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2013 DIGILAW 74 (KAR)

STATE BY HOSAKOTE POLICE v. RAVI, N.

2013-01-16

H.S.KEMPANNA, K.L.MANJUANTH

body2013
JUDGMENT K.L. MANJUANTH, J.-The State has preferred this appeal under Section 378 (1) and (3) of Cr.P.C. challenging the judgment and order of acquittal dated 23.06.2012 passed in S.C. No. 173/2011 by the Sessions Judge, Fast Track Court-II, Bangalore Rural District, Bangalore. 2. The respondent/accused was tried for the offence punishable under Section 376 of IPC. 3. It is the case of the prosecution that on 14.3.2011 at about 2.30 p.m. when the prosecutrix was in her house, the accused went inside the house, bolted the doors of the house and forcibly raped her. 4. PW.1-the maternal uncle of the prosecutrix brought to the notice of the police about the rape committed by the accused on PW.2, who is minor. 5. According to the complaint, PW.3-Prabhu, relative of prosecutrix came near the house of the victim at about 2.30 p.m. on 14.3.2011. Since the door was bolted from inside, he knocked the door and door was opened after 10 minutes and thereafter, the respondent/accused came out of the house and at that time the prosecutrix narrated the incident to him. 6. The case was taken up for investigation by the police and the respondent was arrested on 18.3.2011. PW. 10-Dr. Rekha examined the prosecutrix on 19.3.2011 and the accused was also sent for medical examination. He was examined by CW.8-Dr. K.B. Dilip Kumar and the cloths of the victim along with top were sent for FSL report. 7. The respondent denied the charges levelled against him. He pleaded not guilty, but claimed to be tried. 8. In order to prove the case of the prosecution, the prosecution relied upon the evidence of PWs. 1 to 11, Exs.P.1 to P. 11 and MOs.1 to 6. 9. PW. 1 is the complainant; PW.2 is the prosecutrix; PW.3-Prabhu is the person, who has seen the accused running away from the house of the prosecutrix; PW.4 is the mother of the victim; PWs.5 and 6 are the witnesses for the spot mahazar; PW.7 is one Chandraiah, who has issued date of birth certificate as per Ex.P.4; PW.8 is Dr. K.B. Dilip Kumar, who has examined the accused; PW.9 is PSI of Hoskote police station, who registered the case; PW.10 is Dr. Rekha, who examined the victim and PW. 11-Mallesh is investigating officer. 10. The accused denied all the incriminating circumstances in his 313 statement. K.B. Dilip Kumar, who has examined the accused; PW.9 is PSI of Hoskote police station, who registered the case; PW.10 is Dr. Rekha, who examined the victim and PW. 11-Mallesh is investigating officer. 10. The accused denied all the incriminating circumstances in his 313 statement. The defence of the accused is total denial and he is involved on account of political rivalry at the instance of her uncle one Sadanand. 11. The Sessions Judge formulated the following points for consideration:- (1) Whether prosecution proves beyond all reasonable that on 14.3.2011 at 2.30 p.m., while the victim Anitha was alone in the house the accused went near her and inspite of her resistance he has bolted the door from inside and holded her and illegally raped her body. Thus accused is guilty of the offence under Section 376 of Indian Penal Code? (2) What order? 12. On appreciating the entire evidence the Sessions Court came to the conclusion that the prosecution has failed to bring home the guilt of the accused. Accordingly, it acquitted the accused. This judgment is called in question in this appeal. 13. Sri. Nawaz, learned Additional State Public Prosecutor contends that the Sessions Court failed to see that the prosecutrix was a minor as on the date of occurrence, which is amply proved from Ex.P.4-the certificate, which discloses the date of birth of the victim as 6.3.1996 and in that view of the matter, Sessions Court could not have acquitted the accused on the ground that it is due to consent. He further contended that the appreciation of the evidence by the Sessions Court is erroneous and perverse. According to him, though the victim has clearly deposed that accused committed rape on her, the trial Court without appreciating her evidence in its right perspective has erroneously acquitted the accused. In the circumstances, he requests the Court to re-appreciate the entire evidence let in by the prosecution and reverse the findings of the Sessions Court. 14. Having heard the learned Addl. S.P.P. and on perusal of the entire records, what is to be considered by us is; Whether the prosecution has proved beyond reasonable doubt that on 14.3.2011 at about 2.30 p.m. at the residence of the victim the respondent committed rape on her and that on the date of the incident the victim was below 16 years? 15. S.P.P. and on perusal of the entire records, what is to be considered by us is; Whether the prosecution has proved beyond reasonable doubt that on 14.3.2011 at about 2.30 p.m. at the residence of the victim the respondent committed rape on her and that on the date of the incident the victim was below 16 years? 15. We have perused the entire evidence let in by the prosecution. The main witnesses are PW.2-victim herself, PW3-Prabhu, PW.4-mother of the victim and PW.7-T.N. Chandariah, who has issued Ex.P.4-the birth certificate to show the date of birth of the victim. 16. According to the evidence of prosecutrix, she was studying in 9th standard in S.J.R.L.S. school at Hoskote and her mother-PW.4 was working as ayah. Her school commences at 10 a.m. in the morning and closes at 4.25 p.m. in the evening every day. There would be an interval between 1.45 p.m. to 2.15 p.m. and it is her case that she used to take lunch in the school only. The distance between her house and school is 3 kms. According to her, she takes 11/2 hour to reach her school and she would take same time to return to her home. According to her, on 14.3.2011 she came from the school at about 1.30 p.m. and that her parents had informed her that a boy would come to see her in connection with marriage proposal and that she was cleaning the house in order to receive the boy and his family members. At that point of time, the accused Ravi came inside the house, bolted the door of the house, thereafter, gagged her mouth with a cloth, tied her both upper and lower limbs, covered her face with a cloth, made her to lie in the hall and in spite of her protest, he removed her chudidar pant and committed rape on her. In the meanwhile, PW.3 knocked the door and with loud voice asked her to open the door. The accused after wearing the clothes, opened the door and ran away. PW.3 having entered the house saw her position and she narrated the entire incident to PW.3 and thereafter, her mother-PW.4 also came inside the house and she explained the acts of the accused to her mother. The accused after wearing the clothes, opened the door and ran away. PW.3 having entered the house saw her position and she narrated the entire incident to PW.3 and thereafter, her mother-PW.4 also came inside the house and she explained the acts of the accused to her mother. She has further stated in her examination-in-chief that six months prior to the incident the accused was following her and he was trying to talk with her. Similarly, she was also talking to him and they used to meet each other and she had acquaintance with him. It is also her case that whenever she used to go to school, he was also accompanying her and that he was also forcing her not to inform her classmates or any of her friends about their intimacy. It is also her case that her mother used to leave the house at about 8.30 a.m. in the morning and return to home by 5.30 p.m. in the evening. 17. It is also her case that on the date of the incident she was wearing school uniform from morning till the evening at 4.30 p.m. It is her case that on 14.03.2011 she has attended all the classes in the school till evening at about 4.15 p.m. She has admitted in her cross-examination that when she was admitted to first standard, she had completed 7 years and she had not attended the school on account of poverty. She has further stated in her cross examination that she was not acquainted with the accused. She saw the accused for the first time only when the incident took place and thereafter, she has not seen him till the date of her examination. She has also admitted in her cross-examination that the police have not enquired with her and the police did not come to her house. She further stated that on 14.3.2011 she did all her house hold work, had dinner in the night and went to sleep. She has further admitted that she had never made sounds for help and at that time, her dress was completely torn, bangles of both the hands were broken. On account of the injury sustained on both the hands, there was profuse bleeding and that the blood was oozing and blood stains had fallen on the floor. She has further admitted that she had never made sounds for help and at that time, her dress was completely torn, bangles of both the hands were broken. On account of the injury sustained on both the hands, there was profuse bleeding and that the blood was oozing and blood stains had fallen on the floor. It is admitted by her that after the incident, she went out of the house and returned to house at 3.30 p.m. and blood was oozing from her genit alia and so also from her hips. She has further stated that as usual her mother returned to home at 6.p.m. on that day and that she has not been examined by any doctor and that she did not disclose the incident to anyone including her mother. 18. In her further cross-examination she has admitted that she has not given statement before the police and she was in the school for the whole day. PW.4-mother of the victim has admitted in her cross-examination that her marriage was solemnized about 25 years prior to the date of her examination before the Court. Her deposition was recorded on 24.9.2011. According to her, PW.2-victim was born to her one year after her marriage and she has also deposed that PW.2 failed for one or two terms when she was in the middle school. She admits that on 14.1.2011 she returned to home at 6 p.m. only. She has further admitted that one Sadananda is none other than the husband of her younger sister. She has further admitted that she has not disclosed about the rape committed on her daughter to anyone and she has further admitted that either she or her daughter-PW.2 never approached the police. She has also admitted that at the instigation of Sadananda, the real estate agent and politicians she has deposed against the accused. 19. Further, we have the evidence of Dr. Rekha, who has been examined as PW.10 in the case. According to PW.10, victim-PW.2 was examined by her on 19.3.2011 at about 6.20 p.m. She was produced by a women police constable. At time of examination, she noticed that vaginal lips were normal in appearance, Cervix-minimal congestion on the lower lip of cervix, Hymen ruptured, not intact, Admits two fingers without resistance, no discharge or bleeding is noted, no signs of injuries in and around the external genit alia. At time of examination, she noticed that vaginal lips were normal in appearance, Cervix-minimal congestion on the lower lip of cervix, Hymen ruptured, not intact, Admits two fingers without resistance, no discharge or bleeding is noted, no signs of injuries in and around the external genit alia. She has collected the samples of trimmed pubic hairs and nails, cotton swabs from cervix and vagina, one pair of slides from vagina, greenish colour top, grey colour pyjama, dupatta, green colour panty and orange colour petticoat. She has further deposed that on the basis of FSL report, she has opined that sexual intercourse might have taken place. She has further admitted that she can only say Hymen ruptured was not recent, but she cannot say how long back it was ruptured. She has further admitted that if both the lower and upper limbs are tied, it is humanly impossible to have intercourse. 20. In order to prove the age of the victim, the prosecution has relied upon the evidence of PW.7. PW.7 has only stated that she was admitted to 8th standard based on the transfer certificate issued by the previous institution and based on the said transfer certificate, Ex.P.4 has been issued. 21. From the above evidence, it is clear that PW.2 in one breath says that she has not seen the accused either prior to the date of incident or after the date of the incident when she was produced before the Court for her examination. In another breath she has stated that she was well acquainted with the accused six months prior to the incident and everyday she was moving freely with him. She has further admitted in her cross-examination that on 14.3.2011 she was at school from morning till evening and the school was closed at 4.30 p.m. She has also stated that she had never informed about the incident either to her mother- PW.4-Vanaja or to anyone and that her statement has not been recorded by the police and she was not examined by any doctor. It is also her case that the accused, who was not acquainted with her, entered her house at about 2.30 p.m. on 14.3.2011, bolted the door of the house, tied her both upper and lower limbs with a rope, gagged her mouth with a piece of cloth, covered her face and later removed her clothes and committed rape on her. 22. 22. According to PW.3-Prabhu, who is said to have seen the accused running away from the house of PW.2, accused committed rape at about 2.30 p.m. on 14.3.2011 and that the victim narrated the incident to him and at about 3. p.m. PW.4 came to the house and PW.2, narrated the acts of the accused to her mother. 23. PW.2 has stated that she retuned to home on that day only at 6 p.m. PW.2 has further stated in her cross-examination that she was in the school till 4.30 p.m. If the version of PWs.2 and 4 is taken into consideration, no such incident could have taken place at 2.30 p.m. on 14.3.2011. According to Dr. Rekha, who has examined PW.2, it is humanly impossible to commit rape if both upper and lower limbs are tied with a rope. The rope is not seized by the police. The wound certificate does not disclose the injuries on the thighs of PW.2. Even according to PW.2, her bangles were broken and the blood stains were on the floor of the house. The police have not made any attempt to seize the broken bangle pieces and to collect the samples of blood stains found cloths at the spot. PW.4 has stated that a false case has been lodged against the accused at the instance of Sadananda, who is having political rivalry with the accused. She has further deposed that she too is having ill-will against the accused. 24. If the evidence of Doctor is believed when PW.2's both upper and lower limbs were tied with a rope, it is impossible for anyone to commit rape. The evidence of PWs.2 and 4 is unnatural. It is difficult for any Court to believe their evidence, because, in one breath PW.2 says that she had not seen the accused either prior to the incident or later to the incident. In another breath she has stated that she is well acquainted with the accused and she used to move with him freely for last six months from the date of incident. MOs.4 to 6-clothes seized in the presence of Dr. Rekha is not the school uniform, on the other hand, it is coloured dress. In another breath she has stated that she is well acquainted with the accused and she used to move with him freely for last six months from the date of incident. MOs.4 to 6-clothes seized in the presence of Dr. Rekha is not the school uniform, on the other hand, it is coloured dress. PW.2 has stated that she was wearing school uniform on the date of incident for the whole day and she has also deposed that she was in the school till 4.30 p.m. in the evening and no such incident has taken place. 25. Insofar as Ex.P.4 is concerned, again we have got different version. According to the respondent, the date of birth of the victim is not proved to show that she is less than 16 years old, because, according to PW.2, when she was admitted to the primary school, she had completed seven years. On the date of incident she was studying in 9th standard. When she was in middle school, she has failed for one or two years as per the evidence of PW.4-mother of the victim. If the victim was admitted to the first standard when she had completed seven years and if she had failed for one or two years when she was in middle school and when the incident has taken place, she was studying in 9th standard, her age cannot be less than 18 to 19 years. This is further fortified from the evidence of PW.4,because, she has deposed before the Court that her marriage was solemnized about 25 years prior to her deposition and one or two years after her marriage she gave birth to PW.2. 26. We have to give more importance to Ex. P. 4 provided, if there is cogent evidence to show that her actual date of birth is 6.3.1996 by producing her birth certificate. The same is not produced before the Court. Evidence of PW.7 cannot be taken as gospel truth, because he has issued Ex.P.4 based on the admission register maintained by his school when PW.2 was admitted to eighth standard based on the transfer certificate issued by the previous school. If the prosecution has produced the admission register of PW.2 when she was admitted to first standard, this Court could have considered the argument of Mr. Nawaz, learned Addl. If the prosecution has produced the admission register of PW.2 when she was admitted to first standard, this Court could have considered the argument of Mr. Nawaz, learned Addl. S.P.P. When PWs.2 and 4 have clearly admitted that what was the age of PW.2 when she was admitted to her school and when PW.4 has admitted that PW.2 has failed for one or two years when she was in middle school (from 5th to 7th standard), her age cannot be less than 16 years. The evidence of there witnesses do not corroborate with each other. Therefore, viewed from any angle, we are of the view that the prosecution has failed to bring home the guilt of the accused, because the opinion of Dr. Rekha is that sexual intercourse might have taken place, but there is no conclusive proof. Further, she has stated before the Court that it is humanly impossible to commit rape if both the lower and upper limbs are tied with a rope and even otherwise, the prosecution has failed to prove the actual date of birth of PW.2 to show that she was below 16 years when the incident has taken place. As stated to supra, there is nothing to show that the rape was committed on PW.2 and that she was minor at that time. In the result, we do not see any merit in this appeal. Accordingly, appeal is dismissed. As we have dismissed the appeal on merits, I.A. No. 1 filed seeking to condone the delay does not arise for consideration. Accordingly, IA 1/2013 is also rejected.