by Harish. He did not notice any injuries on the body of
He did not take her to doctor on that day. He did not
.4:-areli _or I-Iar1s1_ At t.mi._ ._t__g_., 1–ariied PLb11(‘ ProsecL1;or
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cross–examine. But nothing could be elicited from hi1I1vv.ii1_4§”S1;pp0Tt
of the prosecution case.
10. PW–3 is I)r.r.avichandr”‘ who has ;giVen.Acia.1*ificati/on in
reshect of inju”–“es fzia’ to ‘2(‘c) noted in’ the wo1;nd’Ac4ertif:cate.Vof
victim to the effect that the victim i’va_s’ handled fixover her chest by
the alleged accused with an ‘interitio:n.
tiinetilatixlg or satisfying
his sexual desire. The said i11jjn”1’iesvc0″i,1ld}”‘be”eaused on account of
nails of the a1Ieged;acc;1s’er1 :a11<j:i, a'1so"d_u"e' i;o~~"inc11i11" with ingers.
PW-3 has -drther thrt eoiigestioll n1e.1.1'rJ'on.ed in Ex.P4
indicates sortie iiiaxirfifiizig introd11_ction of some object and it does
not rule out 1r.a1e– organ' of.a"~per'son and partial insertion of male
organ into vagina 'cant causeivagiiial congestion.
__1I.V _I5V.' iaJ_ready inentioned is ..he son of PW-1 65 P'"'-2.
was 9 years if-cad when hie 'Vi(i€IlCe was taken. Therefore,
,1.
-. Withoifit oath oeing administered, his deposition was recorded. He
:if1r1at on the date of incident his sister the victim was
t the heap of sand in front of Ramamandira Temple and
time accused offered Rs.5/- to his sister took her to a
it Iearby building under contt1*uction, reraoved his dress, inted the
8
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frock of Nandini and sexually assaulted her. It is e1ic:V.1’Vtv.~§l’ei;t1 hi
c1″oss–exan1i11at1’or1 that date 22/ 12/ 1998 is writtag; :.g~_gg13L
palm… 1;-y a woman police. Wheii 11″ went tr
there were 20 people who were talking ‘Hart
assaulted his sister.
12. PW -5 — Thayamma.._l$~ grand:;.*:.o’tS!1’e-rpthe victim Nanclini.
She is not an eye \1l7.i_1;Il€!SS’,.T_O.,’.?Q:_.-,.’ ..i,_.tcir;l§e’rI.tf”~S..e was a.so not
identiued tue aecused:;1ih’6fore.u;_ “Coil. She has noticed irrjttries
on the body of the V:i.Ctim and ts’ep¢.sed to the eflect that her frock
was bloodstained A’ was also treated as hostile and
permitted to the learned Public Prosecutor.
It is stated; in tl1e’l4e1ess¥exaa1iaation that wife of the accused fell to
her husband and therefore herself,
her senaad dee”ded tr i”erg”ve him and not to depose
‘ A”agaiI1st the accused.
PW-6 is H C No.8 who took the victim to medical
“e:'{am.i.nation. PW-7 is H C No.18? who was deputed to trace the
accused. It is elicited. 1– his eross~examinatiea tuat Investigatia”
‘E3.
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orally informed him that accused was doing masonry worlpeisguire
at his work place and to bring He coul_. not 1″e1iiet*.éhea?_,ere
iviahazar Ex.P’2. They have not supported thee 1;ivrosecutioi1″ gahd ‘
treated as hostile. PW«1O is one Raniaialiwho is tojlbeh
co-worker has not supported the caseof the and he is
treated as a hostile witness.’ ;eo’u1d’be~te1ieited in his cross-
‘ “”1. I-
examinatioii in suooort of ,f.1..e,_p-ose«3t..;ion L J -11 is an
.1
?«11€”€d “”‘t..ness3.t” ii’:’1′”_.it1Cidé;i’t. *os”a’iso not supported the
case of the proseetitioixosand
14. PW-1.2″ is who examined the victim on
24/12/19s;sa at 6215 ‘who was brought by H (3 No.8. The
doctor _on,’:1d”abrasi— main. o.re: righ. mammary, contusion
– _ 1
or:.i’1é”ft-.13aa1a?:ii.ai”y. SCTELCLI mam over e”t supra scapuiar,
T’ ghliiyinen iiitact,.__’ congested. She has deposed that congestion
‘”‘ofiv£1iEi3Z1a%is aaabnornial feature. Such congestion is possible on
ofjnartial penetration of male organ into vagina.
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15. PW–13 is also alleged to be an eye Witness to the incaident.
He has also not supported the prosecution ease an(1;”‘t1″eate’d1’as~.a
1-«xvi
16. rw-14 is an investigation o’fi’1cer..pi11 the .’ease..’vv…pAW.110ise ‘
deposition is already narrated.
1’7. On considering the witnesses,
namely PW-1_. PW–3, as narrated
abme, it W dear has been sexually
assauited. Ttiereforehthei been able to prove that
the victim as otherwise such injuries
found on the Abodypof not have been. found. But
what is 13516 ixmosecution is to prove that it is the
such an offence. There is a very thin
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1LI.¢T-[L 13.611′-L V \.alJ.vIl.J.’:’,C\zL. L.i.!;Lz CU./\/L.lDUlJ. \N.lL.I.1 L11 U115 1 C 111.1 551.1: 1 VI’ ‘1. t’.1JJ.Ll
who a1j_e’th’ei parents of the victim have not identified the
it”‘:aoCused;befo1’e;tl1e Court. PW-4 is a boy aged about 9 years when.
..deposition was recorded. His evidence was recorded without;
iariiministering oath. He has stated that by the time when he went
1”!’ ‘ – ..l.. L ‘I4.
were taming it marl W110 nas assarurd Lu v”etr”u: S621 tarry. It is
M’
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found on his right palm the date of incident which he ‘stated
that it is Written by a woman police. He is a tutored
5:
Officer (PW-14) has stated that he was Iict giiverji t1a1iie’aIid’add1jess
71’1r\ 11l’_Il.’_I +1VI]l1£Ll’] 1′-J”‘I£I f)l’If1’I1(IlT!l’] I311 -r|1~r\rl11I’nnr1 karnrn.V{f__1a.’~~T1nt’:n:h\f;rvr,\f-:;-u.n 2
L1′) L.l.cI.D lmI.CI.\./’g/LII. L118} Cl’./\..ILrI.I:’\JLL (.vI.].J.LrI. lJ1\JKrI.LrI.\..~”.I\.l L}\.dJ.\J1\.4 L-.’l\,’l 1!.1V’c’JVa\.J. CL’-J11;
of the accused. He was asked to ,asc_ertaih_ _i”fo111 *.¥Jc’ri;;15:1acei_T;oi”
accused and trace the accused. He t;iiC1:»11QVt Iiame of the
accused was written as Hari i.@:”jMa1§igc;~.arda._”the FIR, He does not
know from which places of the detais of the
accused. Th” V A A
supported the iriierefore, it is not safe to
act upon connect the accused with
the offence alleged. has failed to establish that it
is the accused, cohiliiitted the ofience. The evidence of
La n:a;a;;~; mi \i7it.r1esses a d_ coiiduct. cf PW–2_ and PW-
01
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L .l.\’.’.| l-llC i1\.z1.4Ll§’.!CLJ. W11
committed Aoifence alleged. The Trial Court has properly
it iiafiipijeciated the materials available on record and has reached to
V”«.VicofrectVccriclusions, which do not call for interference in this
iVa;’rip’ea1.– Hence we answer point No.1 in the negative.
.__K
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18. In the result, this appeal is dismissed. Tlf1;aV9′.J;f’L’1nf12gn1ent
dated 18/10/2000 in. SC. No.73 of 1999 passed
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