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2017 DIGILAW 224 (KAR)

State of Karnataka v. Veeresh Chennappa

2017-02-01

ANAND BYRAREDDY, K.SOMASHEKAR

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JUDGMENT : Anand Byrareddy, J. Heard the learned Additional State Public Prosecutor and the learned counsel for the accused-respondent. 2. The State is in appeal questioning the acquittal of the accused for an offence punishable under Section 376 of the Indian Penal Code 1860 (hereinafter referred to as the "IPC' for brevity). It was the case of the prosecution that the complainant Shyameed Bee, a widow, was a resident of Krishnadevaraya Nagar in Gangavathi taluka, and she had two children, namely, one Shyameed, aged about 18 years and a daughter Bannima, aged about 12 years. The son was said to be working at Bengaluru and Bannima was studying in the 6th standard in Ayodhya. It is alleged that on 18.09.2011 at about 06.00 p.m. when Bannima complained about pain in her sexual parts and on checking she found that there was some discharge and therefore she was taking Bannima towards hospital, it transpires that on the way they met Ananthalaxmi, a teacher of Bannima, who stopped them and asked them as to where they were proceeding and when she was informed that Bannima was being taken to hospital, it is then Ananthalaxmi had revealed to Shyameed Bee that on the previous day Bannima had complained that she had been raped by the respondent-accused and that she had brought back Bannima to their home and since she found that the complainant was not available, she had left the child there and gone away. Therefore, she is said to have suggested that the complainant should go to their employer Ramu for advise as to what to do next. At which, the complainant is said to have questioned Bannima about the previous day's incident and it was then revealed that the accused had committed rape on her on the previous evening and on hearing this, the complainant decided to consult her employer Ramu, who in turn had adviced them to complain to the police. Therefore, it was only on 18.09.2011 at about 11.00 p.m. that a case was registered in Crime No.251 of 2011 against the accused for the offences aforesaid. Therefore, it was only on 18.09.2011 at about 11.00 p.m. that a case was registered in Crime No.251 of 2011 against the accused for the offences aforesaid. It is pursuant to this, that further proceedings were taken and the victim was sent for medical examination on 18.09.2011 and the accused was arrested, and his voluntary statement was recorded and after further proceedings, the matter was committed to the Sessions Court and the accused had appeared and pleaded not guilty and claimed to be tried. 3. The prosecution then tendered the evidence of PW.1 to PW.16 and got marked Exs.P.1 to P.13. The defence in the course of cross-examination of PW.11 had marked one document Ex.D.1. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, the Court below had framed the following points for consideration: 1. Whether the prosecution proves beyond reasonable doubt, that on 17.9.2011 at about 5.p.m., in the limits of Gangavathi Rural. P.S at Krishnadevaraya Nagar of Gangavathi taluka, the accused committed rape on minor girl Bannima while she was in her hut and thereby committed an offence punishable under Section 376 of IPC? 2. What Order? and answered the same in the negative and acquitted the accused. It is that which is under challenge in the present appeal. 4. The learned Additional State Public Prosecutor would seek to point out that the victim was a young girl of 12 and according to her statement, when she had come back from school and when she was alone at home the accused is said to have barged into the house and immediately gagged her by stuffing a cloth into her mouth and then had committed rape on her. She was not able to raise an alaram as she was gagged and that with great difficulty, after the accused left, she had sought the assistance of Ananthalaxmi, her teacher, whom she met on the way and since Ananthalaxmi brought her back home and on finding that the complainant was not at home, had informed Bannima to report the matter to her mother and she had left. It is, thereafter, on the next day that Bannima had complained of pain in her private parts to her mother, the sequence as stated above has taken place. It is, thereafter, on the next day that Bannima had complained of pain in her private parts to her mother, the sequence as stated above has taken place. This could not have been negated by the Court below on the footing that there was no medical evidence as regards the commission of rape, when the statement of the victim, who was a minor would be enough to bring home the charges against the accused. This is the settled law. That nothing more is required than the testimony of the rape victim to bring home the charges against a person who has committed rape and the child could not be attributed with any mala fides or other design in seeking to frame the accused or to foist a false case against him. An innocent child's case has been disbelieved merely because that the eyewitness to the incident PW.4 had turned hostile or that the belated FSL report had turned in negative results which would result in a serious miscarriage of justice, as the young victim's words are not taken into account and the instances of extraneous evidence to accept the case of the young rape victim, results in grave injustice and therefore seeks that the judgment of the Court below be set aside. 5. While the learned counsel for the accused would submit that serious charge of rape has been brought against the accused which visit the accused with the serious punishment which may even extend to life and, therefore, it is a burden cast on the prosecution to establish its case beyond all reasonable doubt. This the law prescribes as a mandate and the accused does not seek any concession, in this regard and since the prosecution has miserably failed to establish its case, as it was evident that the child was young and the accused-respondent is a strapping young man of 22 years and if the incident had really taken place, it would leave some sign of struggle and violence and as there was no such visible signs of any kind of injury caused to the sexual parts of the young girl and there were no other signs of the accused having abused her sexually such as semen stains, pubic hair and blood stains. There is no indication whatsoever of any nature to demonstrate that the accused had committed rape. There is no indication whatsoever of any nature to demonstrate that the accused had committed rape. Apart from the self-serving testimony of the victim, the only eyewitness-PW.4 has not supported the case of the prosecution. The circumstances that the child has not chosen to inform her mother immediately after she came home and that it is only on the next day she had complained of pain and since her mother had found discharge from her private parts, she had sought to take her to hospital, the learned counsel would point out that indeed if the child had suffered any kind of pain, it could only be in relation to some marks or injuries caused by the accused in committing act of rape. When there were no visible signs of any injury or violence, the child having complained of pain or the incident having coming to light belatedly would dilute the case of the prosecution and it is pointed out that PW.5 - the medical practitioner, who conducted medical examination of the victim, has opined that there were no visible signs of any rape though the hymen was not present in the child. She has stated that her report could not be conclusive in the absence of an FSL report. The FSL report has been produced belatedly but the prosecution has not chosen to mark the same in evidence as apparently it did not support the case of prosecution, as the allegation of the victim of bleeding on account of the rape and that her clothes having been stained with blood, which was said to have been sent for chemical examination by the police, having not disclosed any such evidence and the FSL report having been negated it cannot be said that the case of the prosecution was made out and therefore he seeks to justify the judgment of the Court below. 6. 6. The learned Additional State Public Prosecutor, however, would submit that the argument seeking to justify the judgment again only to emphasize that there is negative FSL report and that the medical practitioner has not indicated that the child had not suffered any kind of injury or that there were no signs of sexual activity immediately preceding the examination, the fact that the child was examined two days after the incident would be self explanatory as to the absence of any sign of rape and that it is not necessary that injury should be caused in committing rape. There could be rape without any injuries and this is lost sight of by the Court below in holding that unless there were signs of injuries, rape could not be presumed or could not be established and therefore again seeks to emphasize that the judgment of the Court below ought to be set aside. 7. In this regard, on a careful examination of the record and the rival contentions, we are left with the unhappy task of either accepting the child's testimony or overlooking all other material that may be in favour of the accused and to punish him by overruling the judgment of the trial Court. We find, we are faced with a first principle of law which require that prosecution establishes its case beyond all reasonable doubt. In this regard, it is unfortunate that there is no material support to establish the case of rape except the statement of the victim. It is also significant that the child has stated that the accused spent much time with her, in the sense, that the incident took place over a period of 1 hour and even if copulation itself could not be spread over one hour, he had spent time in much activity. Going by the complainant's evidence, if that be so, their ought to have been some other signs of the accused having abused the child, which unfortunately, is not forthcoming and if the child had complained of pain in her sexual parts only on the next day to her mother, that the pain could have manifested only on account of her parts being abused which again would have left some sign of such sexual assault which was not present as found by the medical practitioner. 8. 8. Therefore, it cannot be said that the prosecution has established its case beyond all reasonable doubt. The FSL report which has been unfortunately submitted belatedly also did not support the case of the prosecution. On the other hand, it is completely negated and there is no material support that is available in favour of the prosecution. In that view of the matter, there is no merit in this appeal and the same is dismissed.