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2007 DIGILAW 449 (KAR)

RUDRA NAIKA v. STATE OF KARNATAKA

2007-07-23

A.C.KABIN

body2007
A. C. KABBIN, J. ( 1 ) THE accused in S. C. No. 129/05 on the file of the prl. Sessions Judge, Chickmagalur, who has been by judgment dated 28-4-2006, convicted for the offence punishable under Section 376 of the I. P. C. , and has been sentenced to undergo R. I. , for 10 years and to pay a fine of rs. 10,000/-, in default to undergo S. I. for 3 years, has preferred this appeal challenging his conviction and sentence. ( 2 ) THE complaint was lodged by the victim's mother (PW-1 ). The victim is stated to be not fully mentally sound. On 9-8-2005 in the afternoon at about 4 p. m. , victim's sister PW-3 Smt. Sahara was in the house, the victim, who had gone out of the house returned. Her clothes were found soiled and there were scratch marks on her person. On enquiry, the victim told her that the accused had taken her to an old building where Anganawadi was being run earlier and had committed rape on her. At 5. 30 p. m. , their mother returned from work and learnt about the incident. She waited for her husband and the next day they went to the police station and lodged a complaint against the accused. The victim was examined by Dr. Bhagya bai (PW-14), Lady Medical Officer, Government Hospital, Tarikere, who found the evidence of sexual intercourse on the victim. The accused was arrested and he was examined by Dr. A. M. Thippeswamy (PW-10), who found certain nail marks on his chest and abdomen. After investigation, a case was registered against the accused for an offence punishable under the Section 376 of the I. P. C. ( 3 ) THE accused pleaded not guilty and claimed to be tried. The prosecution examined in all 14 witnesses. PW-2 is the victim who only speaks about the incident. PWs' 1, 3 and 8 learnt about the incident from pw-2. PWs; 4 and 7 are examined to show that the accused had taken pw-2 with him to the building in which earlier Anganawadi was being run. Both of them have turned hostile. PWs' 5 and 6 have not supported the prosecution. PWs' 12 and 13 are the Police Officers. After the case of the prosecution was closed, the accused was examined under Section 313 of the Cr. Both of them have turned hostile. PWs' 5 and 6 have not supported the prosecution. PWs' 12 and 13 are the Police Officers. After the case of the prosecution was closed, the accused was examined under Section 313 of the Cr. P. C. , to explain the circumstances arising out of the evidence. The accused denied the allegations of the prosecution witnesses. No witness was examined on behalf of the accused. After hearing the learned Public prosecutor and the learned Advocate for the accused, the learned trial judge accepted the evidence of PW-2 and consequently convicted the accused for the offence punishable under Section 376 of the I. P. C. After hearing the learned prosecutor and the accused he imposed punishment as stated above. It is that judgment of conviction and sentence that the has been challenged by the accused in this appeal. ( 4 ) SRI. K. Rajesh Rai, learned Counsel for the appellant submits that this is a case wherein the prosecution claims that the victim was not mentally sound and to support that contention no evidence has been produced. He argues that if the victim is considered mentally unsound, then in the absence of corroboration of her evidence her version could not to have been relied upon by the learned Sessions Judge. He further argues that if the victim was not mentally sound, then her evidence cannot be accepted by the learned Sessions Judge unless it is fully corroborated by circumstantial evidence indicating the possibility of such an incident. He submits that when the independent witnesses in the present case i. e. , pws' 4 and 7 having not supported the prosecution and the allegations being made by the mother of the victim (PW-1) and the sister and father of the victim (PWs 3 and 8) being clearly based on what they learnt from pw-2, the conviction is on insufficient materials. On these grounds, he prays that the accused may be acquitted. ( 5 ) REPLYING to this, Sri. Makbul Ahamed, learned HCGP submits that though PW-2 is treated hostile, her answers in the cross-examination clearly showed that rape was committed on her by the accused and this having been fully corroborated by the Medical Officer and the evidence given by Dr. Bhagya Bai (PW-14), Lady Medical Officer, Government Hospital, tarikere, there remains no doubt that it was the accused who had committed this ghastly crime. Bhagya Bai (PW-14), Lady Medical Officer, Government Hospital, tarikere, there remains no doubt that it was the accused who had committed this ghastly crime. He submits that immediately after the incident, the matter was ascertained by the victim's sister PW-3 and later that was ascertained by PWs' 1 and 8 the complaint was lodged. He submits that there are sufficient mater to convict the accused for the offence punishable under section 376 of P. C. and he prays for dismissal of the appeal. ( 6 ) I have fully considered the evidence on record. It is the claim of the prosecution and PWs' 1, 3 and 8 that the victim was not fully mentally sound, hence her evidence has to be considered with caution. On a perusal of her deposition, it is seen that she described the incident until she was taken by the accused to the building in which Anganwadi was being run earlier. Thereafter she failed to give particulars of the incident and later when she was treated hostile and was prompted she gave affirmative answers saying that the accused undressed her and committed intercourse. with her. She also states that the accused gave a biscuit packet and some money and sent her back. The question that arise is as to what extent her version may be believed. ( 7 ) IT is submitted by the learned HCGP that the evidence of PW-14, the lady Medical Officer confirms that the rape was committed on PW-2. A careful examination of the deposition of PW-14 shows that the victim was examined on 10-8-2005 at 4 p. m. , i. e. , at least 24 hours after the alleged incident. The Medical Officer found that the victim's hymen had been ruptured and there were contusions in the vaginal walls. On these two materials, the Medical Officer opined that the girl might have been subjected to rape. Since it is admitted by the Medical Officer that rupture of hymen can occur when the person jumps, cycles, rides the horses and on other manual insertions and vaginal wall contusion could occur on account of manual insertions, the question that arose is that whether in view of the circumstances brought on record by the prosecution, this could be considered as having happened on the afternoon of 9-8-2005. Since PW-2 was admittedly mentally unsound, her version cannot be straightaway accepted, unless it is beyond reasonable doubt. The evidence of PW-14 can be taken only to the extent that when she examined the victim, she found the hymen of the victim ruptured and vaginal walls contused and nothing more. ( 8 ) PW-2 is consistent only to the extent of saying that the accused took her to that old building, undressed her, bit her on right and left upper arm and also removed her underwear. It is also stated by her that the accused had held her breasts. Subsequent answers were only during cross-examination prompted by the learned Public Prosecutor. Therefore the subsequent statement cannot be relied upon in the absence of corroboration in material particulars. Since there is no evidence, it is unsafe to rely on that deposition subsequent to the stage when the witness was considered hostile for the prosecution. For the above said reasons, I am of the opinion that the acts of the accused as described by PW-2 for which other materials support can be taken as an act of outraging the modesty of the woman and nothing more. In that view of the matter, the learned Sessions Judge was not right in convicting the accused for an offence punishable under Section 376 of the I. P. C. though the accused is liable to be convicted for an offence punishable under Section 354 of the I. P. C. Taking into consideration the act of the accused, I am of the opinion that the maximum punishment provided for the said offence has to be imposed. ( 9 ) FOR the above said reasons, the appeal is allowed in part. The conviction of the accused/appellant for the offence punishable under Section 376 of the I. P. C. is hereby set aside and he is convicted for the offence punishable under Section 354 of the I. P. C. He is sentenced to undergo R. I. for two years and to pay a fine of Rs. 10,000/-, in default to undergo further r. I. for 6 months. If the amount of fine is realised, an amount of Rs. 8,000/-shall be paid to PW-2 on being identified by her parents PWs 1 and 8. 10,000/-, in default to undergo further r. I. for 6 months. If the amount of fine is realised, an amount of Rs. 8,000/-shall be paid to PW-2 on being identified by her parents PWs 1 and 8. The prison authorities shall verify the period of detention and the punishment already undergone by the appellant and if the appellant has already undergone the period of imprisonment and the default sentence now imposed, he shall be released forthwith unless his detention is required in some other case.