JUDGMENT : 1. Heard the learned Counsel for the appellant and the learned Government Pleader. 2. The appellant was the accused before the court below for offences under Sections 376, 511 and 506 of the Indian Penal Code, 1860 (Hereinafter referred to as the ‘IPC’, for brevity). The appellant having been convicted to undergo rigorous imprisonment for a period of 4 years and to pay a fine of Rs.1,000/-for the offence punishable under Section 376 read with section 511 of the IPC and to undergo simple imprisonment for a period of 1 year for the offence under Section 506 of the IPC, the present appeal is filed. It is alleged in the complaint, filed by the sister of the victim dated 24.3.2007, that the complainant was residing along with her parents, brothers and sisters at Bokkapatna, Bengre, Mangalore and that the complainant was working in a Printing Press and that she would normally go to work at 9 a.m. and return in the evening at about 7.30p.m. Her father was a fisherman and her mother was selling fish in the market. However on 23.3.2007, since her mother had fallen ill, she had been admitted to a hospital and it was only her sisters, PW.2 Anupama and PW.3, Gayathri, who were at home. It transpires that when the complainant returned home at about 7.30p.m., she found Anupama weeping and Anupama had complained of pain in her neck. Upon further inquiries, it was revealed that the appellant herein had come to their house at about 11 a.m. when Anupama was alone and committed rape on her. It was only when PW.3 Gayathri, who had gone out for shopping, was heard coming back to the house, that the appellant had run away while threatening Anupama that she would come to harm if she revealed the incident to any person. It is on the basis of the said complaint, which was registered only as on 24.3.2007, at about 7.30 p.m. a case was registered initially for offences punishable under Sections 354 and 506 and later, with the permission of the court below, the case was converted as one for offences punishable under Section 376 read with Sections 511 and 506 of the IPC. The accused was said to have been arrested thereafter on 26.3.2007 and a charge sheet was ultimately filed on 6.11.2007 and further proceedings had taken place and the case was committed to the Court of Sessions. The accused having pleaded not guilty and having claimed to be tried, charges were framed. The prosecution has tendered evidence of 13 witnesses and had produced 11 documents and marked several exhibits and on recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, the court had framed the following points for consideration:- “1. Whether the prosecution has proved beyond reasonable doubt that the accused Harish Suvarna, son of Umesha Puthran, resident of Radha Nivas, near Radhakrishna Vitobha Bhajana Mandira, Bokkapatna, Bengre, Mangalore has committed the offence of rape on 23.3.2007 in the morning at 11:00 AM, in the house of PW.1 situated at Bokkapatna, Bengre Village, Mangalore Taluk on PW.2 [Victim] and thereby committed the offence under Section 376 of IPC? 2. Whether the prosecution has proved beyond reasonable doubt that the accused above named on the date, time and place as above dated attempted to commit rape on PW.2 [Victim] and thereby committed the offence under Section 376/511 of IPC? 3. Whether the prosecution has proved beyond reasonable doubt that the accused above named on the date, time and place as above stated threatened PW.2 and PW.3 and criminally intimidated PW.2 and PW.3 and thereby committed the offence punishable under Section 506 of IPC?” The Court had then answered point no.1 in the negative and points no.2 and 3 in the affirmative and passed the judgment, which is under challenge in the present appeal. 3. The learned counsel for the appellant while taking this court through the record would contend that the court below has ignored the first principles of Criminal Jurisprudence and has convicted the accused notwithstanding that there was no evidence in support of the charges. Firstly, it is pointed out that there was inordinate delay in lodging the complaint and registering the First Information Report and there are varying versions of the alleged incident, which itself would dislodge the case of the prosecution. It is pointed out that the charge sheet was filed only in respect of an attempt to commit rape and there was no allegation of rape. It is pointed out that the charge sheet was filed only in respect of an attempt to commit rape and there was no allegation of rape. Therefore, the point that was framed for consideration as to whether the prosecution had proved that the accused had committed rape was beyond the jurisdiction of the court below. Therefore, the very approach of the prosecution and the manner in which the court below has addressed the matter is lopsided and especially, when there was no case, except in the evidence that the accused had forcibly committed sexual intercourse on PW.2 which is contrary to the charge sheet. The court below had no occasion to proceed to hold that the evidence of PW.2 indicates penetration and hence penetration is sufficient to attract the commission of rape. This again is contrary to the learned Judge’s own finding. Therefore, it is alleged that the judgment suffers from patent errors and would run against the grain in having ignored first principles of Criminal Jurisprudence and having found the appellant guilty in the face of such lacunae, which has been conveniently ignored in arriving at conclusions, which are not supported by material on record nor even the charges that were framed. It is particularly demonstrated that even though PW.2 has stated as to the manner in which the alleged rape was committed on her in the course of her cross-examination, she has in clear and unambiguous terms stated that when she heard a knock on the door, she opened the door and saw a man standing at the door and on seeing him, she had immediately shut the door. And when she screamed for help, the neighbourers and others in the vicinity had come there. Therefore, the question of accused having trespassed into the house of the victim and having committed rape on her was totally given a go bye in her cross-examination itself. The findings of the court below have resulted in a gross miscarriage of justice and results in the appellant being visited with a serious punishment of imprisonment for several years, which is hardly supported by the material on record. The findings of the court below have resulted in a gross miscarriage of justice and results in the appellant being visited with a serious punishment of imprisonment for several years, which is hardly supported by the material on record. It is further pointed out that on other aspects, such as whether there was any evidence of rape at all, PW.4 and PW.5, the doctors who had examined the victim as well as the appellant have concluded that there were no injuries found on the person of the appellant or on the victim and therefore, the allegation of rape committed was not proved in the absence of any iota of evidence of any sexual act, let alone rape. Therefore, the learned Counsel would submit that viewed from any angle, the case of the prosecution is neither supported by the evidence on record nor was the case of the prosecution framed properly, in the manner in which it was sought to be projected and the judgment of the court below has compounded the situation in accepting the baseless allegations in arriving at its findings and hence, seeks that the judgment be set aside. Further, the counsel would also point out that the alleged victim PW.2 has categorically admitted in the course of her cross-examination that she was tutored by her sister to make the statements in the course of her evidence as to the manner in which the rape was said to have been committed, which ought to have put the court below on guard as to the very veracity of the witness being suspect. Whereas the court below has completely ignored this aspect of the matter when seeking to reconcile the contradictions that were replete in the evidence of the said witnesses. Consequently, it has resulted in a miscarriage of justice. 4. The learned Government Pleader, on the other hand, would seek to support the judgment of the court below while pointing out that the evidence of the victim to the effect that the rape was committed on her and the graphic manner in which she has described the act that was committed on her would require this court to enhance the sentence against the accused notwithstanding the appeal is filed by the accused and would submit that the punishment, in fact, is inadequate and would urge the court to consider enhancing the sentence against the accused. 5. 5. In the light of the rival contentions and on a perusal of the record, the age of the victim was said to be 20 and she had studied up to the 4th Standard. It was also on record, as noticed by the trial court, that she has apparently discontinued the studies and was restricted to her home because she was said to be dull witted. This has been noticed by the court below as well. It is the case of the complainant that the victim was alone at home on 23.3.2007 when the incident took place. The complainant returned home at about 7.30 p.m. to find the accused weeping and according to the complainant, she was only told by the victim that the accused had molested her and had threatened her with a knife and had thereafter gone away on hearing PW.3, Gayathri, another sister coming back from shopping. It was on this basis that a First Information Report was registered on the next day. It is on a further statement of PW.1 that it was alleged that the accused had attempted to commit rape and the case was converted to one under Section 376 read with Section 511 of the IPC. It is on that basis that the charges were framed and the prosecution was carried on. It is noticed that in the points for consideration, the court below has proceeded to frame a point that the appellant had committed an offence punishable under Section 376 of the IPC. This was inexplicable since the charges did not relate to commission of rape, but only an attempt to commit rape. Be that as it may, in the course of the trial, the victim has tendered evidence which is stated to be in a language other than Kannada. There is no indication as to the language in which she had deposed. But it has been translated into Kannada. It would be useful to extract the very text of her deposition which is roughly translated into English thus: “I have studied up to 4th Standard. My father is engaged in fishing. My sisters are working and one of my sister works in a printing press. My mother sells fish in market. There was a scuffle with regard to this case four years ago. My sister and I were at home on 23.3.2007. My father is engaged in fishing. My sisters are working and one of my sister works in a printing press. My mother sells fish in market. There was a scuffle with regard to this case four years ago. My sister and I were at home on 23.3.2007. Gayathri, my sister had been to grocery shop on that day. The accused had gagged my mouth.” The witness while pointing at the accused states that the accused had held her at a knife point and threatened her that he would do away with her life. “Thereafter, the accused pushed me on to the cot and removed my clothes and bit my cheek. He tied my hands and covered my mouth with his hand. He removed my nightwear and bit my cheeks. I shouted at him saying ‘let my sister come’. There was pain in my neck and inside the clothes. The accused threatened me at a knife point and had held my neck firmly. Thereafter, the accused had left. Thereafter the Police had questioned me about the incident.” The witness was shown MO.1, a blue coloured nightwear and a yellow coloured in-skirt and she has confirmed that the said clothes were worn by her on the date of the incident. At this stage, when she was asked about the incident, she has stated that her private parts were aching and that there was a burning sensation and that there was also some bleeding.) “I have informed the incident to both my sisters.” The witness has stated that the accused had removed his underwear and had inserted his penis into her vagina. The witness has further stated that the Police had taken her to a hospital. “The Medical Officer has examined me at the hospital.” The knife, which was in a sealed cover, was shown to the victim, who had confirmed that it was the same weapon which was used in the incident to threaten her. The said material object was marked as MO.3. “On the date of the incident, my mother had been to hospital since she had knee pain and my father had gone for fishing.” Thereafter, she has been subjected to cross-examination not on the same day, but a week later. The said material object was marked as MO.3. “On the date of the incident, my mother had been to hospital since she had knee pain and my father had gone for fishing.” Thereafter, she has been subjected to cross-examination not on the same day, but a week later. It is during the course of cross-examination that many statements have been elicited from her, which are apparently in contradiction and inconsistent with the statements that she had made in the course of her examination in chief. But the crucial aspect that the victim has said in so many words, without hesitation, as to the manner in which the accused had committed rape on her in graphic detail, coupled with the circumstance that the court itself has observed that the victim appeared to be dull-witted, would indicate that it is a natural and unprovoked revelation of what actually transpired. Given the manner in which it is narrated, it is difficult to fathom that the girl was dull-witted. In any event, this was a case involving possible rape and though the entire case was framed as if it was a mere case of molestation or a case of attempt to commit rape, the fact that the victim has come before the court and has candidly narrated the manner in which the incident has occurred would, in the opinion of this court, throw the procedure and the form in which the victim’s case is to be addressed to the winds, especially, when it is a rape victim who is narrating her plight and trauma before the court. In any event, the cross-examination has caused a severe dent in the statements made in her evidence if we are to strictly apply the criminal jurisprudence, this would be the inevitable conclusion. However, the court below having proceeded to hold that on the basis of the evidence of other witnesses, if at least a case of an attempt to rape is made out, even if there was no medical evidence of rape of having been committed, given the candid narrative of the victim, no fault can be found with it. It is apparently a case which has been diluted on account of the complaint in the first instance not reflecting the actual incident that may have taken place. It is apparently a case which has been diluted on account of the complaint in the first instance not reflecting the actual incident that may have taken place. Given the very nature of the victim and possibly her intention to suppress the actual incident on account of being consumed with shame, which is not implausible, it could be said that strict application of the law would certainly be in favour of the accused. But the singular circumstance that the victim has stated before the court that she was raped by the accused and has detailed the manner in which it was committed would stand out and that cannot be ignored. In that view of the matter, the legal aspects that are highlighted by the learned Counsel for the appellant may hold good in other circumstances in which the same could be urged. In the view of this court, it was a fit case where there ought to have been a course correction if it was possible even at a stage where the witness had revealed to the court for the first time that it was not merely a case of molestation, but an actual rape committed on her and when no such corrective measures have been taken and the matter having run its course and the State thereafter not having chosen to question the finding of the court below, it would only enable the accused to escape the law. Therefore, this court is not in a position to enhance the sentence given the lacuna that is apparent from the record. However, this court is fully convinced of the victim’s statement that she was indeed raped by the accused. In the result, the appeal is dismissed. In view of Section 386 of the Code of Criminal Procedure, 1973, this court is barred from enhancing the sentence that is imposed and hence it is restricted to the sentence already imposed by the court below. The bail bond stands cancelled. The fine amount, if any paid, stands forfeited to the State.