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Karnataka High Court · body

2010 DIGILAW 839 (KAR)

State of Karnataka v. Anwersab

2010-07-26

JAWAD RAHIM, K.SREEDHAR RAO

body2010
JUDGMENT 1. The material facts of the prosecution case disclose that one Kum. Annapoorna-P.W.1 age about 14 years, is the victim of rape. The accused is the neighbour. The father and brother of P.W.1, run beetle leave shop near bus stand. The family of P.W.1 consists of her parents, brother. P.W.1 says that she also used to sit in the shop to relieve his brother and father some time in a day. 2. On 23-6-2002 at about 5.00 p.m. P.W.5-father of P.W.1 and her daughter were in the shop. P.W.1 returned from the shop to home. She went into bathroom. The accused trespassed into the house and bolted the doors of the house, committed rape on her and fled away from the scene. P.W.1 started crying. Some of the neighbours came and made enquiry with P.W.1. She narrated the incident of rape. P.W.1 went to the shop and informed her father, mother and brother who were at the shop. They all went to police station. The complaint of P.W.1 was registered at 7.30 p.m. The victim was examined by the doctor on the next day at 11.00 a.m. The accused were charged for committing the offence under Sections 447 and 376 of the Indian Penal Code, 1860. The victim is a person belonging to Schedule Tribe. The accused is a person not belonging to either SC or ST. Therefore, the accused is also charged for committing offence under Sections 3 to 5 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Trial Court acquired the accused. The State is in appeal. 3. The order of acquittal deserves to be confirmed for the following reasons.- (1) The incident took place around 5.00-5.30 p.m. on 23-6-2002. P.W.1 said that she went to the shop and informed her parents and brother who were at the shop. Thereafter the complaint was lodged at 7.30 p.m. The evidence of P.W.5 (father) states that when he came to home at 8.00 p.m. he learnt about the incident. Thereafter, he took his daughter and got the complaint lodged. (2) The complaint is registered at 7.30 p.m. but FIR is registered on the next day at 10.30 a.m. There is inordinate delay of 15 hours in transmission of FIR to the Magistrate. The house of the Magistrate is nearer to the police station. Thereafter, he took his daughter and got the complaint lodged. (2) The complaint is registered at 7.30 p.m. but FIR is registered on the next day at 10.30 a.m. There is inordinate delay of 15 hours in transmission of FIR to the Magistrate. The house of the Magistrate is nearer to the police station. The delay in transmission of FIR to the Magistrate is not explained. (3) The medical evidence discloses that hyman is in tact and there is no evidence for rape. The evidence of P.W.1 discloses that the accused had intercourse for about an hour. If that is so, the symptoms of rape should be very much evident on the genital organs. (4) P.W.1, her mother- P.W.2 and her father- P.W.5 have supported the case of the prosecution case and other relatives and neighbours who were witness to the res gestae circumstance, have turned hostile and did not support the prosecution case. (5) The defence version is that P.W.5 on account of enmity has lodged the false complaint. It is well-settled that even on uncorroborated testimony of prosecutrix, the conviction could be based. If it is in firm and credible. In the given circumstances, it cannot be said that the evidence of prosecutrix does not suffer from any infirmity. The narration of rape stated by her is totally inconsistence with the medical evidence. None of the semen of rape is found on the genital organs. The FSL report discloses that there is no presence of semens either on the clothing of the victim or the accused. 4. In view of the above discrepancies, the order of acquittal is sound and proper. The appeal is dismissed. 5. The fee of Amicus Curiae is fixed at Rs.7,000/-. The state shall pay the same.