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2020 DIGILAW 1876 (KAR)

Srinivas @ Puttaiah v. State Of Karnataka

2020-09-29

MOHAMMAD NAWAZ

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JUDGMENT Mohammad Nawaz, J. - This appeal is filed by the accused in S.C. No.616/2006 on the file of Court of Fast Track (Session) Judge-V, Bengaluru City, whereby he was convicted and sentenced for the offences punishable under Sections 366 and 376 of IPC. 2. I have heard Sri. D.Sheshadri, learned counsel appearing for the appellant and Sri. K.Nageshwarappa, learned HCGP for the respondent-State. 3. The prosecution has alleged that on 31.03.2006 at about 8.30 a.m. the accused kidnapped the prosecutrix, a minor girl aged about 16 years and took her to Chikabidarakalu near Tumkur road, and committed rape on her. It is also alleged that the accused induced the prosecutrix with a promise of marriage and cheated her and thereby he committed the offences punishable under Sections 366, 417 and 376 of IPC. In order to substantiate its case, the prosecution in all examined P.Ws.1 to 17 and got marked Exs.P1 to 13 and M.Os.1 to 7. The defence got marked Ex.D1. The learned Sessions Judge by Judgment and Order dated 15.11.2010 convicted the accused for the offences punishable under Sections 366 and 376 of IPC and acquitted him of the offence under Section 417 of IPC. The accused was sentenced to undergo simple imprisonment for a period of 3 years and to pay a fine of Rs.2,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of 6 months for the offence punishable under Section 366 of IPC. The accused was sentenced to undergo simple imprisonment for a period of 7 years and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo simple imprisonment for a period of one year for the offence punishable under Section 376 of IPC. Aggrieved by the aforesaid Judgment and Order of conviction and sentence passed by the trial Court, the present appeal has been preferred. 4. Assailing the conviction and sentence, the learned counsel for the appellant has contended that the entire case of the prosecution is false. There is an inordinate delay in lodging the complaint. The prosecution has utterly failed to prove that the prosecutrix was a minor at the time of incident. The trial Court has held that the prosecutrix was a major at the time of the alleged incident. There is an inordinate delay in lodging the complaint. The prosecution has utterly failed to prove that the prosecutrix was a minor at the time of incident. The trial Court has held that the prosecutrix was a major at the time of the alleged incident. He contends that the kidnap of the prosecutrix itself is not proved and therefore, the subsequent allegation that the accused has committed rape on her also cannot be accepted in view of delay in lodging the complaint. He submits that the evidence of P.W.1 is not corroborated by the medical evidence. There are material discrepancies in the case of prosecution. The material witnesses viz., Chandrakala [C.W.2] and Radha [C.W.3] are not examined. Hence, he submits that the approach of the trial Court in ignoring the material discrepancies and contradictions in the evidence of the prosecution and convicting the accused is not proper and the same is not in accordance with law. Accordingly, he seeks to allow the appeal. Learned HCGP would contend that P.W.1 is the victim. She has categorically stated that the accused by promising to marry, kidnapped her and took her to an eucalyptus grove in a car and forcibly committed sexual intercourse against her will. He submits that P.W.1 being the victim, her evidence requires no corroboration. Even otherwise, P.Ws.2 and 5 have corroborated the evidence of P.W.1. He would contend that the medical evidence also supports the prosecution case and therefore, the trial Court is justified in convicting the accused. Accordingly, he seeks to dismiss the appeal. 5. P.W.1 is the victim girl. P.W.2 is the father of the victim. P.W.3 is the Medical Officer, who referred P.W.1 to a lady doctor. P.Ws.4 and 6 to 8 are the panchwitnesses to Exs.P2 and 3. P.W.5 is the wife of P.W.2. P.W.9 has stated that the marriage of P.W.1 was performed in a temple. P.W.10 is a panchwitness to Exs.P6 and 7. P.W.11 is a Women Police Constable, who took the victim girl to the hospital for medical examination. P.W.12 is the Medical Officer, who examined the accused. P.W.13 is the doctor, who conducted the medical examination of prosecutrix [P.W.1]. P.W.14 is the Police Inspector, who registered the case, conducted investigation and laid the charge-sheet. 6. The complaint is lodged by the victim girl and the same is marked as Ex.P1. P.W.12 is the Medical Officer, who examined the accused. P.W.13 is the doctor, who conducted the medical examination of prosecutrix [P.W.1]. P.W.14 is the Police Inspector, who registered the case, conducted investigation and laid the charge-sheet. 6. The complaint is lodged by the victim girl and the same is marked as Ex.P1. According to Ex.P1, the victim was residing along with her father [P.W.2] and his second wife viz., Chandrakala [P.W.5] at Peenya 3rd Stage. She was working in a garment factory. After her mother expired, her father married P.W.5-Chandrakala. Since 3 months, the accused was acquainted with the victim. He was often telling her that he will marry her. The accused was working as a driver in a call centre. On 31.03.2006 at about 8.30 a.m., she had left her house for work. At that time the accused met her and by inducing that he will marry her, took her in his car near Chikkabidrakallu on Tumakuru Road. He took her to a secluded place and committed forcible sexual intercourse. Thereafter, he left her near her house at about 8.00 p.m. But, she did not go to her house as she was scared of her parents. Hence, she went to the house of her friend by name Radha [C.W.3]. On the next day, after 5.00 p.m., she went to her house. But, she did not inform the incident to her parents. However, her parents came to know about the incident and then she narrated the entire incident to them. Her parents informed the matter to the parents of the accused, who agreed that they will perform the marriage. However, they did not get the marriage registered. 7. P.W.1 in her evidence has stated that on 31.03.2006 while she was returning from her work at about 5.30-6.00 p.m. along with P.W.2-Chandrakala, the accused came in a car and telling her that he will provide sweets, took her in his car. Thereafter, he took her to an eucalyptus grove and committed forcible sexual intercourse against her will. She has stated that the accused had thrust a cloth in her mouth so that she could not scream. He brought back and left her about 8.00 p.m. She went to the house of C.W.3- Radha as she was scared to go to her house. But, she did not inform the matter to Radha. She has stated that the accused had thrust a cloth in her mouth so that she could not scream. He brought back and left her about 8.00 p.m. She went to the house of C.W.3- Radha as she was scared to go to her house. But, she did not inform the matter to Radha. She has further stated that on the next day, she informed the incident to her friend Chandrakala [C.W.2], who in turn informed the matter to her parents. She then narrated the incident to her parents and thereafter, a complaint was lodged as per Ex.P1. 8. It is very pertinent to see that P.W.1 in her evidence has stated that on 03.04.2006 her marriage was performed with the accused at Eshwara Temple. Thereafter, the accused took her to his house, but later she was assaulted and harassed. 9. According to the FIR., the accused Kidnapped P.W.1 on 31.03.2006 at about 8.30 a.m. But, in the evidence, P.W.1 has stated that while she was returning to her house along with P.W.2-Chandrakala at about 5.30-6.00 p.m., the accused kidnapped her. P.W.1 has stated that the accused kidnapped her in a car and took her to an eucalyptus grove in Chikkabidrarakallu and forcibly committed rape on her. According to P.W.1, the accused promised her that he will marry her and committed rape on her. She has stated that the matter was informed by her to her friend Chandrakala [C.W.2] on the very next day and also informed to her parents i.e., P.Ws.2 and 5. However, complaint came to be lodged on 22.05.2006 which is after a lapse of 52 days. P.W.1 has clearly stated that on 03.04.2006 her marriage with the accused was performed in Eshwara Temple. There is no reason forthcoming as to why there is a delay of about 52 days in lodging the complaint. If the incident as alleged had taken place on 31.03.2006 and the same was reported to the parents of the victim on the very next day, then the prosecution ought to have explained as to why there is an inordinate delay in lodging the complaint. 10. P.W.1 has stated that the accused kidnapped her in a car while she was going along with her friend by name Chandrakala [C.W.2]. The Investigating Officer has not seized the car. C.W.2-Chandrakala is also not examined by the prosecution. 10. P.W.1 has stated that the accused kidnapped her in a car while she was going along with her friend by name Chandrakala [C.W.2]. The Investigating Officer has not seized the car. C.W.2-Chandrakala is also not examined by the prosecution. The prosecution has relied upon the spot mahazar-Exs.P2 and 3, the spot from where the victim was kidnapped and she was raped. But, both the panchwitness to the spot-mahazar have turned hostile. 11. According to P.W.2, the father of the victim, when his daughter did not return to the house in the evening, he searched everywhere. On the next day, he went and lodged a missing complaint with the Police. But, P.W.14-Investigating Officer has admitted in the cross-examination that there was no missing complaint lodged by P.W.2 and P.W.2 never came to the Police Station either on 31.03.2006 or on 01.04.2006. Hence, it is difficult to believe that on 31.03.2006 the accused kidnapped the prosecutrix in his car and took her to Chikkabidarakallu. As already observed, the complaint is lodged after 52 days and as admitted by P.W.14, there was no missing complaint lodged by P.W.2 after the prosecutrix was kidnapped by the accused. 12. According to the prosecution, the victim was a minor, aged about 16 years at the time of the incident. It is nodoubt that the prosecution is relying on the evidence of P.W.13-Medical Officer. P.W.13 has examined the prosecutrix on 23.05.2006. According to him, the prosecutrix did not have 4 molar teeth and therefore, she was less than 18 years according to dental examination and it is as per the opinion of the radiologist. The opinion of the radiologist has not been produced and marked and he has not been examined. It is relevant to see that the trial Court has come to the conclusion that the prosecution has not been able to establish the age of the victim and that the prosecutrix was a major at the time of the alleged incident. 13. P.W.1 in her cross-examination has stated that she has given the document in respect of her date of birth. However, the said document is not produced and marked by the prosecution. P.W.1 has nowhere stated as to what was her date of birth. 14. P.W.5 in her evidence has stated that her marriage with P.W.2 took place about 23 or 24 years ago. At that time P.W.1 was aged about 3-31/2 years. However, the said document is not produced and marked by the prosecution. P.W.1 has nowhere stated as to what was her date of birth. 14. P.W.5 in her evidence has stated that her marriage with P.W.2 took place about 23 or 24 years ago. At that time P.W.1 was aged about 3-31/2 years. The trial Court after appreciating the evidence on record has come to the conclusion that in view of the evidence of P.Ws.1 and 5, the age of the prosecutrix was more than 20 years as on the date of alleged incident. The said finding is proper. 15. P.W.13 is the Medical Officer, who has examined the prosecutrix on 23.05.2006. According to him, the history given by the prosecutrix is that the accused committed sexual assault on her on two occasions i.e., on 13.03.2006 and 31.03.2006. P.W.1-victim has not stated anything about the sexual assault committed by the accused on 13.03.2006. The medical evidence does not support the case of the prosecution. In Ex.P10 issued by P.W.13 it is noticed that there were no injuries near the hymen and the hymen was intact. EX.P13 is the FSL report, wherein it is noticed that the presence of seminal stains were not detected in the items sent for medical examination. 16. According to the prosecution, the accused induced the prosecutrix and by assuring her that he will marry, took her in his car to an eucalyptus grove in Chikkabidarakallu and committed forcible sexual intercourse against her will. As already discussed, P.W.1 has admitted in her evidence that on 03.04.2006 her marriage was performed with the accused. The trial Court has acquitted the accused of the offence under Section 417 of IPC. However, for the forgoing reasons the trial Court was not justified in convicting the accused for the offences under Sections 366 and 376 of IPC. The prosecution has failed to establish the guilt of the accused for the said offences. Hence, the following: ORDER The appeal is allowed. The Judgment and Order dated 15.11.2010 passed in S.C. No.616/2006 on the file of the Court of Fast Track [Sessions] Judge-V, Bengaluru City is hereby set aside. The accused is acquitted of the offences punishable under Sections 366 and 376 of IPC. His bail bond stands cancelled. If the accused has paid the fine amount, the same shall be returned.