IN THE COURT OF THE LIII ADDL, CITY CIVIL AND SESSIONS JUDGE AT BANGALORE Special Court (CCH-54) DATED THIS THE 31 st DAY OF MARCH, 2016 PRESENT: Sri. G.B. Mudigouder., B.Sc.,LLB.,(Spl.) LIII Addl. City Civil & Sessions Judge, Bangalore. S.C.No.1242/2015 Complainant : State of Karnataka by Reptd by Investigating Officer, CID, Bengaluru (Spl Public Prosecutor) -V/s - Accused : Shreemad Jagadguru Shankara charya Shree Shree Raghaveshwara Bharathi Shri Swamiji (Formerly known as Sri Harish) Aged about 40 years, Shree Samsthana Gokarna, Shree Ramachandrapura Math, Haniya Post, Hosanagara Taluk, Shivamoga District, Now R/at the Administrative Office Ramashrama, No.2A, J.P. Road, Girinagar, Bengaluru 560 085. (By Sri. Shankar P.Hegde & Associates, Advs)
2 ORDER ON PETITION UNDER SEC.227 OF CR.P.C. FILED ON BEHALF OF THE ACCUSED SHREEMAD JAGADGURU SHANKARACHARYA SHREE SHREE RAGHAVESHWARA BHARATHI SHRI SWAMIJI This petition came to be filed by the accused to seeking discharge him from the charges of rape and threatening leveled against him on the ground that there are no materials or no grounds to frame the charge against him, which reads as under:- It is stated that Srhi Swamiji is seeking this court to exercise the power endowed under Section 227 Cr.P.C and to discharge him from the above said case on the ground that there are no sufficient grounds to proceed against him. The background of the case should not be lost sight off as it goes to the root of the case demonstrating genesis of the case. It is submitted that the petitioner Shree Shree Raghaveshwara Bharathi Shri Swamiji is the Pontiff of Shree Samsthana Gokarna Shree Ramachandrapura Math, Hosanagra, Shimoga, hereinafter referred to as Shree Math. His Holiness is the 36 th Pontiff in the unbroken lineage of Sri Adi Shankara Paramapara and the Petitioner hereinafter
3 referred to as Shri Swamiji. Shri math is a religious math established by Adi Guru Shree Shankaracharya and is engaged in the propagation of the spirit, values and teachings of the Hinduism and Sanathana Dharma. Shree Math was founded about a thousand three hundred (1300) years ago at Gokarna, Kumta Taluk, Uttara Kannada District, Karnataka having headquarters situated at Ramachandrapura Village, Hosanagara Taluk, Shimoga District. Shree Math also has branches including Administrative Office situated at the address mentioned above in the cause title. It is further stated that during 8 th Century A.D. Shree Aadi Shankaracharya, the proponent of Advaitha Siddhanta had visited the holy land of Gokarna and established Shree Math by ordanining his disciple Shree Vidyanandacharya as the Pontiff of Shree Math to look after and manage the affairs of the same. Shree Shri Swamiji herein is the present/incumbent Pontiff (Peetadhipathi) of Shree Math and is the 36 th Pontiff in unbroken line of such Shishyas (Guruparampara) of Shree Aadi Shankaracharya. Due to historical reasons, the 12 th Pontiff of Shree Math changed the venue of Shree Math s activities to the Ramachandrapura Village
4 of Hosanagara Taluk, Shimoga District, on the banks of the Holy River Sharavathi. It is further stated that the Government of Karnataka has denotified the Gokarna Mahabaleshwara Temple after considering the materials placed before it. Consequently, the administration of the said temple was handed over to Shree Math headed by the Shri Swamiji herein. Thereafter, certain disgruntled people with vested interests, mainly the members of Gokarna Hitarakshana Samiti started continuous zap on Sri Math and the Shri Swamiji personally. Several writ petitions were filed before the Hon ble High Court of Karnataka and many of them are pending for consideration. Even some PILs (Public Interest Litigations) were also filed making false personal allegations against Shree Math and the Shri Swamiji. It is further stated that a Criminal Case was registered in Crime No.27/2010, against the accused therein, for the offence of morphing and making fake CD with the intention to tarnish and destroy the image of Shree Math and the Shri Swamiji. The Gokarna Police after detailed investigation filed charge sheet, against the accused therein, for the offence punishable under Section 120(b), 153(a), 295(a), 298, 500, 511 along with
5 149 of the Indian Penal Code and Section 67 of Information Technology Act, 2000 ( IT Act, 2000 ), the said matter is pending trial. It is further stated that subsequently some false cases were registered against the office bearers of Shree Math making allegations of sexual harassment and the same ended in filing of B-Report by the police after thorough investigation. The same was accepted by the Hon ble Magistrate and investigation was dropped on reaching finality. The same is in Crime No.401/2009 before the Court of Civil Judge, Junior Division and JMFC, Hosanagara. It is further submitted that number of PILs filed against Shree Math and Shri Swamiji are pending before Hon ble High Court of Karnataka. An Association by name Gokarna Hitharakshana Samithi and ASTRA, an NGO, together being petitioner had filed one more writ petition bearing WP No. 36998/2013 (GM-RES-PIL) on frivolous and fictitious grounds. After filing of the said PIL, the petitioners therein and several other persons making threatening calls and adopted blackmail tactics and demanded Rs.10 Crores for withdrawal of said PIL, failing which, they would pursue the PIL and they would also file more cases against the Shree Math and Shri
6 Swamiji to tarnish the image of Shree Math. The said blackmailers/extortionists were caught red-handed by the Girinagar Police based on the complaint made by the CEO of Shree Math dated 21.3.2014. The Girinagar Police have registered the complaint in Crime No.47/2014 and arrested the accused by laying charge sheet for the offence punishable under Section 120(b), 420, 389, 170, 418, 465, 471 r/w 34 of the Indian Penal Code. The said case is pending Trial before the Court. It is further stated that Dharma Chakra Trust, a trust attached to Shree Math and Shri Swamiji who were made as Respondents in WP No.36998/2013, represented through their advocate, filed affidavit before the Hon ble High Court and brought the illegal activities and developments that took place throughout. Based on the affidavit filed by the GPA Holder of the Petitioner and others, the writ petition came to be dismissed by the Hon ble High Court by order dated 04.08.2014 and an exemplary cost of Rs.1 lakh has been imposed on the Petitioners therein for abusing the process of court and filing frivolous cases. Further, the Hon bel High Court in the very same order restrained the Petitioners and the Counsel representing the Petitioners in the said PIL from filing PILs or representing any PILs permanently.
7 It is further stated that during the course of arguments in a bail petition filed before the Hon ble High Court in Criminal Petition No.3033/2014 by the accused therein, the Advocate representing the accused threatened the Advocates representing the defendantfacto complainant and categorically warned that he will not spare anybody and he would see to it that Shri Swamiji shall remove his saffron robes and walk away. It is further stated that during Chaturmasya Vratha performed last year at the branch Math situated in Kekkar of Honnavara Taluk from 12.7.2014 to 09.09.2014, threatening phone calls were received by Dr. Gajanana Sharma, one of the Director of Ramakatha Program and he immediately lodged a complaint before the jurisdictional police on 16.7.2014 which is under investigation. Similarly, Ms. Deepika, Mrs. Shankarimurthy Bailila, both performers at Ramakatha program, Mr. Raghavendra Madhyastha, Camp Manager of the Petitioner also had received threatening calls from unknown telephone numbers and they have also lodged the complaint before the jurisdictional police stations. It is further stated that the blackmailers have further threatened Mr.B.R.Chadnrashekar who was a coordinator of Ramakatha program and also Secretary
8 of the Suraksha Wing over phone. The person who called Mr.B.R. Chandrashekar identified himself as Mr. Divakara Shastry and demanded dethronement of Shri Swamiji from the Peetha along with ransom of rupees three crores in lieu of not lodging a false complaint against Shri Swamiji. He further threatened that his wife Mrs. Premalatha Divakar and his brother Mr. Narayana Shastry have even prepared a written complaint to be filed against the Shri Swamiji by alleging sexual harassment and other offences. Further, he has also threatened that he will tarnish the image and reputation of Shree Math/Shri Swami by foisting false story before media and they will also lodged complaint before the police and also before the women s commission. The said Mr.B.R. Chandrashekar lodged a complaint before the Honnavara police and the same was registered in Crime No.342/2014 on 17.08.2014, for the offences punishable under Section 120(b), 153(a) and (b), 384, 420, 504, 506, 511 and 34 of the Indian Penal Code along with Section 66(a) on IT Act, 2000. The Honnavara Police after holding preliminary investigation and recording the statement of various persons, arrested Mr. Divakar Shastry and Mrs.
9 Premalatha Divakar and produced them before Hon ble JMFC, Honnavara. It is further stated that when the matters stood thus as an afterthought a counter blast complaint was lodged by the daughter of Mr. Divakar Shastry and Mrs. Premalatha Divakara (Prosecutrix) by name Ms. Amshumatthy Shastry (complainant) on 26.08.2014 before the Banashankari Police got registered the false complaint against the Shri Swamiji in Banashankari Police Station Crime No.2119/2014 for the offences punishable under Section 354(A) and 506 of Indian Penal Code. Further, the Prosecutrix submitted the written complaint before learned JMFC, Honnavara in a case registered against her and Divakara Shastry. It is further stated that Shri Swamiji is a law abiding innocent citizen and false allegations are foisted against him in order to tarnish the reputation, goodwill and image of Shree Matha and Shri Swamiji. It is further stated that the complaint is so absurd, inherently improbable, preposterous that no prudent man can ever reach a conclusion that there is any case made out against Shri Swamiji, including alleged rape case.
10 It is further stated that the complaint is palpably false and inherently improbable. The same is made out of personal vendetta to harass and humiliate Shree Swamiji in the eye of public and to undermine his image in the minds of disciples. It is further stated that the complaint of the complainant is hit by enormous delay and latches. The complainant has lodged the complaint after a lapse of 3 years from the date of the alleged first incident. The complaint on the face of it is wholly unnatural, doctored and concocted as the complainant gave statement before the CID during investigation of Crime No.164/2014 without whispering anything about the allegation made by her in the complaint dated 29.08.2015 tendered before the JMFC, Honnavar. It is further stated that the motive for lodging the complaint is twofold; first one emanating from humiliation suffered by Divakara Shastry and CMN Shastry, who made Shri Swamiji honourary President of Shree Uma Maheshwara Temple Hosagunda, Shimoga District. The said CMN Shastry collected donations from various people and failed to furnish accounts. On being questioned by the CEO of Shree Math lost temper and cautioned him to mind business of his own. Feeling the
11 relentless pressure of people, which was unbearable, CMN Shashtry presumed that Shri Swamiji is instrumental in awakening the public. He opted to criticize Shri Swamiji in public by having axe to grand against him. SEcndly, Divakara Shastry and the Prosecutrix Premalatha were also shunted out from Shri Math by dissolving various committees presided by Shastry couple, for which the couple had openly expressed their displeasure, with this Divakara Shastry had suffered business loss and was in acute need of money. Hence, as confessed by him before the Panchas on 27.06.2014 which was ended in recovery of the materials in their i-phones, i-pads, computers, etc the couple had planned for extortion of money from Shri Math. Thus the confession of the husband about the involvement of his wife Premalatha is proved, as confession against Premalatha is admissible under section 10 of Indian Evidence Act. The recovery of material as narrated in the confession is also legally valid in view of Section 27 of Indian Evidence Act, i.e., confession resulting in recovery. Thus the case of B.R. Chandrashekar lodged as stated supra supported by two 164 statements recorded before the Hon ble JMFC,
12 Honnavar under the Code of Criminal Procedure are sufficient to demonstrate motive for lodging this case. It is further stated that the panchanama prepared by the Honnavar Polcie in the presence of Panchas shows that instant complaint filed by the complainant Amshumathi Shastry is an afterthought. Under such circumstances from the documents produced by the complainant herself, it is demonstrated that there is no sufficient ground to proceed against Shri Swamiji. It is further stated that the complaint lodged by Amshumathi Shastry on 26.08.2014 is false and frivolous, hence not a first information in the eye of law as enshrined under Section 154 of Cr.P.C. This complaint has no reference to the alleged incidents narrated by Prosecutrix in her statements. The submission of incomplete complaint dated 27.08.2014 produced by Premalatha before Hon ble JMFC, Honnavar contains several blank spaces, a meticulous reading of the complaint shows that the complaint is doctored/concocted and had undergone several corrections by several people including the legally trained person and an Astrologer. Hence, the alleged complaint produced before the learned JMFC, Honnavar by Prosecutrix ahs no legal sanctity.
13 It is further stated that the e-mails produced shows that the complaint produced by Prosecutrix is a corrected version and was seen by many people. The copy was sent to various people on 3.8.2014 itself. Several discussions were made as alleged by Prosecutrix before several people about the alleged incidents. Therefore, it is unique case, wherein there is no material to show the ingredients required to constitute any of offences including an offence of rape and sexual abuse. The entire First Information Report and complaint even if accepted at its face value, do not disclose all the ingredients of alleged offence. It is further stated that it is cardinal principle of criminal jurisprudence that only the materials which can be translated into legal evidence can be taken into consideration at the state of hearing before charge. Therefore the complaint and First Information Report based on here say evidence cannot be considered as legally valid material which can be translated into evidence at the time of trial. Therefore, on this solitary ground alone Sri Swamiji is liable to be discharged. It is further stated that Prosecutrix and her husband had discussed about alleged incidents formulated in secrecy vide their emails dated
14 25.06.2014 at 9.03 a.m., and 9.39 a.m., under the caption tilivu. It clearly shows that couple had planned to foist a false case even before the alleged incidents dated 26.06.2014 and 27.06.2014. These emails further show that defence theory of passing the information on 30.06.2014 is false. It is further shows that no incident as alleged by Prosecutrix had taken place on 26 and 27 th of June 2014. It is further stated that the statement given by Smt. Premalatha on 05.09.2014 before Girinagara police at Karawara shows that the alleged incident of rape dated 26.06.2014 had happened between 3.15 p.m., to 3.30 p.m. The statement of Sri. Abhiram CW38 shows that the Prosecutrix had gone out from Math by 3.00 p.m. The Call Detail Register which is having evidentiary value of unimpeachable quality also shows that the Prosecutrix was not present in the alleged scene of offence during the time stated by her. This clearly shows that there is no material produced by the prosecution to show her presence in the alleged scene of offence during the alleged incident. It is further stated that on 06.09.2014 the police searched the house of Smt. Premalatha but no incriminating material relating to the alleged rape was
15 found. Hence nil panchanama was recorded. However, she had claimed in her statement dated 05.09.2014 that she had preserved two sarees, one petty coat and one panty liner relating to the alleged incidents i.e., one saree and one petty coat relating to the alleged incident dated 26.06.2014 and one Saree one and one panty liner relating to the alleged incident dated 27.6.2014. On 17.09.2014 Divakara Shastry and the Prsecutrix came back to their house with the CID police, even then did not handover any incriminating material including sarees and petty coat. Again on 18.09.2014 the prosecutirx along with her husband visited CID office and met sleuths therein. Later as a part of larger conspiracy the CID police came to her house in the evening at 8.00 p.m., and collected the so called incriminating materials under panchanama. The delayed collection of materials under panchanama coupled with conspicuous presence of new item not divulged earlier in the statement and number of hairs found in the article No.6 while opening in the biology section of Forensic Science Laboratory, conjunctively shows that article no.6 in toto is a fabricated/doctored material object.
16 It is further stated that the complaint given by the Prosecutrix and her daughter is nothing but a counter blast to the complaint lodged by B.R.Chandrashekar and others. The complaint of Prosecutrix is not only incomplete but also a concocted story created to suit their ulterior motive of extracting ransom which is evident from the panchanama narrated supra drawn in Honnavara Police Station Crime No.342/2014. Hence the complaint is not a first information as understood in law but a doctored version produced after several/series of corrections made by legally trained person, Advocate C.M.G. Shastry CW-24. It is further stated that the statement of Prosecutrix given on different dates before the police as well as before the courts consists of conspicuous improvement, omissions, contradictions, consistently made admissions on oath, later resoling without any reasoning amply shows that the statement of Prosecutrix is not worthy of credence, in the absence of corroborations in material particulars. It is further stated that the Prosecutrix has gone to an extent of alleging rape at Mangalore on oath succinctly on day to day basis, on knowing that she was not present during tntire programme, she later again on
17 oath took U turn and resiled from the earlier statement. This living and standing examples demonstrate that the statement of Prsecutrix propelled by strong motive of dethronement of Shri Swamiji from Peetha, as well as demand of ransom, made Prosecutrix to go to an extent of making an allegation of rape, even during the programme in which she was absent. Prosecutrix gave statement under section 164 of Cr.P.C., before the court number of times and on different occasions namely during her stay at judicial custody, before Girinagara Police, before CID Police, before Hon ble court at Bengaluru. Therefore, her statement recorded after more than 90 days from the date of alleged incident, cannot be accepted without corroboration even at the stage of hearing before charge. It is further stated that the Forensic Science Laboratory report dated 20.10.2014 contains several articles which are not even referred in her statement recorded u/s 161 Cr.P.C., as well as statement recorded under Section 164 Cr.P.C. Under such circumstances, there is no materials produced by the prosecution to show the genesis of these articles. In short, there is no explanation in the charge sheet as to, how? and from where? from which source? the additional materials
18 came to the Biological Section of Forensic Science Laboratory. It is further stated that the material objects including article no.6 is said to have been collected 82 days after the alleged incident. No explanation is given about ensuring safe custody of these materials for eighty two days. Therefore, the article no.6 found and collected from unprotected dustbin after eighty two days, containing additional hairs/foreign materials show that article no.6 is fabricated. It is further stated that the test relating to semen was conducted only once and the test conducted for blood was also once. Thus in all two tests were conducted. Forensic Science Laboratory report and datas were also produced by the CID police in the charge sheet. The said report along with Annexures containing the data demonstrates that there is no materials to proceed against Shri Swamiji. It is further stated that the Forensic Science Laboratory reports were submitted thrice on different dates, each time the Forensic Science Laboratory report was produced with improvement without conducting any additional tests apparently to fill up the lacunae as and when noticed in each report.
19 It is further stated that according to Prosecutrix she was alleged raped on 27.06.2014 between 8.30 p.., to 9.45 p.m. She further candidly says that, the alleged rape took place after receiving the call of Praveen D Rao shown as CW33. Mr. Praveen D Rao spoke to Prosecutrix from 8.58 pm., to 9.07 p.m. Further Shri Swamiji attended the rehearsal along with other artists from 9.00 p.m., to 9.30 p.m. Thereafter, many inmates of Math spoke to Prosecutrix between 9.30 p.m. to 9.45 p.m. Hence, there is no question of any incident taking place as narrated by Prosecutrix. Further the Forensic Science Laboratory report has clearly shown that no such incident as alleged by Prosecutrix has taken place as no incriminating material was found in the materials given by Prosecutirx alleging the containment of Shri Swamiji semen. The CDRs also demonstrate that she was in Girinagra Math between 8.15 p.m. to 8.57 p.m. and thereafter went off and never came to Math again on that day. The above said documentary evidence issued by Government of India clearly shows that the statement of Prosecutrix is far from truth. In the light of the above reasons, the prosecution has failed to produce sufficient materials to proceed against Shri Swamiji.
20 It is further stated that the incident narrated by her commencing from 2011 to 24 th June 2014 are false and fabricated, as there are no corroborative materials except self serving motivated statement of Prosecutrix. The messages, emails and whatsapp materials produced by the prosecution shows that the Prosecutrix and her daughter have addressed Shri Swamiji as Gurudeva and sought his blessings even up to 29.06.2014. The daughter had even made the portrait of Shri Swamiji and addressed him as God. Further the Prosecutrix in her statement before the Police as well before the Court has averred that she had offered a special fruit by name RAMBUTAN grown in her arcade at her native place to Shri Swamiji on 24.06.2014, that too by reaching Math on her own volition along with her second daughter. This clearly shows that entire story as hatched by Prosecutrix in secrecy is unnatural, concocted and devoid of merit. It is further stated that the sole testimony of Prosecutrix being improbable and opposed to common sense of reasonable prudent man, cannot be accepted at its face value as her conduct is unnatural and opposed to human conduct. The story of the Prosecutrix is unworthy of credence and not supported by legally
21 admissible evidences. The discrepancies got o the root of the matter and if properly noticed would lead any court to discard the version of Prosecutrix, thereby entire prosecution case. The investigation papers to be conducted to please the media and women organizations, as such final report is filed by not producing relevant materials collected in the course of investigation. The investigation appears to be manifestly biased as even in absence of material evidence to connect the Swamiji with the crime charge sheet is filed without any basis. An overall assessment of the so called incriminating material indicates that story put forth by prosecution and improvements made at every stage is patently false and not amenable to the sense of reasonable prudent man as such no reasonable prudent man can ever come to a conclusion of guilt against Swamiji on this solitary ground alone. Accused is liable to be discharged. It is further stated that the prosecutrix being an educated lady, having extensive traveling at her credit as the popular singer exposed to modern dynamic world, having blessed with two grown up children submitting herself for sex as alleged by her under the fear of Promise on God for 169 times is unbelievable,
22 opposed to commonsense and apparently appears unnatural. It is further stated that the prosecutrix has categorically stated that she has disassociated with the activities relating to math for more than six months, as such she should not have come back, if she had really suffered sexual assault as alleged by her. This act of Prosecutrix also appears to be unnatural and speaks volumes about ulterior selfish motive and conspiracy hatched in sinister design to malign Shri Swamiji. It is further stated that innumerable, inconsistent and contradictory statements couched with the half truth and patient lie shows that evidence of Prosecutrix is in the nature of accomplice and cannot be accepted without corroboration in substantive particulars/materials as enshrined under Section 114 of Indian Evidence of Act. It is further stated that the non examination of material witnesses, non production of statement of some material witnesses recorded in the course of investigation, non production of material objects collected in the course of investigation, production of concocted material/doctored materials in the charge sheet resulted in demonstrating unfair and biased
23 investigation leading to violation of Article No.21 of the Constitution. It is further stated that the Forensic Science Laboratory Department from whom the so called Forensic Science Laboratory/DNA Report is taken is not reliable as the person who has given the report do not possess the required qualification to analyze the materials relating to this case. There is no accreditation given to Forensic Science Laboratory Unit by any National or International body, which has issued Forensic Science Laboratory report and there is no sufficient data base in the lab to issue such Forensic Science Laboratory reports, as such entire Forensic Science Laboratory report is bad in law and cannot be relied upon. Further, the CID Police have no jurisdiction to investigate this case as entrustment of investigation is illegal and the order bearing No. 229/PEF/73 dated 15.4.1974 passed by Govt. of Karnataka stems from ultra virus exercise of power, hence illegal and the same does not empower CID to investigate the above said case. It is further stated that the CID Police have no jurisdiction to investigate matter relating to different years alleged to have taken place in different places and
24 at different time, thereby the investigation carried out by CID Police is contrary to Cr.P.C. It is further stated that the investigating agency has not been fair and has not discharged its duties as the guardian of personal liberty which has resulted in harassment of innocent person at the hands of investigating agency, apparently acting under pressure or on collusion with persons having hostile animus towards the Math and Swamiji. As a result the actions of CID Police have to be viewed meticulously which would reveal biased attitude of investigating agency, which would certainly enable this court to view the materials in proper prospective. It is further stated that Shri Swamiji is liable to be discharged only on the ground that the complaint has been lodged after delay of more than three years from the date of alleged first incident and the material objects alleged to be relating to this case is produced from the unprotected dustbin with foreign materials after eighty two days. Therefore, the above named accused prays that this Hon ble Court be pleased to discharge him in the ends of justice.
25 2. The copy of the petition is furnished to the learned Special Public Prosecutor, CID, Bengaluru, who filed his detailed objections as under:- The paragraphs 3 to 15 are self serving statements and is irrelevant for the purpose of consideration of this case as they are absurd and need no counter. The materials produced by the prosecution in the form of a report U/s. 173(2) of the Cr.P.C. is only to be considered at this stage. It is further stated that the statements at para 16 and 17 that the complaint is improbable and is only made out of personal vendetta to harass the accused is absolutely without any basis as the complaint and further collection of evidence clearly establishes the case of the prosecution to frame charge and hold the trial. It is further stated that adverting to para 18, it is now well settled that delay cannot be a ground to throw the complaint of the above nature, at the outset as the crime of the above nature is always within the four walls and a decision to lodge a complaint in case of the above nature is not instantaneous and therefore delay and latches cannot be a ground to discharge the accused. The Hon ble Supreme Court in State of Himachal
26 Pradesh Vs. Prem Singh, reported in (2009) 1 SCC 4320, has in para 6 observed: Quote: That delay in case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming the police station to lodge a complaint It is further stated that adverting to para 19, the sum and substance of the averments is that the complaint is motivated and is a malafide action, on the score that the complainant s husband was aggrieved because the accused was made Honorary President of some temple cannot be a ground to discharge the accused as the motive and malafadies would only surface in the trial wherein the onus will be on the defense/accused to bring out the same. The rest of the averments made in para 19 need no counter as the same is a matter of trial and similarly para 20 again needs no counter. It is further stated that adverting to para 21, the accused had canvassed such averments as in para 21 before the Hon ble High Court of Karnataka while challenging the First Information Report in the above case and since much water has flowed since then, whereas the Investigating officer in the above crime has
27 collected evidence and filed charge sheet under Section 173(2) of Cr.P.C., pending final report under Section 173(8) of Cr.P.C as the Investigating Officer is further investigating into the case and final report under Section 173(8) is awaited. It is further stated that adverting to paras 22, 23 and 24 the averments therein was also the subject matter in the High Court wherein the accused while challenging the First Information Report had canvassed the same defense taken in para 22, 23 and 24 and therefore as stated above since the Investigating Officer has collected evidence and filed a report under section 173(2) this cannot be a defense to the accused to challenge the report and seek discharge. The prosecution reiterates that only the materials produced by the prosecution in the form of a report U/s.173(2) of the Cr.P.C. is to be considered at this stage. It is further stated that adverting to para 26, clinching evidence, during the course of investigation collected, in the form of DNA test, bears testimony to the guilt of the accused, as the seminal sample collected from the clothes of the victim matches with that of accused, apart from the statement of the victim
28 recorded under Section 164 of the Code of Criminal Procedure. It is further stated that adverting to para 27, whether the complaint is a counter blast to any other complaint or otherwise is only a matter of evidence which can be brought out in evidence and cannot be looked into or taken into consideration at this stage when the investigating officer has collected evidence, to prima facie show that there is enough material to sustain a prosecution. It is further stated that adverting to para 28, that the omission, contradiction or improvements could only be gone into during trial and at this stage cannot be ground to discharge the accused in a serious offence of this nature. It is further stated that adverting to para 29 that the complainant statement is motivated is again a matter of evidence could gone into only in trial. The statement of victim is already translated into evidence by virtue of her statement on oath being recorded under Section 164 of the Code of Criminal Procedure, by a competent Judicial Magistrate and unless the complainant s statement on oath is demolished impeached by rebuttal evidence, before the court of law,
29 in the trial, the accusation will stand proved and therefore the evidence is clinching to bring home the guilt of the accused at this stage itself. It is further stated that apart from the above section, section 114 of the Indian Evidence Act, mandates a presumption to be drawn, based on the victims statement, unless the same is demolished or impeached by rebuttal evidence, which is a legal presumption, for the Acts mentioned in clauses (a) to (d) of section 375 of the Indian Penal Code. Section 114 of the Indian Evidence Act was incorporated by way of substitution in the year 2013. Therefore, the direct evidence of the victim, in the form of complaint and the statement on oath recorded under Section 164 of the Code of Criminal Procedure is clinching. It is further stated that adverting to para 30 and 31, the averments therein cannot be taken into consideration as they are all matter of evidence and the articles and the genesis of the same is as matter of evidence. Lack of materials is one thing and the absence of the same is another. In the present case there are materials/articles which goes against the accused and the worthiness of the same and to weigh the evidence of the materials one way or the other
30 cannot be considered at this stage and can be looked into at the time of trial and the allegations that they are fabricated is of no substance. It is further stated that adverting to para 32, DNA test demonstrates the guilt of the accused where the seminal sample collected from the clothes of the victim matches with that of the accused and therefore this cannot be a ground now to dislodged the same. It is further stated that adverting to para 33 that there were 3 Forensic Science Laboratory Reports with improvements is not true and the allegations that it is only to fill up the lacunae cannot be considered now as it is a subject matter of the evidence. It is further stated that adverting to para 34 and 35 about certain facts about the presence of the accused and the complaint at certain places being false as again the matter of evidence and cannot be gone into at this stage. This again was canvassed before the Hon ble High Court of Karnataka while the First Information Report was under challenge. It is further stated that adverting to para 36 to 39, the statements are self serving statement of the accused without referring to the material evidence collected by the prosecution and a bald statement without basing
31 the same on the charge sheet material need no counter as the same is benefit of any merits. It is further stated that adverting to para 40, the only material witness in an evidence of the above nature would be the victim ad her statement is recorded under Section 164 of the Cr.P.C. and substantive material evidence have been collected and therefore there is no merit in such averments being made and calls for no consideration. It is further stated that adverting to para 41, the same is again the subject matter of evidence and trial and does not merit consideration. It is further stated that adverting to para 42, the statement that CID police lack jurisdiction is again a bald statement cannot be gone into. It is further stated that adverting to para 43, again the fairness or otherwise cannot be a ground to discharge as they are the subject matter of trial and evidence. It is further stated that adverting to para 44, the averments have been explained in the paragraphs above and the same may be kindly looked into. The prosecution prays that this court may be pleased to take into consideration the judgment passed
32 by the Hon ble High Court of Karnataka on 9.2.2015 in Writ Appeal No.2843/2014 in support of the case of the prosecution. Hence, prays to reject the bail application. 3. We have heard Sri SPH, advocate for accused Mathadhipathi and Special Public Prosecutor for state at length. We have reduced the argumental points canvassed on both sides in writing said formal points forms the part of this record and both parties are entitled to may obtain certified copies of it. 4. The learned SPH counsel filed a bunch of rulings with memo which are as under:- 1) (2001) 4 SCC 333 (Om Wati(Smt.) and another Vs. State, Through Delhi Admn. And others) 2) 200(6) SCC 338 (State of M.P. Vs. Mohanlal Soni) 3) (1990) 4 SCC 76 (Niranjan Singh Karan Singh Punjabi Vs. Jitendra Bhimraj Bijjayya and others) connected with others appeals. 4) 2009 AIR SCW 5514 (State of M.P. Vs. Sheethal Sahai & others) 5) (2014) 3 SCC 92 (Hardeep Singh Vs. State of Panjab & Others) and Connected Appeals. 6) Cri.R.P. No.766/2011 (Shri N.Nanjundaiah Vs. State of Karnataka) 7) (2009) AIR SCW 118 (Rukmini Narvekar Vs. Vijaya Satardekar)
33 8) 2011 AIR SCW 1199 (Harshendra Kumar D. Vs. Rebatilata Koley) 9) LAWS (KAR) 2015-8-159 (Tulasiram Vs. The State) 10) LAWS (KER) 2013-8-19 (Jose Thettayil Vs. Station House Officer) 11) 2012 (3) AIR Kar R 236 (Anil Kumar & Ors Vs. The State of Karnataka) 12) MANU/SC/0229/2015 (Md.Ali Vs. State of U.P.) 13) 2014 CRI.L.J. (NOC) 277 (RAJ) (Pandchu Ram Vs. State of Rajasthan & another) 14) 2009 CRI.L.J. 2508 (Bikash Das Alias Ranadhir Das Vs.State of Tripura & Ors) 15) LAWS (SC) 2013-1-53 (Prashanth Bharti Vs. State of NCT of Delhi) 16) (1998) 7 SCC 337 (Suresh Budharmal Kalani Alias Pappu Kalani vs. State of Maharashtra) 17) Cr.R.No. 845/2014 (Hemant Chooubey Vs. The State of Madhya Pradesh) 18) CDJ 2014 SC 786 (Munna Vs. State of M.P.) 19) LAWS (DOM) 1995-2-83 (Priya Sharan Maharaj Alias Yadavendra Parashar Vs.State of Maharashtra) 20) Criminal Appeal No.13/2016 DD on January 6, 2016 (Tilak Raj Vs. State of Himachal Pradesh) 21) 2007 CRI.L.J. 3622 (Arun Gulabi Gowli Vs. State of Maharshtra) 5. The Special Public Prosecutor also filed a list of rulings in support of his contentions advanced as under with memo:-
34 6. This court suo moto relied on a ruling reported in AIR 1977 SC 349. 7. Having regard to the contentions and rival contentions of respective parties have to be framed a point as to 1. Whether accused has made out a ground for discharge him from the charges leveled under Sec. 376(2)(F) & (N) and 506 of Indian Penal code against him by the prosecution? 2. What Order? 8. My findings to the above point is as under: following: Point No.1: Make out the case to discharge the accused from the charges leveled against him. Point No.2: as per final order for the R E A S O N S 9. Point No.1:- The burden of establishing the point No.1 heavily thrown upon the petitioner/accused Matadipathi as to why he shall be discharged from the case by showing a materials in his favour exists on record.
35 10. On the contrary, it is for the prosecution to show accused should not be discharged from the case in other words to show sufficient materials on record to proceed against him by framing charge. 11. The CID police, Bengaluru have laid down the charge sheet against the accused under Section 376(2)(F) & (N) and 506 of Indian Penal Code by conducting deepest investigation in right direction on expert legal advice. Sri. SPH dubbed the investigation as a sketchy one to fix the accused in this case. 12. The prosecution case in condensed form is that, the Prosecutrix was having sexual affairs for over a period of 4 years from 2011 to April 2014 with the accused/mathadipathi continuously and repeatedly without any complaint or resistance during the Rama Katha programmes held and attended with her daughter in a team as a team mate as a Rama Katha devotional singer comprising of another singer Smt. Deepika and others totaling about 15 to 20 members and at the time of the rehearsals held at Girinagar Math and other branch Maths with the knowledge of her eldest daughter Amshumathi, without the knowledge of her husband
36 Sri. Divakara Shastry for over 169 (one hundred and sixty nine) times on memory accounted by her and on memory fails unaccounted many times, at different far off places, viz., Calcutta etc., across the length and breadth of the country, especially the isolated last two acts of sex on 26.6.2014 and 27.6.2014 respectively at Girinagara Math, before doing sex on persuasion in the name of Sri Rama it is a prerana of Sri Rama to coitus with him and after did sex on promising her not to reveal or to disclose to others, the acts of sex he did with her, if reveals, the disgrace of Sri Rama or curse of Sri Rama would fall on her. On that Devine displeasure or fearness she did not disclosed to anybody. The prosecutrix further alleged that on the alleged date of rape or acts of sex she worn out the inner wearing apparels on her body, the emission of semen of accused fell on her cloths and the said cloths has been preserved by earmarking the area of the seminal stain with ink and handed over to CID Police, Bengaluru, under seizer mahazar dated 18.9.2014 at 8.00 p.m., during night conducted at her house. This is the amount of explanation tendered by her for not complaining up till 27.08.2014, seventy days after the incident before Girinagara Police by her daughter Amshumathi by
37 lodging hear-say complaint as well as filing a incomplete complaint and one more complaint in the cover before the JMFC Honnavara during judicial custody and tendering her Sec.161 and Sec. 164 Criminal Procedure code statements recorded by the Girinagara Police on 5.9.2014. 13. To frame the charge against the accused charge sheet contains five successive each under Sec. 161 Cr.P.C and Sec. 164 Cr.P.C. statements of prosecutrix respectively and the statements of the witnesses and documents especially the DNA profile of blood of accused taken independently to match the seminal stain alleged belonged to accused annexed with the other documents i.e., most relevant documents namely, recovery panchanama dated 18.9.2014 and two DNA profiles relating to disputed seminal stain on panty liner and blood of the accused respectively, etc. 14. The whole prosecution case projected revolves under substantial question whether prosecution on its materials successfully establishes or shows particularly on two isolated dates viz., on 26.6.2014 in between 3.00 p.m., to 3.15 p.m., and on
38 27.6.2014 in between 9.15 pm., to 9.45 p.m., at Girinagar Math. Accused Mathadipathi had indulged in sex with prosecutrix. 15. If prosecution fails to prove or shows the only materials which can be translated into legal evidence in the case, the court with no other option to discharge the accused. If the accused Mathadipathi successfully shows or proves no grounds to frame the charge this court no other alternative has to discharge the accused holding relation of the accused and aggrieved lady that of ill-intimacy only. 16. Sri SPH, counsel for accused Sri Swamiji canvassed that the Sec 227 and 228 of Cr.P.C. are in just position, the order of discharge shall be passed is under Sec. 228 of Cr.P.C, but, not under 227 of Cr.P.C. He relied on the rulings quoted above. We agree with the above legal position. 17. Sri. SPH, counsel further canvassed that under the cardinal principle of jurisprudence while passing order of discharge the court shall consider only materials which can be translated into legal evidence
39 can be taken only. Under Sec.228 of Cr.P.C., the court is empowered to look into the documents of the defence as enshrined in the Writ Order delivered by their lordship Sri. Paneedhra of the Hon ble High Court of Karnataka. 18. We would proceed to discuss the relevant portion of the statements of Prosecutrix, her witnesses and DNA profiles of accused/mathadipathi on consent taken and the disputed seminal stain analysis report i.e., the DNA profile produced by the Prosecution with regard to being had to common course of natural events, human conduct, public and private affairs in their relation to the facts of the particular case, which is a yardstick adopted by this court and norms prescribed under law. 19. Firstly, we take up relevant point that involved in this case that whether prosecution proves successfully the accused had indulged in sex particularly on 26.6.2014 and 27.6.2014 respectively at Math in between 9.00 p.m., to 9.15 p.m., and 9.30 p.m., to 9.45 p.m., with prosecutrix respectively.
40 20. To establish this aspect of the case, the prosecution relied on five each statements recorded under 164 Cr.P.C., by the COD Police, and statement of witness under 161 Cr.P.C., and blood DNA profile of accused and seminal analysis test profile of disputed seminal mark alleged to be found and earmarked by the prosecutrix. These are the mainly things on which prosecution firmly believed that the accused appears to have committed an offence and there is a strong and grave suspicion of him in the involvement of crime of rape alleged. Of course, the defence not only seriously disputes, but the prosecution documents viz., the statements of prosecution witnesses Cw-33 and Cw-38 and self contradictory statements of the prosecutrix under Sec.161 and Sec.164 of Cr.P.C., improved from stage to stage from material to material and electronic gadgets which are produced by the prosecution itself they themselves speaks against their own case and the tests reports of biological and FSL are self contradictory which absolved the accused from the charges of crime of rape and their own documents, the rehearsals CD done on 27.6.2014 seized from the custody of accused Mathdipati and not produced before the court, inspite of court direction which helps this court to hold absolutely
41 no materials to frame charge against the accused and drop him from the case and to acquit him by holding that the trial of the accused is nothing but harassment and embarrassment to him and relied on the bunch of rulings as mentioned above. 21. We would take up the argumental points canvassed by Sri. SHP counsel vividly that as per the version of the prosecutrix, if accused and victim copulates together semen emitted into vagina and mixed up with ovum of the victim, if that mixture falls on cloth of victim, the cloth should contain the said mixture, this is a quite normal thing, but, in a seminal profile the mixture shall be present and shall be detected. He further canvassed during copulation the epithelial cell (dead cell) of accused shall lose due to body friction and fall on the body of the victim. He further canvassed that the epithelial cell (dead cell) of man when walks shall fall on the ground. Those epithelial cells of both victim and accused shall be detected on the cloth which contains the seminal stain. In the instant case the mixture of semen and ovum and mixture of epithelial cell of both victim and accused were not detected. The epithelial cells detected to whom belonged to is not
42 mentioned in the report. It is deliberately left out for best known reasons. Under such circumstances and facts of the case, the emission of semen constitutes not a part of the crime of rape alleged either positively or negatively. For lack of this essential evidence, it is very difficult to hold that accused had indulged in sex with the victim as alleged by her. Further, this evidence not establishes the charges under Section 376 (2)(F) & (N) of Indian Penal code. On this sole ground the accused can be discharged from the case straight away. Looking to the contents of seminal profile under dispute, the above essential particulars badly lacking in. On this ground, the presence of semen itself is not sufficient to hold that the accused indulged in sex with the victim. So, DNA profile of the blood of the accused and seminal profile of the disputed seminal stain is of no assistance to prosecution that accused had committed a crime of rape on the victim. It creates indeed in the mind of this court, the accused indulged in sex with her. On this ground, the accused is entitled to be discharged from the case. Hence, we have accepts the argument of Sri. SPH counsel whole heartedly.
43 22. The DNA profile of the disputed seminal stain lacks the essential particulars especially as to detection of epithelial cell (dead cell) to whom belonged. On this ground this DNA profile is doubtful in its nature. 23. The law of interpretation of a document or an event shall be looked into thoroughly as a whole. It is not permissible under law to pick and chose particular sentence and interpret it. In the given case on hand, the whole period of acts of sex did over a period of 4 years and whole effect of consequence of law have to be looked into and treated it as a single unit, but, cannot be taken into consideration the said isolated acts of sex did to hold that the accused committed a rape. It is impermissible in law to dissect the two isolated acts of sex from whole period and to judge it as a rape. 24. In view of this interpretation, the documents of prosecution that seminal analysis test of disputed stain and DNA profile of the blood of the accused cannot be form basis for draw conclusion or term the acts of sex as a rape. On this reasoning, the above DNA profile of accused and disputed seminal