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2015 DIGILAW 994 (KAR)

State v. K. M. Lokesh

2015-08-26

MOHAN M.SHANTANAGOUDAR, R.B.BUDHIAL

body2015
JUDGMENT : Mohan M. Shantana Goudar, J. 1. The judgment and order dated 28.12.2010 passed by the Fast Track Court, Arakalagud in S.C. No. 169/2009 is called in question in these two appeals. By the impugned judgment, the Trial Court convicted the accused for the offences punishable under Sections 448 and 376 of IPC and sentenced him to undergo imprisonment for one year and five years respectively for the aforementioned offences. Sentence of fine is also imposed on the accused. 2. Crl. A. No. 496/2011 is filed by the State praying for enhancement of sentence. Crl. A. No. 91/2011 is filed by the convicted accused seeking his acquittal. 3. Case of the prosecution in brief is that the accused and the victim/prosecutrix are from the same village and are distant relatives; the victim was poor whereas the accused are from well-off family; the victim used to visit the house of the accused regularly and she used to work there; so also the accused used to come to the house of the victim and talk with her as well as her family members regularly; which means the accused and the victim are living amicably as relatives. It is further case of the prosecution that at about 2.00 p.m., on 09.02.2009 when the prosecutrix (P.W. 1) was sleeping in her house, the accused entered her house and objected for the victim marrying with another person; thereafter the accused committed sexual assault on her; P.W. 2 after hearing the cries of P.W. 1, rushed to the spot and saw the accused on the spot; she asked as to why the accused has committed sexual assault on P.W. 1; however, the accused ran away from the scene. Though the incident has taken place at 2.00 p.m. on 09.02.2009 and though the same was made known to P.W. 2 immediately after the incident, complaint was not lodged against accused either by the victim or by any of her family members. At about 7.00 p.m. on the very day i.e., on 09.02.2009, the victim consumed pesticide and she was immediately admitted to the local Government Hospital at Konanur at about 9.00 to 9.30 p.m. and subsequently, she was shifted to Higher Medical Centre i.e., Government Hospital at Hassan. At about 7.00 p.m. on the very day i.e., on 09.02.2009, the victim consumed pesticide and she was immediately admitted to the local Government Hospital at Konanur at about 9.00 to 9.30 p.m. and subsequently, she was shifted to Higher Medical Centre i.e., Government Hospital at Hassan. Though the victim was treated in the Hassan Government Hospital and though she has taken treatment with regard to consumption of pesticide, she did not disclose about the alleged sexual assault before the doctor or before anybody in the hospital. However, she has disclosed about the consumption of pesticide only. The victim was discharged from the Hassan Government Hospital after seven days. Even then, the complaint was not lodged against the accused. Thereafter, two panchayaths were conducted in the village. Last of the panchayath was conducted on 17.02.2009. In the said panchayath, the elders advised the accused to marry the victim. But, the accused did not agree for the said proposal. Despite the same, the complaint was not lodged against the accused. Further, the complaint as per Ex. P1 came to be lodged at about 7.00 p.m. on 26.02.2009 at Konanur Police Station, which came to be registered in Crime No. 34/2009 for the offences punishable under Sections 448 and 376 of IPC. P.W. 13-Inspector of Police completed the investigation and laid the charge-sheet. 4. In order to prove its case, the prosecution in all examined 21 witnesses and got marked 17 exhibits and 4 material objects. On behalf of the accused, 1 exhibit came to be marked during the deposition of P.W. 10. The Trial court, as aforementioned, on evaluation of material on record, convicted the accused for the offences with which he is charged and sentenced him as mentioned supra. 5. Sri. On behalf of the accused, 1 exhibit came to be marked during the deposition of P.W. 10. The Trial court, as aforementioned, on evaluation of material on record, convicted the accused for the offences with which he is charged and sentenced him as mentioned supra. 5. Sri. S.A. Ahmed, learned advocate appearing on behalf of the accused in both the appeals taking us through the entire material on record submits that false complaint is lodged against the accused; there is nothing on record to show that the victim was subjected to sexual assault; the victim was aged about 20 years and her marriage was fixed with P.W. 15 who was aged about 35 years during the relevant point of time; P.W. 15 was widower; the victim was unwilling to marry P.W. 15 who was 15 years elder to her and was a widower and hence, she consumed pesticide a day prior to her engagement ceremony with P.W. 15. He further submits that the medical evidence on record as well as the evidence of P.W. 2 may not help the case of the prosecution, more particularly that there is nothing to suggest even in the medical evidence that the victim was subjected to sexual assault by anybody muchless by the accused during the relevant point of time. He further submits that Ex. P13 medical certificate pertaining to the victim prima-facie reveals that the victim was habituated to sexual intercourse and that there was no forcible sexual intercourse in the recent past. Per contra, Sri. Chetan Desai, learned Government Pleader not only argued in support of the judgment of the Court below but has sought for enhancement of sentence. According to him, the accused has taken disadvantage of his relationship with the victim. 6. P.W. 1 is the prosecutrix/complainant. She has lodged complaint as per Ex. P1. She has deposed about the incident in question as well as about the consumption of pesticide by her. P.W. 2 is the aunt of P.W. 1. She came after the incident and saw accused near the scene of offence. P.W. 3 is the sister of P.W. 1. She had gone to college during the relevant point of time and she came to know about the incident at evening on the same day. P.W. 4 is the father of the complainant. His evidence is also on par with the evidence of P.W. 3. P.Ws. P.W. 3 is the sister of P.W. 1. She had gone to college during the relevant point of time and she came to know about the incident at evening on the same day. P.W. 4 is the father of the complainant. His evidence is also on par with the evidence of P.W. 3. P.Ws. 6, 7 and 8 are the village elders and panchayathdars, who participated in the panchayaths convened in the village at the request of the family of the victim after the incident. All of them have deposed that they advised accused to marry the victim. P.W. 6 is a mediator who arranged for the marriage of the victim with P.W. 15 and engagement ceremony was fixed on the next date of incident in question. P.W. 9 is the witness for scene of offence panchanama Ex. P2. P.Ws. 10 and 11 are the witnesses for seizure panchanama Ex. P3, under which the clothes of accused (MOs-1 to 3) were seized. P.W. 12 is an Engineer who gave sketch of offence as per Ex. P5. P.W. 13 is the Investigation Officer. He completed the investigation and laid the charge-sheet. P.W. 14 is the doctor. He examined the accused and has given report as per Ex. P7, which discloses that there is nothing to suggest that he is incapable of having sexual intercourse. It also discloses that there were no external injuries on his body including penis. P.W. 15 is the person whose engagement ceremony was fixed with the victim on the next day of incident. However, he has turned partly hostile to the case of the prosecution. P.W. 16 is the Assistant Sub-Inspector of Police. He received the complaint lodged by P.W. 1 as per Ex. P1 and sent First Information Report to jurisdictional Court. P.Ws. 17 and 19 are the police constable and head constable respectively. They participated during the course of investigation. P.W. 18 is another doctor. She examined the victim and issued medical certificate as per Exs. P13 and 14. P.W. 18 examined the victim after lodging of the complaint and Exs. P13 and 14 are confined to the alleged sexual assault. P.W. 20 is one more doctor who examined the victim immediately after the victim was admitted to hospital on 09.02.2009 at Hassan Government Hospital. He issued medical certificate as per Ex. P6 revealing that the victim had consumed pesticide. P13 and 14 are confined to the alleged sexual assault. P.W. 20 is one more doctor who examined the victim immediately after the victim was admitted to hospital on 09.02.2009 at Hassan Government Hospital. He issued medical certificate as per Ex. P6 revealing that the victim had consumed pesticide. P.W. 21 is the Investigation Officer who completed the investigation in part and handed over the investigation to P.W. 13. We have already mentioned supra that P.W. 13-Inspector of Police completed investigation and laid the charge-sheet. 7. Thus, the case of the prosecution mainly depends upon the evidence of P.Ws. 1, 2 and the panchas P.W. 5, 7 and 8 apart from the medical evidence. We have already mentioned supra that the incident has taken place at 2.00 p.m. on 09.02.2009 in the house of the victim and immediately after the incident, P.W. 2 arrived at the scene and scolded the accused. Thereafter, P.W. 2 went back to her house as if nothing has happened. At 7.00 p.m. on 09.02.2009, the victim allegedly consumed pesticide. Immediately, thereafter the victim was shifted to Konanur Hospital at the first instance and thereafter to Hassan Government Hospital at 10.30 p.m. All these facts are found in the complaint lodged by P.W. 1 as per Ex. P1. It is also mentioned in Ex. P1 that the accused wanted to marry the victim and since the parents of the victim had arranged marriage with another person (P.W. 15), the accused came to her house and quarreled with her and thereafter committed sexual assault on her. This version as found in EX. P1 is spoken to by P.W. 1 before the Court. If one reads the complaint averments found in the complaint-Ex. P1 along with the deposition of P.W. 1, prima-facie it can be concluded that version of P.W. 1 before the Court is consistent with her version in Ex. P1. It is further deposed by P.W. 1 that incident of sexual assault which happened at 2.00 p.m. on 09.02.2009 in the house of the victim was made known to all the family members of the victim by the victim as well as P.W. 2. P1. It is further deposed by P.W. 1 that incident of sexual assault which happened at 2.00 p.m. on 09.02.2009 in the house of the victim was made known to all the family members of the victim by the victim as well as P.W. 2. However, P.W. 1 has improved her version before the Court by adding that in the evening of 09.02.2009, the victim and her family members went to the house of the accused and told that they would be lodging complaint; however, the victim and her family members were pacified by the family members of the accused. This portion of evidence of P.W. 1 is clearly an improvement made before the Court. 8. Though the incident has taken place on 09.02.2009; though the victim was admitted in two hospitals on the very night of the incident; though the victim has stated about consumption of the pesticide before the doctor, she did not disclose about the incident of alleged sexual assault before any of the public authorities including doctor and the police. A complaint came to be lodged on 26.02.2009 at 7.00 p.m. i.e., after lapse of about 17 days from the date of incident in question. During the interval, two panchayaths were convened. The family members of the accused were not invited to one of the panchayaths. However, the family members of the accused were invited to second panchayath which was held on 17.02.2009. Even when the talks in the panchayath failed on 17.02.2009, no complaint came to be lodged against the accused till 26.02.2009. Absolutely no reason whatsoever is forthcoming for not lodging the complaint either immediately after the incident or during reasonable period. It is astonished to note that even the doctor did not send medico legal intimation to the concerned police. Though the fact of consumption of pesticide was disclosed before the doctor, the said doctor as an ordinary prudent man ought to have sent medico legal intimation to the police authorities. Even otherwise, if really the victim was subjected to sexual assault by the accused, she would not have kept quiet without disclosing the same before the doctor on 09.02.2009. Had she disclosed about the alleged sexual assault by the accused on the night of 09.02.2009 in the hospital before the doctor, the doctor would have definitely subjected her to medical examination and the truth would have come out. Had she disclosed about the alleged sexual assault by the accused on the night of 09.02.2009 in the hospital before the doctor, the doctor would have definitely subjected her to medical examination and the truth would have come out. But unfortunately, as mentioned, the complaint came to be lodged after 17 days and hence absolutely no material worth believing is found on records to show that the victim was subjected to sexual assault by the accused on the date of the incident. 9. Though the prosecution relied upon the evidence of P.W. 2-aunt of the victim, her evidence does not deserved to be believable. P.W. 2 in her examination in chief itself has deposed that when she was in the house of the victim along with the victim, the accused committed sexual assault on the victim and that P.W. 2 scolded the accused. Strangely, though P.W. 2 is the aunt of the victim, she went back to her house as if nothing has happened. She came back to the house of the victim once again at 7.00 p.m. on the date of the incident with a view to watch television. At that point of time, she came to know that the victim had consumed pesticide. Immediately, she informed about such act of consumption of pesticide by the victim to all the family members of the victim as well as the villagers who inturn immediately shifted the victim to the hospital. If really P.W. 2 had seen the accused committing sexual assault on the victim, she would not have kept silent without informing either to the family members at large or to the police for initiating action against the accused. In the cross-examination, P.W. 2 has further destroyed the case of the prosecution inasmuch as she has admitted that prior to the incident in question i.e., in the evening of 09.02.2009 the victim (P.W. 1), herself (P.W. 2) and the accused were sitting in the house and they were talking with each other amicably. Thereafter, P.W. 2 went back to her house along with her child. After sometime, she came to know about this alleged sexual assault by the accused. Thereafter, P.W. 2 went back to her house along with her child. After sometime, she came to know about this alleged sexual assault by the accused. Which means that P.W. 2, though was sought to be made out by the prosecution as eye witness to the incident, has clearly admitted that she is not eye witness to the incident and that she came to know about the sexual assault subsequent to the incident. Hence, the evidence of P.W. 2 is of no use to the case of the prosecution. 10. P.W. 4 is the father of the victim. He has in his examination chief clarified that the victim used to go to the house of the accused frequently for work; so also the accused used to come to the house of victim frequently and they used to work together. Even the family members of the victim were going to the house of the accused and family members of the accused were also coming to the house of the victim. At about 5.00 to 6.00 p.m. on 09.02.2009, he came to know about the victim consuming pesticide. This fact was made known to all the family members who shifted the victim to Konanur hospital and thereafter to Hassan Government Hospital. The victim took treatment in Hassan Government Hospital for about 7 to 8 days. In the cross-examination, P.W. 4 admits that on the next date of the incident in question, the engagement ceremony of the victim with P.W. 15 was fixed; P.W. 15 was widower; defence has suggested to P.W. 4 that the victim consumed pesticide because she was not intending to marry P.W. 15. But such suggestion is denied. In the evidence of P.W. 4, Ex. D1 is marked. Ex. D1 discloses that the marriage of P.W. 1 could not be performed earlier, inasmuch as no boy was willing to marry her. From the evidence of P.W. 4, it is clear that though the victim took treatment in Hassan Government Hospital for about 7 to 8 days, none of the family members of the victim including the victim disclosed about the alleged commission of rape by the accused. It is also curious to note that they merely disclosed about the consumption of the pesticide by the victim. It is also curious to note that they merely disclosed about the consumption of the pesticide by the victim. If really the accused has committed offence of sexual assault, the family members of the victim would not have kept quiet without lodging complaint against the accused. 11. It is relevant to note that P.W. 15 (i.e., proposed man to marry victim) with whom engagement ceremony was to be performed next day of the incident was a widower and was aged about 35 years. Whereas the victim was about 19-20 years. The defence of the accused is that the victim consumed poison, since she was not willing to marry P.W. 15, assumes importance. 12. As aforementioned, it is further case of the prosecution that there were panchayaths in the presence of P.Ws. 5, 7 and 8 and in the first panchayath, family members of the accused were not invited. However, in the second panchayath which was held on 17.02.2009, family members of the accused were invited. In the said panchayath, the accused did not agree for marrying the victim. Despite the same, the complaint was not lodged by anybody including panchayathdars. It is no doubt true that the evidence of P.Ws. 5, 7 and 8 would prima-facie reveal that panchayath convened in the village to convince the accused to marry victim. However, the accused did not agree for the same proposal. Merely such proposal was made to the accused, it cannot be said that the accused has committed sexual assault as alleged by the prosecution on the date of the incident and hence, he was forced to marry her. Panchayathdars P.Ws. 5, 7 and 8 have admitted that in the panchayath, the family members of the victim were advised to lodge a complaint against the accused. Inspite of the same, no complaint came to be lodged after 17.02.2009 till 26.02.2009. 13. The inordinate delay on the part of the complainant or her family members in lodging the complaint has remained unexplained. Not even a single valid reason is assigned as to why the complaint was not lodged earlier. Though it is the case of the prosecution that the family of the victim waited for the result of panchayath, no explanation is forthcoming from the prosecution as to why the complaint was not lodged immediately after failure of talks in the panchayaths. 14. Exs. Though it is the case of the prosecution that the family of the victim waited for the result of panchayath, no explanation is forthcoming from the prosecution as to why the complaint was not lodged immediately after failure of talks in the panchayaths. 14. Exs. P12, 13 and 14 are medical certificates of the victim. P.W. 18 is the doctor who issued said medical certificates. The medical examination of the victim was made on 06.03.2009 i.e., after the lapse of about 27 days of the incident in question. Ex. P13 discloses that the victim took bath on 09.02.2009 and her undergarments were washed on 09.02.2009. There were no internal or external injuries present on her body. The Clitoris was slightly enlarged. Hymen was not present. Vagina easily admitted two fingers. On examination of the victim, the doctor (P.W. 18) has opined that there is nothing to suggest that the person is incapable of performing sexual intercourse. Ex. P14 is another medical certificate which discloses that there is nothing to suggest that the victim was sexually assaulted and that no injuries are found on the private parts or around the private parts of the victim. Since the victim was examined after about 27 days of the alleged incident, naturally no clue would be available with regard to the alleged rape. 15. Having regard to the aforementioned facts and circumstances, it is clear that the entire case vested on the evidence of P.W. 1-prosecutrix. We have already mentioned supra as to why the evidence of P.W. 1 needs corroboration in the matter on hand. It cannot be lost sight that rape causes greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equally distress, humiliation and damage to the accused as well. Accused must also be protected against the possibility of false implication. We are conscious of the principle that an injured witness/victim/prosecutrix who suffered the incident ordinarily would not lie as to the actual assailant/accused, but there is no presumption or any basis for assuming that the statement of such witness is always correct or without any embellishment or exaggeration. 16. In the matter on hand, the material on record clearly reveals that the accused and the victim were friendly with each other; both of them were talking in the house sitting along with P.W. 2-aunt of the victim. 16. In the matter on hand, the material on record clearly reveals that the accused and the victim were friendly with each other; both of them were talking in the house sitting along with P.W. 2-aunt of the victim. Absolutely no complaint whatsoever was made by the victim alleging the offence of rape against the accused either immediately after the incident or within a reasonable period. The complaint came to be lodged by the victim alleging the sexual assault only after 17 days of the date of alleged incident. Though the victim was admitted to hospital on the ground of she consuming poison and though the victim has narrated before the Doctor that she consumed poison, she did not disclose or whisper about the alleged sexual assault by the accused before the Doctor or before any public official. Curiously, none of the family members, though were knowing about such sexual assault by the accused, came forward to disclose about the same before any public authority, including the doctor as well as the police. In the light of all the surrounding circumstances, in our considered opinion, the version of the victim ought to have been corroborated more particularly, in the absence of medical evidence in favour of the prosecution. 17. Having regard to the totality of the facts and circumstances, in our considered opinion, the prosecution has not proved its case beyond reasonable doubt against the accused. The presumption drawn and the conclusion arrived at by the trial Court are not proper and correct. The trial Court has proceeded merely on assumptions and conjectures. In view of the same, the judgment and order of conviction passed by the trial Court dated 28.12.2010 needs to be set aside. Accordingly, the same stands set aside. Crl. A. No. 496/2011 filed by the State is dismissed and Crl. A. No. 91/2011 filed by the convicted accused is allowed. Accused is acquitted of all the charges leveled against him. Bail bonds stand cancelled.