T. Diwakara, Bethur Anjani, Chilichodu Parasappa and Bethur Shivanna Bheemappa vs State of Karnataka

K. Sreedhar Rao, J.—The case of the prosecution is that the accused Nos. 1 to 9 committed a gang rape of PW10 on 20.9.2003 at 12 noon. Accused No. 10 after the incident, in the night, said to have threatened PW10 with dire consequences if she were to give police complaint. The complaint is lodged two months after the incident, Apart from the evidence of PW10 there is no other corroborative evidence to prove the allegation of rape. The counsel for the accused filed an application u/s 391 Cr.P.C. for production of the certified copy of the charge sheet and the depositions in S.C. No. 85/2005. In the said case the accused are the witnesses. The complainants are persons belonging to lingayath community. PW10 also belongs to lingayath community. It is a case of a group clash and a case and a counter booked against both the groups. It is argued that on account of vengeance, vindictively a false complaint is given through PW10 against the accused persons. The statement of PW10 was recorded before the Magistrate. After the lodging of the complaint, PW10 has turned hostile. But the trial court convicted the accused on the strength of statement of PW10 recorded u/s 164 of Criminal Procedure Code. The trial court grossly erred in placing reliance on the statement recorded u/s 164 of Criminal Procedure Code as substantive evidence, While convicting the accused the statement recorded u/s 164 of Criminal Procedure Code does not have any better legal status than the one recorded u/s 161(3) of Criminal Procedure Code. At the most, if the deponent whose statement is recorded u/s 164 of Criminal Procedure Code turns hostile, he/she could be prosecuted for injury but on the strength of such statement no conviction can be placed.

Hence, the order of conviction recorded by the trial court is bad in law and the same is set aside. The accused are directed to be set free forthwith. Registry is directed to communicate the operative portion of the order to the Jail authorities and to the trial court for compliance.