Raja & Ors vs State Of Karnataka

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.

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.

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.

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.

18. Filtering the unnecessary factual details, suffice it is to recount that the incident allegedly had occurred at 7.30 p.m. on a public road while the prosecutrix was returning home after the day's work. Her version is that while she was on the way, an auto rickshaw with two persons therein pulled up by her side and she was dragged in forcibly. After moving for about 10 minutes, the abductors were joined by two more persons, whereafter she was taken to a garage and was molested against her will forcibly.

Her post incident conduct and movements are also noticeably unusual. Instead of hurrying back home in a distressed, humiliated and a devastated state, she stayed back in and around the place of occurrence, enquired about the same from persons whom she claims to have met in the late hours of night, returned to the spot to identify the garage and even look at the broken glass bangles, discarded litter etc. According to her, she wandered around the place and as disclosed by her in her evidence, to collect information so as to teach the accused persons a lesson. Her avengeful attitude in the facts and circumstances, as disclosed by her, if true, demonstrably evinces a conduct manifested by a feeling of frustration stoked by an intense feeling of deprivation of something expected, desired or promised. Her confident movements alone past midnight, in that state are also out of the ordinary. Her testimony that she met a cyclist to whom she narrated her tale of woe and that on his information, the Hoysala police came to the spot and that thereafter she was taken to successive police stations before lodging the complaint at Sampangiramanagara police station as well has to be accepted with a grain of salt.

27. The prosecution case, when judged on the touchstone of totality of the facts and circumstances, does not generate the unqualified and unreserved satisfaction indispensably required to enter a finding of guilt against the appellants. Having regard to the evidence on record as a whole, it is not possible for this Court to unhesitatingly hold that the charge levelled against the appellants has been proved beyond reasonable doubt. In our estimate, the view taken by the Trial Court is the overwhelmingly possible one. In contrast, the findings of the High Court are decipherably strained in favour of the prosecution by overlooking many irreconcilable inconsistencies, anomalies and omissions rendering the prosecution case unworthy of credit. Noticeably, the High Court has exonerated the appellants of the charge of abduction under Section 366 IPC, which is an inseverable component of the string of offences alleged against them. Judged by the known parameters of law, the view adopted by the High Court is not a plausible one when juxtaposed to that of the Trial Court. We are of the unhesitant opinion that the prosecution has failed to prove the charge against the appellants to the hilt as obligated in law and thus, they are entitled to the benefit of doubt. The appeal thus succeeds and is allowed. The impugned judgement and order is set-aside. The appellants are on bail. Their bail bonds are discharged.

) NEW DELHI;

OCTOBER 4, 2016.