JAFAR SADDIQ Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE appellant has challenged his conviction and sentence for the offence under Section 376 read with Section 511 IPC on a trial held by the Fast Track Court, Shimoga.

(2.) THE facts relevant for the purpose of this appeal are as under. PW-6 the prosecutrix, is a citizen of France and had come to India along with a team of 23 persons for a workshop. She was staying in varadashri Hotel of PW-3 Venkatesh. On 17. 1. 2005 she alongwith her son aged about 9 years went for a walk at about 11. 30 a. m. on ganapathikere bund in between 11. 30 a. m. to 12 noon and at that time the accused smiled at her and then she asked him about the way in which they have to proceed by the side of the lake. The accused nodded his head and pointed with his hands and indicated the right way. After about 10 minutes thereafter the complainant and her son came near the bushes and the accused who was behind them touched her back and the prosecutrix said 'no' and then again the accused chased and came close to her and touched his hands all over her body. She started punching him but her whole energy got paralyzed as she was struggling to punch him and at that time the accused put his two fingers into her private part and then unzipped his trousers and to make an attempt to commit sexual assault and at that point of time the son of the complainant was crying loduly and thereafter the accused ran away from the place. Afterwards the prosecutrix returned to the hotel with the bicycle and informed about this incident to pw. 1. Thereafter they went to the hospital for the purpose of treatment and submitted the complaint to PW-7 the PSI, Sagar Police Station who came to the hospital. During enquiry he came to know that the cycle belonged to one Abdul Azeez, the father of the accused who was secured and on the basis of the driving licence Ex. P-3 the proscutrix identified the said person as the person who made an attempt to commit the rape. After recording the complaint Ex. P-8, he registered a case in Crime No. 9 of 2005 for the offence under Sections 376 and 511 of the Indian Penal Code and sent the complaint Ex. P-8, FIR Ex. P-9 to the learned Magistrate and seized Ex. P-3 the licence under a mahazar Ex. P-2 in the presence of PW-2 and others. The cycle MO-1 was also seized under a mahazar Ex. P-4 in the presence of PW-3 and another. It is thereafter that PW-9 continued the investigation and after enquiring with the prosecutrix and seized the cycle and the licence and held the spot mahazar Ex. P-1 in the presence of the attesting witnesses and arrested the accused and sent him for the medical examination. Thereafter PW-8 continued the investigation and after collecting the injury certificates Exs. P5 and P-6, sent the sealed articles to the chemical examiner and recorded the statement of the witnesses and obtained the certificate Ex. P-11 and after the completion of the investigation filed the charge-sheet against the accused.

(3.) DURING the trial, the prosecution examined PWs-1 to 9 and in their evidence got marked Exs. P-1 to P-13 and the statement of the accused was recorded under Section 313 Cr. P. C. He has taken the defence of total denial. In his defence evidence he has got marked Ex. D-1 the contradiction in the statement of Venkatesh PW-1.