Penal Code, 1860 – Ss. 366, 376 (g), 392 r/w. 34 – The evidence of PW2 who admittedly had offered shelter to the prosecutrix and her minor daughter, though had been declared hostile, her testimony as a whole cannot be brushed aside. In her testimony, this witness indicated that the prosecutrix used to take financial help from the accused persons and that she used to indulge in dubious late night activities for which her husband had deserted her. The defence plea of false implication as the accused persons had declined to oblige the prosecutrix qua her demand for financial help therefore cannot be lightly discarded in the overall factual scenario. Her version therefore is a plausible one and thus fit in with the defence plea to demolish the prosecution case.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
PINAKI CHANDRA GHOSE AND AMITAVA ROY JJ.
OCTOBER 4, 2016
CRIMINAL APPEAL NO. 1767 OF 2011
RAJA AND OTHERS …APPELLANTS
STATE OF KARNATAKA …RESPONDENT
J U D G E M E N T
AMITAVA ROY, J.
Distressed by the reversal of their acquittal from the charge under
Sections 366/376(g)/392 read with Section 34 IPC
as recorded by the trial court, the appellants have impeached the impugned judgement and order of their conviction rendered by the High Court in the State appeal.
2. We have heard Mr. Basava Prabhu S. Patil, learned senior counsel for the appellants and Mr. Joseph Aristotle S, learned counsel for the respondent-State.
3. The prosecution was set rolling by an oral report by the prosecutrix with the Sampangiramanagara Police Station between 2.00 A.M. and 3.00 A.M. of 11.10.1997, which was in Tamil language and was translated and recorded by S. Shiva Lingaia, ASI, whereafter a case was registered under Sections 366, 376(g), 392 r/w 34 IPC.
4. The prosecutrix revealed that she was a resident of No.81, Jasari Kaleeli, Rustum ji Compound, Richmond Road, Bangalore and was earning her livelihood by rendering services as a maid in the house of Shilpa Shetty at Shanti Nagar, Bangalore. According to her, because of the ill-treatment of her husband, she shifted to Bangalore about 8 months prior to the incident by separating from him. She alleged that at about 7.30 P.M. in the previous evening, while she was coming back from work and was at the Richmond Park, an auto rickshaw ,with two persons in it including the driver stopped by her side and she was pulled inside. According to her, after travelling some distance, two other persons also got into the auto rickshaw. The miscreants then blindfolded her, by her chudidar cloth and took her to an auto garage where there was no light. The prosecutrix stated that the abductors lit a candle, spread 2 seats of the auto rickshaw on the ground, laid her forcibly thereon and in spite of her resistance and objections, forcibly undressed her and raped her by turn. She disclosed that 3 of the four persons ravished her. Out of them, two committed the act twice and the third only once. The prosecutrix further stated that one of the persons brought dosa and idli and also offered the same to her, whereafter they tried to repeat the same act, to which she protested for which she was kicked and fisted and further they snatched her Tali (mangalsootre) gold ear-studs. They then made her to wear her clothes, brought her in the auto rickshaw to a vacant place and discarded her. According to her, these violators were addressing each other as Raju, Venu, Parkash and Francis and claimed that she could identify them, if produced. Investigation followed and in the course thereof, the appellants were apprehended. The fourth person Francis could not be nabbed as he absconded. As a matter of fact, after the submission of the charge-sheet against the appellants, the trial was conducted by segregating the absconding accused. They denied the charge under the above provisions of law.
5. At the trial, the prosecution examined 11 witnesses and also marked several documents and exhibited material objects seized during the investigation. The appellants rendered their statements under Section 313 Cr.P.C. reiterating their innocence and also examined one witness in defence. The trial court, to reiterate, acquitted the appellants of the charges levelled against them. The High Court by the impugned decision has reversed the acquittal and the appellants thus stand convicted under Sections 376(g) and 392 IPC r/w 34 IPC and have been sentenced to suffer rigorous imprisonment for 10 years.
6. The instant adjudication being one to examine the tenability of the conviction of the appellants on the reversal of their acquittal, an independent assessment of the evidence on record is indispensable in the interest of justice, two courts of facts having arrived at irreconcilable conclusions on the same materials on records. It would thus be expedient, to analyse the evidence, oral and documentary before adverting to the rival arguments based thereon.
7. PW1, the prosecutrix on oath stated that she has a female child through her husband who lived separately with another lady and she and her daughter lived in the compound of PW2 Geeta. She deposed that she had been working in the house of Shilpa Shetty for the last three years and that even prior to the incident, the appellants used to tease her and pass remarks on the way. She stated that in the evening of the date of the incident along with the appellants, another person had boarded the auto and that the two persons sitting on her sides were appellants Venu Gopal and Parkash. She testified that she also did peep out of the auto thinking that someone would save her, for which the person with the beard in the auto slapped her and therefore she felt frightened and sat behind. She stated that the abductors then blindfolded her with her own dupatta, molested her inside the auto and ultimately took her to an auto garage and in spite of her objections, raped her one by one. According to her, she was raped by Venu Gopal, Parash and the bearded person in that order. In her deposition, however she stated that appellant Raja also assaulted her and had forcible intercourse with her. She reiterated that the violators then brought dosa and idlis and also offered some to her which she on being assaulted, did eat. In a departure from her FIR, the prosecutrix deposed that thereafter all the four performed one more round of intercourse by turn. Thereafter according to her, the bearded person snatched her Tali (mangalsootre) and the other, her ear studs. They did assault her by kicks and thereafter by making her wear her clothes, took her in the same auto and left her near a bridge. She complained of having sustained injuries on her thighs. She stated that thereafter she took water from a person near the garage road and ascertained from him the area where she was situated. According to her, from the location of the place, she could understand the site of the garage and on reaching there, she saw broken pieces of her glass bangles and also the litter and left overs of the food taken in the garage and could convincingly identify the place. She deposed further that at that time, a man came in a bicycle to whom she narrated the entire incident, who asked her to wait and went to the Hoysala Police Station to report, whereafter the police did come, inspect the place as shown by her and took her to the Sampangiramanagara P.S. past midnight where she made her verbal complaint which was reduced into writing and she put her thumb impression thereon. The prosecutrix proved the complaint/FIR as Ex. P1. According to her, in the next morning at 6 A.M., the appellants were brought to the police station. She admitted to have been taken to the Vanivilas Hospital where she was medically examined. She also identified the ear studs, material Ex. 1 and also her inner-wear material Ex. 2 and broken pieces of glass bangles material Ex 3. She also stated to have identified the appellants in the test identification parade conducted in the central jail. She also identified the seats of the auto rickshaw as material Ex P4 and P5. In her cross-examination, the prosecutrix admitted that she was not married and that she had come to Bangalore with Saravana whom she had referred to in her examination-in-chief, as her husband. She stated that she lived with Saravana for three years in Bangalore and that they used to earn their living as labourers. She stated that Saravana deserted her, following frequent quarrels with her, whereafter PW2 Geeta gave her and her daughter, shelter. She testified that she used to earn Rs. 700 p.m. by working in the house of Shilpa Shetty and that there was none in the family or in her village to support her financially. She admitted that from one week prior to the incident, the appellants used to tease her and that from then she knew them. She admitted that the road from which she was abducted was a public thorough fare but asserted that she could not scream as she was gagged. She admitted that though the auto travelled for 10 minutes thereafter, she did not try to get down as she was scared of her abductors. She further disclosed that the appellants used to speak to her from 2/3 days prior to the incident. According to her, while she was near Fatima Bakery, which was opposite to Johnson market, she was taken inside the auto. She admitted to have known the accused Francis then. She claimed to have identified two persons in the auto rickshaw when she was first picked up from the road as appellants Parkash and Francis. She admitted that none of the abductors did speak to her while in the auto rickshaw. She also conceded that she did not scream for help from the passers-by on the road. She was confronted with her disclosure in the FIR that only three persons had committed rape on her though four had been named therein. She admitted that at the time when she was offered two idlis and a glass of water, she did not cry for help and instead had made up her mind to teach the miscreants a lesson by informing the police. She also stated, by departing from the FIR that for the second time, three persons committed sexual intercourse with her. According to her, the ear studs had been given to her by her husband who got them made at Kaveripattinam in Tamil Nadu. She claimed that her FIR was written by one Anthony in the police station whom she came to know at that point of time. In her cross-examination, she further deviated by stating that apart from the 4th person referred to by her, there was yet another person of short stature and that she had forgotten to refer to him in her FIR. She admitted that her mouth was never shut but her abductors did threaten and scold her. She admitted that after she was abandoned by the miscreants, she did alone return to the garage where the act was committed. She also stated to have narrated her incident to five more persons at different places before the police had intervened, who according to her, were watchmen. She stated that she wanted to see the place before informing the police and, therefore she went in search thereof. She deposed that she saw the jeep of the Hoysala police and called for help whereafter she was taken in the jeep. She took the jeep near the garage and from there, she was taken to two more police stations before lodging the FIR at Sampangiramanagara Police Station. She contradicted herself by stating that the complaint was not written by Anthony. She also stated that her report was typed, read out to her whereupon she put her left thumb impression. When Ex. P1, FIR was shown to her, she admitted that it was not typed. She admitted as well that while narrating the incident and lodging the complaint, she did not disclose the names of the accused persons. She conceded as well that when she was taken to the hospital, there were no wounds. She admitted as well that PW 2 Geeta had advised her to take money and return to her native village and not to file a case as otherwise she would disclose that she was a prostitute. She denied the suggestion that she had requested for financial help from the appellants and when they expressed their inability, she lodged a false case against them to wreak vengeance. She also denied the suggestion that the material exhibits, more particularity ear studs and tali (mangalsootre) were not hers and that the police had procured the same from elsewhere, to frame the accused persons. In the context of her identification of the appellants in the TIP, she admitted in her cross-examination that even prior to the incident, she had seen the accused persons and that not only they used to talk to her, she knew them as well. 8. PW2 Geeta, on oath stated that she also did earn her living as a labourer. She admitted that she knew the prosecutrix who was deserted by her husband and that she had accommodated her and her daughter and had provided shelter to them about 7 years prior to the incident. She stated that about four years back (coinciding approximately with the date of the incident), the prosecutrix had disclosed to her that on her way back home, she had been teased, on which she advised her to be careful. The witness stated that in the evening of the date of the incident, the prosecutirx did not return home and that at about mid-night, the police brought her back. She stated that she saw marks of assault on the body of prosecutrix and on being enquired, she stated that “they did not pay me any money but have snatched my ear studs. They have extracted all the work needed”. The witness volunteered to explain “work” meant prostitution. At this stage, the witness was declared hostile and was cross-examined. In her cross-examination, she admitted that when the prosecutrix returned that night, she had suffered wounds and was limping. She denied to have stated before the police that the appellants had snatched her gold ornaments and had committed rape on her. She also denied to have identified the ear studs, as those of the prosecutrix and instead asserted that the same were not hers. She denied the suggestion that her retraction from the statement made before the police was with a view to help the accused persons. She volunteered to state that the reason for her husband to desert the prosecutrix was her activities of prostitution which had come to his knowledge. The witness further disclosed in her cross-examination by the defence that about a fortnight before the incident, the prosecutrix along with her had approached the accused persons for an amount of Rs. 10000 which she intended to invest for living in a separate house, which was however declined. PW2 testified that this was not to the liking of the prosecutrix, who was enraged by such refusal and left the place by intimidating them of adverse consequences. The witness on oath stated further that the prosecutrix after returning home in the evenings and after completing the house hold work, used to go around in the night indulging in prostitution and when asked as to why she had lodged the complaint against the accused persons, she disclosed that this would compel them to part with the money that she wanted.
9. PW3 Dr. B.R.S. Kashyap had examined the appellants and opined that there was nothing to suggest that they were incapable of performing sexual intercourse. He also was of the view that the injury on the body of the appellant Raju could have been sustained also in the course of attending his auto rickshaw or could be self- inflicted as well.
10. PW4 Muthu produced as a seizure witness of the ear studs denied that same had been seized in his presence and instead testified that on the insistence of the police he put his signature on a paper. This witness was declared hostile but did not budge from his statement in his examination-in-chief.
11. PW5 M.K. Srirangaiah was the Tehsildar, Bangalore North Taluk at the relevant time and he proved the conduct of TIP, in which the prosecutrix identified the appellants.
12. PW8 K.M. Nandagopal was the Assistant Professor, OBG, Vanivilas Hospital on 11.10.1997 where at about 9 a.m. on that day, the prosecutrix was medically examined. He deposed that the prosecutrix was found to have sustained red colour injury on her left thigh. While stating that the vaginal swab of the prosecutrix was sealed and sent to the Forensic Science Laboratory, he was of the clear opinion that she was accustomed to the act of sexual intercourse. In his cross-examination, the doctor admitted that the prosecutrix did not reveal any evidence or sign of having sexual intercourse at the time of her examination. Vis-a-vis the injuries on her thigh, the witness stated that this could happen due to reasons other than sexual intercourse.
13. PW11 B.S. Mudumadeviah, the Investigating Officer affirmed that the FIR was lodged by the prosecutrix at 2 a.m. on 11.10.1997 at the police station. He deposed that after the medical examination of the prosecutrix, he accompanied her to the place of occurrence and seized therefrom a red colour drawer, one box of Nirodh (contraceptive), two auto rickshaw seats, two broken pieces of black bangles and three black bangles found strewn around. He identified the seized articles in court. He referred to the disclosure statement of the appellant Parkash leading to the discovery of the ear studs of the prosecutrix from his house which he identified in the court as well. He also claimed to have seized the auto rickshaw identified by the same appellant used for abducting the prosecutrix. According to him, he had written down the complaint of the prosecutrix made verbally He conceded that the prosecutrix did not state that at that point of time, that she had been abducted by five persons and raped by four. She also did not disclose that there was another short person who had raped her as well. The witness admitted that she did not disclose that she was abducted while near the Fatima Bakery but referred to the spot as Richmond Park. He denied the suggestion that the prosecutrix at the time of lodging of the complaint did not name the miscreants. He denied the suggestion as well that the ear studs were bought from Man Pasand Jewellers, Shanti Nagar by taking Rakesh, a friend of accused No. 3- Parkash for the purpose. He denied the suggestion with regard to seizures from the spot and also the identification by the prosecutrix at the test identification parade.
14. The defence witness Rakesh deposed on oath that after the incident, while one day he was in the house of Parkash, the police visited the place and threatened the grand-father of the appellant Parkash alleging that he (Parkash) had snatched a pair of ear studs from the prosecutrix, to which his grand-father objected. The witness stated that then the police took him and the grand-father of the appellant Parkash to Man Pasand Jewellers, a local jewellery shop, where the police threatened the old man to pay the amount to purchase a pair of ear studs for Rs. 4000. The witness identified the ear studs through the emblem “M.P.” thereon. He denied that the material Ex. 1, the ear studs belonged to the prosecutrix and that the same had been seized from the appellant Parkash. 15. Mr. Basava Prabhu S. Patil, learned senior counsel for the appellants has insistently argued that it being patent on a combined reading of the FIR and the testimony of the prosecutrix at the trial, that she is wholly untrustworthy and that the appellants have been falsely implicated, the impugned judgement and order is liable to be set aside lest it perpetuates gross injustice. The learned senior counsel has urged that not only the prosecutrix’s version of the incident as a whole is inherently improbable, she has been wholly discredited as well by the medical evidence belying the accusation of forcible sexual intercourse by the appellants in succession. Castigating the investigating agency for falsely foisting the articles claimed to have been seized on the appellants in its desperate attempt to establish their culpability, Mr. Patil has maintained that as the prosecutrix admittedly knew the appellants from before, their so called identification by her at the TIP is also of no consequence. The learned senior counsel asserted that PW2 Geeta, though having been declared hostile, her evidence at the trial otherwise consistent with the attendant facts and circumstances bearing on the conduct and activities of the prosecutrix ought not to have been discarded and this having vitiated the impugned decision as well, the conviction and sentence recorded against the appellants is liable to be interfered with. As the prosecution has failed to convincingly prove the charge levelled against the appellants, they are entitled to be acquitted, he urged. To buttress these pleas, reliance has been placed on the decisions of this Court in