State of Karnataka v. Sri Santhosh Shetty

PW1 is the first informant and Ex.P1 is her report to the police. When she was a student 10 t h standard accused No.1 developed acquaintance with her. He used to draw her attention whenever she was found on the road. Once in the month of April, 2015, when she was returning from bank the first accused asked her to love him and to be his friend and saying so he gave his mobile number. Ten days later she called - 4 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 him from her mother’s mobile phone and told that she would become his friend. After this, one day when she was going somewhere, he took her to a place in the nearby forest, hugged and kissed her. To this she replied that she would not continue the friendship with him. But on 14.06.2015 around

09.45 a.m, accused No.1 made a call and asked her to come to his house. When she refused, he taunted her saying that she was not a girl. Listening this she went to his house around 12.30 p.m. Accused No.1 was alone in the house; he had intercourse with her. Around 01.30 p.m when she was returning home, two boys followed her, and one of them introduced himself saying that he was working in the military and asked her mobile number and address. He held her hand and took to a secluded place where he had sexual intercourse in spite of resistance from her. She returned home around 04.00 p.m. Around 04.30 p.m when her mother came home she revealed - 5 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 everything to her. Thereafter the mother secured the presence of his brother Jagannath. On

16.06.2015 PW1 gave a report to the police about incident. Registration of FIR followed investigation and charge sheeting the accused.

The prosecution examined 20 witnesses and got marked the documents Exs.P1 to P38 and material objects, MOs1 to MO11. Assessing the evidence the trial court acquitted the accused of the offences charged against them.

We have heard the arguments of Sri. Thejesh P, learned High Court Government Pleader for the appellant, Sri. Rithish D. Naik, learned counsel for respondent No.1, Sri. C.H. Jadhav, learned Senior Counsel on behalf of Sri. Chetan Jadhav for respondent No.2 and Sri. Vinayaka, learned Amicus Curiae for respondent No.3. - 6 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017

PW1 the star witness being prosecutrix. Conviction can be based on the sole testimony of the prosecutrix if she is found to be a trustworthy witness. The trial court has found many reasons to disbelieve the prosecution case. The main reasons are delay in lodging FIR, some kind of deliberations among PW1 and other witnesses, major role of one Ashok Shetty who was not examined though cited as a witness, a scuffle said to have taken place between Ashok Shetty and people of 5 Cents Basti locality, accused 1 and 2 themselves going to the house of PW1 on

15.6.2015, possibility of implication of accused No.2, and ambiguity the medical evidence.

Sri. Thejesh argued that the testimony of PW1 cannot be rejected at all, for she has deposed so well that there is no scope for disbelieving her for any reason. The evidence may indicate that - 7 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 PW1 knew the first accused for some time past the incident occurred, but what happened

14.6.2015 was against her will and wish. She was a minor on the date of incident, and her date of birth is not disputed. The sexual intercourse by accused No.2 was a clear case of rape on a minor girl. Merely for the reason that FIR was registered on 16.6.2015, that itself cannot be a reason for doubting the prosecution case. Medical evidence also supports. Ignoring this kind of evidence, if the trial court were to acquit the accused, it is nothing improper appreciation of evidence and therefore impugned judgment is to be set aside in order to convict both the accused.

The argument of Sri. C.H. Jadhav is that the testimony of PW1 is liable to be rejected as she is not truthful witness. Though the age of PW1 is not disputed, her testimony as regards forcible intercourse on her cannot be accepted at all. It is - 8 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 doubtful that she was subjected to rape either by accused No.1 or accused No.2.

7.1. If the evidence as a whole is assessed, it becomes very clear that because of some dispute between people of 5 cents Basti and Ashok Shetty, accused No.2 appears to have been implicated. The doctor has spoken with regard to what she has not written in her report. PW9 has not supported the prosecution, instead what he has stated is the truth. The telephone was with the mother, but PW1 states that accused No.1 made a call to her mother’s mobile to ask her to come to his house. It was not difficult for the investigating officer to collect the call details. If really PW1 was subjected forcible sexual intercourse, clothes of PW1 would have contained seminal stains, but nothing was detected. All these factors shake the prosecution case. He argued that since - 9 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 appeal is against acquittal judgment, accused cannot be convicted even if other view is possible.

Sri. Vinayak, learned amicus curiae for respondent No.3, supported the prosecution by arguing that the trial court has not properly appreciated the evidence. His submission was that there are no reasons for taking a view against the prosecution.

Reassessment of evidence gives picture : PW5 is the Principal of the school where PW1 was studying. Her evidence shows that 12.2.2001 is the date of birth of PW1 and she deposed to that effect based on the entries in the admission register extract which is marked as Ex. P12. PW1 has also stated that her date of birth is 12.2.2001. There is no dispute with regard to this date of - 10 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 birth and she was aged nearly 14 years on the date of alleged incident.

It is found from the testimony of PW1 that she has narrated the two incidents said to have taken place on 14.6.2015. PW7 is the mother of PW1 who has stated that when she returned home at 4.30 p.m on 14.6.2015, she saw PW1 crying. When she enquired her the reason for her cry, she came to know that she was a victim of forcible intercourse by accused 1 and 2 on that day. Immediately she telephoned to her brother who came on 15.6.2015. It was her brother who gave information to the police in the morning of

16.6.2015. PW2 is the brother of PW7 and his evidence that on 15.6.2015 his mother telephoned and asked him to come home. Thereafter, he went to the house of PW1 along with his two brothers Sadananda and Ashok and came to know from his sister, i.e., PW7 about the - 11 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 incident. He also enquired PW1 who revealed the entire incident that had taken place on previous day. Therefore the evidence of PWs1, 2 and 7 is to the effect that PW1 was subjected to forcible intercourse by both the accused at different times on 14.6.2015.

PW4 was the doctor who examined PW1. Her evidence is that PW1 herself gave history that accused No.1 Santosh had forcible sexual intercourse with her and thereafter another person serving in military took her forcibly into forest area when she was returning home and committed rape. After examining PW1 she gave report as per Ex.P10. She stated in the examination in chief that there were signs of recent sexual intercourse undergone by PW1. But as rightly argued by Sri C.H.Jadhav with regard to history, PW4 appears to have given evidence deviating to some extent from what has been recorded in Ex.P10. - 12 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017

PWs9 and 10 are two other witnesses whose evidence is relevant. PW9 was the person who according to PW1 followed her along with accused No.2 junction. During investigation, he was produced before Magistrate to obtain his statement under section 164 of Cr.P.C. which is marked as Ex.P15. If Ex.P15 is perused, it is found that accused No.2 and he saw PW1 coming out of the house of accused No.1. Seeing her accused No.2 told him that he wanted to see the face of that girl. Though he advised him not to do so, yet he followed the girl. As they came near the hotel of one Narayanapujari, he stood there, but accused No.2 followed the girl in spite of his advise not to follow her. As accused No.2 did not return, he made a call to him and at that time he heard the voice of a girl at the other end. On 15.6.2015, accused No.2 asked him to come to the house of PW1. When he went there, the maternal uncle of - 13 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 PW1 was present and asked him to tell what happened on the previous day. He disclosed what he knew. He has stated that when he asked accused No.2, the latter told him that he embraced the girl and removed her pant. He also enquired accused No.1 who told him that he was loving the girl. This is the gist of Ex.P15. But when PW9 gave evidence the court, he completely retracted from his former statement and told that he had to depose so before the Magistrate as directed by the police. Before the court he deposed that on 14.6.2015 he and accused No.2 were filling up the application forms for the post of Sub-Inspector in BSF, that a girl by name Ranjitha came out of the house of accused No.1, that the elders of that locality asked her as to why she had gone inside the house of accused No.1 and they wanted to know her name and the names of her parents. At that time she went away from that place crying. He has stated that when the elders - 14 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 questioned her, he too was present at that place. After going home, he started filling up application form and made a call to accused No.2 as he found some difficulty in filling up the application. He completely refuted the prosecution case that accused No.2 took PW1 to a forest place to have sexual intercourse and that he gave statement voluntarily as per Ex.P15 before the Magistrate.

In the cross-examination PW9 has stated that he too was taken to police custody in the evening of 15.6.2015 and was there in the police station till 17.6.2015 till 6.30 p.m. He has also admitted the suggestion that PWs2, 3 and one Ramesh Naik were present in the house of PW1 when he went there on 15.6.2015 and heard about some altercation near the bus stand of Hiriadka between Ashok Shetty, and accused No.2 and residents of 5 Cents Basti. His clear answer is - 15 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 that persons who gathered in the house of PW1 did not allow him and others to speak.

PW10 is the brother of PW9. He is a witness to arrest mahazars drawn as per Exs.P17 and 18 in connection with the arrest of accused 1 and 2 on 16.6.2015. In the cross-examination it has been elicited from him that police took accused 1 and 2 to the station on 15.6.2015 and they were in the custody till 17.6.2015.

Now if the evidence is put to analysis in the background of the answers given by the witnesses, especially, PWs1, 2 and 7 it is possible to state the case projected by the prosecution is difficult to be accepted. PW1 has clearly stated that the first accused made a call to the mobile phone of her mother and spoke to her on

14.6.2015 to ask her to come to his house. When she refused to go there, he told her that she was not a girl and this prompted her to go to his - 16 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 house. According to PW1 after she went to the house of accused No.1, she was subjected to forcible intercourse by him. But if the evidence of PW7 is seen, her answers give scope for doubting the testimony of PW1 that accused No.1 had spoken to her over the phone and taunted her when she refused to go to his house. It is elicited from PW7 in the cross-examination that when she went to her mother’s house in the morning of

14.6.2015, she carried the mobile phone with her and it was with her till she returned home at 4.30 p.m. She has clearly stated that she did not make call to anybody from her mobile phone in between

10.00 am and 4.30 pm on 14.6.2015. If PW7 had taken the mobile phone with her, the testimony of PW1 that accused No.1 had made a call to her mother’s phone and only thereafter she went to his house cannot be simply believed to be true. She has also answered in the cross-examination that she did not come to know about any incoming call - 17 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 in the morning of 14.6.2015. This answer cannot be ignored.

As regards imputations against accused No.2, the evidence of PW9 is important but he has given altogether a different picture. Even though the prosecution produced statement of PW9 recorded under section 164 of Cr.P.C, the same cannot be acted upon because of explanation given by PW9 that he was compelled by the police to give statement in a particular manner. He has stated that he was detained by the police from the evening of 15.6.2015 till 6.30 p.m on 17.6.2015. PW10 has also stated in the cross-examination that he and his mother were visiting the police station between 15.6.2015 and

17.6.2015. Ex.P15, the statement of PW9 before the Magistrate bears the date 17.6.2015. If PW9 was made to stay in the police station for about two days, it gives scope for doubting the veracity - 18 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 of contents of Ex.P15 and whatever he testified before the court during trial cannot be outrightly rejected. In this view, the involvement of accused No.2 in the alleged incident becomes doubtful.

The major role played by the brothers of PW9 has a bearing on the entire prosecution case. According to the police records both the accused were arrested on 16.6.2015. But this date of arrest is difficult to be accepted. PWs1 and 7 have consistently spoken that PW7 made a call to her brothers to inform them about the incident. This was on the evening of 14.6.2015 itself. PW1 has stated that her uncle Ashok Shetty came to the house in the evening of 14.6.2015 and other uncles on 15.6.2015. PW7 has stated that she made a call to PW2 Jagannath in the evening of

14.6.2015. Both PWs2 and 7 have stated that accused 1 and 2 were secured to their house in the evening of 15.6.2015. PW7 has also stated that - 19 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 PW9 also came to her house on 15.6.2015. That means according to PWs1 and 7, PW2 had the knowledge of the alleged incident on the evening of 14.6.2015 itself. But the evidence of PW2 is slightly different. He says that he came to know about the incident from his mother on 15.6.2015 and then came to the house of PWs1 and 7, and thereafter secured the presence of both accused. It is his clear evidence that after the arrival of the accused, they held meeting till 10.00 p.m on 15.6.2015 and thereafter he and his brothers decided to give a complaint to the police. That means there were discussions for about three hours that too in the presence of the accused. He has given rise to two contradictions as per Exs.D1 and D2 which have been duly proved through the investigating officer, PW20 in accordance with Section 162 of Cr.P.C. Ex.D1 and D2 have a bearing on the credibility of PW2. PW2 has denied to have given statement as per Ex.D1 that his - 20 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 sister telephoned him at 6.00 p.m on 14.6.2015 to inform him about rape on his daughter. Likewise he has denied to have given statement as per Ex.D2 that he consoled his sister and told her that he would come on the next day and also gave information to his brothers Sadananda Shettigar and Ashok Shettigar. That means according to him he came to know about the incident only on

15.6.2015 from his mother and did not come to know anything about the incident from his sister on 14.6.2015. Exs.D1 and D2 therefore contradict the testimonies of PWs1 and 7. If he had received information on 14.6.2015 itself, he should have admitted it. If there is truth in the testimony of PW2, the statements of PWs1 and 7 become doubtful. That apart if according to PWs1, 2, 7 and 9, accused 1 and 2 were secured to the house of PW1 on 15.6.2015 itself, why information was not given to police on the same day has no explanation. If they really had committed crime, - 21 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017 information could have been given to the police on the same day. According to PW7 a lady police came to her house in the morning of 15.6.2015 and took the statement of her daughter as per Ex.P1. The evidence shows that both the accused were taken to custody on 15.6.2015 itself but it is not understandable as to why FIR was registered on 16.6.2015. It is quite surprising that the police have shown the place of arrest of accused 1 and 2 as some place other than the house of PW1 which is quite contrary the evidence of other witnesses.

PW7 has stated that PW1 was taken to a hospital at Bailoor but the doctor there did not examine her and told that a police complaint should be lodged. If the doctor at Bailoor had been examined it would have helped to assess the testimonies of PWs1, 2 and 7. - 22 - NC: 2024:KHC:10162-DB CRL.A No. 914 of 2017

The above being the anomalies in the evidence of the prominent witnesses, it is difficult to accept the version of PW1. Many unexplainable doubtful circumstances prosecution case and for this reason, it is difficult to take a different view as argued by the learned Government Pleader and Sri Vinayak. The findings of the trial court therefore cannot be disturbed. Appeal is dismissed confirming the acquittal judgment passed by the trial court.

The High Court Legal Services Committee is directed to pay a sum of Rs.10,000/- to Sri V.S.Vinayak who rendered his services as Amicus Curiae. Sd/- JUDGE Sd/- JUDGE Ckl/List No.: 19 Sl No.: 2