Allowed

Sri Jagadisha @ Jagadisha v. State of Karnataka

Karnataka HC2 Aug 2023CRL.A/985/2018

Case brief

AI extract

What is this about?

High Court Criminal Appeal against conviction for rape and intimidation. The hearing court found contradictions in the blind victim's testimony regarding threats, video recording, and timing. Unexplained delay in complaint and medical report denying forcible intercourse rendered the sole testimony unreliable. Appeal allowed; accused acquitted.

What did the court decide?

Appeal allowed. Judgment of conviction and sentence set aside. Appellant acquitted of offences under Sections 376(2)(l) and 506 of IPC. Fine refunded. Accused set at liberty.

Sri Jagadisha @ Jagadisha Vs State of Karnataka — Cheating and Forgery | Karnataka HC (2023)

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NC: 2023:KHC:27068 CRL.A No. 985 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL APPEAL NO. 985 OF 2018

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BETWEEN:

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SRI.JAGADISHA @ JAGADISHA, S/O MALLIKARJUNA, AGED ABOUT 27 YEARS, RESIDING AT KARADIGERE VILLAGE, SORAB TALUK, SHIVAMOGGA DISTRICT KARNATAKA-577 429.

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…APPELLANT

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(BY SMT. PHILOMENA ROSS, ADVOCATE)

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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AND:

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STATE OF KARNATAKA, REPRESENTED BY SORAB POLICE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU-560 001.

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…RESPONDENT

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(BY SRI. RENUKA RADHYA R.D, HCGP)

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THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 26.04.2018, PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT SAGAR IN S.C.NO.52/2017, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376(2)(L) AND 506 OF IPC.

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NC: 2023:KHC:27068 CRL.A No. 985 of 2018

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THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed against the judgment of conviction and order of sentence dated 26.04.2018 passed in S.C No.52/2017 by V Additional District and Sessions Judge, Shivamogga Sitting at Sagar, convicting the appellant/accused for the offences punishable under Sections 376(2)(l) and 506 of IPC, sentencing to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.15,000/- for the offence punishable under Section 376(2)(l) of IPC and to undergo simple imprisonment for a period of six months for the offence punishable under Section 506 of IPC.

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The factual matrix of the case are that:-

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PW.1 victim girl is the complainant and she is residing with her mother, brother, sister-in-law and their children in Karadigere Village of Soraba Taluk. PW.1 is blind and she is staying at home and her mother, brother

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and sister-in-law were going for coolie and her brother's children are also going to school. The appellant was the accused and he was neighbor of the victim girl and he used to go to their house oftenly, when victim girl was alone. The victim girl asked him many times not to come to their house when she is alone. In spite of that, he used to come to her house when she was alone.

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On 18.03.2016 at about 12.00 Noon, the

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appellant/accused came to the house of the victim girl when she was alone and asked her to give him empty bottle for filling petrol. He entered the house when the victim girl was going near the granary, came behind her and caught hold her. When she tried to scream, he threatened her and covered her mouth tightly and he had forcibly had sexual intercourse with her. He threatened her not to disclose this incident to anyone, otherwise, he is going to put the act which he committed, in the internet through mobile. The victim girl did not disclose this incident to her family members and after 3 months, she

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told the incident to her mother and other family members. Thereafter, a complaint came to be filed by her as per Ex.P6. A case came to be registered and after investigation, the police filed charge sheet against the accused/appellant for the offences punishable under Sections 376(2)(l) and 506 of IPC. The case has been committed to the Court of Sessions.

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The Sessions Court framed the charge against

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the appellant/accused for the offences punishable under Sections 376(2)(l) and 506 of IPC. The accused denied the charges and claimed to be tried.

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The prosecution in all examined 7 witnesses as PWs.1 to 7 and got marked Exs.P1 to P15. The statement of the accused had been recorded under Section 313 of Cr.P.C. The appellant/accused denied the incriminating evidence and did not lead any defence evidence.

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After hearing the arguments of both the sides,

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the Trial Court framed the points for consideration and

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convicted the appellant/accused for the offences punishable under Sections 376(2)(l) and 506 of IPC. The said judgment of conviction and order of sentence had been challenged by the appellant/accused in this appeal.

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Heard the argument of learned counsel for the

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appellant and learned HCGP for the respondent-State.

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Learned counsel for the appellant argued that there is a delay in filing the complaint. The alleged incident occurred on 18.03.2016 and a complaint came to be registered on 03.07.2016. There was a dispute between the accused and the villagers with regard to pathway. The accused has been boycotted by the villagers and in spite of that the accused had not come forward to settle the issue with the villagers and therefore, a false case has been foisted against him. Except the sole testimony of victim girl-PW.1, there are no other evidence to prove the alleged incident. There is no medical evidence supporting the testimony of the victim girl. The victim girl is aged more than 30 years, but her age is wrongly shown as 26 years

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in the complaint. The victim girl is blind and the said blindness was due to nerves weakness, when the victim girl was aged 20 years. The victim girl is able to identify the persons on their voice since she is not blind by birth. PW.2-mother in her statement stated that she came to know about the alleged incident through the villagers who received the video clip through the mobile. The victim girl in her statement recorded under Section 164(5) of Cr.P.C as per Ex.P5 has stated that the accused has recorded the act of committing forcible sexual intercourse on the victim girl and he has uploaded the same in the Facebook and the villagers came to know about the same and thereafter, she intimated the same incident to her mother. Even though such act was committed, the Investigation Officer has not made any investigation in that regard, not recorded the statement of any villagers to ascertain the same. PW.1 in her cross examination had admitted that there was a dispute between the accused and the villagers. The villagers were not visiting the house of the accused. The testimony of PW.1 is tutored by the villagers

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as they intended to take revenge against the appellant/accused as he has not agreed to resolve the dispute between him and the villagers, in spite of boycotting him from the village. In such circumstance, the sole testimony of the victim cannot be relied upon without corroboration, either by medical evidence or the ocular evidence. The Trial Court erred in believing the sole testimony of the victim girl and in convicting the appellant/accused for the said offences.

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The learned HCGP argued that the Trial Court on appreciation of the evidence on record, has rightly convicted the appellant/accused. He has supported the reasons assigned by the Trial Court and he further argued that the sole testimony of the victim girl is sufficient to convict the appellant/accused for the offences leveled against him. On these grounds, he sought for dismissal of the appeal.

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On the grounds made out and considering the argument advanced, the following point arises for my consideration:

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Whether the Trial Court erred in convicting the appellant/accused for the offences punishable under Section 376(2)(l) and 506 of IPC?

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My answer to the above point is in affirmative for the following reasons;

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PW.1 is the victim girl and as per the complaintEx.P6, she is aged about 26 years. The victim girl became blind when she was in the age of 20 years. As per the victim girl, the alleged incident occurred on 18.03.2016. A complaint as per Ex.P6 came to be registered on 03.07.2016. There is a delay of nearly 3½ months in filing the complaint. In the complaint-Ex.P6, it is stated that the accused has threatened her that he will upload the incident in the internet through his mobile and he said not to disclose the same to any one and as such, due to fear

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she had not intimated about the incident to anyone. However, as she could not control her mind and she

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intimated the same to her mother on 02.07.2016 i.e., one

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day prior to the filing of the complaint.

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The statement of the victim girl has been

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recorded under Section 164 of Cr.P.C as per Ex.P5. In the said statement, the victim girl has stated that the accused has recorded the act of committing sexual intercourse on her in his mobile and he has uploaded the same in the Face book and the villagers came to know about the same and thereafter, she intimated the said aspect to her mother. In the said statement - Ex.P5, the victim girl has not stated about any threat given by the accused. The victim girl who is examined as PW.1 has deposed that the accused has recorded the act of committing forcible sexual intercourse on her in his mobile and he threatened her that he will be showing the same to others if she discloses the said incident to anyone. She had not intimated the same to her family members thinking that the said act may affect her image. She however deposed that after 2-3 months, the accused has sent the said video clip of his act of committing forcible

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sexual intercourse on her to his friends and her mother came to know the same and when her mother asked, she intimated regarding the incident. Therefore, there is material contradiction in the averments of complaint - Ex.P6, the statement of the victim girl recorded under Section 164 of Cr.P.C - Ex.P12 and her evidence given before the Court.

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The mother of victim girl has been examined as PW.2. She deposed that she came to know regarding the forcible sexual intercourse committed by the accused on her daughter and the same was told by the villagers that they received video clip of the same in their mobile. She has deposed that the accused himself has told about the incident to his friends and to some other villagers. At that time, she enquired the victim girl who told regarding the alleged incident to her.

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Further, the Investigation Officer has been examined as PW.7 and his evidence regarding investigation of uploading the alleged act of forcible sexual

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intercourse in the Face book and sending the same to the mobiles of other villagers by the accused. The Investigation Officer has not conducted any investigation in that regard and he has not recorded the statement of any of the villagers and not seized the mobile of the accused and mobiles of the villagers. If the said mobile of the accused or the mobiles of the villagers have been seized, could have revealed whether the act of the accused on the victim girl was forcible sexual intercourse or otherwise.

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The defence of the appellant/accused was that

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there was a civil dispute between him and the villagers regarding some pathway and at the instigation of the villagers, a false case has been foisted against him to eliminate him from the village. PW.1 in her cross examination has admitted that there is a civil dispute between accused and the villagers, even PW.2 - mother of the victim girl in her cross examination stated that there was a dispute with regard to pathway in the land between

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the family members of the accused and the villagers and the villagers have imposed social boycott and instructed the villagers not to go to the house of accused. The said aspect itself goes to show that there was enmity between the villagers and the accused and his family members.

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In view of the said enmity, the sole testimony of the victim girl cannot be relied on without corroboration either by medical evidence or other ocular evidence. The victim girl has been examined by the PW.4-Doctor. PW.4Doctor deposed that on 03.07.2016 at about 1:30 p.m. he examined victim girl and collected articles and sent them for examination to FSL through Investigation Officer. He further deposed that after receiving the FSL report, he has given opinion that there was no any forcible sexual intercourse on the victim girl 48 hours prior to her examination. The Assistant Director of FSL was examined as PW.5 and she has deposed that she examined the articles sent by the Doctor and after examination she has issued report as per Ex.P9. She however deposed that she

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had not found any blood stains on article No.4 and 5 (Pubic hair and underwear) and no seminal stains were detected on items Nos.1, 3, 4 and 5 (i.e., vaginal swab, pubic hair and underwear). She had deposed that the skin tissues was not detected in item No.2, finger nails and vaginal secretion were not detected on items Nos.4 and 5 (public hair and underwear). On considering the evidence of PWs.5 and 6 there is no medical evidence supporting the testimony of the victim girl. PW.3 is the scribe who has written the complaint - Ex.P6, as per the instructions of victim girl.

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On perusal of complaint as per Ex.P6, the alleged date of incident i.e., 18.03.2016 has been inserted in the margin and there is over-writing by the words about 3 months back over the words 20 days back. The said aspect also creates doubt regarding what is the alleged date of incident, because the victim girl is totally blind as deposed by her and whether she is able to give the date of alleged incident after 3 months. The inordinate delay of

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3½ months in filing the complaint has not been explained.

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In view of the enmity between the villagers and the accused there are chances of his false implication in the case. Considering all these aspects, the sole testimony of the victim girl does not inspire the confidence of the Court. Therefore, the prosecution has not proved the guilt of the accused beyond reasonable doubt and the accused is entitled for benefit of doubt.

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Without considering all these aspects, the Trial Court has erred in convicting the appellant/accused for the offences punishable under Sections 376(2)(l) and 506 of IPC. Therefore, the impugned judgment of conviction and the order of sentence passed by the Trial Court requires to be set-aside and accused has to be acquitted of the charges leveled against him. In the result, the following:-

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ORDER

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(i) The appeal is allowed.

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(ii) The judgment of conviction and the order of sentence passed in S.C.

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No.52/2017 dated 26.04.2018 is set-aside. The appellant/accused is acquitted of the offences punishable under Sections 376(2)(l) and 506 of IPC.

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(iii) The fine, if any, paid by the appellant/accused is ordered to be refunded to him.

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(iv) If the appellant/accused is not required in any other case, he shall be set at liberty.

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Sd/JUDGE

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HKV

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List No.: 1 Sl No.: 10

Sri Jagadisha @ Jagadisha v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Jagadisha @ Jagadisha v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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