S. Kumarswamy Vs State of Karnataka

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 22.02.2013 PASSED BY THE ADDL. DIST. & S.J., CHITRADURGA IN S.C.NO.85/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376(1), 342, 506(2).THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 7 YEARS AND PAY FINE OF RS.5,000/-,IN DEFAULT TO PAY FINE, HE SHALL UNDERGO FURTHER S.I. FOR 1 YEAR FOR THE OFFENCE P/U/S 376(1) OF IPC.THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR 1 YEAR AND PAY FINE OF RS.1,000/-,IN DEFAULT TO

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PAY FINE, HE SHALL UNDERGO FURTHER S.I. FOR 1 YEAR FOR THE OFFENCE P/U/S 342 OF IPC.THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR 1 YEAR AND PAY FINE OF RS.1,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO FURTHER S.I. FOR 1 YEAR FOR THE OFFENCE P/U/S 506(2) OF IPC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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Appellant has preferred this appeal against the Judgment of conviction dated 22^nd February 2013 and Order on sentence dated 23^rd February 2013 passed in SC No.85 of 2010 by the Additional District & Sessions Judge, Chitradurga (for short "the trial Court").

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For the sake of convenience, the parties herein are referred to as per their status and rank before the trial Court.

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The brief facts leading to this appeal are as follows. The Circle Inspector of Police, Chitradurga Rural Circle, filed a charge sheet against the accused for offences punishable under Sections 376(2)(F), 506, and 342 of the Indian Penal Code. The prosecution alleged that on 23^rd February 2010, at about 6:30 pm, the victim was on her way to a shop to purchase

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groceries. When she was passing by the house of one Shivanna, the accused, who is Shivanna’s son, called her. As the victim approached the house, the accused suddenly pulled her inside, pushed her to the ground, and committed rape. Thereafter, the accused threatened the victim, stating that her life would be in danger if she revealed the incident to anyone. He then locked her inside the house and left the premises. When the victim screamed for help, PW3-Prakashappa and CW3-Rudrappa, residents of Bheemasamudra, came to the spot, unbolted the door, and released her. After being released, the victim went straight home without disclosing the incident to PW3 or CW3. That night, she experienced severe pain, and on the following morning, i.e., 24^th February 2010, she informed her mother (PW2) about the incident and later lodged a complaint. After investigation, the Investigating Officer submitted a charge sheet for offences punishable under Sections 376, 506, and 342 of the Indian Penal Code. The accused was arrested, produced before the Magistrate, and subsequently released on bail. Upon filing of the charge sheet,

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the case was registered as CC No.1503 of 2010. The case was later committed to the Sessions Court and registered as SC No.

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85 of 2010. After hearing arguments on the charges, the Trial Court framed charges for the alleged offences, which were read over and explained to the accused. The accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution has examined seven witnesses as PWs1 to 7 and marked eleven documents as Exhibits P1 to P11 and also marked three material objects as MOs1 to 3. On closure of prosecution side evidence, the statement of accused under Section 313 of Code of Criminal Procedure was recorded. Accused has totally denied the prosecution evidence presented against him. However, he has not chosen to lead any defence evidence on his behalf.

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After the full-fledged trial, having heard both the sides, the trial Court convicted the accused and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs.5,000/- for offence punishable under section 376(1) of Indian Penal Code and to undergo simple imprisonment for a period of one year and pay fine of Rs.1,000/- for offence punishable under Section 342 of Indian

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Penal Code and further sentenced simple imprisonment for a period of one year and pay fine of Rs.1,000/- for the offence punishable under section 506(2) of Indian Penal Code and all substantive sentences shall run concurrently. Being aggrieved by the Judgment of conviction and order on sentence, appellant has preferred the present appeal.

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Arguments submitted by Appellant Counsel:

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Sri M.G. Riyazulla Khan, learned counsel appearing

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for the appellant, submitted that the complainant, PW1, herself is a hostile witness in her evidence. After perusing the crossexamination, the Trial Court rejected the prosecution’s request for re-examination. While examining PW1, she clearly admitted that no such incident, as alleged, occurred on 23^rd February 2010, which by itself discredited the prosecution’s case, and on that count alone, the Court below ought not to have convicted the appellant. He further submitted that the Trial Court wrongly concluded that Charge No.1 was proved on the basis of the examination-in-chief without taking into account the crossexamination, and on the ground that the examination-in-chief was recorded on 15^th September 2011, whereas the cross-

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examination was conducted on 18^th November 2011. Therefore, there was a time gap in recording the cross-examination. After completion of the examination-in-chief, and during crossexamination, PW1 turned hostile and must have been won over by the accused, yet the Trial Court convicted the appellant on the basis of her statement before the investigating officer.He further submitted that Exhibit P1 was not written on the basis of the statement given by the victim. She was unaware of the contents of Exhibit P1. There was enmity between the accused and PW3. The appellant had not misbehaved with her at any point of time. The complainant had failed in SSLC two years prior to the alleged incident. The statement made in the crossexamination clearly establishes that no such incident took place as alleged by the prosecution. The Trial Court has held that, while recording the evidence of PW1, there was no ambiguity in her testimony; however, it failed to consider the crossexamination of PW1 in its proper perspective. There is no medical or scientific evidence to show that sexual assault occurred on PW1. PW1 also did not support the prosecution’s case. Viewed from any angle, there is absolutely no cogent, convincing, or trustworthy evidence. However, the Trial Court

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failed to appreciate the evidence in accordance with law and convicted the accused, which is not sustainable in law. On all these grounds, it is sought that the appeal be allowed.

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Arguments on behalf of respondent-State

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As against this, Sri R Rangaswamy, learned High Court Government Pleader appearing for the respondent-State would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts, and that there are no grounds for interference in this appeal. Hence, he sought for dismissal of the appeal.

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Having heard on both sides and on perusal of records, the following point would arise for consideration:

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"Whether the appellant has made out a

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ground to interfere with the impugned Judgment of conviction and order on sentence passed by the trial Court?"

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I have examined the materials placed before me. It is the case of the prosecution that on 23^rd February 2010, at about 6:30 pm when the victim was going to shop for

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purchasing grocery, while she was passing by the house of one Shivanna, the accused who is son of Shivanna, called the victim and when the victim went near the house of the accused, the accused pulled the victim inside the house, and pushed her to the ground and ravished her. Thereafter, the accused threatened her by stating that her life would be endangered if she reveals the alleged incident to anyone. Thereafter, he locked the prosecutrix inside the house and left the spot. When the prosecutrix was screaming, PW3-Prakashappa and CW3Rudrappa, residents of Bheemasamudra, came and opened the bolt and released the prosecutrix. Thus, the accused has committed the alleged offences. To prove the guilt of the accused, the prosecution has examined seven witnesses as PWs1 to 7 and marked eleven documents as Exhibits P1 to P11 and three material objects as MOs 1 to 3.

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PW1-victim has deposed in her evidence that about a year ago from the date of giving evidence, at about 6:30 PM when she was going to a shop in front of the house of the accused, the accused called her, immediately he gagged her mouth and took her inside the house forcibly, locked the door,

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made her fall on the ground and committed sexual assault. Thereafter, accused went by locking the door from outside. Later, she screamed and at that moment, PW3 and CW3 came and unlocked the door and she came out. Even though they asked her about what had happened, she did not tell anything to them and straightaway went to her house. She has further deposed that the accused had threatened her with dire consequences if she reveals the same to anybody. She has further stated in her evidence that, on the night the of alleged incident she suffered intolerable pain, and on the next morning, she told her mother about the incident and thereafter, she lodged the complaint as per Exhibit P1 at 11:30 pm. Police have taken her to the hospital and she had given her clothes to them. During the evidence, the victim has identified her clothes as MOs.1 to 3 which are nightie, petticoat and tights. It is further deposed that the next morning Police came for conducting the spot panchanama and she had shown the spot of incident and Police conducted panchanama which is marked as Exhibit P2.

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PW2-Gayathri Bai, mother of the victim, has stated that about one and a half years prior to the date of giving evidence, she had been to Ayyannahalli and returned to Bheemasamudra at about 6.00 pm, and she came to know that her daughter had not returned home and she called the owner, and she came to know that PW1 was in the house of the accused. PW2 went to the house of the accused and heard PW1 screaming, and even though she had requested the accused to give keys to unlock the door, the accused refused and thereafter, she noticed that PW1 was in the house and she narrated the incident to her. Thereafter, she had lodged the complaint against the accused as her daughter had told her that the accused has committed rape on her.

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PW3-Prakash, owner of the house has not supported the case of the prosecution. Even in his crossexamination made by the Public Prosecutor after treating him as hostile witness, he has not deposed anything as to the statement recorded by the investigating officer under section 161 of Code of Criminal Procedure which is marked as Exhibit P3.

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PW4-Dr. Satyanarayana K.G. has deposed that he

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has examined PW1 for determination of age, and after examination, he has issued report as per Exhibit P4.

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PW5-H Shankaramurthy, said to be attester to mahazar witness Exhibit P2, has not supported the case of the prosecution.

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PW6-Umesh, Police Inspector and PW7-S

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Balachandranayak, PSI, have deposed as to their respective investigation.

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On careful examination of the entire evidence placed on record, it is crystal clear that the PW1 has not supported the case of prosecution. She has clearly stated that she does not know the contents of Exhibit P1. CW2-Prakash has prepared Exhibit P1. He directed her to put her signature and accordingly she has signed. Further, she has admitted that there is enmity between accused and PW3. Further, she has clearly admitted that CW2 who is examined as PW3 has tutored her to give evidence. Accordingly, she has deposed before the Court in her examination-in-chief. Further, she has clearly admitted as under:

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The Public Prosecutor sought re-examination of the witnesses as there was ambiguity in the evidence of PW1’s examination-in-chief and cross-examination. The trial court rejected the request of the Public Prosecutor and recorded “reexamination – Nil”. Though the trial court rejected the request of the learned Public Prosecutor, it observed that the examination-in-chief of PW1 was recorded on 15^th September 2011, and, at the request of the counsel for the accused, the cross-examination was conducted on 18^th November 2011. Therefore, there was a time gap of about two months between the examination-in-chief and the cross-examination. During cross-examination, the victim completely turned hostile. The trial court further observed that, upon analyzing this circumstance, the accused must have won over PW1. However, this observation is not sustainable in law because the

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prosecution did not place any material before the court to show that the accused had won over PW1 during cross-examination. The trial court had granted bail to the accused in Criminal Misc. No. 145 of 2010 on 5^th April 2010, imposing conditions that the accused should not tamper with or threaten the prosecution witnesses in any manner. If the accused had in fact tampered with or influenced the witnesses, the prosecution ought to have taken steps for cancellation of bail. However, no such steps were taken. Without any supporting material, the trial court, based merely on presumptions and assumptions, observed that the accused must have won over PW1, which is not legally sustainable. Where there was ambiguity between the examination-in-chief and the cross-examination, the trial court ought to have permitted the Public Prosecutor to conduct a reexamination. Since it failed to do so, the court would have exercised its powers under Section 165 of the Indian Evidence Act to clarify the ambiguity. However, the court did not invoke this power and merely presumed that the accused had influenced PW1, which is incorrect and improper.

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The purpose of cross-examination is to elicit the truth from a witness. In this case, the accused elicited the truth from PW1, who clearly admitted in her cross-examination that the accused had not committed rape and that she lodged the complaint at the instance of PW3, as per Exhibit P1. The material witness PW3 did not support the prosecution’s case. PW2, Gayathri Bai, the mother of the victim, is only a hearsay witness.The medical evidence, Exhibit P4, also does not support the prosecution’s case. PW3, Dr. Satyanarayana K.G., opined that there were no signs of sexual intercourse. The Forensic Science Laboratory report also reveals the same. The doctor examined the victim on 25th February 2010 and noted injuries on the right chest, right wrist, and right shoulder, and opined that at the time of the alleged incident, the victim was about 14–15 years of age. However, the medical officer did not comply with the mandatory provisions of Section 164(A) of the Code of Criminal Procedure, and the investigating officer failed to explain this non-compliance.

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It is the court's duty is to carefully weigh evidence, identify what is true and what is false, and base their judgment

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only on the reliable parts, even if some testimony is partly unreliable or contains exaggerations . The prosecution being a minister of justice shall put forth the best evidence in order to establish the alleged facts. After separating the grain from the chaff, re-appreciating the entire evidence put forth by the prosecution, having perused the impugned judgment and by following the principles of criminal jurisprudence; viewed from any angle, absolutely there is no cogent, convincing, clinching and trustworthy evidence, placed by the prosecution. However, the trial Court has convicted the accused only on the basis of presumptions, assumptions and surmises, which is not sustainable under law. Accordingly, the appellant has made out a ground to interfere with the impugned Judgment of conviction and order on sentence passed by the trial Court. Hence, I answer point that arose for consideration in the affirmative.

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For reasons aforestated and discussions, I proceed to pass the following:

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O R D E R

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i. Appeal is allowed;

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ii. Judgment of conviction dated 22^nd February 2013 and Order on sentence dated 23^rd February 2013 passed in SC No.85 of 2010 by the Additional District & Sessions Judge, Chitradurga, is set aside;

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iii. Accused is acquitted of the offence under sections 376(1), 342 and 506(2) of Indian Penal Code;

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iv. Registry to send the copy of this judgment along with the trial Court records to the concerned Court.

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Sd/(G BASAVARAJA) JUDGE

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lnn

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List No.: 1 Sl.No.: 54

S. Kumarswamy v. State of Karnataka

Case brief

What is this about?

What did the court decide?

S. Kumarswamy v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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What the court decided

Issues for consideration

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