Pradeep Poojary Vs the State

REP. BY ASSISTANT SUPERINTENDENT OF POLICE KARKALA SUB DIVISION, KARKALA REP. BY STATE PUBLIC PROSECUTOR ATTACHED TO THE OFFICE OF ADVOCATE GENERAL HIGH COURT, BANGALORE - 560 001

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SMT.SUPRIYA, D/O PUVAPPA AGED ABOUT 27 YEARS R/AT KAIREBETTU, DHARKASU KAIREBETTU, KALYA VILLAGE KARKALA, UDUPI DISTRICT - 574 104 …RESPONDENTS

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(BY SRI VIJAYAKUMAR MAJAGE, SPP-II FOR R1; SRI CHARANKUMAR K.V., ADVOCATE FOR R2)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 16.02.2018 PASSED BY THE PRINCIPAL SESSIONS/SPECIAL JUDGE, UDUPI DISTRICT, UDUPI IN SPL.C.NO.50/2014 - CONVICTING THE APPELLANT/ACCUSED FOR

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HC-KAR

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THE OFFENCE PUNISHABLE UNDER SECTIONS 376, 323 AND 506 OF IPC AND SECTIONS 3(1)(xi) AND 3(2)(v) OF SC/ST (POA) ACT.

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THIS CRIMINAL APPEAL ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S.MUDAGAL AND

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HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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(PER: HON'BLE MRS. JUSTICE K.S.MUDAGAL)

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Challenging the judgment and order of conviction and sentence passed against him, the accused in Special Case No.50/2014 on the file of the Principal Sessions/Special Judge, Udupi has preferred this appeal.

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Appellant was the sole accused in Special Case No.50/2014. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.

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Accused was tried in Special Case No.50/2014 for the charges for the offences punishable under Sections 376, 323, 506 of IPC and Sections 3(1)(xi) and 3(2)(v) of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’) on the basis of the charge sheet filed by Assistant Superintendent of Police, Karkala in Crime No.100/2014 of Karkala Rural Police Station.

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HC-KAR

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The case of the prosecution in brief is as follows:

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That PW.1 victim was aged 18 years and belongs to Adi Dravida caste, a scheduled caste. The accused belongs to non-scheduled caste. On 10.09.2014 at 5.55 p.m. when the victim and PW.2 were returning from the garment factory, the accused accosted them on his motorbike bearing Registration No.KA-20-EA-4536, stopped his motorbike and then dragged PW.1 by holding her hand towards the pathway situated between paddy land belonging to one Kutti Shetty/PW.7 where there were no other persons, between 06.00 p.m. and 06.15 p.m. he fell her to the ground and committed penetrative sexual assault on her.

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The trial Court on hearing the parties framed the charges against the accused for the offences punishable under Sections 376, 323, 506 of IPC and Sections 3(1)(xi) and 3(2)(v) of the Act. As the accused denied the charges and claimed trial, the trial was conducted.

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In support of the case of the prosecution, PWs.1 to P20 were examined and Exs.P1 to P37 and MOs.1 to 12 were marked. The accused after his examination under Section 313 of Cr.P.C. did not choose to lead defence evidence. During the

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HC-KAR

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trial, the accused claimed that on the alleged date of incident,

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there was consensual sexual cohabitation between him and the victim at another place and not at the place alleged. He claimed that even prior to that both of them used to meet there and have sexual cohabitation.

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The trial Court by the impugned judgment and order held that the accused himself has admitted the sexual relationship. Once he admits the same, in view of Section 114A of the Indian Evidence Act, 1872 (‘the Evidence Act’ for short) burden lies upon him to prove consent of the victim and he has failed to discharge its burden. Hence convicted him for the aforesaid offences and sentenced him to various terms of

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imprisonment and fine as follows:

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Sl. No.	Offences under Sections	Sentence	Fine Amount in Rs.	Default Sentence
1	376 of IPC	7 years imprisonment	10,000/-	6 months imprisonment
2	323 of IPC	SI for 6 months	1,000/-	SI for 1 month
3	506 of IPC	SI for 6 months	1,000/-	SI for 1 month
4	3(1)(xi) of the Act	SI for 6 months	1,000/-	SI for 1 month
5	3(2)(v) of the Act	Life imprisonment	5,000/-	6 months imprisonment

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HC-KAR

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Sri N.S.Sampangi Ramaiah, learned Amicus Curiae

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for the accused vehemently submits that the initial burden of proving the charge as alleged by the prosecution is on the prosecution, only on prosecution discharging its initial burden, the presumption under Section 114A of the Evidence Act arises and the burden shifts to the accused to rebut the said presumption. He further submits that in the present case, medical evidence shows that there were no injuries on the private part of the victim to say that it was forceful sexual intercourse. He further submitted that the victim claims that she was dragged for distance of 50 meters and she fell to the ground and her clothes were soiled. But no mahazar was drawn for seizure of her clothes to show that her clothes were soiled or she had any injuries on her back or other parts of her body. The neighbours did not support the prosecution version. He submits that the overall assessment of the evidence shows that the prosecution did not discharge its initial burden of proving the allegations of charge. Thus the trial Court was in error in raising the presumption under Section 114A of the Evidence Act and convicting and sentencing the accused.

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HC-KAR

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Per contra, Sri Vijaykumar Majage, learned SPP-II

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for respondent No.1/State and Sri Charan Kumar K.V., learned Counsel for respondent No.2 submit that evidence of PW.1 is on par with injured eyewitness. There was no reason to disbelieve her evidence. They further submit that the evidence on record shows that the accused had conducted in similar fashion with PW.6 which goes to show that he had such proclivity towards women. The evidence on record shows that the Investigating Officer had collected the clothes of the accused and PW.1 and had sent them to RFSL. Report of RFSL/Ex.P33 shows that ‘O’ blood group was found on the clothes of the victim and the accused. PW.2 in the chief examination corroborated the evidence of PW.1. She was tampered as she was not cross examined on the same day. Therefore, for PW.2 turning hostile during the cross examination, no much significance could be attached. They submit that by scientific/medical evidence and the evidence of PWs.1, 2 and 6, the initial burden of the prosecution of proving the charge was discharged. But the accused has failed to rebut the presumption under Section 114A of the Evidence Act. Therefore the impugned judgment and order of conviction

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HC-KAR

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and sentence is sound and sustainable and does not warrant interference.

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It is no doubt true that the accused has admitted sexual relationship between him and PW.1 on the same day. But the prosecution has the burden to establish that the incident took place at the time, place and in the manner in which it was alleged, then only the initial burden of the prosecution stands discharged. The evidence of PWs.1 and 2 go to show that close to the alleged place of incident, there were houses. But out of them only the owner of the land where the incident said to have taken place was examined. He did not support the prosecution version. According to PW.1, she was pushed to the ground, dragged and forcefully the offence was committed. But except the injury on her left forehand, no other injury was found on her body. So far as not raising the alarm, she justified her act saying that the accused had locked her mouth by his teeth. But no injuries were noted by the doctor on her lips. Further the medical findings of the doctor/PW.10 who has examined the victim shows that the hymen was not ruptured and there were no

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HC-KAR

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injuries on the private part. None of the neighbours were examined.

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If really the incident took place by the side of the paddy land, the clothes of the accused and the victim, both should have been soiled. The Investigating Officer has no explanation for seizing them under mahazar. Therefore, it is clear that there were many missing links in the evidence of the prosecution in establishing the act at the alleged place, time and in the alleged manner. Unless the prosecution discharges its initial burden of proving the charges, the presumption under Section 114A of the Evidence Act does not come into operation. The trial Court, without noticing these facts, jumped to the conclusion that the prosecution has discharged its burden and shifted the onus to the accused, which is unsustainable. Therefore, the impugned judgment and order of conviction and sentence warrants interference of this Court. Hence, the following:

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ORDER

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The appeal is allowed.

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The impugned judgment and order of conviction and sentence passed against the appellant/accused in Special

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HC-KAR

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Case No.50/2014 on the file of the Principal Sessions/Special

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Judge, Udupi is hereby set aside.

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Appellant/accused is acquitted of the charges for the offences punishable under Sections 376, 323, 506 of IPC and Sections 3(1)(xi) and 3(2)(v) of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, 1989. He shall be set at liberty forthwith, if his detention is not required in any other case.

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Fine amount deposited, if any, by the accused shall be refunded to him.

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The order of trial Court with regard to disposal of the properties and compensation is maintained.

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Court places on record its appreciation for the able assistance rendered by Sri N.S.Sampangi Ramaiah, learned Amicus Curiae and Sri Charan Kumar K.V., learned Counsel for respondent No.2 authorised by High Court Legal Services Committee.

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Registry shall disburse fees of Rs.15,000/to Sri N.S.Sampangi Ramaiah, learned Amicus Curiae.

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