Dismissed

State of Karnataka v. Manjunath Bommayya Naik

Karnataka HC5 Aug 2020CRL.A/100258/2015

Case brief

AI extract

What is this about?

In Criminal Appeal No.100258/2015, the High Court of Karnataka, Dharwad Bench dismissed the State's appeal challenging the Sessions Court's acquittal of the respondent for rape and intimidation, holding that the prosecution failed to prove guilt beyond reasonable doubt due to conflicting medical evidence and inconsistencies in witness testimony.

What did the court decide?

No relief granted to the appellant; the acquittal of the respondent is upheld.

State of Karnataka Vs Manjunath Bommayya Naik — Karnataka HC (2020) — LawSathi Research

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 5^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.100258/2015

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BETWEEN in the

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STATE OF KARNATAKA REP. BY THE POLICE SUB INSPECTOR, KUMTA CIRCLE POLICE STATION, KUMTA, 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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MANJUNATH BOMMAYYA NAIK AGE:44 YEARS, OCC:BUSINESS, R/O:HANEHALLI, GOKARNA.

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... RESPONDENT

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(BY SRI. SHIVAKUMAR S. BADAWADAGI, ADV.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1) & (3) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30.06.2015 PASSED BY THE DIST. AND SESSIONS JUDGE, UTTARA KANNADA IN S.C.NO.57/2011 AND CONVICT THE RESPONDENT / ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376 AND 506 OF IPC.

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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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This appeal is by the State challenging the judgment dated 30^th June 2015 in S.C. No.57/2011 on the file of the District and Sessions Judge, Uttara Kannada, Karwar (for short, the ‘ Sessions Court’ ). The Sessions Court by the impugned judgment has acquitted the respondent of the charges for offences punishable under Sections 376 and 506 of Indian Penal Code (for short, the ‘ IPC ’).

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The prosecution’s case against the respondent in a nut shelled as follows:

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2.1 The respondent on 27.04.2011 sexually assaulted the victim, his cousin, who was aged about 11 years as of that date. The respondent’s father and the victim’s father are brothers, and the respondent and the victim resided in the same locality. The victim’s father is no more and she was residing with her mother and sister. The victim was studying in 7^th standard as on the date of the alleged assault. The victim was at home on 27.04.2011 as the school was closed. Her mother, working as Anganwadi Assistant was at work, and the elder sister was visiting her

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aunt in Gadag. The victim being alone at home was playing in the front open yard.

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2.2 At that time, the respondent enticed the victim to accompany him to his residence offering Rs.5/-. When the victim entered the respondent’s residence, he seated her in the room with television, and later, he insisted on her to undress. When she refused to undress herself and told him that she would scream if he tried to force her. But he threatened her with taking away her life. She therefore remained silent. The respondent unrobed himself and also the victim, pushed her to the floor and committed penetrative sexual assault on her. Thereafter, the victim dressed herself and came home.

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2.3 The mother, who had been to work, returned home at 01:30 in the afternoon and served food to the victim. She did not disclose to her mother that she was sexually assaulted because the respondent had threatened. However, in the evening she felt pain in her abdomen and she was crying alone. When the mother enquired with her why she was crying, she then related what had happened in the afternoon. A complaint was lodged in this regard on

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06.05.2011 after thinking about the repercussions of lodging the complaint on the victim.

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2.4 The Police registered a FIR in Crime No.64/2011 at about 04:30 p.m. and the FIR was filed with the learned Magistrate on the same day at 04:30 p.m. The victim was sent on the same day for medical examination. The investigation was commenced with the victim being sent for medical examination and drawing up of mahazar of the place of occurrence. The dress worn by the victim was seized under a mahazar. A sketch of the place of occurrence was drawn and the photographs of the place were also taken. The statements of the victim and the statements of the neighbours were also recorded. The respondent was arrested on the same day at about 09:30 p.m. and sent to medical examination.

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2.5 On 07.05.2011 the respondent voluntarily gave a statement admitting his guilt and offering to show the clothes that he had worn on the date of occurrence. The clothes shown by the respondent as the clothes that he had worn at the time of the occurrence was seized under a mahazar and later the respondent was produced before the

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learned Magistrate. Later, the property extract of the respondent’s residence and the victim’s school certificate were obtained. The forensic report was received from the regional forensic laboratory Mangalore. The medical reports were also obtained from the concerned Doctors.

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The investigation being completed, the charge sheet is filed against the respondent for offences punishable under Sections 376 and 506 of IPC. The learned Magistrate on receiving the charge-sheet has taken cognizance of the offence and committed the case for trial to the Sessions Court with a direction to the Superintendent Sub Jail, Kumta to produce the respondent, who was in judicial custody before the Sessions Court upon receipt of information in that regard from the Sessions Court. The respondent was released on bail on 28.04.2011.

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The Sessions Court upon hearing the prosecutor and the defence counsel, framed charges against the respondent for the aforesaid offences. The charges were read over and explained to the respondent. The respondent pleaded not guilty and claimed for trial.

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The prosecution examined 16 witnesses as P.Ws.1 to 19 and marked Exs.P-1 to P-21 and Material Objects M.Os.1 to 6. The Doctor who examined the victim is examined as P.W.1. The Doctor who examined the respondent is examined as P.W.2. The Development Officer, Halehalli Grama Panchayati is examined as P.W.3 and this witness has spoken about the demise of the respondent’s father and the respondent residing with his mother in premises No.63 of Hanehalli Village and issuing an Extract of the Property register for this property as per Ex.P-9 and enclosed with certificate as per Ex.P-8. A resident of the locality, who it is said accompanied the victim and her mother to the Police Station, is examined as P.W.4.

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The victim’s mother is examined as P.W.5. The Head Master of Hanehalli Government Higher Primary School is examined as P.W.6. This witness has spoken about issuing certificate (EX.P-15) affirming the victim’s date of birth as 10.01.1999. The victim is examined as P.W.7. A neighbor and a relative of the victim and the respondent, who witnessed the spot mahazar, is examined as P.W.8. The panchas for the mahazar under which the respondent’s

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clothes were recovered have been examined as P.Ws.9 and 10. These witnesses have turned hostile. Another relative and a neighbor, who has stated that the victim and her mother related to him about the assault on the day after the assault, is examined as P.W.11. The Junior Engineer, City Municipal Council, Karwar who has drawn the sketch of the place of occurrence is examined as P.W.12. Another resident of the locality is examined as P.W.13. The Police personnel who assisted in the investigation and the Investigating Officers have been examined as P.W.14, P.W.15 and P.W.16.

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The letter addressed to the Medical Officer to the Gynecologist and Women Medical Officer, Government Hospital, Kumta for examination of the victim is marked as Ex.P-1. The victim’s medical certificate is marked as Ex.P-2. The letter addressed by the Primary Health Centre, Kagal, Kumta to the Duty Medical Officer, District Hospital, Karwar to a give opinion on the age of the victim is marked as Ex.P3. The endorsement by the Duty Medical Officer, District Hospital, Karwar that in view of the Medical Certificate already issued no opinion is required is marked as Ex.P-3(a). The Forensic Report dated 21.06.2011 is marked as Ex.P-4.

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The communication to the Medical Officer, Primary Health Centre, Gokarna for medical examination of the respondent is produced as Ex.P-5. The medical examination report by the aforesaid Medical Officer is marked as Ex.P-6.

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Further, the certificate and the property register extract issued by P.W.3 is marked as Exs.P-8 and P-9. The statements of P.Ws.4 and 5 are marked as Exs.P-10 and P- 11. The spot mahazar drawn at the respondent’s place is marked as Ex.P-12. The photographs of the premises are marked as Exs.P-13 and P-14. The school certificate affirming the date of birth of the victim is marked as Ex.P15. The panchanama for recovery of the respondent’s underpants is marked as Ex.P-16. The rough sketch of the respondent’s property prepared by the concerned Junior Engineer and the enclosing letter are marked as Exs.P-17 and P-18. The report filed by the concerned Police Officer for having reached the samples to the Forensic Laboratory at Mangalore is produced as Ex.P-19. Another rough sketch of the respondent’s property is marked as Ex.P-20. The FIR in Crime No.64/2011 is marked as Ex.P-21.

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The respondent in the cross-examination of P.Ws.11 and 13 has confronted certain portions of their statements to the Police as Exs.D-1 and D-2. These marked portions of the statements are where the witnesses have stated that the victim and her mother related about the sexual assault on the victim to them on 06.05.2011. The respondent in his statement, recorded under Section 313 of Cr.P.C. has denied the incriminating material placed against by the prosecution, and the accused has not chosen to lead any evidence.

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The Sessions Court while examining the question whether the prosecution has proved beyond all reasonable doubt that the respondent on 27.04.2011 between 11 a.m. and 12 noon committed rape on the victim putting her under the fear of death, has examined the evidence placed against the respondent. The Sessions Court has recorded that it is not denied that there was a civil dispute between the respondent and the victim’s mother and other relatives who are examined as witnesses over a path way and they were not on talking terms; and the victim was also aware of the strained relationship between her and the

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respondent. The Sessions Court has opined that if ill-will between the respondent and the victim’s mother is not denied, it would be difficult to believe the prosecution’s case that the victim, a girl aged 12 years would be enticed to follow the respondent with the bait of Rs.5/-, and the prosecution’s case is further reduced to tenuous because it is not supported by the medical evidence.

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The sessions Court has observed that the victim has stated that the respondent forced himself on her and engaged in the act of assault involving penetration for over a period of one hour. Nevertheless, the medical evidence is that there were no injuries on the victim howsoever and her hymen was intact. The respondent is aged 40 years and well built, and if he had forced himself on the victim, a girl of the tender age of 12 years, there would be injuries. This renders the prosecution’s case incredulous. Lastly, the Sessions Court, which had the advantage of seeing the demeanor of the victim in the witness box, has opined that there is every possibility of the victim being a tutored witness. The Sessions Court for these reasons has therefore recorded an acquittal in favour of the respondent.

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The learned Additional S.P.P. argued in support of the appeal contending that the Sessions Court ought to have seen that the victim and the victim’s mother were consistent in their case against the respondent. The evidence of these witnesses established the respondent’s, and the Sessions Court is not justified in brushing aside the testimony of these witnesses. The Sessions Court while recording the evidence of the victim has observed that when the victim was asked for the details of sexual assault, she appeared shocked, until then the victim was composed. This would demonstrate that the victim could not have been a tutored witness. The victim is categorical that the respondent committed penetrative assault on her.

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On the other hand, the learned counsel for the respondent submitted that the Sessions Court, in the light of the evidence on record, is justified in concluding and that the prosecution’s case does not establish the guilt of the respondent. The learned counsel submits that the delay in filing the complaint by about ten days, the lack of medical evidence, the animosity between the two family members over the right to a path way and the incredulity of a victim of

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a girl aged about 12 years being enticed by a sum of Rs.5/will have to be cumulatively considered. When these circumstances are cumulatively considered, as done by the Sessions Court, the only reasonable conclusion is that the prosecution has failed to establish its case against the respondent. There is reasonable doubt about the respondent being guilty and therefore, there should be any interference in this appeal.

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The points for consideration in this appeal are: i. Whether there is any doubt in the prosecution’s case against the respondent viz., that he committed the rape of victim on 27.04.2011 putting her under the fear of death, and

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ii. If there is such doubt, whether there could be any interference in this appeal’.

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The prosecution contends that the respondent committed the offence on the victim, a minor girl aged about 12 years on 27.04.2011 enticing her to his residence offering a sum of Rs.5/- as inducement. The victim after the assault went to her residence. Her mother, an Anganwadi worker, who would normally return home for lunch by 01:30,

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returned home around same time on 27.04.2011. She served the victim lunch. The victim did not inform her about the assault because the respondent had put under fear of death. However, in the night the victim developed abdominal pain and she was crying alone in the room. The mother on noticing this, enquired with her, and that is when the victim told her that the respondent had sexually assaulted her in the morning. The victim and her mother related this to the neighbours, including P.W.4, the next day. But there was no information about this to the Police until 06.05.2011, when the victim and her mother accompanied by P.W.4 lodged the first information.

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However, the witness, P.W.4 in his evidence has stated that the victim’s mother informed him that the respondent had sexually assaulted the victim only in the month of May 2011 and he did not accompany the victim and the victim’s mother to the Police Station on 06.05.2011. The two relatives and neighbours i.e., P.W.11 and P.W.13, Sri.Uday Honnappa Naik and Smt.Shobha Narayan Naik, who are husband and wife, have in their evidence stated that on 28.04.2011 the victim’s mother informed them that the

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respondent had sexually assaulted the victim. But, in the statement recorded under Section 161 of Cr.P.C., these witnesses have stated that the victim’s mother told them about the sexual assault only on 06.05.2011. The relevant portions have been marked as Exs.D-1 and D-2. These witnesses have also admitted that there were disputes between them and the respondent, and that they were not on talking terms with the respondent. Crucially none of the witnesses, including the victim’s mother, has offered any reason for taking about ten days to assess the repercussion of launching a criminal prosecution against the respondent.

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These circumstances will have to be examined in the light of the victim’s very definite statement that there was penetrative sexual assault on her and the medical evidence viz ., medical examination report and the evidence of the Doctor, P.W.1. The report, which is spoken to by P.W.1, is categorical that the victim’s hymen was intact and there was no indication of any sexual activity. These creates serious doubt about the prosecution’s case. If indeed there was any penetrative sexual assault, the medical evidence could not have been as is now.

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A significant facet of the evidence is that there was a civil dispute between the victim’s mother and the respondent, close relatives, about right to a path way and there were frequent altercations between them. The evidence also is that the victim’s mother and the respondent were not on talking terms. The further evidence is that some years prior to the date of the present incident, certain criminal proceedings were initiated against the victim’s mother at the instance of the respondent and his mother with the accusation that she had assaulted them. If there was enmity between the two family members, it would be difficult to accept that the victim, aged 12 years and who knew about the strained relationship, could be enticed by the respondent with the offer of a sum of Rs.5/- to visit his house.

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The Sessions Court, while recording the evidence of the victim, has observed that the victim was composed in giving evidence on the respondent administering her threat, unrobing himself and undressing her and committing sexual assault pushing her to the floor. It is only when she was asked to describe the sexual assault, she looked perturbed, but immediately she regained her composure and was able

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to depose further without any further hesitation. It is in these circumstances that the Sessions Court has opined that the victim’s evidence appears tutored.

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It is settled law that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstantial evidences a report of chemical examination, scientific examination et cetera if the same is natural and trustworthy¹ . Though the victim has stated that the respondent committed repeated penetrative sexual assault, the medical opinion, as per Ex.P-2, is that the victim’s hymen was intact, there were no external injuries and there was no evidence of recent sexual intercourse even according to the reports of the regional forensic science laboratory. The prosecution’s case, as spoken to by the victim and her mother is not corroborated by the medical evidence.

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As observed by the Sessions Court, the prosecution’s case that the respondent, despite the strained relationship amongst the family members with the

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1 Narinder Kumar versus State (NCT of Delhi) reported in (2012) 7 Supreme Court Cases 171 and re-emphasised in Mukesh versus State (NCT of Delhi) reported in (2017) 1 Supreme Court Cases 1

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respondent and his mother on one side and the victim’s mother and the others who have been examined as witnesses on the other side because of the dispute over the pathway, could entice the victim, aged about 12 years and who knew about the strained relationship, with an offer of Rs.5/- is not natural. In addition, none of the panch witnesses have supported the prosecution’s case as regards the recovery of the respondent’s underpants at his instance and upon his say that he was wearing them at the time of the occurrence. The Sessions Court, which had the advantage of observing that the manner of the victim as a witness, has opined that the victim’s testimony appears tutored.

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It is settled that only in exceptional cases where good reasons are shown for interference, there can be interference with an acquittal judgment and an appellate court should not set aside a judgment of acquittal in cases where two views are possible² . This Court, in the absence of medical evidence corroborating the victim’s evidence that she was subjected to penetrative sexual assault, and because of the other circumstances already discussed in detail, is of the

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2 Brahm Swaroop v. State of UP (2011) 6 SCC 288

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considered view that the prosecution has failed to establish the respondents culpability for the offences punishable under Sections 302 and 506 of IPC beyond reasonable doubt, and the Sessions Court is justified in its conclusion in this regard.

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For the foregoing, there is no reason for interference in this appeal. The appeal is accordingly dismissed.

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Sd/JUDGE

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Sd/JUDGE

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Rsh

State of Karnataka v. Manjunath Bommayya Naik

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Manjunath Bommayya Naik

Case brief

What is this about?

What did the court decide?

What the court decided

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