Partly allowed

Muzahid Pasha @ Muju v. State of Karnataka by

Karnataka HC4 Jan 2022CRL.A/1567/2018

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for rape and assault, the High Court distinguished Supreme Court precedents regarding solitary evidence. Based on injuries found and lack of corroborating medical records for rape, the Court modified the conviction from rape to attempted rape and re-sentenced the appellant.

What did the court decide?

Conviction for rape under Section 376 IPC modified to Section 376 r/w 511 IPC; sentence reduced to five years rigorous imprisonment and fine of Rs. 30,000.

Muzahid Pasha @ Muju Vs State of Karnataka by — Karnataka HC (2022) — LawSathi Research

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CRL.A.No.1567/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF JANUARY 2022

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL APPEAL NO.1567/2018

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BETWEEN:

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MUZAHID PASHA @ MUJU S/O ABDUL AJIJ @ ABDUL PASHA NOW AGED ABOUT 33 YEARS RESIDING AT GULLENAHALLI VILLAGE SALAGAME HOBLI HASSAN TALUK HASSAN DISTRICT – 573 219 ... APPELLANT

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(BY SRI.NARAYANA REDDY M, ADVOCATE FOR SRI.SHIVAYOGI B HALLUR, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY HASSAN RURAL POLICE STATION HASSAN – 573 201 REPRESENTED BY S.P.P. HIGH COURT BUILDING BENGALURU – 01 ... RESPONDENT

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(BY SMT. RASHMI JADHAV, HCGP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 04.08.2018, PASSED BY THE 5^TH ADDITIONAL DISTRICT AND SESSIONS COURT AT HASSAN IN S.C.NO.236/2013, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 448, 323, 376, 506 OF IPC.

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CRL.A.No.1567/2018

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THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Aggrieved by the order of conviction and sentence recorded against him for the offences punishable under Sections 448, 323, 376, 506 of IPC, the accused in SC No.236/2013 on the file of 5^th Addl. District & Sessions Court at Hassan has preferred the above appeal.

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The appellant was tried in SC No.236/2013 by

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the trial Court for the offences punishable under Sections 448, 323, 376, 506 of IPC on the basis of the charge sheet filed by Hassan Rural police in Crime No.70/2004 of their police station. Crime No.70/2004 was registered against the appellant on the basis of the complaint Ex.P1 filed by PW.1.

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The case of the prosecution in brief is as

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follows:

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(i) The appellant was interested in marrying PW.1 but her family member declined the proposal. On 14.05.2004 at about 7.30 am when PW.1 was alone at

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Gullenahalli village in her house, the appellant trespassed in to the house, gagged her mouth, dragged her into the house and committed rape on her. He threatened her of her life if she reveals the incident to anybody;

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(ii) During the course of the offence, he assaulted her and caused simple injuries. When the appellant was assaulting PW.1, her brother PW.2 came home. On seeing him the appellant fled away. PW.3 is the mother of PW.1. PW.9 is the head constable of Hassan rural police station. PW.9 visited the hospital and recorded the complaint of PW.1 as per Ex.P1. On the basis of Ex.P1 he registered first information report as per Ex.P6.

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(iii) PW.9 conducted spot mahazar as per Ex.P2 on 15.05.2004 in the presence of PWs.4 and 5. On 16.05.2004 he handed over further investigation to PW.8 i.e., Police Sub-inspector of Hassan Rural Police Station.

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(iv) PW.8 claims to have enquired PW.1 on 22.05.2004 in the police station. Initially first information report was registered for the offences punishable under Sections 323, 354, 448 and 506 of IPC. On 22.05.2004,

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the victim allegedly revealed that the accused committed rape on her. He said to have referred her again for medical examination. On such medical examination he claims to have collected material objects from the Medical Officer and sent them to FSL, arrested the accused and collected the wound certificate-Ex.P5 and handed over further investigation to PW.6.

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(v) PW.6-Police Inspector of Hassan Rural Police Station collected Ex.P3 the FSL report, Ex.P4 the Khatha extract-Ex.P4 of the scene of offence and filed the charge sheet for the offences punishable under sections 323, 354, 448 and 506 of IPC before the Additional civil Judge (Junior Division), JMFC II Court, Hassan.

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The Magistrate took cognizance of the offences and registered the case in C.C.No.495/2007 and framed charges against the accused for the offences punishable under Sections 323, 354, 448 and 506 of IPC and proceeded to conduct trial. During trial before the Magistrate, PW.1 deposed that the accused committed rape on her. She further deposed that she did not reveal

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the offence of rape to her father or before doctor due to embarrassment and she was treated for two days in the hospital.

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On such development, the Assistant Public Prosecutor filed an application before learned Magistrate under Section 323 Cr.P.C., for committal of the case to the Sessions Court. Learned Magistrate committed the case to the Sessions Court. On such committal the matter was registered in S.C.No.236/2013 on the file of V Addl. District and Sessions Judge, Hassan.

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The learned Sessions Judge on hearing both sides framed charges against the appellant for the offences punishable under Sections 448, 323, 376 and 506 of IPC. To prove its case, the prosecution examined PW.1 to PW.9 and got marked Ex.P1 to Ex.P6.

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The trial Court on examining the appellant under Section 313 of Cr.P.C., and on hearing both the parties, by the impugned judgment and order convicted the accused for the offences punishable under Sections

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448, 323, 376 and 506 IPC and sentenced him as per the

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chart below:

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Sl. No.	Convicted for the offence punishable under Section	Sentence of imprisonment	Fine amount in Rupees	Default Sentence
1	448 of IPC	Rigorous imprisonment of 1 year	1,000/-	Simple imprisonment of one month
2	323 of IPC	Rigorous imprisonment of six months	1,000/-	Simple imprisonment of 15 days
3	506 of IPC	Rigorous imprisonment of one year	1,000/-	Simple imprisonment of one month
4.	376 of IPC	Rigorous imprisonment of seven years	30,000/-	Simple imprisonment of one year

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The trial Court based its order of conviction

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and sentence on the following grounds:

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(i) The solitary evidence of the victim-PW.1 was

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acceptable;

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(ii) The evidence of PW.1 was further corroborated

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by the evidence of her brother-PW.2.

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Sri.Narayana Reddy, learned counsel for the

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appellant seeks to assail the impugned order of conviction and sentence as follows:

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(i) There was delay in filing the complaint.

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(ii) At the first instance, PW.1 did not complain of commission of rape. Even the alleged eyewitness/PW.2 did not speak of offence under Section 376 of IPC.

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(iii) After about 6 years, PW.1 came up with the version of commission of rape. The medical evidence and forensic evidence was totally negative. Except the interested testimony of PW.1 to PW.3 there was no incriminating evidence.

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(iv) PW.3 was not an eyewitness. The evidence of

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PWs.1 and 2 was totally inconsistent and they went on improvising the case stage by stage. There were lot of unexplained contradictions in the evidence.

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(v) Even evidence of PW.8 was not consistent and there was no material to substantiate the contention that he referred the victim to medical examination or collected material objects.

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(vi) The trial Court committed error in appreciating the evidence of witnesses. The evidence of PW.1 was not of sterling quality. Therefore, the Trial Court was not right in relying on her solitary evidence.

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In support of his contentions, he relies upon

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the following judgment:

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(i) Santosh Prasad @ Santosh Kumar v. The State of Bihar¹

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Per contra, Smt.Rashmi Jadhav, learned HCGP

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seeks to justify the impugned order of conviction and sentence on the following grounds:

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(i) In heinous crimes like rape the delay in filing the complaint, faulty investigation are not ground for acquittal.

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(ii) PW.1 being the victim, there was no reason to

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disbelieve her evidence. All along her evidence was cogent and consistent. She not revealing the commission of rape at the first instance cannot be blown out of proportion having regard to the stigma attached to the victim due to such offences, that too, when she comes from very conservative family.

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Having regard to rival contentions the point that arises for consideration is:

1 AIR 2020 SC 985

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“Whether the impugned order of conviction and sentence is sustainable in law?”

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So far as the offences under Sections 448, 323, 354 and 506 of IPC, there were clear and consistent allegations against the appellant in the complaint-Ex.P1 and the statement of PW.2 and there was evidence before the Court also. There is no dispute that the accused and PW.1 to PW.3 belong to the same village. As per the complaint, the appellant proposed to marry PW.1 but, her family members declined that proposal. That goes to show that PW.1 to PW.3 and the accused were closely known to each other.

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According to PW.1 to PW.3, since they declined the proposal of the accused, to take revenge he committed the offence. According to the appellant he was falsely implicated in the case due to some old rivalry. As rightly pointed out by the trial Court, neither in the cross examination of PW.1 to PW.3, nor in his examination under

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Section 313 of Cr.P.C, the accused did not explain what was that old rivalry.

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Having regard to the nature of the offence the delay in filing the complaint or registering the FIR itself does not discredit the evidence of PW.1 about the appellant entering into the house and assaulting her.

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The case of the prosecution is based on the evidence of PW.1-victim, PW.2-her brother who came to the scene of offence when the appellant was assaulting her. PW.3-mother of the victim is not the eyewitness, she is only hearsay witness.

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The case of the prosecution is further based on evidence of PW.4 and PW.5 spot mahazar witnesses, but they turned hostile. Moreover, there was no recovery of any incriminating material during the spot mahazar. The other evidence was that of PW.7-Medical Officer, PW.8 and PW.9, the police who registered FIR conducted investigation.

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As already pointed out at the first instance in the complaint PW.1 clearly stated that when she was washing utensils at home, the appellant accosted her, dragged her by gagging her mouth and attempted to ravish her and in that course he slapped her. She also stated that her brother came, on seeing him appellant ran away. She also stated that PW.2 chased him but he escaped. She further stated that she had suffered bleeding injuries on her lips and her father took her to hospital and got her treated.

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PW.7-Medical Officer, Senior Specialist of the J.C.Hospital stated that on 14.05.2004, PW.1 visited hospital at 1:45 pm with a history of assault. He examined her and gave wound certificate as per Ex.P5. He further deposed that he found abrasion over her lower lip and tenderness in neck and shoulder which were simple in nature. Nothing was elicited to disbelieve such evidence of PW.1.

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The prosecution’s own witness PW.7 and Ex.P5 state that PW.1 reported before him with a history of scuffle and not with a history of rape. Further, PW.1 deposed that due to shame she did not reveal about rape before the doctor and her father. However, in the complaint which was registered, before the medical examination, she has stated that the appellant attempted to commit rape on her. Therefore, the evidence of PW.1 with regard to attempted rape, trespass and assault was cogent and consistent. That was further corroborated by the evidence of her brother-PW.2.

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PW.8 claims that PW.1 appeared before him

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on 22.05.2004 and he referred her to the Government hospital through PC.No.110 for medical examination and collected the material objects from the hospital and sent to FSL through PC.No.60. He claims that on that day PW.1 revealed that the appellant committed rape. However, to that effect PW.8 has not recorded her further statement. PC.No.110 and PC No.60 who allegedly escorted the victim to the hospital and carried the material objects to FSL

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were not examined. Those material objects were also not marked.

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PW.8 handed over the further investigation to PW.6 on 10.09.2007 and he had three months time from 22.05.2004 to 24.08.2004 in the investigation. He did not file any requisition to the Magistrate to incorporate the offence of Section 376 of IPC in the place of Section 354 IPC. Therefore, the evidence of PW.8 about PW.1 revealing about commission of rape, he sending her to the Government Hospital, Hassan for medical examination, collected material object etc., is without any basis.

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To crown the shaky evidence of PW8, the alleged medical officer who examined PW.1 on 22.05.2004 is not cited as charge sheet witness. No medical records pertaining to medical examination dated 22.05.2004 were collected by the investigating officers. Atleast after the matter was committed to the Sessions Court, the Public Prosecutor has not summoned any such medical records. Therefore, PW.1 revealing the commission of offence of

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rape on 22.05.2004 and PW.8 referring her to medical examination and collecting the material objects are all without any basis.

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If there was any such material in the case diary about the offence of rape atleast PW.6 could have filed charge sheet for offence under Section 376 of IPC. PW.6 also did not whisper anything about any material being found in the investigation file for the offence under Section 376 IPC. But, he has filed charge sheet for the offence under Section 354 IPC. Even FSL report Ex.P3 does not bear any incriminating findings in proof of offence of rape. Despite the aforesaid doubtful circumstances the trial Court relying on the judgments of the Hon’ble Supreme Court in Sudha Renukaiah and others V. State of Andra Pradesh ((2017) 13 SCC 81) and Ranjit Hazaraka V. State of Assam ((1998) 8 SCC 635) holds that the solitary evidence of PW.1 is sufficient to convict the accused for the offence punishable under Section 376 of IPC.

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It is no doubt true that in those judgments it was held that the solitary evidence of the prosecutrix is sufficient to convict the accused for the offence under Section 376 IPC provided her testimony is cogent and consistent.

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The Hon'ble Supreme Court in Paragraphs 5(4.2), 5(4.3) and 6 of judgment in Santosh Prasad' s case referred to supra held that the solitary evidence of the prosecution is sufficient to convict the accused for the offence under Section 376 IPC, provided the same inspires the confidence and appears to be absolutely trustworthy and unblemished. It was held that such witness must be

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sterling witness of a very high quality so as to persuade the Court to accept the evidence on its face value. It was held that such evidence should be truthful and consistent right from the starting point till the end. It should be natural and there should not be any prevariation and should not give room to any doubt as to the factum of occurrence. It was also held that the said version

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shall consistently match with the version of every other witness.

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At the time of offence, PW.1 was aged 20 years. She subscribed her signature in the complaint and in her deposition before the Sessions Court in Urdu and in the deposition before the Magistrate in Kannada. Despite that the trial Court believes the evidence of PW.1 that she did not know Kannada and police did not read the complaint to her. Even the recording of the complaintEx.P1 is also not unblemished. PW.9 claims to have recorded the complaint Ex.P1 in the hospital. But, Ex.P1 does not bear any endorsement of the hospital to show that it was recorded in the hospital. PW.7 does not speak of recording any statement before him.

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It is not that PW.1 was alone and helpless. PW.1 states that her brother came to the spot immediately. Atleast he has not registered the complaint for the offence under Section 376 IPC. Under such circumstances, the appreciation of evidence of PW.1 by the

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trial Court to state that she is sterling witness for proof of charge for the offence under Section 376 IPC is not sound and sustainable.

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However, the evidence of PWs.1, 2 and 7 that PW.1 had suffered bleeding injury on lips, tenderness on neck and shoulder is un-impeached. The evidence that appellant trespassed into house and assaulted her and attempted to commit rape on her is not discredited. Therefore, the order of conviction and sentence for the offence punishable under Sections 323, 448 and 506 IPC does not call for any interference of this Court.

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So far as conviction under Section 376 of IPC, there is material to show that the appellant attempted to commit the offence of rape and not the offence of rape. Therefore, only that part of the impugned order requires to be modified from the offence under Section 376 of IPC to Section 376 r/w Section 511 of IPC. Therefore, the appeal is partly allowed.

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i) The impugned order of conviction and sentence

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for the offences punishable under Sections 448, 323, 506 of IPC is hereby confirmed.

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ii) The impugned order of conviction and sentence for the offence under Section 376 IPC is modified as follows:

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The appellant/accused in addition to the offences punishable under Sections 323, 448 and 506 IPC is convicted for the offence punishable under Section 376 r/w 511 IPC.

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(iii) The punishment prescribed for the offence under Section 376 IPC at the relevant time was imprisonment not less than 7 years and which may extend upto life imprisonment and fine. Section 511 prescribes awarding half of the sentence prescribed for the substantive offence.

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Having regard to the nature of the injuries found on the victim for the offence under Section 376 r/w 511 IPC, the appellant is sentenced to undergo rigorous imprisonment of 5 years with fine of Rs.30,000/-. In

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default to pay fine amount the appellant/accused shall undergo simple imprisonment for 3 months.

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The matter is referred to the Victim Compensation Committee, Hassan District for determination of compensation payable to PW.1.

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The trial Court is directed to issue the modified conviction warrant accordingly.

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Transmit the records to trial Court forthwith.

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