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2009 DIGILAW 859 (KAR)

State of Karnataka v. Vithal Sahadev Kolekar

2009-11-16

K.SREEDHAR RAO, RAVI MALIMATH

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Judgment : K. Sreedhar Rao, J., One Kumari Pavitra – P.W. 3 (victim of rape) is aged about 3 years 7 months. P.W. 2 is the mother of P.W. 3. P.W.1 is the grandmother of P.W.3. The case of the prosecution that on 26-7-1999 around 6.00 p.m. P.Ws. 1 and 2 were sitting at their house. P.W. 3 was playing in the cattle shed nearby to their house. P.Ws. 1 and 2 heard the scream and cry of P.W.3 from the cattle shed. P.Ws. 1 and 2 rushed to the spot, found that the accused was committing act of rape on P.W. 3. The accused on seeing P.Ws. 1 and 2 ran away from the scene. P.W.3 was taken to P.W.6 a private doctor in the village immediately some time after the incident. P.W. 3 was taken to Government Hospital at Saundatti on the next day. P.W. 6 – the doctor at Saundatti hospital examined her and found “the surrounding area was red oedematous and painful. The vagina admits only tip of thumb. There was no hymen”. P.W. 3 was referred to the District Hospital, Belgaum. P.Ws. 7 and 8 – the senior specialists at District Hospital, Belgaum examined P.W. 3. The certificate of P.W. 7 discloses that, “no hymen seen, surrounding area was red, oedematous and painful. It (introitus) admits tip of thumb”. The clothing of the victim and the accused were seized and sent to FSL for examination. The investigating officer on completion of investigation and receipt of the reports from the FSL and the concerned doctors, filed the charge-sheet against the accused for committing the offence publishable under Section 376(2)(f) read with Section 511 of the Indian Penal Code, 1860. 2. The P.Ws. 1 and 2 are supposed to be the eye-witnesses to the incident have turned hostile and do not depose against the accused. Both the witnesses in their evidence say that on hearing the cry they went to the cattle shed and found, there was bleeding from the private part of P.W. 3 and there was nobody present at the scene. Even in the cross-examination of public prosecutor nothing is elicited to corroborate the prosecution case. P.W. 3 is a child witness, has given evasive answers to all the material questions. P.W. 3 does not incriminate the accused in any manner. 3. Even in the cross-examination of public prosecutor nothing is elicited to corroborate the prosecution case. P.W. 3 is a child witness, has given evasive answers to all the material questions. P.W. 3 does not incriminate the accused in any manner. 3. The evidence of P.W. 7 discloses that the vaginal part of P.W. 3 was reddish and oedematous and that the said injury could be for the reason of attempted rape or by fall on some object. P.W. 8 had examined the accused. His evidence discloses that there was reddishness on the tip of the penis which could be for the reason of forcible intercourse. The FSL report discloses that the underwear of P.W. 3 sent to examination was having stains of ‘O’ group blood. The bloodstains on the lungi and kacha of the accused could not be determined. The Trial Court on the basis of the evidence of P.Ws. 7 and 8 come to the conclusion that the accused had attempted to commit rape on P.W. 3. Accordingly convicted the accused for the offence punishable under Section 376(2)(f) read with Section 511 of IPC. The accused is sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs. 2,000/- in default of payment of fine he shall undergo simple imprisonment for a period of six months. The accused is in appeal challenging the conviction. The State is in appeal for enhancement of the sentence. 4. The Trial Court came to the conclusion by the medical evidence of P.Ws. 7 and 8 while convicting the accused. The material eye-witnesses P.Ws. 1 and 2 and the victim – P.W. 3 have turned hostile regarding the commission of offence by the accused. The FSL report also does not support the case of the prosecution to prove that the bloodstains on the wearing apparel of the accused had nexus with the blood group of the victim. The evidence of P.W. 7 discloses that the injuries on the private part of P.W. 3 could be for the reason of attempt to commit rape or by accidental fall. The evidence of P.W. 8 discloses that there was some injury on the tip of penis of the accused. The said evidence of P.Ws. 7 and 8 by itself would not establish the guilt of the accused in any manner. 5. The evidence of P.W. 8 discloses that there was some injury on the tip of penis of the accused. The said evidence of P.Ws. 7 and 8 by itself would not establish the guilt of the accused in any manner. 5. It is pointed out that in the cross-examination of P.W.3 it is elicited that she was influenced by P.Ws. 1 and 2 to give evidence. The said statement of P.W. 3 cannot be of any consequence for the prosecution to prove the guilt. P.Ws. 1 to 3 have not implicated the accused in any manner. The FSL report also does not corroborate the prosecution case. The evidence of P.W. 7 cannot be a basis for conviction under Section 376(2)(f) read with Section 511 of IPC. Since the evidence also discloses that the injury could be for the reason of accidental fall. 6. On overall consideration of the evidence discussed above, we are of the view that the Trial Court has committed a grave error in coming to the conclusion that the prosecution has proved the guilt of the accused. In that view of the matter the order of conviction and sentence passed against the accused is set aside. The appeal of the accused is allowed. The appeal of the State is dismissed.