Dismissed

State of Karnataka, v. Shivanand Mahadevappa Muragi

Karnataka HC4 Aug 2020CRL.A/100077/2015

Case brief

AI extract

What is this about?

In a criminal appeal under Sections 378(1) & (3) Cr.P.C., the High Court of Karnataka dismissed the appeal filed by the State against the acquittal of the respondent. The Court held that the prosecution failed to prove the case beyond reasonable doubt due to lack of corroboration by medical evidence, contradictions in witness testimony, and serious doubts arising from improvements in the prosecutr

What did the court decide?

Appeal dismissed upholding the order of acquittal of the respondent.

State of Karnataka, Vs Shivanand Mahadevappa… — Criminal Trial and Appeal | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF AUGUST 2020

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PRESENT

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THE HON’BLE MR. JUSTICE B.M. SHYAM PRASAD

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AND

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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CRIMINAL APPEAL NO.100077/2015

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BETWEEN

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STATE OF KARNATAKA, REP. BY THE C.P.I., SAUNDATTI POLICE STATION, BELAGAVI DISTRICT, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.

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... APPELLANT

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(BY SRI.V.M.BANAKAR, ADDL.S.P.P.)

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AND

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SHIVANAND MAHADEVAPPA MURAGI, AGE:23 YEARS, OCC:AUTO DRIVER, R/O:KENCHALARAKOPPA, TQ:SAUNDATTI, DIST: BELAGAVI.

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... RESPONDENT

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(BY SRI. VENKATESH M. KHARVI, ADV.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1) & (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER PASSED IN S.C. NO.52/2012 ON 16.10.2014 ON THE FILE OF VIII ADDL. DIST. & SESSIONS JUDGE, BELAGAVI AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 16.10.2014 PASSED BY THE VIII ADDL. DIST. & SESSIONS JUDGE, BELAGAVI IN S.C. NO.52/2012 UNDER SECTIONS 376, 341, 450 AND 506 OF IPC & TO CONVICT THE RESONDENT / ACCUSED FOR THE CHARGED OFFENCES.

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THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, B.M.SHYAM PRASAD J., DELIVERED THE FOLLOWING:

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JUDGMENT

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The State has filed this appeal calling in question the judgment in S.C. No.52/2012 on the file of the VIII Additional District and Sessions Judge, Belagavi (for short, the ‘ Sessions Court’ ). The Sessions Court by the impugned judgment has acquitted the respondent of the offences punishable under Sections 376, 341, 450 and 506 of IPC.

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respondent in brief, is as follows.

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2.1. During the later part of the year 2011, the prosecutrix, a widow aged 28 years with two children, was residing in a tenanted premise in Kenchalarkoppa, Saundatti. The respondent was one of her neighbors. On 07.11.2011 at about 4:00 p.m., the respondent entered the prosecutrix’s premises under the pretext of asking for drinking water and he started professing his affection for her stating that he had affection for her for the last two years. The prosecutrix spurned such

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overtures reminding the respondent that she was a widow and telling him she had always seen him as a younger brother.

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2.2 The respondent again on 08.11.2011 at about 10:30 a.m. entered the prosecutrix’s house. The prosecutrix was alone at home as her two children had gone to School. When the prosecutrix tried to protest and push the respondent out of the house and latch the door, the respondent closed her mouth and pushed her inside the kitchen area. The prosecutrix was shocked by this conduct. The respondent latched the door and threatened the prosecutrix of killing her if she did not heed to him. He pushed her on the floor and sexually assaulted her committing penetrative offence.

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2.3 The prosecutrix could not immediately react after the assault because she felt exhausted, and the respondent left putting his clothes back on. Thereafter, the prosecutrix contacted her brother-in-law over his mobile, and her brother-in-law in turn informed her

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mother-in-law. Her mother-in-law called on her and she related the incident to them.

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The first information is lodged belatedly on 10.11.2011. The FIR is registered by the jurisdictional police on 10.11.2011 at 8:30 a.m., and this FIR is filed with the learned Magistrate 10.11.2011 at 10:30 a.m. After investigation, the charge sheet is filed against the respondent for the offences punishable under Sections 376, 341, 450 and 506 of IPC. The learned Magistrate taking congnizance of the aforesaid offences against the respondent has committed the case for trial after complying with the provisions of Section 207 of Cr.P.C. The Sessions Court has framed charges against the respondent on prima facie satisfaction of case against the respondent for the offences punishable under Sections 376, 341, 450 and 506 of IPC. The respondent on the charge being read over has pleaded not guilty and claimed for trial.

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The prosecution has examined 16 witnesses as P.W.1 to P.W.16, and marked Exs.P1 to P22 and MO 1 to 6. The prosecutrix is examined as P.W.1. The prosecutrix’s brothers-in-law and mother-in-law – Sri.Mallikarjun Dharmanna Mural, Sri.Prakash Dharmanna Mural and Smt.Basalingamma Dharmanna Mural – are examined as P.W.2, P.W.9 and P.W.3. The Doctor, who has medically examined the respondent, is examined as P.W.4. The Panchas for the drawing up of mahazhar of the place of occurrence and for seizure of the clothes worn by prosecutrix and respondent at the time of the accident are examined as P.W.5 and P.W.6. A couple of neighbors, Sri.Laxman Fakirappa Naikar and Sri.Gadigeappa Hanamannatappa Chalamatti, are examined as P.W.7 and P.W.8.

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The relatives of the prosecutrix and the prosecutrix have deposed in support of the prosecution’s case. The neighbhors and one of the Panchas, the P.W.6, P.W.7 and P.W.8, have turned

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hostile. The other Pancha, the P.W. 5, has supported the prosecution’s case only insofar as the conduct of the spot Panchanama and seizure of the prosecutrix’s dress and the undergarments but has not supported the prosecution’s case as regards the seizure of the clothes worn by the respondent at the time of the occurrence.

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The other witnesses viz ., P.W.10 to P.W.16 are Police personnel, with the Investigating Officers being examined as P.W.14 and P.W.16. The chief Exhibits marked by the prosecution are the First Information (Ex.P1), the opinion of the Doctor who examined the respondent (Ex.P3), Spot Panchanama (Ex.P6), Seizure/ recovery Mahazars (Ex.P7 and P8), statements of P.W.7 and 8 (Ex.P9 and P10), the respondent’s voluntary statement (Ex. P20) and the FSL Reports and the Medical Report issued by the Senior Specialist, Saundatti (Ex. P4, P 16 and Ex. P21). The other Exhibits are the reports filed by the police personnel.

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On behalf of the accused, Exs.D-1 and D-2 are marked during the cross-examination of some of the prosecution’s witnesses. These are further statements of P.W.1 and P.W.9 with their signatures being marked as Exs.D2(a) and D-2(b). The accused has denied the accusations against him in his statement under Section 313 of Cr.P.C.

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The Sessions Court has acquitted the accused concluding that the prosecutrix’s evidence is not corroborated by medical evidence and is unnatural; and at the best, the prosecutrix’s evidence would only indicate a consensual relationship. The Sessions Court in arriving at its conclusion has also considered the answers offered by the prosecutrix in her evidence as regards the delay in lodging the complaint and the contradictions in the evidence of her relatives.

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The learned Additional S.P.P. argued in support of the appeal contending that the Sessions

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Court in appreciating the evidence on record, more specifically the evidence of the prosecutrix – P.W.1, has overlooked the settled law that if the prosecutrix’s evidence is complete and conclusive, there need not be any corroboration by the other witnesses. The Sessions Court could not have disbelieved the evidence of the prosecutrix only because of the delay in lodging the FIR on the ground that the prosecutrix is an educated lady and the explanation offered does not inspire confidence. However, the learned Additional S.P.P. does not deny that the Doctor, who has examined the prosecutrix has filed Report as per Ex.P21, stating that he is of the opinion that there is no evidence of any recent sexual assault.

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The question that arises for consideration in this appeal is:

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“Whether the conclusion by the Sessions Court that evidence on record is inconsistent with the prosecution’s case about the respondent’s culpability, and whether the

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respondent’s acquittal is perverse calling for interference in this appeal.”

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The Hon’ble Supreme Court in the recent decision in Babso v. State of Maharashtra¹ , while referring to its earlier decision in Chandrappa v. State of Karnataka² has held that it is settled law that the presumption of innocence which is attached to every accused person gets strengthened when such an accused has been acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the manner of witnesses. This would be in reiteration of the declaration of law in Brahm Swaroop v. State UP³ wherein it is held:

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Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgement under appeal is found to be perverse, the appellate court can interfere with the order of acquittal.

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1 (2019) 4 Supreme Court cases 739

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2 (2007) 4 Supreme Court Cases 415

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3 (2011) 6 Supreme Court Cases 288

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The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided unless there are good reasons for such interference.

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Insofar as the cases where an accused is on trial for offence punishable under section 376 of IPC, it has been declared by the Hon’ble Supreme Court in Mukesh vs. State (NCT of Delhi)⁴ that the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witnesses have falsely implicated the accused. The prosecution’s case has to stand on its own legs and cannot take support from the weakness of the case of the defence. There is an initial presumption of innocence of the accused and the prosecution has to 4 (2017) 1 Supreme Court Cases 1

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bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. However, conviction for an offence of rape can be based on the sole testimony of the prosecutrix provided such testimony is corroborated by medical evidence and other circumstantial evidence such as the report of the chemical examination, scientific examination et cetera if these are found natural and trustworthy.

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The prosecutrix has stated in her evidence that that the respondent repeatedly committed the offence of penetrative sexual assault after undressing her and himself and in fact, the prosecutrix has stated the penetration was 5 times. The garments worn by the prosecutrix at the time of the offence as well as the vaginal smear is subjected to scientific examination. The Report, as Certificate of Examination, is marked as Ex.P4. The report is that there were no seminal stains on the garment or the presence of spermatoza in the vaginal smear. The subsequent medical opinion, as per

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Ex.P21, based on such Forensic Report and Gynaecological Report is that there is no evidence of recent sexual intercourse. The Respondent is also medically examined, and the medical opinion is that there were no personal injuries on the respondent’s private parts and there was no evidence of recent sexual intercourse. Thus, the medical evidence and the scientific examination reports, which have remained unimpeached, do not corroborate the prosecutrix’s version.

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The prosecution’s case is that immediately after the incident, the prosecutrix called up her brotherin-law, PW-2, and related the incident. He advised her to go to her mother-in-law’s residence and inform her. She felt tired and ashamed and she slept in residence without going over to the mother-in-law’s place. But, the mother-in-law visited her in the evening and then she related the incident. The respondent’s aunt also visited her in the evening and requested her not to precipitate the matter stating that she would insist upon the

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respondent to touch her feet and apologise. The respondent was also secured and he was willing to apologise, but she refused. On the next day, her another brother-in-law, P.W.9, an employee with KSRTC, visited her, and she and her neighbour related the incident to him. They all went to Santwana Kendra , and from there they went to the Police Station and lodged a complaint on 09.11.2011. But, the police did not register the complaint on the same day and the complaint was registered the next day.

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There are improvements in this version which create serious doubt about the prosecution’s case. The prosecutrix has stated in evidence that when her brother-in-law, P.W.9, and mother-in-law, P.W.3, called on her on the next day i.e., 09.11.2011, she again related the incident and thereafter she went to the Police Station to lodge a complaint. She does not mention visiting the Santwana Kendra. But, the brother-in-law states that they first visited Santwana Kendra and from there they went to the Police Station.

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The mother-in-law is completely silent about visiting Santwana Kendra .

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The prosecutrix has stated that, when the mother-in-law visited her in the evening on 08.11.2011, the respondent’s aunt also came over and tried to ensure that no precipitative of action would be taken. The accused was also called over and he was also willing to apologise. However, none of the witnesses, including the mother-in-law, have spoken about this. These circumstances, which come about for the first time in the evidence of the prosecutrix, but is not corroborated by the other, creates serious doubt about the version given for the delay in lodging the complaint and also the respondent’s culpability.

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The prosecutrix has stated in her evidence that she was bleeding from lips and there was semen on her genitalia as well as her thigh. The prosecutrix has also stated that she earned her livelihood working as a Social Worker associated with a Project for persons

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affected by leprosy: she was overseeing awareness programs in about 10 surrounding villages. Everyone in the village knew that she was infected with HIV, and because she was infected with HIV she would not attend any function in the village. When the respondent had pinned her down to the floor and was trying to force himself on her, she not only reminded him that she was a widow whose life would be affected if he committed the offence of rape but he would also be ruined because even he would be affected by HIV. The respondent, despite being informed about the same, committed penetrative assault 5 times.

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The undisputed evidence is that no injuries were found either on the prosecutrix despite the prosecutrix stating that she was bleeding from lips. The prosecutrix for the first time in evidence states that the respondent committed penetrative assault despite she informing him that she was infected with HIV. She also speaks about a widespread awareness campaign in the village about the transmission of HIV and all the

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neighbours knowing that her husband had died of HIV and she was also affected. This improvement appears to be to pre-empt a defense that the respondent could not have committed the offence knowing the consequences because of the fact that most in the village knew about the fact that she was infected, and the respondent, being her neighbour, would also have known.

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The prosecutrix, without any justifiable explanation, in the cross examination says she not only washed herself up but also the clothes she was wearing before going to the Police Station. This when considered in conjunction with the lack of corroboration, the prosecutrix’s employment background and the improvements discussed above, creates serious doubt about the prosecution’s case against the respondent.

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The prosecution’s further case is that some of the neighbours saw the respondent coming out of the prosecutrix’s residence at about 10:35 on 08.11.2011 and hurrying towards the bus stand. The prosecutrix

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also came out of the house immediately and started howling. When they enquired with her she related the incident. Thus, the respondent was arrested on the same day. The prosecutrix has not stated about this, and in fact she has only stated in her evidence that she did not step out of the house because she was tired and ashamed and she was in the house till her mother-inlaw and children came in the evening. The neighbours, who have been examined to establish that the respondent was seen rushing out of the prosecutrix’s residence and she followed him howling, have turned hostile. As such, there is doubt about the initial suspicion about the respondent and his arrest. The panchas have also not supported the recoveries as asserted by the prosecution. These circumstances further reinforce the doubt about the respondent’s culpability.

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For the foregoing, this Court is of the considered view that the prosecution, as concluded by the Sessions Court, has failed to prove beyond reasonable doubt that

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the respondent is guilty of the offence alleged against and there is no perversity in the sessions courts finding in this regard. As such, the appeal is liable to be dismissed, and is accordingly dismissed.

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Sd/JUDGE

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Sd/JUDGE

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Rsh

State of Karnataka, v. Shivanand Mahadevappa Muragi

Case brief

What is this about?

What did the court decide?

State of Karnataka, v. Shivanand Mahadevappa Muragi

Case brief

What is this about?

What did the court decide?

What the court decided

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