Revision petition filed by State challenging discharge order in rape case. High Court held that variance in victim's statements and lack of forensic evidence supported discharge. Revision dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ CRIMINAL REVISION PETITION NO. 1287 OF 2018
BETWEEN:
STATE OF KARNATAKA BY GIRINAGAR POLICE STATION, BENGALURU, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-01.
Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA
…PETITIONER (BY SMT. RASHMI JADHAV, HIGH COURT GOVERNMENT PLEADER) AND: B. SURESH NAIK S/O DORAISWAMY NAYAK, AGED ABOUT 34 YEARS, R/AT NO.182, SHARADA SEVASHRAMADA ROAD, VEERABHADRANAGARA, BANASHANKARI 3RD STAGE, BENGALURU-560 085. PERMANENT ADDRESS: GUTTUR THANDA VEEDANAPALLI POST, RAMAKUPPAM MANDAL, CHITTUR DISTRICT, ANDHRA PRADESH-517001.
…RESPONDENT
(BY SMT. ARCHANA K.M. AMICUS CURIAE)
THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973
CRL.RP No. 1287 of 2018
PRAYING TO ALLOW THE ABOVE CRL.RP BY SETTING ASIDE THE JUDGMENT AND ORDER PASSED BY THE LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-54) IN S.C.NO.1164/2016 DATED 11.04.2018.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The State has challenged an order of discharge dated 11.04.2018 passed by the LIII Additional City Civil and Sessions Judge, Bangalore, (for short, ‘the Sessions Court’) in S.C. No.1164/2016.
were arrayed before the Sessions Court.
stated that when they reached their house, they found CW.1 was not in the house and later they heard cries from the house of the accused and when they looked for CW.1 in the house of the accused, the accused opened the door and ran away and thereafter, CW.1 came out of the house and narrated the incident to them. CW.1 was referred for medical examination at KIMS Medical Hospital where after examination, it was reported that CW.1 did not have any recent sexual intercourse. The accused was subjected to medical examination and it was reported that there was nothing to suggest that he was incapable of involving in a sexual intercourse. The clothes worn by CW.1 were also seized and subjected to forensic examination and it was found that the undergarments of CW.1 contained seminal stains. However, no further investigation in that regard was carried out.
CRL.RP No. 1287 of 2018
made out a case to charge him for the offences punishable under Sections 376, 448 and 506 of the IPC.
trespassed into the house of CW.1 and forcibly dragged her by her hand from her house to his house and committed rape, by gagging her mouth and threatening her life, the CW.1 must have suffered some injuries like scratch marks or bruises on her hand and also her genital area whereas the Doctor opined that there were no injuries on the body of CW.1 and there was no sign of recent sexual intercourse. The Court further held that even according to FSL report, no spermatozoa was found on the articles (referred supra) of CW.1. Consequently, it held that there was no material to proceed against the accused for the offences alleged against him. It also held that the version/s of CW.1 and CW.4 contradicted each other and that there was very less likelihood of the prosecution establishing the charge against the accused. Consequently, it discharged the accused.
this revision petition.
undergarments worn by CW.1 did contain seminal stain. She submitted that the Trial Court ought not to have conducted a pre-trial to hold that the prosecution did not make out a case that the offences punishable under Sections 376, 448 and 506 of the IPC.
the charge under Sections 376 and 506 of the IPC. Further, she claimed that CW.1 stated that she was dragged into the house of the accused, but there was no physical injuries on her body and there was no sign of resistance by CW.1 and therefore, it probabilizes the fact that the accused could have groped CW.1. Therefore, she contended that the case of the prosecution was absolutely weak and the material collected by the prosecution was not sufficient to establish the charge under Sections 376, 448 and 506 of IPC against the accused.
learned High Court Government Pleader for the State as well as the learned amicus curiae for the accused.
to a suspicion about the guilt of the accused and the other leading to a doubt about his involvement, then the Court is bound to adopt an interpretation that would favour the accused. For that purpose, the Court would merely apply its mind to the papers filed along with the chargesheet by the prosecution and then decide whether the material placed before it is just and sufficient to record a finding of guilt of the accused.
marks on the accused. There are no eye witnesses to the incident and the material placed before the Trial Court did not establish the charge for the offences punishable under Sections 376, 448 and 506 of the IPC against the accused. The Trial Court therefore considered the material on record and was of the clear opinion that even if the case went for trial, the prosecution would not be able to establish the charge against the accused. In that view of the matter, the impugned Order passed by the Trial Court is unexceptionable and does not call for interference.
Hence, this revision petition is dismissed.
Services of the learned amicus curiae is appreciated and is placed on record. Her fees is fixed at Rs.5,000/- (Rupees Five Thousand only), which is payable by the Registry.
Sd/JUDGE
SMA
List No.: 1 Sl No.: 41
3 issues framed by the court
Whether the Trial Court erred in discharging the accused due to inconsistencies in the victim's statement and lack of forensic evidence?
Whether the High Court should interfere with the discharge order in a rape case where the prosecution failed to establish probability of guilt?
Did the variance in the victim's statements render the prosecution case weak and unworthy of trial?
3 provisions across 2 enactments
STATE OF KARNATAKA
B. SURESH NAIK
R. NATARAJ
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
