The Bench dismissed a criminal revision petition filed during admission. The petitioners challenged the discharge order in a case where the primary rape charge abated due to the death of the principal accused. The Bench found no grounds to interfere, clarifying the petitioners could face charges for conspiracy or abetment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JANUARY, 2022
BEFORE
THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL REVISION PETITION NO.1089 OF 2021
BETWEEN:
…Petitioners
(By Sri Asim Malik, Advocate)
AND:
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Bengaluru, Represented by State Public Prosecutor, High Court Building, Bengaluru-560001.
…Respondents
(By Sri S.Vishwamurthy, HCGP for R1; Notice to R2 dispensed)
This Criminal Revision Petition is filed under Section 397 read with 401 of Cr.P.C., praying to set aside the order dated 29.10.2020 passed by the II Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in Spl.C.No.107/2016 thereby dismissing the discharge application filed by the petitioner and discharge the petitioner from the above case.
This Criminal Revision Petition coming on for admission through video conferencing this day, the Court made the following:
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ORDER
Heard the learned counsel for the petitioners and the Government Pleader for respondent no.1 at the time of admission. Issuance of notice to respondent no.2 is dispensed with.
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of the victim girl was obtained on a blank paper to give an impression that CW.1 was married to accused no.1. Subsequently as accused no.1 fell ill and therefore accused no.2 and 3 took him to hospital. CW.1 went to the hospital for taking care of accused no.1. Seeing CW.1 being in the hospital,CW.4 and 5 informed this matter to CW.2, who in turn took CW.1 to her house. Thereafter accused 2 and 3 went to the house of CW.2, and made physical assault on CW.1 besides tearing of all her clothes and abusing her in vulgar language. It is alleged that although the accused knew that CW-1 was a minor girl, accused 1 to 5 created an impression that CW-1 had been married to accused no.1 and thus CW.1 was sexually abused by accused no.1.
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for the petitioners submits that since all the petitioners are women, they cannot be charged for the offence under section 376 IPC. He refers to section 375 IPC and submits that the offence of rape can be alleged only against a man accused and not against woman accused. Now, accused no.1 is dead and therefore the petitioners cannot be tried for the offence under section 376 IPC. Since there are no materials even with regard to conspiracy, they cannot be tried for the offence under section 120B r/w 376 IPC. Learned Government Pleader submits that the trial court has clearly held in para 11 of its order that the offence of rape is attributed to accused no.1 and that other accused i.e., petitioners herein can be charged for other IPC offences.
that the major offence invoked in the charge sheet
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is under section 376 IPC and it is against accused no.1 only. Now that he is dead, this case stands abated so far as accused no.1 is concerned. However there are allegations that the petitioners conspired with other accused or among themselves for performing the marriage of CW.1 with accused no.1 and thereby facilitated CW.1 being subjected to sexual intercourse by accused no.1.
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offence of rape. During investigation the petitioners appear to have given voluntary statements. Perusal of the same indicates that they created a situation so that accused no.1 could have sexual intercourse with the victim girl. All these circumstances do clearly indicate the involvement of the petitioners in creating a situation so that accused no.1 could have forcible intercourse with CW.1. These circumstances either indicate conspiracy under section 120B or abetment coming within purview of section 109 IPC. Therefore the inference to be drawn is that though the petitioners cannot be charged for the offence under section 376 IPC, they can be very much charged either for abetment or conspiracy for supporting accused no.1 for commission of offence under section 376 IPC. The trial court may not have expressed any opinion in unequivocal language, but the impugned order indicates that the petitioners cannot be charged
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for the offence under section 376 IPC. They may be charged for other IPC offences. In this view, I do not find any good ground to admit this petition.
It is once again made clear that the petitioners may be charged for the offences other than offence under Section 376 IPC and other applicable offences against them.
Sd/JUDGE
sd
3 issues framed by the court
Whether to admit a criminal revision petition seeking to set aside an order dismissing a discharge application in an abated rape case.
Whether the trial court's conclusion that the petitioners colluded to enable the commission of rape warrants admitting the revision.
Whether the petitioners are liable for offences other than rape given the abatement of the primary charge against the first accused.
6 provisions across 2 enactments
Shabina Syed Khasim W/o Khalid Malik
Thabasum Nasir Khan
Shabnam Bhanu
The State of Karnataka
Ms. Shahistha Bhanu
Sreenivas Harish Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
