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2022 Supreme(Kar) 429
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K.Somashekar, C.M. Joshi, JJ.
State of Karnataka, By Mangaluru Rural Police Station - Appellant
Versus
Sharan @ Rohidas S/o Sadashiva Poojary – Respondent
Criminal Appeal No. 1042 of 2016
Decided On : 31-10-2022
Advocate Appeared:
For the Appellant : Sri. Abhijith K.S., HCGP
For the Respondent:Smt. Pooja Kathimani, Advocate for Sri. R.B. Deshpande, Advocate
Point of Law : Main object of holding an identification parade during investigation stage is to test memory of the witnesses based upon first impression and also to enable prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime. [ Para 28]
Headnote:
Indian Penal Code,1860 - Sections 376 and 392 - Offence of Rape – Charged - Appeal against acquittal - PW-1 who is victim, was waiting for bus near roadside in front of Fisheries College, Yekkur, to go to Manjeshwara - Accused and another person are said to have come in a Honda Activa scooter bearing No.KA-19-U-6281 and had asked her as to why she was standing there in that odd hour - She had told them that she was waiting for bus to go to Manjeshwara - Appellant/accused is said to have told her that he would drop her in his scooter - Believing his words, the victim PW-1 is said to have agreed to go with him in his vehicle - Hence, accused had left the pillion rider who was traveling with him in said place itself and is said to have taken victim in his Honda Activa vehicle - When he was nearing Bagambila, Kotekar village, Mangaluru, he is said to have stopped vehicle and is said to have threatened her by showing a knife and at knife point, is said to have had sexual intercourse with victim - Thereafter, he is further said to have robbed from victim woman golden articles namely mangalya chain, pearl chain, four bangles, one necklace worth Rs.1,60,000/- including cash of Rs.22,000/-. Hence, accused is said to have committed offences - Whether or not situated in the police station to which he is appointed - Whether the evidence has a ring of trust, is cogent, credible and trustworthy or otherwise.
Finding of Court : Unless there is corroborative evidence, Court cannot give credentiality to evidence of all witnesses - Further, though several material objects including the gold jewellery have been got marked on the part of prosecution, it is seen that prosecution has not facilitated worthwhile evidence to prove guilt of accused beyond all reasonable doubt - In view of discrepancies and inconsistencies in evidence of prosecution, Trial Court has rendered an acquittal judgment by holding that prosecution has failed to bring home guilt of accused as regards offences under Sections 376 and 392 of IPC beyond all reasonable doubt -At a cursory glance of evidence of material witnesses and even grounds urged by the learned HCGP for State, Court find that there is no perversity or absurdity or any illegality committed by Trial Court in rendering an acquittal judgment - Trial Court has arrived at a conclusion that prosecution has failed to bring home guilt of accused beyond all reasonable doubt relating to offences under Sections 376 and 392 of IPC and more so, ingredients of the aforesaid offences - Consequently, it had extended benefit of doubt and on that concept, rendered an acquittal judgment by assigning sound reasons and also justifiable reasons - In this appeal, it does not arise to call for interference as contended by State / appellant. Consequently, appeal deserves to be rejected as being devoid of merits. [Para 33 and 34]
Result : Appeal. is hereby rejected.
JUDGMENT :
K Somashekar, J.
This appeal is directed against the judgment of acquittal rendered by the Court of the VI Addl. District & Sessions Judge, D.K, Mangaluru, in S.C.No.53/2008 dated 18.12.2015 acquitting the accused for offences punishable under Sections 376 and 392 of the IPC, 1980. This appeal has been filed by the State seeking to set-aside the judgment of acquittal rendered by the Trial Court and to consequently to convict the accused for the offences leveled against him.
2. Heard the learned counsel Smt. Pooja Kattimani for the respondent/accused and the learned HCGP for the appellant/State. Perused the judgment of acquittal rendered by the Trial Court in S.C.No.53/2008 consisting the evidence of PW-1 to PW-23 and several documents got marked at Exhibits P1 to P29 and so also the material objects got marked at MO-1 to MO-9.
3. The factual matrix of the appeal is as under :
It transpires from the case of the prosecution that on 09.03.2008 at around 11.30 p.m., PW-1 who is the victim, was waiting for bus near the roadside in front of Fisheries College, Yekkur, to go to Manjeshwara. The accused and another person are said to have come in a Honda Activa scooter bearing No.KA-19-U-6281 and had asked her as to why she was standing there in that odd hour. She had told them that she was waiting for bus to go to Manjeshwara. The appellant/accused is said to have told her that he would drop her in his scooter to Manjeshwara. Believing his words, the victim PW-1 is said to have agreed to go with him in his vehicle. Hence, accused had left the pillion rider who was traveling with him in the said place itself and is said to have taken the victim in his Honda Activa vehicle. However, when he was nearing Bagambila, Kotekar village, Mangaluru, he is said to have stopped the vehicle and is said to have threatened her by showing a knife and at knife point, is said to have had sexual intercourse with the victim. Thereafter, he is further said to have robbed from the victim woman golden articles namely mangalya chain, pearl chain, four bangles, one necklace worth Rs.1,60,000/- including cash of Rs.22,000/-. Hence, accused is said to have committed offences under Sections 376 and 392 of the IPC, 1860.
4. In pursuance of the act of the accused and based on the complaint made by PW-1, criminal law was set into motion by recording an FIR as per Exhibit P-14. Subsequent to criminal law being set into motion, the Investigating Officer had taken up the case for investigation and done investigation thoroughly and during investigation, conducted spot mahazars at Exhibit P2, P3 and P4 and so also conducted mahazars at Exhibit P8, Exhibit P9 inclusive of mahazar at Exhibit P11. During investigation, the statement of witnesses were recorded and wound certificate of the victim was secured and recorded the voluntary statement of PW-12/Devaraj Shetty as per Exhibit P13 and so also secured the FSL report at Exhibit P15 inclusive of securing the X-ray report at Exhibit P19 and so also Identification Parade at Exhibit P22. These are the material documents secured by the I.O. during the course of investigation. After completion of investigation under Section 173(2) Cr.P.C., the Investigating Officer had laid the charge-sheet against the accused before the Committal Court.
5. Subsequently, the Committal Court had passed an order under Section 209 of the Cr.P.C. and committed the case to the Court of Sessions and the case was assigned S.C.No.53/2008. The Trial Court, after hearing the arguments of the learned Public Prosecutor and the Defence Counsel had framed charges under Sections 376 and 392 of the IPC, 1860. Subsequent to framing of charges, the prosecution had let in evidence by subjecting to examination PW-1 to PW-23 and got marked several documents at Exhibits P1 to P29 and marked Material Objects namely MO-1 to MO-9. Subsequent to closure of the evidence on the part of the prosecution, the accused was subjected to examination as required under Section
