IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE ‘3O DAY OF NOVEMBER, 2011 PRESENT THE HON’BLE MRJUSTICE MORAN SHANTANAGOIJDAR AND THE HON’BLE MRJUSTICE RAVI MALIMATH CRIMINAL APPEAL NO287O/2O1o BETWEEN: THE STATE OF KARNATAKA REP BYTHE PJ GANGAVATHI RURAL POLICE STATION, GANGAVATHI DIST KOPPAL APPELLANT (BY Sri V M BANAKAR, ASPP) AND HANUMANTHA S 0 FAKEERAMMA AGE 23 YEARS, 0CC 000LIE, R/O KADEBAGILt Q GANGAVATH DIST KOPPAL FSP0NDrP BY m ARLNA DESrIPA DE M c RA U P 4IfAL AP M FR F A A 4 A 2 SECTION 376 RJW 511 OF IPC, AND SETTING ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL PASSED BY ThE SESSIONS JUDGE, KOPPAL IN S.C.NO.56/2008 DATED 12.04.2010 AND SENTENCE HIM FOR THE ABOVE SAID OFFENCES. THIS CRIMINAL APPEAL COMING ON FOR HEARING, THIS DAY, MOHAN SHANTANAGOUDAR )., DELIVERED ThE FOLLOWING: JUDGMENT The State has filed this appeal against the judgment and order of acquittal dated 12-4-2010 passed by Sessions Court, Koppal, in Sessions Case No.56/2008. 2. The case of the prosecution In brief is that the accused went near the complainant (P.W.4) at about 9.30 p.m., on 15-7-2007 at Kadebagit village with an intention to commit rape. He allegedly reméved her saree and dragged her langa, and torn her blouse by touching her body. The accused attempted to commit the offence of rape. Though the Incident has occurred on 15-7-2007, the complaint is lodged on 17-7-2007 at 2.00 p.m. The complaint lodged by P.W-4 Is regIstered by Gangavathi Rural Police Station in Crime No.157/2007 for the offence 3 punishable under Section 376 and 511 of IPC. The Police after investigation laid the charge sheet. Following charge is framed against the accused: - That on 15.7.2007 at about 9:30 p.m. at Kadebagil village when the complainant had slept infront of her house you accused went to her with an Intention to commit rape and that removed her Saree, dragged tie of her langa, torn her blouse by touching her body and thus attempted to commit rape on her and that you thereby committed an offence of attempt to rape punishable under Section 376 read with Section 511 of the Indian Penal Code and within the cognizance of this Court”. In order to prove the case, the prosecution has examined In all eight witnesses and got marked six exhibits and one material object. On behalf of defence, 5 exhibits were marked. The Trial Court on valuation of the material on record acquitted the accused. 3. The learned Additional State Public Prosecutor Sri.V.M.Banakar and Smt.Aruna R.Deshpande, Amicus 4 Curiae have taken us through the material on record Including the judgment of the Court below. 4. On perusal of the material on record, we find that the judgment of the Court below is just and proper under the facts and circumstances of the case. PW-1 and PW-2 are the mahazaar witnesses, who have turned hostile. PW-3 is alleged to have been an eyewitness to the incident. He Is also turned hostile. PW-4 is the complainant. The complaint flied by her is marked at Ex.P3. Her wound certificate Is at Ex.P4. PW-5 Is the doctor, who examined PW-4 and issued wound certificate as Ex.P4. PW-6 is the husband of PW-4. PW-7 and PW-8 are the police officials, who participated in the investigation and laid the charge sheet. 5. As aforementioned, the alleged incident ha occurred on 15.07.2007 at 9.30 p.m. The place of incIdent is 9 k.m. from Gangavathi Town. However, the complaint Is came to be filed by PW-4 at about 2.00 p.m. on S 17.07.2007. No satisfactory explanation Is offered for the two days delay in lodging the complaint. If really the victim was subjected to sexual assault, she would not have kept quite for two days to lodge the complaint. More so when her husband PW-6 came, to the spot immediately after one hour of the Incident. PW-3 is stated to be the eyewitness and relative of the complainant. There is no reason as to why they waited for two days for lodging the complaint. 6. M.O.1-the blouse alleged to have been seized under the panchanama. However, the panchas have turned hostile. The seizure of M.O.1 is stated to have taken place on 17.07.2007 whereas the same is reported to the Judicial Magistrate on 02.08.2007. In this view of the matter, the Trial Court has rightly doubted the seizure of the blouse. 7. Absolutely no Investigation was made subsequent to 27.07.2007 by the police. However, the charge sheet came to be filed on 25.08.2008 i.e. after Q/) 6 about one year. This itself creates sufficient doubt in the mind of the Court and casts cloud on the case of the prosecution. 8. The alleged eyewitness PW-3 has not supported the case of the prosecution. PW-6, the husband of the complainant Is not the eyewitness. He left the house one hour prior to the incident and came to the spot after one hour of the incident. However, his evidence reveals that there is a rivalry between himself and the accused. In this view of the matter, the Amicus Curiae is justified in arguing that because of such rivalry between PW-6 and the accused, false complaint is lodged assumes importance. I 9. Though PW-4 has deposed that accused committed rape on her, the same is not supported by the medical evidence. The doctor has not stated anything with regard to the offence of commission of rape. However, the doctor’s evidence reveals that PW-4 has sustained five abrasions. She has taken treatment on 17.07.2007 C’s 7 though injuries have sustained by the complainant on 15 O72OO7. Except the aforementioned five abrasions, no other injuries are found on PW4, the complainant She has admitted in the crossexamination that the accused dragged her for one hour but the complainant did not try to rescue herself and did not try to raise hue and cry and did not even try to beat the accused. She further admits that the accused has not sustained any injuries She further admits that after hearing her cries, her husband (PW6) came to the spot. 10 Per contra the evidence of PW 6 totally runs ontrary to the evidence of arose it on A cording to im he accuced came near his house at aboit 9 00 p m ani ailed PW 6 or drinking quo PW a refus a com rt c a k a a 33 m T C ci ttf PW irgot go en n 8 11. We find that the evidence of PW-4 is totally artificial. She has not suffered any Injury on her private parts. She has not cried when the accused allegedly dragged her for commission of rape. There Is no medical evidence placed on record to support the case of the prosecution. However, the medical evidence reveals that PW-4 has sustained abrasions. She has taken treatment after two days of the Incident. Therefore, there Is every possibIlity that PW-4 sustaining such small abrasions during the Interregnum. Not even a whisper Is found In the evidence of the doctor about alleged sexual abuse. Moreover the charge framed only reveals that the accused has tried to commit rape. Thus it Is clear that prosecution Is not for the offence of rape. Overall evidence on record does not reveal the offence of even outraging the modesty of the prosecutrix. We do not find that the accused has tried to commit rape. Thus the triai Court has rightly acquitted the accused on the ground that the case as put forth by the prosecution Is totally artificial and unbelIevable. p/N I 9 12. Since there Is rivalry between PW-6 (husband of PW-4) and the accused and as the case of prosecution is highly suspicious and artificial, in our considered opinion, the trial Court is justified in acquitting the accused. Accordingly, no Interference is called for. The appeal filed by the State is dismissed. We place on record the valuable assistance rendered by Smt.Aruna R.Deshpande, learned Amlcus Curiae. In appreciation of the services rendered by learned Amicus Curiae, we direct that the Amicus Curiae shall be paid Rs.7,000/- as honorarium. Sd!’ JUDGE JUDGE I... _- Rsk/Prs*