Gowrishankara Swamigalu vs State Of Karnataka & Anr

The 'Mutt' used to run a school. Respondent No. 2 herein was admitted in the VIIIth standard in the said school of the Mutt. At the material time, he was reading in the IXth standard therein. On 18.07.1986 at about 8.30 a.m., the appellant allegedly through PW 2 Palaksha and Gopinath called him to his office. The office was partitioned, one part of it was converted into a bed room. After Respondent No. 2 entered in the office, he was asked to rub lemons on his body. He allegedly had stripped prior thereto. Respondent No. 2 was also asked to take his clothes off.

2. Respondent No. 2 alleged that he was subjected to unnatural offence by the appellant. His clothes, anus and panche (lungi) got soiled. He was given a sum of Rs. 10/- and asked not to tell the same to anybody else. The said activity of the appellant is said to have continued upto 23.07.1986. He was every time offered some money. In total a sum of Rs. 75/- was paid to him.

He allegedly came back to his house with his brother on 28.07.1986. He gave the dirty clothes for washing to his mother. His mother found sticky substances in the lungi. When accosted, he allegedly told her about the indecent behaviour of the appellant. PW- 8 Bhagawan Singh, the maternal uncle of Respondent No. 2 (brother of PW-4 mother Dushyanthi) at that time was also present. The victim was allegedly persuaded to go back to the school. He came back to the school on 3.08.1986. PW-9 Shivakumar and Natraj were said to have been asked by the appellant to bring him again to his office. He declined to come. He allegedly made a complaint to the Senior Swamiji as regards the incident who assured him to look thereinto and asked him not to make any complaint, the prestige of the Mutt being involved. However, no action was allegedly taken. He thereafter lodged a First Information Report on or about 29.08.1986 at about 6.30 p.m. Investigation in the matter took a long time. A spot mahazar (Ex. P2) was drawn up only on 30.08.1986. On 31.08.1986, the statement of PW-4 was recorded. The statement of PW-2 Palaksha was recorded on 17.09.1986. The statement of Gopinath was taken on 23.11.1986. However, he was not examined in court. Statement of PW-9 Shivakumar, another student was recorded on 2.12.1986. The statement of PW-8 Bhagawan Singh was taken on 31.08.1987. Chargesheet in the case was filed only on 9.05.1988. Keeping in view the aforementioned fact, the Trial Court initially discharged the appellant by an order dated 19.02.1990 which, however, was set aside by the High Court by an order dated 3.09.1992 with the direction to dispose of the matter on merits.

3. The trial started in March, 1996. In the mean time, the appellant was removed from the Mutt. Immediately, thereafter, he filed a suit on 27.05.1988. The said suit is still pending.

Names of sixteen witnesses were cited in the chargesheet. However, only thirteen of them were examined before the learned Trial Judge. PW-1 is the complainant. PW-2 Palaksha was the student who along with Gopinath allegedly was asked by the appellant to bring Respondent No. 2 to his office. Gopinath who was a material witness as also the Senior Swamiji who could throw enough light in regard to the complaint made by Respondent No. 2 to him, for reasons best known to the prosecution, were not examined. PW-2 although is not an eye-witness but when the offence was being committed, he allegedly knew as to what was going on as both he and Gopinath were inside the room, although doors were closed and the place where the bed was placed in the office room was divided only by a plywood partition.

The High Court in its judgment recorded that the appellant used to come in an air-conditioned car and would hold press meetings although the case was pending. He attributed the said conduct on the appellant relying on or on the basis of a statement made by the public prosecutor. The Public prosecutor, however, filed a memo before the court denying and disputing the said statements attributed to him. Curiously enough, the High Court directed the appellant to remain present on all the dates of hearing. Only because on one of the dates of hearing, he was not present, serious note thereof was taken and his purported conduct, as noticed hereinbefore, was commented upon. Appellant was found guilty of commission of the said offence by the High Court. The judgment of acquittal was reversed. A long hearing was given for imposition of sentence. State and Respondent No. 2 prayed for imposing of life sentence as also a fine of Rs.50 lakhs on him. Ten years' rigorous imprisonment and a fine of Rs. 25 lakhs, however, was imposed stating that the revision application has been allowed in part.

11. From the statements of PW-4, it appears that according to Respondent No. 2, his mother used to come to the school for washing the clothes once in a week or so. At the same time, soap had been provided to Respondent No. 2 for washing his clothes. This conduct on the part of Respondent No. 2 throws serious doubts to the whole story. If Respondent No. 2 had returned to school on 3.08.1986 and attempts were made by the appellant immediately thereafter to send for him for repeating the commission of the same offence, there was no reason why the First Information Report was not lodged immediately.

The site plan shows that the office of the Senior Swamiji is only 5 feet away from the office of the appellant. There was a store room and also a room for sitting of the other staff members attached to the room. Even if PW-2 and Gopinath had been asked to bring Respondent No. 2 with them, it is against all human conduct that after closing the door they would be asked to be in the room and except seeing the act with their own eyes, for all intent and purport they would know what had been happening in the room. Despite the same, according to PW-2, when they came out of the room, Respondent No. 2 was asked about what had happened. He allegedly stated thereabout.

PW-4 in her deposition completely denied to have made any statement before the police officer on 31.08.1986. The reason is not very far to seek. Her attention was drawn to her previous statements where she had alleged that her son had mentioned about the incidents on 18.08.1986 and left the house on 28.08.1986. When her attention was drawn to the other statements made by her before the Investigating Officer, she stated:

In any event, keeping in view the peculiar fact situation obtaining herein, we are of the opinion that this is one of the rarest of rare cases where a deeper scrutiny was necessary particularly when the Trial Court had recorded a judgment of acquittal upon assigning sufficient and cogent reasons and wherewith we agree.

Our approach to the case is not different as we have made all endeavours to appreciate the testimony of the victim in the background of the entire case.

28. We have ourselves gone through the materials on records very carefully and are clearly of the opinion that the learned Trial Judge was correct in its view.

30. For the reasons aforementioned, the appeal is allowed. The judgment of conviction and sentence passed by the High Court is set aside and the judgment of acquittal passed by the Trial Court is restored. Appellant is set at liberty forthwith if not required in connection with any other case.