Naravan Venkatesh Warekar v. State of Karnataka

trial Court convicted the appellant for the offences punishable under Section 354 and 506 of the IPC and sentenced him as mentioned earlier,

5. The learned Counsel Sri, Ashok R. Kalyanshetty for the appellant took this Court to the entire evidence on record and the judgment of the trial Court to contend that the entire investigation is tainted and the trial Court did not have accepted the evidence of the investigating agency. The complaint is said to have been lodged at 500 pm according to the police as per Ex.Pl, whereas the evidence of the witnesses would go to show that the complainant was present at the police station on the morning of 01022004 at 900 am onwards and even the accused. was also present at i,030 am. But despite that, no complaint was registe.red and only after completing the investigation in part, like going to the house of the compl.ainant, seizing of m ateria.I objects 6 conducting panchanaina, recording statement of witnesses thereafterwards complaint was registered at 5.00 pm and as such, the entire investigation is rendered unsustainable in law and being of tainted in nature, the trial Court ought not have convicted the accused even for offences punishable under Sections 354 and 506 of 1PC.

6. Another submission put forward by the appellant’s Counsel is that, no charges were framed for the offences punishable under Section 354 and 506 of the IPC. When the evidence of PW1 was disbelieved by the thai Court, insofar as the offence of rape is concerned, on the said tainted evidence of PW 1, the trial Court could not have convicted the appellant for the offences punishable under Section 354 of IPC. The entire evidence of PWI ought to have been rejected by the trial Court. — — C — C C - Q . C C C : Q C ) C ” C “ . N C C - C C 0 . ” C r C C C C — C D C C ” C 9 C C C 0 ) C Q Z ) - r ” C C C c — Q C I ) C 9 D C — - C C - < j ( C C C — C ) C C — - • C “ C — 1 J C L C ) C C L C D C D C — D C L C D C r C D C C L C C 9 C “ ) C ) C ) C C C C C C C C C L C C 0 C C C L C 1 C C ) C C C < L C C ” C C ) C — ) C — C C C C C r ) C r C j — r j t L C C ” C C — — * r C — L C L C 2 Q — J - ) C C - — C r C i - C C - C C C ) C C C r C ” C ” C C ” C ” C ” C a a C — — 0 — . o _ _ _ _ _ _ _ _ _ were present at the police station at 93O am itself and PW4 keeps on visiting the police station during the course of the day and sits for long time, This itself shows that the accused was falsely roped in the case at the behest of PW4. If the evidence of PW4 is taken out of consideration and PW I is not believed as her evidence was not accepted by the trial Court respect of the offence of rape, there remains nothing In the evidence to convict the accused for an offence in regard to which no charge itself was framed, As such, the judgment of conviction and sentence passed requires to be set aside and accused be acquitted of the offences alleged against him 9, The learned Counsel the appellant respect submission and more particularl3, refernng to thc tainted Investigation placed reliancc on the Apex Court’s decisions recorded n 1994 Supp (1) SCC 590 and (2001) 3 900 9

10. On the other hand, learned High Court Government Pleader for the State supported the judgment of the trial Court insofar as the conviction of the appellant for the offences punishable under Section 354 and 506 of IPC are concerned and argued that evidence of PW 1 goes to show that the accused did commit the offence in regard to which he was convicted and sentenced.

11. Having thus heard both sides, the only point for consideration is whether the conviction and sentence passed by the trial Court in respect of the offences punishable under Section 354 and 506 of IPC can be sustained in law?

12. First of all, it is to be mentioned that the charge was framed against the accused for offences punishable under Section 376 and 506 of the LPC on the complaint allegations that I0 prosecutrix was raped kv the accused. Despite PW1- prosecutrix giving evidence in this connection, learned trial Judge disbelieved her and acquitted the appellant insofar as the offence of rape is concerned. The trial Court has specifically observed in the course of his judgment that the evidence of the prosecutrix is not reliable and believable and accordingly, the Court held that the offence of rape has not been established by the prosecution beyond all reasonable doubt. When the evidence of the prosecutrix is rejected by the trial Court, insofar as the offence of rape is concerned, it is doubtful as to how testimony of PW1 could have been relied on by the trial Court to convict the appellant the offences punishable under Sectjon 354 of the IPC.

13. This Court in the case of State of Karnataka by Sriniuasapur Police Vs. Krishnappa reported in 2004 (1) KCR 656 has held that, when the evidence of the victim of alleged rape is ) C i c < C S C S D C i c D C D C C C S C r a D C C S i c D C C S - C o C r C S C S o C D C i i c . D C D C — D C C S D C D C D C C S C S C S C r D C ) D C C S C S D C D C r C C S “ * - C C S , a - C S i c : C S a . c C S i c D C D C - o D C - D C ) i C i c Q C I C S C S o C C S C * r C S ( D C C S “ - C . “ C - S C S D C . i c < * r D C — ) - - D C < C S C S i c c . , C - + r i c D C D C C S C S C S i c D C - < D C h t D C h t r D C < D C C S D C C C S C S D C C S D C C S D C n r i c C S o C C C S C S — > o C i c C D C < D C C S C S i - C S C S ( + r C D C C C S C S C S C S i c ? C i c i c Q i c D C “ D C C S 1 D C D C C S r C D C C C S i c D C C S P r i c 1 ) C D C CC S C f r o c C S C S C C S i c D C ) C C S o CC Do C - C S o C . . i Dc C o CC D C i c D C D C ) C C CbC S C S o C D C C CS C S i c C S D C o C C CS C S D C C S r ) C i Cc S i c C S C S C S i Cc 1S D C D C C S i oC c C C S i o c C D oC C o i Dc C i C c a - S o C D C i - D C C S D C i D c C i C c S D C C 0S C S r c C C D D C C S i Cc S i C c S o C C C S )C S C i C D C C S C S i Cc S ) C i Cc S i c C S C S D C D C C S i c D C i C i C c S ) 0C C o D C C C S C C S . i c )C C C S C S C S 0 ) l C i Dc C ) C E C — ) E a Z ) U D < C ) C 0 a C 0 ) l a C i c ) U C i c D C i c - i c D C Q a - 0 — i c c c C i c a i c l f Z Q i c 0 • 0 ) i c ÷ . — D C i c i c ) l C i c D C , — i - D C D C a S . . . , D C i c - D C - - r D C . 0 0 0 ) C i c 0 . D C ) C i c - 0 i c D C i c D C i c i c i c i c D C J i c D C ) l C . D C i J c - D C c a 0 0 D C ) C i c ) ) C C a i c i c Q Q i c ) C . r i c 0 D C a ) C j — 0 : c i c D C a r I U ( . ) U ) l C I i c H i c D C i o C ) 1 D C ) - t O C l ) L C i c D C - D C r i c D C ) l C i c • ) i c a c i c c a i c * r i c C ° i c 0 0 c i c • ) C 0 c D C a 2 i c - C ÷ - r i c . ) C - i c ) C a ) l d 0 i c g i c D C U ( i c ) ) l C . f r J - D C ) ) C j C g P i c N D C i c 13 material objects 2 to 4 under ExP2 mahazer and also seized hairs of PWI under E,cP8 mahazar and seizure of clothes under E,cP5 mahazar, Statement of witnesses were also recorded by him,

17. If evidence prosecution witnesses is read in the light of the police officials, it is clearly established that the entire investigation was done even before the complaint was registered by the police and FIR reveals the complaint was registered at 6OO pm on OLO22OO4, Thus, investigation conducted prior registering the complaint gets tainted and even the CPJ and other police officials have suppressed the real facts of the case. The C.PJ goes on to deny the suggestion that the complainant as present at the police station at 9OO am but we have seen from the evidence of the complainant other witnesses complainant and others u crc pr sent at polk e station t9OOam 1 D C D C Q D C r T C D C T C C C ) l D C D C D C D C ) C c D C L DC C D C ) C T C D C 6 ( D C Q C I C D C D C D C ) l C D C D C • D C C L C L C T C D C D C Q T C C T C D C D C D C - D C ) i C r ) D C . Q D C . D g C I - C D C D C D C ) i C Q D C — - D C - C D C Q D C j ( D C T C D C ) ) C D C D C C D C T C T C t r D C T C C D C D C Q D C — ç D C D C - C D C C C N c - C ) . - r c - D C - - 1 ) D C 1 — D C ) C C C D C ) ( . . D C D . — • r D C 1 — c a C . D C 2 C ) D C i D C i C L D 6 T C D C T C D C D C D C Q , 6 — 1 C ! C c C j . . ) l C j T C 15 a

20. In another decision in the case of Kanhai Mishra Vs. State of Bihar reported in (2001) 3 SCC 451, Apex Court has held that, where the informant while he was in the police station had not disclosed the name of the appellant, recording of fardbeyan at the house of the informant instead at the police station, would go to show that the informant did not suspect complicity of the appellant with the crime and subsequently, after due deliberations, fardbeyan was given and in such circumstances, the evidence of informant would become doubtful and the relevant observations of the Apex Court which are at para 7 are as under: “When the witness had gone to the police station, we do not find any reason as to why fardbe an was not recorded there at 9 O’clock but recorded at the house of the informant after two hours at 11 o’clock which goes show that there was inordinate fardbeyan. This further shows that by the recording D C — 0 ) 1 4 - r D C — — 0 D C o * r D C — , , C D C ) C “ - r - 4 r ) C - - D C D C - , r — ) l C 0 - i — r 0 D C < — 0 D C ) £ D C r c ) , , C • n q r c D C - r D C ( C . 4 - - D C o ; J - - r - 0 . j - D C J - 4 ) l D D C D - — - D C 0 4 - D C 0 . 4 - — o 1 0 - 4 0 ) 0 D C 0 D C , C c - 4 D C + Z - ’ C - t r ) N 3 - 4 , 0 c C 4 - D p - C i D C l )p- C 40 0C D0 0 ) l C , C c D P C e - 0 ) ,0C C C c D 0 0 0 DI C ) / C — r - — — Q C I c o D C 0 o - - D C ) l C D C D C 0 — - , ) / 4 C - 9 < D C ) C 4 - — ) — D C 0 0 D C j . i o 4 - o ) 4 - 4 • D C D C 0 0 Q ) ) 0 Q ) < D C 0 ) Q C I 0 — + r - D C • D C < D C — o - - + r 0 r 1 D C Q T C j ) r 1 - 0 • D C . — I ) D C - 9 H Z D C D - C D C ) C 0 _ ) — 4 D C Q T C - 4 - 0 D C + r D C . - n < D C ) ) . . — + r D C — 0 Z + r = D C = D C + r • r - D C 0 ) C D C C — 4 - J - i ‘ D C 0 • i t . — D C - < D C i c q y ) 0 - • • ) C 0 0 i c 0 D C Q < ° J - D C C 0 C • 4 - r r : D C — - r • ‘ 1 C - C ) - r 4 c c • ) > Q C C : • ) C < = ) i C _ _ _ _ _ _ _ D C D C ( D C . - ) C ) C L C - - ) / C D C D C ) C . S ÷ . a D C a C ) C D C ) l C ; . . S D C 9 a t - - ) C L C 1 - D C ) C D C . S , — D C ) a C r . 2 — — L C D C - C C 1 0 - < — L C — a ) . 2 ) C - Q Q D C . - D C ) — a t - D C L C t — D C a D C ) C D C D C - i - ) U D C D C . — a L C ) C - H — D C — C a - r D C L C ) i C D C ) C D C — ) C 2 0 . - ) . C — ) i C - 9 C C 1 0 ) C ) C D C i - D C D C D C - a D C D C D C * r D C D C Q T D C 1 - — ) C — D C C S D C ) C - r a < D C ) ) D L C D a ) i C C C 1 0 ) 9 C C 9 ) i C a ) C C ) 9 D C D C 1 < ) 9 D C L C D C D C a r — . D C — ) C C 1 0 ) 9 t - D C D C b D C . ) C . D C D C 9 D C 2 t ) C a 2 — ) ) 9 ) C 9 ) C — ) C o - ) C - < — ) C L C — ) C r ) D C C ) 9 L C . L C ) _ D C 9 L C D C - Q T C ’ a Q T C — ) l C ’ a ’ a 0 ’ a ’ a ) ’ C 0 - 0 ’ a ’ a ’ a ’ a ) C ’ a - 0 ) l C ’ a . . ’ a - p ’ a ’ a ’ a ’ a - , — U - 0 . ’ a ’ a = ’ a ’ a - , — - ’ a ) ) / C ’ a ’ a 0 ’ a ’ a ) C ’ a ’ a ’ a ’ a t r — ’ a ’ a ’ a ’ a - - — ’ a ’ a 0 0 ’ a i - ’ a ) C t r - ‘ $ - 0 ’ a ) Q ’ a ‘ — t C — ) C ’ a ’ a ) / C 0 - 0 ’ a - ) 0 r ’ a ’ a ’ a ’ a ) l — C t ’ r ÷ z - ‘ ’ a r ’ a ’ a - 2 — ’ a < ’ a . • t r ’ — a ’ a - 0 ’ a - 0 — ) i 0 t r ’ a - ’ a 1 - ’ a . — ’ a i - ’ a — o 1 ’ a ’ a ’ a ’ a ’ a ) C . — ’ a ’ a ’ a ’ a < • — ) ) l C ’ a ’ a ’ a 2 - ’ a ’ a ’ a — * ’ - ’ a ’ a ’ a ’ a ’ a r ’ a ’ a - . ’ a ’ a - ’ a 0 ’ a t r ) ) / C ) ’ . C ’ a ’ a ’ a ’ a ’ a • - ) / C ) N - . ’ a Q ’ a ’ a . ’ a ’ a < ’ a ’ a ) ’ C . - : P ’ a ) ’ C - 0 ’ a , . ’ a ) / C ’ a ’ a ’ a ’ a ’ a ’ a ’ a - 0 Q f — ) 1 ( t C r ’ a n r c ) l C ’ a r 0 ’ a H = . , ’ a ’ C ’ a ’ a r - ) à ’ a — t r - 0 ’ a . ’ a - r ’ a ’ a ’ a < ’ a ’ a ) 0 - - - ’ — a t ; - ’ a ’ a ’ a Q - z r i - 0 - 0 ’ a T h ’ T a ‘ — . ’ a ) / C ) / ’ a i f r ’ a I L ’ a