Criminal Appeal No. 1767 of 2011. Case: Raja and Others Vs State of Karnataka. High Court of Madras (India)
| Case Number | Criminal Appeal No. 1767 of 2011 |
| Judges | Pinaki Chandra Ghose and Amitava Roy, JJ. |
| Issue | Indian Penal Code - Sections 366, 376(g), 392, 34; Criminal Procedure Code - Section 313; Indian Evidence Act - Sections 113A, 113B, 114A |
| Judgement Date | October 04, 2016 |
| Court | High Court of Madras (India) |
Judgment:
Amitava Roy, J.
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Distressed by the reversal of their acquittal from the charge under Sections 366/376(g)/392 read with Section 34 IPC, as recorded by the trial court, the appellants have impeached the impugned judgement and order of their conviction rendered by the High Court in the State appeal.
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We have heard Mr. Basava Prabhu S. Patil, learned senior counsel for the appellants and Mr. Joseph Aristotle S, learned counsel for the respondent-State.
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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.
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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.
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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.
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The instant adjudication being one to examine the tenability of the conviction of the appellants on the reversal of their acquittal, an independent assessment of the evidence on record is indispensable in the interest of justice, two courts of facts having arrived at irreconcilable conclusions on the same materials on records. It would thus be expedient, to analyse the evidence, oral and documentary before adverting to the rival arguments based thereon.
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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.
The prosecutrix proved the complaint/FIR as Ex. P1. According to her, in the next morning at 6 A.M., the appellants were brought to the police station. She admitted to have been taken to the Vanivilas Hospital where she was medically examined. She also identified the ear studs, material Ex. 1 and also her inner-wear material Ex. 2 and broken pieces of glass bangles material Ex 3. She also stated to have identified the appellants in the...
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