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2013 DIGILAW 1089 (KAR)

State of Karnataka v. Vishwanatha Poojary

2013-09-12

H.S.KEMPANNA, N.K.PATIL

body2013
JUDGMENT H.S. Kempanna, J. 1. This appeal by the State is directed against the judgment and order dated 9.1.2009 passed in S.C. No. 48/2007 by the Sessions Judge, Udupi, acquitting the respondent/accused of the offence punishable under Section 376 of IPC. The respondent/accused was tried on the charge for the offence under Section 376 of IPC. It is alleged that one night in the month of October, 2006 at about 8.00 p.m. the accused promising the victim-PW. 1 to marry her had forcible sexual intercourse with her in the forest land near the house of one Gabrial situated at Laxminagar in Uppur Village, on account of which, she became pregnant and thereby has committed the aforesaid offence. 2. It is the case of the prosecution, the accused is a resident of Herinje village in Udupi Taluk. PW. 1 is the foster child of PW. 2 and they are residents of Milarthota of Uppur Village in Udupi Taluk. 3. According to the prosecution, in the month of October 2006, one day PW. 1 had been to attend the house warming ceremony of PW. 4-Krishna Poojary situated at Laxminagar. After having her dinner in the night at about 8.00 p.m. she was returning to her house. On the way while she was near the forest land near the house of one Gabrial situated at Laxminagar, the accused caught hold of PW. 1, who was minor at that point of time, after promising to marry her had sexual intercourse with her. It is further alleged that about a week later again the accused had sexual intercourse with her when she bad come near the boat situated near her house and oil account of the same, she had become pregnant. 4. It is further the case of the prosecution, about three days prior to 5.6.2007 PW1 had sustained an injury to her hand. She had been taken by her foster mother-PW. 2 for getting her treated for the said injury. At the time of her treatment the Medical Officer revealed to PW. 2 that PW. 1 is pregnant. Thereafter, PW. 2 made enquiries with PW. 1 as to how she became pregnant, upon which, PW. 1 revealed to PW. 2 - her foster mother that it is on account of the accused having forcible sexual intercourse with her promising to marry her. Thereafter, PW. 2 that PW. 1 is pregnant. Thereafter, PW. 2 made enquiries with PW. 1 as to how she became pregnant, upon which, PW. 1 revealed to PW. 2 - her foster mother that it is on account of the accused having forcible sexual intercourse with her promising to marry her. Thereafter, PW. 2 proceeded to Brahmavara Police station and there she filed her complaint as per Ex. P. 2 before PW. 7-PSI. PW. 7 on receipt of Ex. P. 2 registered the case in Crime No. 114/2007 for the offence punishable under Section 376 of IPC and issued FIR as per Ex. P. 6 to the Jurisdictional Magistrate. Thereafter he forwarded PW. 1 for subjecting to medical examination along with a requisition, in response to which, PW. 6 - Medical Officer examined the victim - PW. 1 and issued wound certificate in respect of her as per Ex. P. 5. PW. 7 continuing the investigation drew up scene of occurrence panchanama as per Ex. P. 1 and also prepared sketch of scene of the occurrence as per Ex. P. 7. Thereafter, he handed over further investigation of the case to PW. 8, who after taking over the investigation recorded the statements of the witnesses examined on behalf of the prosecution and cited in the charge sheet. He also arrested the accused on 28.6.2007 and after getting him subjected to medical examination at the hands of PW. 5- Medical Officer and on completion of the arrest formalities got him remanded to judicial custody. Thereafter, PW. 8 during the course of investigation secured Ex. P. 8 -certificate disclosing the date of birth of PW. 1 from CW. 10 and after completion of the investigation submitted final report against the accused before the Jurisdictional Magistrate. 5. The prosecution in support of its case in all examined PWs. 1 to 8 and got marked Exs. P. 1 to P. 11. The accused got marked Ex. D. 1 during the course of examination of PW. 1. 6. After closure of the prosecution evidence the accused denied all the incriminating evidence in his statement recorded under Section 313 of Cr.P.C. He also submitted that he has no defence evidence to lead. Total denial of the prosecution case is the defence of the accused. 7. D. 1 during the course of examination of PW. 1. 6. After closure of the prosecution evidence the accused denied all the incriminating evidence in his statement recorded under Section 313 of Cr.P.C. He also submitted that he has no defence evidence to lead. Total denial of the prosecution case is the defence of the accused. 7. The learned trial Judge on consideration of the oral and documentary evidence placed on record came to the conclusion that the prosecution has failed to establish the charge leveled against the accused. Accordingly, by the impugned judgment and order acquitted the respondent/accused. 8. The State being aggrieved by the said judgment and order of acquittal is in appeal before this Court. 9. Learned Addl. S.P.P. assailing the impugned judgment and order contended, the evidence of PW. 1 - the prosecutrix in the case clearly goes to show that she was minor as on the date of the occurrence. According to him, Ex. P. 8 discloses that her date of birth was 16.7.1993 and as on 1.12.2006, the date on which the accused committed rape, she was a minor being aged about 13 years four months. He further submits that the evidence of PW. 1 herself discloses that she was aged about 15 years and therefore, as on the date of the occurrence PW. 1 being a minor, even she has given consent, that is not a consent in the eye of law. He further submits that as the evidence of PW. 1 clearly discloses that the accused promising her to marry had forcible sexual intercourse with her, a clear case of rape is made out against the accused. He further contended that the evidence of PW. 1 is fortified from the evidence of PW. 2- the foster mother. Nothing has been brought out in the cross-examination either of PW. 1 or PW. 2 to discard their testimony. In this connection, he submitted, since the evidence of PW. 1 is consistent and cogent with regard to the act of the rape committed by the accused, no other evidence is required to come to the conclusion that the accused has not committed the offence as alleged against him. Therefore, he contended the trial Judge without appreciating the evidence of PW. 1 in its right perspective has committed an error in holding that PW. Therefore, he contended the trial Judge without appreciating the evidence of PW. 1 in its right perspective has committed an error in holding that PW. 1 was aged more than 16 to 18 years as on the date of the occurrence and as she was a consenting party to the act, having regard to her conduct it cannot be said that the accused has committed the offence of rape, which finding is contrary to the evidence on record. Therefore, it cannot be sustained, it be set aside and the accused be dealt with in accordance with law. 10. Per contra, learned counsel appealing for the respondent/accused supported the impugned judgment and order of acquittal. 11. In view of the aforementioned facts, rival contentions, evidence and the documents on record, the point that arises for our consideration is:- Whether the impugned judgment and order of acquittal of the respondent calls for any interference. 12. It is the case of the prosecution, as on 1.12.2006 PW. 1 the prosecutrix was a minor. In order to establish the same, they have relied upon the testimony of PW. 1 and also Ex. P. 8 - school certificate, which has been produced by the Investigating Officer during the course of his evidence. Ex. P. 8 is the certificate which has been issued from a private school by the Incharge Head Master. The person, who has issued Ex. P. 8, has not been examined in the case. Apart from the same, nobody from the school has also been examined to show that Ex. P. 8 was issued on the basis of the records maintained in the school. The learned trial Judge in the course of his judgment has also recorded a finding that mere production of Ex. P. 8 and marking of the same is not a proof of Ex. P. 8 to show that PW. 1 was born on 16.7.1993. Ex. P. 8 according to the prosecution has been marked through the Investigating Officer-PW. 8. Therefore, we are of the view that Ex. P. 8 cannot be made as a basis to hold that the date of birth of PW. 1 was 16.7.1993 and she was a minor as on 1.12.2006. 13. Coming to the testimony of PW. 1, she claims in her evidence that she is aged 15 years as on the date of the occurrence. This evidence of PW. P. 8 cannot be made as a basis to hold that the date of birth of PW. 1 was 16.7.1993 and she was a minor as on 1.12.2006. 13. Coming to the testimony of PW. 1, she claims in her evidence that she is aged 15 years as on the date of the occurrence. This evidence of PW. 1 is doubtful in view of the evidence of PW. 6 - Medical Officer, who has testified to the effect that on the examination of PW. 1 and on the basis of the report given by the District Hospital, Udupi, the victim-PW. 1 is aged in between 16-18 years. The substantive evidence of PW. 6 clearly goes to show that the victim - PW. 1 was aged more than 16 years and not 15 years as claimed by PW. 1, Apart from this, though PW. 1 claims that she Was aged 15 years as on 1.12.2006, PW. 2 - her own foster mother does not claim that PW. I was aged about 15 years or below 15 years as per Ex. P. 8. Therefore, under these circumstances, we are of the clear view that the victim - PW. 1 as on the date of the occurrence was aged more than 16 years and was not a minor. 14. The next question that arises for our consideration is; whether the accused has committed rape against the wishes of PW. 1 or whether PW. 1 was a consenting party to the act of intercourse? 15. According to PW. 1, she had been to house warming ceremony of PW. 4 at about 8.00 p.m. one day in the month of October, 2006. She had been to the house warming ceremony in an auto-rickshaw along with the accused and others. It is her case that after having her dinner at about 8 p.m. in the house of PW. 4, she and the accused came alone and others who had come with them in the auto rickshaw had left earlier to them. When they were near the forest land situated near the house of Gabrial at Laxminagar village, the accused forcibly took her to the forest land and there he had sexual intercourse with her promising to marry against her will. When they were near the forest land situated near the house of Gabrial at Laxminagar village, the accused forcibly took her to the forest land and there he had sexual intercourse with her promising to marry against her will. Her evidence further reveals that about a week later again when she had been near the boat at about 8 p.m. the accused took her in the boat to the forest land and again had sexual intercourse with her. She did not reveal this to anyone as the accused had promised her to marry and also had told her not to reveal the same to anyone. The evidence of PW. 1 that she had been taken forcible by the accused to the forest land and had sexual intercourse, is an improvement made by her before the Court. Apart from the same, it is seen from the material on record in her evidence that at the place where according to her the accused had sexual intercourse with her, there is an Anganawadi school, Shishuvihar and residential houses. If residential houses are located where the accused had forcible sexual intercourse against her will, she should have reported the same to those persons. Apart from the same, she claims that she returned to the house alone by walking. This claim of PW. 1 is also falsified by the evidence of PW. 2 - foster mother who says that she returned to the house on that night after attending the house warming ceremony along with the persons, with whom she had gone and she had returned to the house before 9 p.m. If this evidence of PW. 2 is taken into consideration, the claim of PW. 1 that the accused had forcibly taken her to the forest land and had sexual intercourse with her against her will promising her to marry goes a long way to believe her testimony. 16. Further, she claims for the second time that a week later while she was near the boat the accused took her in the boat and had sexual intercourse against her will again in the forest. In the cross-examination she has stated that, second time she had gone near the river in order to catch the fish at about 8 p.m. This evidence of PW. 1 is quite unnatural in view of PW. In the cross-examination she has stated that, second time she had gone near the river in order to catch the fish at about 8 p.m. This evidence of PW. 1 is quite unnatural in view of PW. 2 - foster mother who says that they would not go for fishing in the night especially after 6 p.m. The evidence of PW. 2 clearly goes to show that she goes for carrying on her fish business in the morning and returns in the evening by 6 p.m. If PW. 2 were to be in the house, it is quite unnatural that PW. 1 would leave the house at about 8 p.m. to catch the fish as claimed by her. By this, it would go to show that PW. 1 is a consenting party to the act and as the prosecution has not proved that she was a minor as on the date of the occurrence and she being a consent party to the act, namely sexual intercourse, we find it difficult to accept the version of the prosecution that the accused has committed rape on PW. 1 as projected through the evidence of these witnesses. Insofar as other evidence on record, on examination of the same it being of the police officers and panchas, it does not in any way further the case of the prosecution pointing towards the guilt of the accused. The learned trial Judge on an appreciation of the entire material on record in its right perspective has come to the conclusion that the prosecution has failed to establish the charge leveled against the accused, which finding in our view having been based on the facts and evidence does not suffer from any infirmity calling for interference in this appeal. Accordingly, we do not find any merit in this appeal and it is dismissed.