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2011 Supreme(Kar) 454
High Court of Karnataka
THE HONOURABLE MR. JUSTICE N. ANANDA & THE HONOURABLE MR. JUSTICE V. SURI APPA RAO
Anil Kumar & Others
Versus
The State of Karnataka
Criminal Appeal No. 133 of 2006 connected with Criminal Appeal No. 734 of 2006
Decided on : 19-07-2011
For the Appellants:Sri Arunashyam for M/s. Dharmashree Associates, Advocates.
For the Respondent: N.S. Sampangiramaiah, High Court
Government Pleader.
Headnote:INDIAN PENAL CODE, 1860 - Section 366: [N. Ananda & V. Suri Appa Rao, JJ] Offence under - Held, Mere abduction is not enough to attract provisions of Section 366. Unless prosecution proves that abduction is for purposes mentioned in Section 366, Court cannot hold accused guilty and punish him under Section 366.
INDIAN PENAL CODE, 1860 - Sections 366 & 375: [N. Ananda & V. Suri Appa Rao, JJ] Abduction and gang rape - Allegation that victim was abducted and was taken to a bus stand which was busy place and police constables were posted at bus stand - Victim however, did not inform police constable about her abduction - Neither she contacted her husband - Further allegation that she was taken to certain place by autorickshaw and that autorickshaw driver and some others, gang raped her after making her unconscious by giving some drink - She did not cry for help when in next morning she came to know about said gang rape committed on her - She did not make any attempt to escape from that place - No explanation for delay in lodging first information - On local examination by doctor she did not find any injuries on body of victim - There was no evidence of sperms or blood stains over external genitals - Events deposed after the alleged incident were entirely inconsistent and contradictory - Held, Prosecution has failed to prove charges levelled against accused.
INDIAN PENAL CODE, 1860 - Section 375: [N. Ananda & V. Suri Appa Rao, JJ] Rape - Evidence of rape victim - Held, It requires importance. However, evidence of victim cannot be believed if it suffers from inherent improbabilities.
N. Ananda, J:
1. Crl. A. No. 133/2006 is filed by the appellants (arrayed as Accused Nos. 1 to 5) against the judgment of conviction for offences punishable under Sections 366, 376(g), 328 read with 34 IPC. Crl. A. No.734/2006 is filed by the enhancement of sentence.
2. A1 to A5 were tried for the following charges and supplementary charges:
“That you all in furtherance of the common intention on 21.8.2000 at about 4.00 p.m. when CW1 was proceeding towards Sadana Clinic of Santhekatte followed her in while Maruthi Car bearing reg. No.KL. 13-4647 and stopped the said car by her side and inducted her saying that her husband Sathish sent you to take her in your car and you brought CW1 in the said Car to KSRTC Bust Stop at Mangalore and from KSRTC Bus Stop to Mangalore you abducted her to an old big vacant house at Thokkottu in an autorickshaw bearing Reg. No.KA-19-3683 with the intend that CW1 may be forced by you all to illicit intercourse and you thereby committed an offence under Sec. 366 read with. Sec.34 of the Indian, penal Code and within the cognizance and jurisdiction of this Court. Secondly that you in furtherance of the common intention on 21.8.2000 in the night in the said big old vacant house at Thokkottu subjected CW1 (a married woman having 2 children) to criminal intimidation administered alcohol to the mouth of CW 1 and thereafter you – one by one – committed rape on CW-1—Lakshmi on that whole night i.e. at night on 21.8.2000 till 5.00 a.m. on 22.8.2000 and you thereby committed an offence under Sec. 376 read with Sec. 34 of the Indian Penal Code and within the cognizance and jurisdiction of this Court.”
“Firstly, that, you accused Nos. 1 to 5, in furtherance of the common intention, on the night of 21.08.2000, after abducting CW1 Smt. Laxmi, you brought her to an old big vacant house at Thokkottu 2nd Kolya of Somedwara Village which was in the occupation of CW2 and belonging to one Devanna @ Laxmana Shenava and without the consent of said CW1 Smt. Laxmi, you accused Nos.1 to 5. Committed gang rape one by one from 10.00 p.m. to 5.00 a.m. of 22.08.2000 and you thereby committed an offence punishable under Section 376(g) r/w Sec. 34 of the Indian penal Code, and within my cognizance.
Secondly, that you accused Nos.1 to 5, in furtherance of the common intention, on 21.8.2000 in the night and in the said big old vacant house situated at 23nd Kolya of Somedwara Village, subjected CW 1 (a married woman having 2 children) to criminal intimidation and administered alcohol to the mouth of CW1 forcibly, with intent to commit or facilitate the commission of the offence of gang rape upon said CW1 by you one by one, and thereby committed an offence punishable under Section 328 r/w Sec.34 of the Indian Penal Code, and within my cognizance.”
3. The defence of the accused is one of total denial. On behalf of prosecution, PWs 1 to 14 were examined, documents Exs.P1 to P9 were marked and material objects MOs 1 to 8 were marked. On behalf of the defence, DWs.1 and 2 were examined and documents Exs.D1 to D7 were marked.
4. The learned trial Judge, on appreciation of evidence and after hearing the Counsel for the parties, convicted the accused for the aforesaid offences. Being aggrieved by the same they have filed Crl. A. No.133/2006. Feeling that the sentence imposed is inadequate, the State has filed Crl.A.No.734/2006 for enhancement of sentence.
5. We have heard Sri M.S. Sampangiramaiah, HCGP for the State and Sri Arun Shyam, learned Counsel for the accused.
6. The substance of the charges framed against the accused may be stated thus:
On 21-8-2000 at 4.00 p.m. when the victim (PW1) was proceeding from Santhekatte towards Sadhana Clinic, by the side of National High Way (West Coast Road), four persons abducted her in a Maruthi car bearing registration No.KL-13-4647 and reached Mangalore KSRTC bus stand and thereafter the victim was abducted in an autorickshaw and she was taken through Mangalore City. The accused took vi
