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2002 DIGILAW 143 (KAR)

RANGASWAMY v. STATE

2002-02-20

M.F.SALDANHA, N.K.PATIL

body2002
SALDANHA, J. ( 1 ) WE have heard the learned Addl. SPP as also the learned advocate who has been appointed amicus curiae on behalf of the accused-respondents on merits. The accused have been served but have not appeared and are unrepresented and it is for this reason that the Court was requested to appoint an amicus curiae Counsel. ( 2 ) BRIEFLY stated, the prosecution alleges that at about 11 a. m. on 17-3-1995 at Chigalur village, that the 4 accused persons came to the house of PW 5 Jayamma. They are alleged to have got into an argument with her and demanded that the complaint which had been lodged against them with the police by her husband must be withdrawn. They also threatened her with dire consequences if this was not done and according to her because she refused to agree to the withdrawal that they forcibly dragged her into the bushes close by and that between the 4 accused they over powered her and that she was raped by two of them one after the other while the remaining persons held her down. She states that PW. 1 passed by at that time and seeing him, that the accused persons ran away from that place. According to her she was in such a state of shock and pain that she just remained in that position for quite some time and thereafter made her way to the hospital at Hassan. The medical records support this version because PW 12 Dr. Sujatha has made the necessary entries on the basis of her complaint that she was raped by the 4 accused. The doctor has also noted the external injuries viz. , bite marks on both the right and left breast as also tenderness on the left forearm. She was admitted to the hospital and she was thereafter treated by Dr. Ashalatha who is PW 14. This doctor has also deposed about the injuries but for some strange reasons, both the doctors indicate that there were absolutely no injuries of any type on the genital area. Also, the forensic evidence is of no help because we do not have on record any evidence of sexual intercourse. Ashalatha who is PW 14. This doctor has also deposed about the injuries but for some strange reasons, both the doctors indicate that there were absolutely no injuries of any type on the genital area. Also, the forensic evidence is of no help because we do not have on record any evidence of sexual intercourse. The learned trial Judge for a variety of reasons the main ones being that there was some background of hostility between the parties, and that Jayamma states that she was blind folded during the time when she was raped and that only from the voices, she was able to identify the accused and what they did to her, the fact that according to her she remained lying at that spot for as long as two hours and also that she did not give her clothes which would have some vital clues, to the doctors has refused to accept the truth of the charges and has acquitted the accused. The present appeal is directed against that order. ( 3 ) WE need to take note of the fact that in this as in all other rape cases there are not going to be eye-witnesses nor are there going to be witnesses to the actual incident. Invariably the Court is required to accept or reject the testimony of the victim and if the evidence is good enough it is usually supported by the medical evidence and forensic evidence. In the present case the evidence of PW-5 Jayamma is not supported by PW. 1 because he has given totally non-committal evidence and it is clear that he has been won over. Jayamma's evidence is very clear with regard to the aspect of identifying the 4 accused. It is also very clear about the fact that pursuant to their common intention she was held down by the accused persons and two of them raped her. She has also stated that the bite injuries on her breast were sustained in the course of this incident. The real difficulty that has arisen in this case arises from the fact that PW-12 Dr. Sujatha in her evidence states that Jayamma had complained of an attempt to rape and not actual rape. Whereas Dr. Ashalatha accepts the position that Jayamma had complained of having been raped. The real difficulty that has arisen in this case arises from the fact that PW-12 Dr. Sujatha in her evidence states that Jayamma had complained of an attempt to rape and not actual rape. Whereas Dr. Ashalatha accepts the position that Jayamma had complained of having been raped. The doctors in this case obviously because Jayamma is a poor villager did not seem to have evinced the requisite interest nor have they acted responsibly and professionally as one would expect in a case where there is a serious charge of rape. The manner in which they have conducted themselves is cavalier, to say the least and the same is the manner in which they have given evidence before the Court. Thanks to this totally disinterested and non-professional attitude that the Court is left with virtually zero assistance from the medical evidence. We do expect that the members of the medical profession and particularly doctors who are working in the public hospitals should grasp the seriousness and the horrifying consequences of the offence of rape and other sexual assaults and that they should act with a far more professional, responsible and considerate manner. The fact that such an incident took place is bad enough and the fact that because of this type of handling in the hospitals the Courts are forced to acquit the accused is compounding injustice and it is high time that the medical profession realises the damage that it is doing and acts in the manner which the law and the Courts expect of them. ( 4 ) THIS Court has found that time and again, the medical evidence in almost every case of sexual assault on women is tampered with and that the doctors come out with evidence that can only be termed as pro-accused". It does not require much intelligence to see through these malpractices which clearly indicates that there is a very very serious integrity problem at this level. We have come across instances where the doctors have brazenly given evidence that has virtually sabotaged the prosecution case as has happened in this instance and we wish to appeal to the conscience of each of these doctors, assuming they possess one,that it is because of what is happening in the hospitals that 94% of the rape cases in this State are ending in acquittals. We do not propose to close our eyes to this state of affairs and direct the Government to immediately formulate adequate safeguards to ensure that there is a full-stop to these illegalities. ( 5 ) THE learned Advocate who represents the respondent accused has vehemently submitted that on the state of the present record, there is nothing to support the mere word of Jayamma and that there are several doubtful aspects of her evidence from which it would be impossible for a Court to hold that the offence of rape or attempted rape has been committed. The evidence of Jayamma undoubtedly alleges rape and she has deposed to this effect but having regard to the fact that the medical evidence does not in the least bit assist, we feel it would be extremely dangerous to interfere with the order of acquittal as far as the charge of rape or for that matter attempted rape are concerned. We need to mention in passing, that the crucial evidence which would have been available from the clothes of the victim is again not forthcoming. The I. O. has not bothered to take charge of these clothes but the most shocking part of it is that the doctors who are aware of the evidentiary value of clothes of a victim in a rape case where everything from the blood stains to semen stains, tears in the clothes, the presence of the mud, grass, thorns or any other matter would all be crucial pieces of evidence, have quite callously stated that since the victim did not have a spare set of clothes that her clothes were not taken charge of. We assume that it is quite elementary that when an injured person or a victim reaches a hospital and the clothes are crucial evidence that a public hospital is duty bound to supply a spare set of clothes. This is a very serious reflection on the working of the hospitals and we do hope that the Secretary of the Department concerned will take cognisance of our observations and see that incidents of this type never recur. ( 6 ) WE have taken note of the fact however that Jayamma has in terms stated that her clothes were pulled off and that she was sexually assaulted. ( 6 ) WE have taken note of the fact however that Jayamma has in terms stated that her clothes were pulled off and that she was sexually assaulted. Apart from all this she has clearly deposed to the fact that the accused had bitten her on the breasts and these bite marks have been recorded by the doctors. In our considered view therefore, the offence punishable under Sec. 354 read with Sec. 34, IPC is clearly made out as far as outraging Jayamma's modesty is concerned and in respect of the injuries caused to her the offences punishable under Sec. 323 read with Sec. 34, IPC are also established. ( 7 ) WHILE we confirm the order of acquittal passed by the learned trial Judge for the offence punishable under Section 376 read with Sec. 34, IPC, we convict all the 4 accused for the offences punishable under Sections 354 r/w Sec. 34, IPC, and 323 r/w Sec. 34, IPC. The accused have undergone custody for a reasonably long period of time and consequently, we direct that they shall undergo imprisonment for the period already undergone and that each of them shall pay a fine quantified at Rs. 1,000/- each for each of the charges. In other words, each accused would be liable to pay a fine quantified at Rs. 2,000/- each. The fine amount to be deposited in the trial Court within 12 weeks from today failing which the trial Court to recover the said amount from the accused. On recovery of the amount in question the trial Court to issue notice to PW. 5 Jayamma and pay over the whole of the amount to her as compensation. ( 8 ) THE appeal partially succeeds to this extent and stands disposed off. The Registrar General to forward a copy of this judgment to the Secretary to the Government, Health Department, Government of Karnataka, with instructions that the observations of this Court be duly taken note of and appropriate corrective action be taken. ( 9 ) WE direct the Office to pay a sum of Rs. 1,000/- to learned Advocate Sr. E. R. Diwakar, as professional charges for having appeared as amicus curiae counsel. Appeal partly allowed. --- *** --- .