Allowed

Narasimha @ Rajappa v. the State of Karnataka

Karnataka HC24 Aug 2022CRL.A/76/2011

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and acquitted the appellant. The Court held that the sole testimony of the prosecutrix lacked credibility due to contradictions regarding injuries sustained during the alleged rape, which were not found by the medical examiner. Consequently, the conviction was unsustainable.

What did the court decide?

The impugned judgment of conviction was set aside and the appellant was acquitted of the offence.

Narasimha @ Rajappa Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24^TH DAY OF AUGUST, 2022

¶2

BEFORE

¶3

THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

¶4

CRIMINAL APPEAL No.76 OF 2011

¶5

BETWEEN:

¶6

Narasimha @ Rajappa S/o Krishnappa Aged about 42 years R/a Huladenahalli Mazara Thorahalli Village Malur Taluk Kolar District.

¶7

…Appellant

¶8

(By Sri H.V. Subramanya, Advocate)

¶9

AND:

¶10

The State of Karnataka Rep. by the PSI Malur Police Station Malur.

¶11

…Respondent

¶12

(By Sri K. Rahul Rai, HCGP)

¶13

This Criminal Appeal is filed under Section 374(2) of Cr.P.C. praying to set aside the order dated 23.11.2010 passed in S.C. No.36/2010 on the file of the II Addl. S.J. at Kolar convicting the appellant/accused for the offence punishable under Section 376 of IPC and etc,.

¶14

:: 2 ::

¶15

This Criminal Appeal coming on for hearing this day, the Court delivered the following:

¶16

JUDGMENT

¶17

The accused in S.C.36/2010 on the file of II

¶18

Additional Sessions Judge, Kolar, has preferred this appeal challenging the judgment dated 23.11.2010 convicting him for the offence under section 376 IPC and sentencing him to rigorous imprisonment for seven years and fine of Rs.40,000/- with default sentence of six months.

¶19

The prosecution case is that on 6.12.2009

¶20

at about 3.00 PM when PW1 was waiting in a bus-

¶21

stop of her village to go to Malur for buying groceries, the accused came there on his motor cycle and told her that he would give a drop. She sat on the motor cycle, and on the way, he stopped the motor cycle near a eucalyptus plantation situated in between Chakanahalli and Chikkakunthuru. Later he took her forcibly inside the plantation and had forcible sexual intercourse

¶22

:: 3 ::

¶23

with her. FIR was registered on 7.12.2009 at 9.00

¶24

PM. Investigation led to filing of charge sheet. During trial, the prosecution examined 16 witnesses and got marked 13 exhibits, Exs.P1 to P13 and 13 material objects, MOs1 to 13. For holding the accused guilty, the trial court has recorded the following reasons : -

¶25

Regarding delay in registration of FIR, it is held that no woman will come forward to go to police station to lodge the complaint fearing harm to her reputation as she considers rape as a social stigma. For this reason if PW1 did not go to police station immediately, it was not fatal to her case.

¶26

3.1. Commenting on the questions posed to PW1 in the cross-examination regarding her

¶27

marital status, the trial court has observed that she might have deserted her husband, but it would not in any way reflect on her character. She

¶28

:: 4 ::

¶29

cannot be considered as a woman of loose

¶30

character.

¶31

3.2. As regards the incident, the trial court

¶32

has held that the testimony of PW1 is believable. She has clearly narrated the incident. Actually PW14 is not an eye witness and his hostility would not have any impact on the case. Referring to the medical evidence, the trial court has observed that the doctor who examined her might not have recorded the history properly and there were lapses in discharging his duties. Because PW1 was not subjected to medical examination immediately after the incident, positive report cannot be expected. Her testimony was clear to the effect that she was forcibly made to lie down, her clothes became dirty, that she was bitten on her face by the accused and that thorn stick pieces pricked her back. She could not shout because the accused had closed her mouth. In this way, her testimony

¶33

:: 5 ::

¶34

is believable and further a presumption can be drawn that PW1 might have been subjected to rape by the accused as no woman would unnecessarily lodge a false complaint about rape. This being her evidence, merely for the reason that there are some variations in the evidence given by her mother and brother examined as PW2 and PW3 respectively, the evidence of PW1 cannot be out rightly rejected and thereby, the prosecution was able to prove its case beyond reasonable doubt.

¶35

Assailing the judgment of the trial court Sri. H.V.Subramanya argued that the evidence given by PW.1 does not find corroboration from the evidence given by PW.3, and PW.14 has turned hostile. PW.1 has stated that when she was forcibly dragged inside the eucalyptus plantation she suffered injuries and when she was made to fall down by the accused she suffered injuries on her back. She has also stated that the accused bit

¶36

:: 6 ::

¶37

her on the face. But when she was subjected to medical examination, the Doctor, PW.9, who examined PW.1 did not find any injuries. If really she had suffered injuries, definitely PW.9 would have noticed and mentioned the same in the report given by him. Therefore this rules out the possibility that the accused committed rape on PW.1. He further argued that though the incident is said to have taken place on 6.12.2009, PW.1 did not think of going to police station to lodge complaint till 9.00 p.m. on 7.12.2009. She has stated that she informed the incident to the mother and brother and thereafter they decided to go to police station. This explanation cannot be believed at all. In this view, it can be very much stated that PW.1 might have made a false report to the police. The trial court has not properly appreciated the evidence. Therefore the accused is entitled to be acquitted and hence the appeal deserves to be allowed.

¶38

:: 7 ::

¶39

Learned Government Pleader argues that

¶40

PW.1 has clearly given evidence narrating the entire incident. When she was waiting in the bus

¶41

stop to catch the bus, the accused took her on his motor cycle and committed rape by forcibly taking her inside the eucalyptus plantation. Actually PW.2 and 3 have spoken what they came to know from PW.1. Though their evidence can be ignored, the evidence of PW.1 is trustworthy. Merely for

¶42

the reason that the doctor did not mention the presence of injuries, it cannot be said that the evidence of PW.1 as regards rape on her has to be disbelieved in entirety. Actually PW.14 is not an eye witness and the prosecution case is that by the time PW.14 went to the place of incident, the accused ran away from that place. Therefore his hostile evidence does not shake the prosecution case. Totality of circumstances indicates that PW.1 was subjected to rape and in this view the trial

¶43

:: 8 ::

¶44

court is justified in recording conviction. Hence he

¶45

argues for dismissing the appeal.

¶46

After hearing both sides, the point that

¶47

arises for discussion is, whether the trial court is justified in relying on the sole testimony of PW.1 for convicting the accused.

¶48

It is a well established principle that the sole testimony of the prosecutrix can be acted upon without expecting corroboration if her evidence is trustworthy. In this case there are no eye witnesses. PW.14 is actually not an eye witness. The prosecution case itself is that when he went near the eucalyptus plantation, seeing him, the accused fled away from that place. PW.2 and 3 being the mother and brother respectively of PW.1, are also not eye witnesses and what they have spoken before the court is what they might have come to know from PW.1 and therefore their evidence is also of not much help.

¶49

:: 9 ::

¶50

There is delay in lodging the complaint.

¶51

As has been observed by the trial court, a woman would hesitate to go to police station and this can be the reason for registration of FIR belatedly on 7.12.2009 at 9.00 p.m. Though much importance cannot be given for delay, if the evidence of PW.1 is subjected to scrutiny, it appears that her testimony does not appear to be trustworthy. The trial court has proceeded on assumptions to record an order of conviction against the accused without examining whether her testimony inspires confidence to be acted upon. Close scrutiny of PW.1 indicates very well that she might not have spoken truth before the court. She has stated that the accused made her fall down. He bit her on her face and then committed rape. In the examination-in-chief, she stated that she could not scream because the accused had closed her mouth. In the cross examination her answers are that before the date of incident, she had never

¶52

:: 10 ::

¶53

spoken to the accused, and for the first time he talked with her at the bus stop and when he asked her to come along with him on the motorcycle, she did not question him as to why she was asked to accompany him. When the accused stopped the motor cycle near the eucalyptus plantation, she did not question as to why he stopped it. Above all, when the accused stopped the motor cycle, she entertained a doubt that probably he stopped the motor cycle at that place for some other reason. Though she has stated when she tried to run away from that place, the accused held her shoulder, her clear answers are that she sustained injuries when she resisted the accused. On account of biting on the face, two to three injuries occurred on the face. Bite mark was also there on the face. The place where the incident took place was a rough surface. The dry stick pieces pricked her back, but she did not sustain any injury. Her clothes became dirty. This is how she answered in

¶54

:: 11 ::

¶55

the cross examination. If really she sustained injuries, definitely PW.9, the doctor who examined her on 8.12.2009 would have noticed the presence

¶56

of those injuries. The time gap between the incident and the date of examination is not much in order to say that the injuries had healed and therefore the doctor could not notice them. The clear evidence of PW.9 is that no injuries were found were on the body. In view of this, entire evidence of PW.1 regarding injuries sustained by her at the time when the accused is said to have committed rape finds no corroboration from the testimony of PW.9 and consequently her evidence with regard to forcible sexual intercourse on her is to be looked with askance.

¶57

It is not in dispute that PW.1 had deserted

¶58

her husband and was living with her mother in the village. Though desertion cannot be a ground for suspecting the character of PW.1, her conduct in

¶59

:: 12 ::

¶60

giving evidence with regard to injuries which do not find any corroboration with the testimony of PW.9, does not inspire confidence to hold her as trustworthy witness. Her age at the time of incident was around 40 years. In this view, her sole testimony cannot be acted upon. When the evidence placed by the prosecution is not sufficient to hold the accused guilty of the offence, the trial court should not have held him guilty. The trial court appears to have drawn conclusion based on assumptions and presumptions which are not permitted while appreciating evidence in a criminal case of this type. Therefore the judgment of the trial court is not sustainable. Hence the following:

¶61

ORDER

¶62

i. Appeal is allowed.

¶63

ii. The judgment dated 23.11.2010 passed in S.C.36/2010 by the II Additional Sessions Judge, Kolar, is set aside.

¶64

:: 13 ::

¶65

iii. The appellant is acquitted of the offence.

¶66

iv. His bail bond stands cancelled.

¶67

v. The fine amount deposited by him shall be refunded to him.

¶68

Sd/JUDGE

¶69

ckl/-sd

Narasimha @ Rajappa v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Narasimha @ Rajappa v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Mr Veeresh Kandankovi Belludi Vs M/S Logipro Software Pvt. Ltd.

Dileep Vs State of Karnataka

Sachin Thelakar Vs State of Karnataka

Sri. K. Immanna Vs Sri. S. Nemojirao

Smt. Renuka Vs Sri Ramadas

Smt. Nitya Govindaraju Vs Sri Vivekanandan