Bangalore District Court
State By Jeevan Bheema Nagar Police vs Madan.D on 23 February, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS JUDGE AT
BANGALORE CITY (CCH-55)
Dated this the 22nd day of February, 2017.
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
SESSIONS CASE NO.1351/2014
COMPLAINANT State by Jeevan Bheema Nagar Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Madan.D,
Son of Late. Damodaran,
Aged 25 years,
No.2/23, Kanniyamman Koil Street,
Mettupalayam, West Mambalam,
Chennai-33.
[By Advocate Sri.N.Venkataswamy Reddy]
1. Date of commission of offence From 1.9.2010 to 30.6.2011
2. Date of report of occurrence 14.08.2011
3. Date of arrest of accused 08.09.2013
4. Date of release of accused 08.10.2013
[on bail]
5. Period undergone in custody One Month
by the accused
6. Date of commencement of 16.4.2015
evidence
2 SC No.1351/2014
7. Date of closing of evidence 11.1.2016
8. Name of the complainant V.Deepika
9. Offences complained of Secs. 376 and 417 of IPC
1 0. Opinion of the Judge The accused is found guilty
for the offences punishable under
Secs.376 and 417 of IPC.
The accused shall undergo
rigorous imprisonment for a period of
7 Years for the offence punishable
under Sec.376 of IPC and to pay a
fine of Rs.25,000/-. In default of
payment of fine amount, the accused
shall undergo simple imprisonment
for a further period of Three Months.
The accused shall undergo
rigorous imprisonment for a period
of 6 Months and shall pay a fine of
Rs.5,000/- for the offence
punishable under Sec.417 of IPC. In
default of payment of fine amount,
the accused shall undergo simple
imprisonment for a further period of
One Month.
3 SC No.1351/2014
JUDGMENT
Charge sheeted by Jeevan Bheema Nagar police and committed by the X ACMM, Bangalore, the accused is before this court facing trial for the offences punishable under Secs. 376 and 417 of IPC.
2. The prosecution case, briefly stated that, The victim/complainant lodged a complaint as per Ex.P1 on 14.8.2011, alleging that, on 1.9.2010, she came into contact with the accused through ORKUT Community and both of them started loving each other and the accused gave proposal that he will marry her, that on 16.4.2011, the accused met the complainant in her house, when her parents had been to Tamil Nadu, Ranipet and her brother had gone to his job and by assuring the complainant that he will marry her, had sexual intercourse with her forcibly, without her consent whenever her parents had been to their native place, the accused used to accompany her in her residence and that on 8th and 9th of May-2011, he again had sexual intercourse with her, on the assurance that, he will marry her, when her parents and her brother had gone to the house of the accused for asking him to marry her [complainant], he refused to marry her, the accused is deliberately avoiding her, after fulfilling his sexual desire, he refused to marry the complainant and cheated her.
3. The Police received the said complaint, held investigation and filed charge sheet against the accused before X ACMM, 4 SC No.1351/2014 Bangalore in CC No.52863/2013. After committal of the case, thus, the accused is before this court facing trial.
4. The accused is on bail and he is represented by the Counsel of his choice. After appearance of the accused, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing the leaned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in-office has framed the Charge against the accused on 7.3.2015 for the offence punishable under Secs. 376 and 417 of IPC and read over to the accused in the language known to him. As he denied the charge and claimed to be tried, the case was posted for trial.
6. The prosecution in order to bring home the guilt of the accused has examined in all 17 witnesses as PW1 to PW17 and got marked 13 documents at Exs.P1 to P13. No Material Objects are marked on behalf of the prosecution.
7. The prosecution has not examined CW5 and CW13. CW5 is witness to the spot mahazar-Ex.P2 and CW13-Police Constable who took the accused to Bowring Hospital for medical examination were not examined by the prosecution. On perusal of the order sheet, it discloses that CW5 is given up as repetition by order dated: 19.8.2015 and CW13 is also given up as repetition by order dated: 21.9.2015.
8. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C is 5 SC No.1351/2014 recorded. The accused has denied the incriminating evidence found in the evidence of prosecution witnesses and his defence is that of total denial and he claimed that he is innocent. Further the accused has stated that, he has been taken into custody from Chennai. However, the accused did not choose to lead any evidence in support of his defense.
9. Heard the learned Public Prosecutor and the learned counsel for the accused. Perused the records. In support of his arguments, learned Public Prosecutor has relied upon the following decisions reported in:
(1) 2016 (4) Crimes 425 (SC) State of UP Vs. Sanjay Kumar @ Sunny.
(2) 2016 (4) Crimes 41 (SC) (3) 2015(4) Crimes 72 (Patna High Court) (4) (2016) 3 SCC (Cri) 426 Ajay Kumar Singh Vs. Flag Officer, Commanding-in-chief and others.
(5) 2006 Cri.L.J 2913 (SC) Omprakash Vs. State of UP. (6) (2010)2 SCC 445 Ramsingh @ Chajju Vs. State of H.P (7) 2014(1) Crimes 347 (SC) (8) AIR 2003 SC 3077 Md.Iqbal and another Vs. State of Jharkhand.
(9) AIR 2013 SC 3077 (10) (2008) 11 SC 38 State of Kant. Vs. Bantara Sudhakar @ Sudha.
(11) (2010) 8 SCC 91 Vijay @ Chinee Vs. State of MP (2006) 11 SCC 615 Yedla Srinivasa Rao Vs. State of AP 2010 Cri.L.J 4283 Satpal Singh Vs. State of Haryana.6 SC No.1351/2014
(12) 2000 Cri.L.J 4014 State of AP Vs. Polamala Raju (13) 2009 Cri.L.J 4133 Rajindra @ Raju Vs. State of HP (14) 2015(3) Crimes 194 SC Rahul Mishra Vs. State of Uttarkhand and another.
(15) 2015 (3) Crimes 49 SC (16) AIR 1981 SC 361 Harpal Singh and another Vs. State of Himachal Pradesh (17) 2011 Cri.LJ 2330 Ashok Surajlal Vuke Vs. State of Maharashtra (18) 2008 Cri.L.J 710 Rajendra Datta Zarekar Vs. State of Goa (19) III (2003) CCR 158 (SC) State of Madhya Pradesh Vs. Mansingh & Ors.
(20) 2015 (1) KCCR SN 78 (SC) Vinod Kumar Vs. State of Haryana (21) (2008) 11 SCC 38 State of Karnataka Vs. Bantara Sudharka @ Sudha and another.
(22) (2010) 8 SCC 191 Vijay @ Chinee Vs. State of MP (23) 2009(1) Crimes 111 (SC) State of UP Vs. Manoj Kumar Pandey (24) AIR 2008 SC 1603 Animireddy Venkata Ramana & Ors.
Vs. Public Prosecutor H.C. of A.P (25) 2001 SCC (Cri) 1504 Chandrasekhar Sureshchandra Bhatt Vs. State of Maharashtra (26) 2007 (3) Crimes 310 (SC) State of Rajasthan Vs. Nana & Ors.
(27) (2011) 1 SCC (Cri) 381 State of Uttar Pradesh Vs. Krishna Master and others.
7 SC No.1351/2014(28) 2007 (1) Crimes 54 (SC) Acharaparambath Pradeepan & Anr. Vs. State of Kerala (29) AIR 2010 SC 1894 Utpal Das & Anr. Vs. State of West Bengal.
(30) AIR 2013 SC 3077 Md. Iqbal & Anr. Vs. State of Jharkhand.
(31) (2010) 2 SCC 445 Ram Singh alias Chhaju Vs. State of Himachal Pradesh (32) 2015(1) KCCR SH 45 (SC)Kunwarpal alias Surajpal and Others (33) 2009 Cri.L.J 4133 Rajinder @ Raju Vs. State of HP (34) AIR 2007 SC 2594 Asharam & Anr. Vs. State of M.P In support of his arguments, the learned defence counsel has relied upon the following decisions reported in :
(1) 2016 Cri.L.J (NOC) 267 (CHH.) Rajkumar and another Vs. State of Chhattisgarh.
(2) 2016 Cri.L.J (NOC) 234 (CHH.) Shankar Nishad Vs. State of Chhattisgarh.
(3) 2016 Cri.L.J 2790 (CHH.) Ramratan alias Ramu Vs. State of Madhya Pradesh (Now Chhattisgarh).
(4) 2016 Cri.L.J 3499 (CHH.) Dev Shankar Vs. State of Madhaya Pradesh.
(5) 2015 Cr.R.707 (Kant.) State of Karnataka Vs. Kumara (6) 2015 Cr.R.928 (Kant.) State by Bannerghatta Police Vs. Rama 8 SC No.1351/2014 (7) 2015 Cr.R.854 (Kant.) State of Karnataka Vs. Mahammed Asim and others.
(8) 2015 Cr.R.227 (Kant.) State of Karnataka Vs. Narasimha @ Narasimhahaiah
10. On perusing the entire evidence, both oral and documentary, and considering the points of arguments, and as per the Charge leveled against this accused, the following Points arise for consideration:
(1) Whether the prosecution proves beyond reasonable doubt that, the accused herein on the pretext of marrying the victim had sexual intercourse with her, forcibly without her consent, repeatedly, and thereby the accused has committed an offence punishable under Sec.376 of IPC?
(2) Whether the prosecution further proves beyond reasonable doubt that the accused on the pretext of marrying the victim made her to believe him under misconception, committed rape on her and after having satisfied his sexual desires, the accused refused to marry the victim and thereby the accused has committed an offence punishable under Sec.417 of IPC?
(3] What Order?
11. My findings on the above Points are as under:
Point No.1: In the AFFIRMATIVE Point No.2: In the AFFIRMATIVE Point No.3: As per the final order for the following 9 SC No.1351/2014 REASONS
12. POINT NOS.1 AND 2:- Consideration of these two Points are based on the same facts and evidence and therefore, to avoid repetition, these two points are taken together for discussion.
13. According to the prosecution, that on 1.9.2010, the complainant came in contact with the accused through ORKUT Community and both of them started loving each other and promised to marry her, that on 16.4.2011, the accused met the complainant in her house and by assuring the complainant that he will marry her, had sexual intercourse with her forcibly, whenever the complainant's parents had been to their native place, the accused used to accompany her in her residence and that on 8th and 9th of May-2011, once again he had sexual intercourse with her, on the assurance that, he will marry her, thereafter, the accused is deliberately avoiding her, after fulfilling his sexual desire, he refused to marry the complainant and cheated her. Hence, the accused has committed the offences as per the charge leveled against him.
14. The initial burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied upon the evidence of PWs-1 to 17. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Victim/complainant
Pw.2 S.Venugopal-father of the victim
Pw.3 Vijaya-Mother of the victim
Pw.4 Radhika-Sister of the victim
10 SC No.1351/2014
Pw.5 Dr.Nirmala deposes about the serology test
conducted on the victim
Pw.6 Dr.K.V.Sathish deposes about the medical
examination conducted on the accused
Pw.7 Raghavan-Witness to the spot Mahazar-Ex.P2
Pw.8 Dr.Sheela deposes about the medical examination
conducted on the victim
Pw.9 Renuka.D.Roy-WPC deposes about taking the
victim to Bowring Hospital for medical
examination
PW10 Rachaiah-Head Constable deposes about taking
the accused to Bowring Hospital for medical examination Pw.11 D.Malathi-Scientific Officer-FSL, deposes about the scientific examination conducted on the articles sent by the complainant police and issue of Certificate as per Ex.P5 PW12 Guruprasad.G-PSI deposes about receipt of the complaint as per Ex.P1, registering of FIR as per Ex.P7 and sending the victim for medical examination PW13 D.Ashok-CPI deposes about conducting of spot mahazar, obtaining the medical certificate of the victim, arresting the accused, recording the statement of the victim, submitting charge-sheet PW14 K.M.Somashekaraiah-Head constable deposes about tracing out the accused and producing him before the Police Inspector PW15 Venugopal.B.T- Police Constable deposes about taking the sealed articles to the FSL 11 SC No.1351/2014 PW16 Balasubramanyam- ASI deposes about tracing out the accused and producing him before the Police Inspector PW17 Kishore Kumar-Brother of the victim
15. Before appreciating the evidence, it is better to have a glimpse of the evidence given by all prosecution witness.
16. The sum and substance of the evidence of PW1/victim/complainant is that, she came in contact with the accused in the year September-2010, through On-line ORKUT Community, Chennai Chat Club, thereafter, both of them used to spoke to each other and since January-2011, they used to spoke through video call and the accused has given proposal of marrying her, that on 16.4.2011, the accused came to her house at Bangalore, at that time, her parents had gone to Tamil Nadu-Ranipet and her brother had gone to his job and she was alone in the house, the accused assuring her that, he will marry her, had sexual intercourse with her, inspite of she refused for sexual intercourse and thereafter the accused refused to marry her and accordingly, her parents along with her brother had gone to the house of the accused at Chennai in August-2011, but, the accused again refused to marry her and the accused and his family members also assaulted her brother and parents and thereafter she lodged the complaint as per Ex.P1.
17. PW2-father of the victim, PW3-mother of the victim, PW4-sister of the victim and PW17-brother of the victim deposes 12 SC No.1351/2014 similarly to the evidence of PW1-victim. Further PW4 deposes that the accused took amount from her as he[accused] was in financial difficulty. Further PW17 deposes that, the brother-in-law of the accused assaulted him [PW17].
18. PW5-Doctor deposes that, on 16.8.2011, she received the blood and urine samples of the victim, she has conducted the examination and given Report as per Ex.P3.
19. PW6-Doctor deposes that, on 9.9.2013 he received requisition from the Police Inspector of Jeevanbheema Nagara Police Station to conduct the medical examination of the accused, and he examined the accused and he opined that, the person is not incapable of performing sexual intercourse, he issued Certificate as per Ex.P4.
20. PW7-Witness to the Spot Mahazar-Ex.P2, conducted in the house of the victim at Bangalore, deposes that, on 15.8.2011, at about 10.15 A.M., the police had called him and CW5 as panch witnesses, the police conduced mahazar as per Ex.P2 and obtained his signature.
21. PW8-Doctor deposes that, on 14.8.2011 at 7.20 P.M., she received Requisition from Jeevanbheema Nagar police for examination of the victim on the history of rape committed on the victim, after examination of the victim, she [PW8] opined that, 13 SC No.1351/2014 the victim woman is used to an act like that of sexual intercourse and she issued Certificate as per Ex.P10.
22. PW9-WPC deposes that, as per the instructions of Police Inspector, that on 14.8.2011, she took the victim to Bowring Hospital for medical examination, after examination of the victim, she brought her back and produced before the Police Inspector, she further deposes that, on 25.8.2011, she again went to Bowring Hospital and collected the seized articles belonging to the victim along with the Report and produced them before the Police Inspector, she further deposes that, on 2.9.2011, she again went to Bowring Hospital and collected the Medical certificate of the victim and produced the same before the Police Inspector.
23. PW10-Head Constable deposes that on 9.9.2013 as per the instructions of Police Inspector, he and CW13 took the accused to Bowring Hospital for medical examination and after medical examination, brought back the accused and produced him before the Police Inspector.
24. PW11- Scientific Officer, FSL, Madiwala, Bangalore deposes about receipt of 6 articles sent by Jeevanbheema Nagar police for examination of seminal stains. After scientific examination, she has given Report as per Ex.P5 and Sample Seal as per Ex.P6.
25. PW12-PSI deposes that, on 14.8.2011, when he was in the complainant Police Station, the victim came and gave written 14 SC No.1351/2014 Complaint as per Ex.P1, after receipt of the said complaint, he registered a case in Cr.No.328/2011 as per FIR-Ex.P7 and he sent the victim for medical examination.
26. PW13-CPI deposes that, on 15.8.2011, he received the case file from CW15 for further investigation, he visited the spot of incident and conducted spot mahazar as per Ex.P2, he sent the victim for medical examination, he recorded the statements of CW2 to CW4, he sent Requisition as per Ex.P8 to FSL for conducting scientific examination on the seized articles, the acknowledgment given by FSL is marked as Ex.P9, that on 7.9.2013, he deputed his police staffs for securing the accused, on 8.9.2013 at about 6.30 P.M., the police officials apprehended the accused and produced before him and he [PW13] arrested the accused on the same day at 7 P.M. and on the next day i.e., on 9.9.2013, he sent the accused for medical examination and obtained the Medical report of the accused as per Ex.P4, that on 26.9.2013, after completion of investigation formalities, he submitted charge-sheet before this court, against the accused.
27. PW14-Head constable and PW16-ASI deposes that, on 7.9.2013 as per the instructions of Police Inspector, they went to Chennai for tracing the accused and the accused was traced out in his house at Chennai, they [PW14 and PW16] apprehended the accused and brought him to Bangalore and produced before the Police Inspector.
15 SC No.1351/201428. PW15-Police constable deposes that on 5.9.2011 as per the instructions of SHO, he went to Bowring Hospital and collected the articles seized belonging to the victim and handed over the same to FSL.
29. On going through the evidence of the aforesaid prosecution witnesses, learned Public Prosecutor submitted his arguments. He argued that, basing on the oral evidence of PW1 and PW17 and the documentary evidence at Exs.P1 to P13, the prosecution has proved that, the accused has committed rape on the Victim woman i.e., the offence punishable under Sec.376 of IPC, on false promise that, he will marry her and later he did not marry her and thereby he also committed an offence punishable under Sec.417 of IPC. Therefore, the accused is liable to be convicted.
30. On the other hand, the learned defence counsel argued that, first of all the accused did not know the Victim woman and even if the accused knows her, there was no rape committed by the accused and even if there was rape, it was only with the consent of the victim and therefore, the learned defence counsel argued that, the accused has not at all committed any offence, as alleged by the prosecution and he [accused] is entitle for an order of acquittal.
31. After hearing the arguments of learned Public Prosecutor and the learned defence counsel, now it is necessary to scrutinize the said oral and documentary evidence placed by the prosecution cautiously by considering their versions in the cross-examination 16 SC No.1351/2014 before accepting the evidence adduced by them, to hold that, the accused has committed the alleged offence on the Victim.
32. PW1-victim/complainant, PW2-father of the victim, PW3-mother of the victim, PW4-sister of the victim and PW17-brother of the victim, all these 5 witnesses deposes with regard to the acquaintance of the accused with the victim and the accused on false promise of marrying the victim, committed rape on her.
33. The learned defence counsel has brought the following discrepancies, omissions, inconsistencies and improvements in the evidence of PW1, PW2, PW3, PW4 and PW17. Further, the learned defence counsel would submit:
. there is a delay of 4 months in lodging the complaint, which was not properly explained by the victim/complainant;
. in the Complaint-Ex.P1 itself, it was written as 'with consent' and the word 'forcibly' was inserted later;
.as per the prosecution, the accused and the victim were chatting through E-Mail, but, no documents are produced to show the E-Mail conversations and call details of the accused and the victim also not secured; . the victim/complainant is an educated woman and she was not an uneducated woman;
. in the medical certificate given by the Doctor, no signs of rape and no external injuries found;
. the Investigating Officer has not collected the clothes belonging to the victim;
.no documentary evidence placed to show that the sister of the victim had gone to Chennai;17 SC No.1351/2014
.as per the evidence of the Investigating Officer, he has conducted Mahazar in the first floor of the building, but, as per the sketch, there was no first floor at all;
. in the FSL Report, seminal stains and spermatozoa not detected.
. the victim herself was at the back of the accused and persuaded him to marry her and when the accused did not entertain her, the victim lodged a false complaint against this accused.
34. On the basis of the aforeosaid contradictions, omissions, improvements and inconsistencies, the learned defence counsel argued that, the evidence of the prosecution witnesses cannot be believed so as to convict the accused.
35. In the light of the aforesaid defence taken by the learned defence counsel, I have gone through the evidence of the prosecution witnesses.
36. The version of PW1/Victim /complainant is that, she was residing at J.B.Nagar, House No.F-206, along with her parents and sister, she completed her education in B.Sc. Computer Science in the year 2010 and she joined the service at ACS, ITPL, Whitefield as an Analyst, her sister was working at Wipro, in the month of September-2010, when she was in the house, she came in contact with the accused Madan.D, through online in Laptop Okrut Community, Chennai Chat Club, thereafter, both of them were messaging online and chatting and friendship developed between 18 SC No.1351/2014 them, till December-2010, she and the accused were chatting and also were speaking through mobile, she came to know that, the accused was studying in M.Sc at Chennai, he told her that, he was loving her and he intended to marry her, he conveyed the same to her through online chat, as also through mobile, after that, since January-2011, they both were speaking through Skype/video call, again in the month of January-2011, the accused proposed her that he will marry her, for that, she agreed. Her [PW1] further version is that, on 16.4.2011, for the first time, the accused came to Bangalore and visited her house, at that time, her parents were not in the house and they had gone to Ranipet, Tamil Nadu and her brother and her sister had been to their work, when the accused came to her house, it was 9 A.M., and both of them were chatting and the accused told her that, he will marry her within one moth from April-2011, thereafter she had shown her house to the accused and when she shown her bedroom situated on upstairs of her house, the accused hold her hands and told that 'I Love You' and started to kiss her and inspite of her reluctance, he pushed her on the bed and removed her clothes and holding her both the hands, forcibly committed rape on her. Her [PW1] further version is that, thereafter she enquired with him as to why he did so, the accused promised her that he will marry her and therefore, he did that act and further he told her that, do not tell this incident to anybody and thereafter he went. Her [PW1] further version is that, her sister had gone to Chennai on project work of the office in the month of May-2011 for a period of 3 months, at that time, she [PW1] introduced the accused to her sister stating that, she [PW1] was loving him and that he had promised her that he 19 SC No.1351/2014 will marry her, thereafter, the accused on 8th and 9th of May-2011, had again came to Bangalore and had sexual intercourse with her [PW1]. Therefore, learned Public Prosecutor argued that, the accused promising PW1/victim/complainant that, he would marry her, had sexual intercourse with her and now he has refused to marry her and therefore, the accused has committed the offence punishable under Secs. 376 and 417 of IPC.
37. As a reply to the said arguments, learned defence counsel argued that, in this case, the prosecution/Investigating Officer has not produced any proof/documents to show that, the accused was known to the victim and both of them were spoken through mobile and they did chatting online and no documentary evidence of E-Mail chatting, mobile call details are produced and further no documents produced to show that, the sister of the victim had gone to Chennai on project work. Therefore, learned defence counsel argued that, except the evidence of PW/victim/complainant, there are no other evidence available to support her version that, she was known to the accused and it is the accused who has committed rape on her.
38. On perusal of the records, it is true that, the prosecution in this case has not produced any documents with regard to the call details of the accused and the victim or their E-Mail chatting and also the victim's sister had been to Chennai for her project work. During the course of cross-examination of Investigating Officer who is examined as PW13, the learned defence counsel put question to PW13 that, the Investigating Officer has not collected 20 SC No.1351/2014 the documents pertaining to video call chatting from the Orkut Community, Chennai Chat Club, of the accused and the victim, for that, the Investigating Officer has answered that, accounts were deleted. Further PW13 deposed that, the accused used to change his mobile numbers, E-Mail ID often and often and therefore, though attempt was made to collect the details, but, the details could not be collected.
39. During the course of reply arguments by learned Public Prosecutor, it is argued that, though the Investigating Officer has not collected the documents pertaining to E-Mail chatting or mobile chatting, because of the mistake committed by the Investigating Officer, the accused cannot take advantage and say that, he do not know the victim. In that regard, learned Public Prosecutor has referred to a decision reported in AIR 2013 SC Page 3008, [Ganga Singh Vs. State of Madhya Pradesh] wherein it is observed that:
"Investigation-Sec.376 of IPC-Appreciation of evidence-Defects in investigation-Unless they casts reasonable doubt on the prosecution case-cannot be a ground to acquit the accused".
Similarly, in the decision reported in AIR 1996 SC 1393 [State of Punjab Vs. Gurmit Singh and others] wherein it is observed that:
"Section. 376 of IPC-Investigating agency not conducting investigation properly or was negligent -cannot be a ground to discredit testimony of prosecutrix".21 SC No.1351/2014
40. Further, learned Public Prosecutor argued that, the victim herself entered into witness box and sworn on oath and deposed about the alleged incident, which had happened and though she was thoroughly cross-examined, except some minor contradictions, she deposed that, the accused on the pretext of marrying her, had sexual intercourse with her. Therefore, the evidence of the victim can be accepted as it inspires confidence of the court and based on her evidence, conviction can be based. In that regard, learned Public Prosecutor has relied upon the decision reported in 2009 Cri.L.J 4133, [Rajindra @ Raju Vs. State of Himachal Pradesh] wherein it is observed that:
"testimony of prosecutrix- Sufficient to base conviction-Contradictions not sufficient to disbelieve her evidence".
Similarly, in the decision reported in 2010 Cril.L.J 1655 [SC] [Ram Singh Vs. State of Himachal Pradesh] wherein it is observed that:
"Rape-testimony of victim inspires confidence".
Similarly, in the decision reported in AIR 2013 SC 3077 [Md.Iqbzl & Anr. Vs. State of Jharkhand], wherein it is observed that:
"Section 376 IPC-Rape- uncorroborated testimony of prosecutrix- can be made basis for conviction".22 SC No.1351/2014
Therefore, learned Public Prosecutor submitted that, in this case, the prosecutrix/victim herself entered into the witness box and deposed about the sexual act committed by the accused on her on the assurance of marrying her and thereafter, he refused to marry her. At this stage, learned defence counsel argued that, the evidence of the prosecutrix cannot be accepted, because there are discrepancies and contradictions in her evidence. He pointed out that, according to the victim, the incident had taken place in the bedroom situated in the upstairs of her house. However, as per the evidence placed by the Investigating Officer-PW13, there is no first floor in the house of the victim. During the course of cross-examination of PW13 being the Investigating Officer, he admitted that:
"PÀÊvÀå £ÀqÉzÀ ªÀÄ£ÉAiÀÄ°è UËæAqï ¥sÉÆèÃgï ªÀiÁvÀæ EgÀÄvÀÛz"É .
Therefore learned defence counsel argued that, when there is no first floor at all in the house of the victim, it cannot be said that, the incident happened in the first floor of the house of the victim. Therefore, the learned defence counsel argued that, the evidence of PW13-Investigating Officer cannot be believed at all. In that regard, learned Public Prosecutor submitted that, though the Investigating Officer-PW13 stated that, there was only ground floor portion, the prosecution intended to clarify the said aspect by further examining PW13 and that question was not allowed to be put to PW13, by this court, stating that, as PW13 was deposing the evidence by holding the case records. Even though the said question was disallowed by this court, learned Public Prosecutor submitted his arguments that, the house of the victim was duplex house and therefore, PW13 23 SC No.1351/2014 deposed that, there was ground floor only. On perusal of the evidence of PW1-victim, she deposed that:
"ªÀÄ£ÉAiÀÄ ªÉÄïÁãUÀªÀ£ÀÄß vÉÆÃj¸À®Ä".
The victim also did not say that, her house was having first floor portion. Therefore, the arguments of the learned defence counsel that, there is discrepancy in the evidence of PW1 and PW13 with regard to the existence of the first floor and therefore, the incident has not at all happened, as such, the evidence of the victim cannot be accepted, is not sustainable. Mere discrepancy in describing the existence of the upstairs in the house of the victim, is not a major contradiction so as to disbelieve the entire evidence of PW1-victim.
41. Further, learned defence counsel argued that, there is delay in lodging the complaint. According to the complainant, the first incident had happened in the month of April-2011 i.e., on 16.4.2011, thereafter on 8th and 9th of May-2011, the incident i.e., the accused had said to have had sexual intercourse with the victim, but, the complaint is lodged on 14.8.2011, thereby there is a delay of 4 months in lodging the complaint and even in the complaint, the delay is not explained. Therefore, the evidence of PW1 cannot be believed at all. In that regard, I have gone through the contents of Ex.P1-Complaint dated: 14.8.2011. In Ex.P1, though the victim has not specifically mentioned regarding delay in lodging the complaint, on going through the complaint averments, she has stated that, the accused promised her several times that, he will marry her and the accused had also promised her mother through his mobile that, he will marry the victim in 24 SC No.1351/2014 the month of June-2011. The accused contacted her [victim] last over the phone on 30.6.2011. After a few days, the neighbour of the accused sent SMS to victim's mobile saying, "to forget Madan". Thereafter the victim tried to contact the accused, but, he had changed his sim number and disconnected his landline number and he also deleted his related E-Mail IDs and he deliberately avoided her and thereafter, the victim lodged a complaint. Therefore, there was delay in lodging the complaint. In that regard learned Public Prosecutor has relied upon the following decisions:
In the decision reported in 2009 [1] Crimes 251 [Karnataka] SN [Santhosh Moolya and Anr. Vs. State through Police Circle Inspector], wherein it is observed that:
"Sec.376, 506 of IPC- conviction based on testimony of prosecutrix. Delay of 42 days in lodging the FIR not fatal-Medical evidence not indicating forcible intercourse, not a serious infirmity in the prosecution case-Both victims depose in their evidence about the manner in which they were subjected to forcible rape- conviction recorded by the trial court held sustainable".
Similarly, in the decision reported in 2010 Cri.L.J 4283 [SC], (Satpal Singh Vs. State of Harynaya) it is observed that:
"As honour of the family is involved, its members have to decide whether to take the matter to the court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. Ordinarily, the family of the victim would not intend to get a stigma attached to the victim".25 SC No.1351/2014
42. Further learned defence counsel argued that, though there was inordinate delay in lodging the complaint, the delay was not explained in the complaint-Ex.P1. For that, learned Public Prosecutor submitted that, the complaint need not contain all the details. It is only an information to the police that the alleged incident has happened. At this stage, learned Public Prosecutor submitted that, though the complainant did not explain the delay in lodging the complaint-Ex.P1, he submitted that, the contents of FIR is not encyclopedic and not excepted to contain all the details of the prosecution case. Therefore, learned Public Prosecutor submitted that, the victim in her evidence clearly explained the delay in lodging the complaint and therefore, her evidence may be accepted. In that regard, learned Public Prosecutor has relied on the following decisions:
In the decision reported in 2008 Cri.L.J 2038,[SC], (Animireddy Venkata Ramana and Ors. Vs. Public Prosecutor, H.C. of A.P] wherein it is observed that:
"Section.154 of Cr.P.C-FIR- need not be encyclopedic- considering effect of some omissions in FIR on part of informant-probable, physical and mental condition of informant, cannot be ignored".
Similarly, in the decision reported in 2008[1] Crimes 92 [SC], (Umar Mohammad & Ors. Vs. State of Rajasthan) wherein it is observed that:
"It is well-settled that FIR need not be encyclopedic".26 SC No.1351/2014
Similarly, in the decision reported in 2015[3] Crimes 193 [SC], (V.K.Mishra & Anr. Vs. State of Uttarkhan & Anr.) wherein it is observed that:
"FIR neither meant to be an encyclopedia nor expected to contain all the details of the prosecution case. Unless there are indications of fabrication, prosecution version cannot be doubted merely on the ground that FIR does not contain the details".
43. On perusal of the evidence of PW1-victim, during her oral evidence has clearly deposed that, she waited for the accused to marry her, but, as he completely avoided her and he has not contacted her and therefore, she filed the present complaint. Her [victim] evidence is corroborated with the evidence of her parents-PW2 and PW3, her sister-PW4 and her brother-PW17. All the said witnesses thoroughly cross-examined by the accused counsel, which runs more than 20 pages, but, nothing worth elicited to disbelieve their evidence with regard to the alleged incident.
44. On going through the evidence of PW1-victim, her parents-PW2 and PW3, her sister-PW4 and her brother-PW17 and after going through the principles laid-down in the aforesaid decisions, this court is of the opinion that, though there is delay of 4 months in lodging the complaint, the victim has properly explained the delay in lodging the complaint. Therefore, the arguments canvassed by the learned defence counsel that, there was sufficient delay in lodging the complaint and therefore the story of the prosecution cannot be believed, is not sustainable.
27 SC No.1351/201445. Further, the learned defence counsel pointed that, in this case, if this court considered that, there was sexual intercourse by the accused that was only with the consent of the victim, he brought to the notice of this court to the contents of Ex.P1-Complaint. In Ex.P1, at Page No.2, beginning 2 lines, it is mentioned that: "Since, he assured to marry me, I gave consent for sexual contact with me forcibly". Therefore, the learned defence counsel argued that on going through the above said sentence, the victim clearly mentioned that, she gave consent for sexual intercourse. Thereafter, it appears that, the words 'with me forcibly' later inserted. Therefore, the learned defence counsel argued that, this is an after-thought and the victim deliberately with an intention to make allegations against this accused has inserted the said 3 words 'with me forcibly'. Therefore, the learned defence counsel argued that, it is only with the consent of the victim, sexual intercourse had taken place. Therefore, the learned defence counsel argued that, this accused has not committed any offence, as defined under Sec.375 of IPC, punishable at Sec.376 of IPC.
46. As a reply to the said arguments, learned Public Prosecutor argued that, though in the Complaint-Ex.P1, it was written that, the victim gave consent, the consent was not voluntary and it was obtained by the accused on the pretext of marrying her, thereby the said situation comes within the preview of Sec.90 of IPC. I have gone through the provisions of Sec.90 of IPC, which provides that:
28 SC No.1351/2014"Consent known to be given under fear or misconception:- A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury; or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception".
47. Learned Public Prosecutor further argued that, in the present case, if at all there was consent by the victim which was obtained by misconception of facts, therefore, it cannot be said that, consent given by the victim is not a consent at all. In that regard, learned Public Prosecutor has relied upon the decision reported in 2014(1) Crimes 347 (SC) State of Uttar Pradesh Vs. Naushad wherein it is observed that:
"Sec.376 r/w Sec.90 of IPC-Rape-Misconception of fact- If consent is given by prosecutrix under misconception of facts- it is vitiated that, the accused had sexual intercourse with the prosecutrix by giving false promise that, he would marry her, thereafter, he refused to do so, therefore, the accused has committed the offence of rape".
48. After hearing the submissions of learned Public Prosecutor and after hearing the submissions of learned defence counsel, now the question before this court is: "Whether there was consent or not by the victim for sexual intercourse with the accused". On going through the contents of Ex.P1-Complaint, as rightly pointed out by learned defence counsel, initially the victim had stated that, she gave consent for sexual intercourse, as the accused promised to marry her. In her evidence also, she deposed 29 SC No.1351/2014 that, she gave consent for sexual intercourse, as the accused promised her to marry her. Though the victim further stated that, accused forcibly had sexual intercourse with her , but, on going through the complaint averments, i.e., in the 2nd page, as rightly pointed out by the learned defence counsel that, the words 'with me forcibly' appears to be added there-afterwards. It is also pertinent to note that, the accused had sexual intercourse on 16.4.2011 for the first time with the victim. The victim deposed that, it was forcible sexual intercourse. However, in the month of May-2011, i.e., on 8th and 9th, the victim again had sexual intercourse with the accused, if the accused had forcible sexual intercourse with the victim, without her consent, she could have informed the said act to her parents. On analyzing the evidence of PW1-victim and further on going through the averments made in the Complaint-Ex.P1, the said words 'with me forcibly' appears to be added. Therefore, this court is of the opinion that, the accused had sexual intercourse with the victim with her consent. Now, the question is: "Whether the consent given by the victim was free from fear or threat or consent was obtained under misconception of facts, as provided under Sec.90 of IPC. The learned defence counsel argued that, the accused was not at all known to the victim. Therefore, there was no chance that, the accused promised the victim to marry her and had sexual intercourse with her. Though it is argued by the learned defence counsel that, the accused was not at all known to the victim, during the course of cross-examination of PW1, at Page No.18, suggestion is put to PW1 that:
30 SC No.1351/2014"ªÉÆzÀ®Ä £Á£ÀÄ DgÉÆæ PÀ¼Ài»¹zÀ ¥sÉæAqï jPÉé¸ÀÖ£ÀÄß ¤gÁPÀj¹zÉÝãÉ. D£ÀAvÀgÀ CªÀ£ÀÄ ¥ÀÅ£ÀB jPÉé¸ïÖ PÀ¼ÀÄ»¹zÀ£ÀÄ. DUÀ £Á£ÀÄ CzÀ£ÀÄß M¦àPÉÆAqÉ£Ài."
Further, at Page No.19 of the cross-examination of PW1, same suggestion put to PW1 that:
"£Á£Éà ªÉÆzÀ®Ä DgÉÆæUÉ ¥sÉæAqï jPÉé¸ÀÖ£ÀÄß PÀ¼Ài»¹zÀÉÝãÀÄ J£ÀÄߪÀÅzÄ ¸ÀjAiÀÄ®è".
Further, at Page No.21, of the cross-examination of PW1, it is suggested that:
"¢£ÁAPÀB 16.4.2011gÀAzÀÄ DgÉÆæ £ÀªÀÄä ªÀÄ£ÉUÉ §gÀĪÀÅzÀQÌAvÀ ªÉÆzÀ®Ä CªÀ¤UÉ £ÀªÀÄä ªÀÄ£ÉAiÀÄ «¼Á¸À UÉÄÁwÛgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è".
Further, in the same Page i.e., at Page No.21, it is suggested to PW1 that:
"DgÉÆæAiÀÄÄ £ÀªÀÄä ªÀÄ£ÀÉAiÀÄ ºÀwÛgÀ §AzÁUÀ, £ÀªÀÄß ªÀÄ£ÉAiÀÄ ºÀwÛgÀ CPÀÌ¥PÀ ÀÌzÀ ªÀÄ£ÉAiÀÄ d£ÀgÀÄ NqÁqÀÄwÛzÀÝgÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è".
Further at Page No.23, of the cross-examination of PW1 in Last Line, it is suggested to PW1 that:
"DgÉÆæAiÀÄÄ £À£ÉÆßA¢UÉ PÉêÀ® ¸ÉßúÀªÀ£ÀÄß ªÀiÁvÀæ ElÄÖPÉÆArzÀÝ£ÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è".
The aforesaid suggestions put to PW1 by the learned defence counsel discloses that, the accused had come to the house of PW1 and he had accepted her friendship by sending friendship request. Thereby, it discloses that, the accused was known to the victim-PW1. Therefore, the arguments canvassed by the learned defence counsel that, the accused did not know the victim, is not sustainable.
31 SC No.1351/201449. The learned defence counsel further argued that, even if the accused known to the victim, it is only friendship and at no occasion, the accused promised the victim that, he would marry her. He further argued that, the victim herself fell at the back of the accused and persuaded him to marry her and when the accused did not entertain her, she lodged the present complaint making false allegations on the accused.
50. Now, the court has to see, "Whether victim gave consent for sexual intercourse on the assurance of the accused that, he would marry her". The defence of the accused is that, he did not promise her that he would marry her. In that regard, I have gone through the evidence of PW1. PW1 throughout her evidence deposed that, the accused has promised her to marry her. She deposed that, in the month of September-2010, for the first time, she came in contact with the accused online i.e., ORKUT Community, Chennai Chat Club. Thereafter, the accused sent her friendship request, she accepted that and thereafter, they used to speak through mobile, as also they were chatting online. Till December-2010, i.e., for a period of 1 month both of them chatted through online and in the month of January-2011, they started video calling and the accused proposed to marry her and she accepted the said proposal. Thereby, according to PW1, in the month of January-2011, for the first time, the accused proposed to marry her and thereafter, both of them were chatting and intimacy developed between them and the accused on 16.4.2011 came to her house at Bangalore and had sexual intercourse with her and when she asked him, why he did so, he told that, he will marry her.
32 SC No.1351/2014Further, PW1 deposed that, she introduced the accused to her sister-Radhika stating that, she[PW1] would marry the accused and he [accused] was loving her. On going through the cross- examination of PW1, though it is suggested to her, that the accused never proposed that, he would marry her, PW1 further deposed that, her parents along with her brother had gone to Chennai to the house of the accused to enquire about the marriage of the accused with the victim. The learned defence counsel argued that, though PW1 deposed that, the parents and the brother of the victim had gone to Chennai to the house of the accused and wherein galata took place, but, no single document is produced by the prosecution to show that, at Chennai, there was galata with regard to the marriage proposal of the victim with the accused. It is true that, no documents are produced by the prosecution with regard to the incident i.e., galata made by the brother-in-law of the accused, but, it is deposed that, the parents and the brother of the victim had gone to the Police Station at Chennai, but, the police at Chennai told them to approach the Police Station at Bangalore.
51. PW2-father of the victim also deposed about the fact that, they had gone to Chennai to have talk of marriage of the accused and the victim, at that time, there was galata and the police at Chennai asked them to lodge complaint at Bangalore. PW2 was also cross-examined by the defence counsel. During the course of cross-examination, it is suggested to PW2 that, they did not go to Chennai and no galata had taken place. The said suggestion was denied by PW2. Further PW2 stated that, they had gone to lodge complaint at Chennai, but, the police did not take the complaint 33 SC No.1351/2014 from them and asked them to go to Bangalore and lodged the complaint.
52. PW3- Mother of the victim also deposed that, in the month of July-2011, they had gone to the house of the accused at Chennai and they enquired about the marriage of the accused with the victim, but, the mother of the accused and the brother-in-law [husband of the sister of the accused] quarreled with them and they also assaulted the brother of the victim [PW17] and they [PW2, PW3, PW4 and PW17] intended to lodge a complaint at Chennai Police Station i.e., at Ashoknagar Police Station, however, the police did not take the complaint and asked them to lodge a complaint at Bangalore. PW3 was also cross-examined by the defence counsel. During the course of cross-examination, it is suggested to PW3 that, they did not go to Chennai to the house of the accused. The said suggestion is denied by PW3. PW3 further deposed that, they had gone to the Police Station at Chennai, but, the police by name Chinnaswamy asked them to lodge the complaint at Bangalore.
53. Further PW4-Sister of the victim also deposed that, they had gone to Chennai to enquire about the marriage of the accused and the victim and the mother and brother-in-law of the accused did galata with them. PW4 was also cross-examined by the defence counsel. During the course of cross-examination, it was suggested to PW4 that, they did not go to Chennai to the house of the accused to have marriage talks, and that suggestion was denied by PW4.
34 SC No.1351/201454. PW17-brother of the victim also deposed about the incident that had taken place in the house of the accused at Chennai when he and his parents [PW2 and PW3] and his sister [PW4] had gone to the house of the accused to enquire about the marriage of the accused with the victim. PW17 was also cross-examined by the defence counsel. During the course of cross-examination, it was suggested to PW17 that, no galata had taken place in the house of the accused at Chennai. The said suggestion was denied by PW17.
55. The learned defence counsel argued that, in this case, though according to the victim that, her parents, her sister and her brother, had gone to the house of the accused at Chennai, but, the prosecution has not produced any single document to show that, the victim parents, her sister and her brother had gone to the house of the accused at Chennai. It is further argued by the learned defence counsel that, if really the incident i..e, galata had happened at Chennai in the house of the accused, then the brother of the victim or the parents of the victim should have lodged a complaint at Chennai only, but, in this case, the prosecution has not produced any document to show that, there was galata in the house of the accused at Chennai with regard to the marriage talks of the accused and the victim and therefore, the evidence of the victim-PW1, her parents-PW2 and PW3, her sister-PW4 and her brother-PW17, cannot be believed.
56. It is true that, the prosecution has not produced any documents to show that, there was galata in the house of the 35 SC No.1351/2014 accused at Chennai with regard to the marriage talks of the victim with the accused. However, it is pertinent to note that, though PW1 to PW4 and PW17 thoroughly cross-examined by the learned defence counsel, but, nothing worth elicited from their cross-examination to show that, they did not go to Chennai to enquire with the accused about the marriage proposal of the victim with the accused. Believing the evidence of the victim and as no contradictions elicited from the evidence of PW1 to PW4 and PW17, though prosecution has not produced any documentary evidence to show that, there was galata in the house of the accused at Chennai regarding the marriage proposal of the accused with the victim, but, the evidence of the victim-PW1, her parents-PW2 and PW3, her sister-PW4 and her brother-PW17 is accepted, so as to say that, PW2 to PW4 and PW17 went to the house of the accused at Chennai and enquired about the marriage proposal of the accused with the victim. When there is evidence available with regard to the marriage proposal of the accused with the victim, then, this court can come to the conclusion that, the victim submitted herself to the accused on the promise made by the accused that, he would marry her, thereby, the accused has obtained consent of the victim for sexual intercourse under misconception of facts.
57. On going through the evidence of the victim herself, from the very inception, the accused promised her to marry her and had sexual intercourse with her and thereafter he failed to keep up the promise. The conduct of the accused having had sexual intercourse with the victim promising her to marry within a month i.e., in the month of June-2011, which is the specific date promised by the 36 SC No.1351/2014 accused that, he would marry the victim, therefore, this court is of the opinion that, the accused obtained the consent of the victim and had sexual intercourse with her, which is nothing, but, under misconception of facts. Therefore, it is within the purview of Sec.90 of IPC.
58. The learned defence counsel has relied upon the aforesaid decisions. In the 1st decision reported in 2016 Cri.L.J NOC 267, wherein it is observed that:
"Rape-Consent-Benefit of doubt- Discrepancies in statement of prosecutrix regarding place of occurrence-Even though her hands and legs were not tied, no resistance offered by her-No hue and cry raised by her during her alleged detention by accused for all night- Medical evidence showing that no internal or external injury found on body of prosecutrix. Therefore, the accused is entitled to benefit of doubt".
In the 2nd decision reported in 2016 Cri.L.J (NOC) 234, wherein it is observed that:
"Sec.376-IPC- medical version did not support her case-There were material improvements in statement of prosecutrix-In absence of conclusive evidence against accused, he cannot be held guilty of offence of rape".
In the 3rd decision reported in 2016 Cri.L.J 2790, wherein it is observed that:
"Rape-Consent-There had been physical relations between accused and prosecutirx on number of occasions-She at no point of time disclosed about those acts as accused has assured 37 SC No.1351/2014 prosecutrix of performing marriage with her-
Medical evidence also belies version of prosecution- It appears to be a peaceful affair with consent of prosecutrix-Accused on ground of benefit of doubt liable to be acquitted from the charges of rape"
In the 4th decision reported in 2016 Cri;.L.J 3499, wherein it is observed that:
"S.376-IPC-Rape- consenting party- Allegation that, accused abducted prosecutrix and took her to his own house and committed sexual intercourse upon her- accused liable to be acquitted of charges leveled against him".
In the 5th decision reported in 2015 Cr.R 707, wherein it is observed that:
"Sec.376-IPC-Story of rape not corroborated by medical evidence. Neither bed-sheet nor clothes of accused and victim collected by Investigating Officer during course of investigation- No reasons forthcoming for not collecting such important material which could have helped prosecution to connect accused with crime-Accused entitled to benefit of doubt".
In the 6th decision reported in 2015 Cr.R 928, wherein it is observed that:
"Sec.376-IPC-Attempt to commit rape-Appeal against acquittal-Prosecution case not at all corroborated by medical evidence-Case as made out by prosecution in complaint is a concocted story only to humiliate accused for best reasons known to the prosecution witnesses.-Accused entitle for acquittal".38 SC No.1351/2014
In the 7th decision reported in 2015 Cr.R 854, wherein it is observed that:
"Sec.376-IPC-No injuries were found on body of victim and there were no signs of forcible sexual intercourse on her-Complaint lodged after about one year of alleged incident-Prosecution has tried to improve its case from time to time and it has not come before court with true facts- Accused is entitle for acquittal".
In the 8th decision reported in 2015 Cr.R.227, wherein it is observed that:
"Sec.376-IPC- Medical evidence revealed that victim was used to sexual intercourse-Victim had not offered any resistance-Accused entitle for acquittal".
On the basis of the principles laid-down in the aforesaid decisions relied upon by the learned defence counsel, the learned defence counsel argued that, in the present case also, there was no medical evidence to show the sexual intercourse on the victim and even in the Report of the FSL-Ex.P5, seminal stains and spermatozoa were not detected. Further the Investigating Officer has not collected the clothes of the victim and not even the bed-sheet which was on the bed at the time of the alleged incident was collected by the Investigating Officer and further there was delay of 4 months in lodging the complaint. Therefore, the learned defence counsel argued that, the story of the prosecution is concocted so as to implicate this accused in the present case.
39 SC No.1351/201459. It is true that, in this case, as per the FSL Report-Ex.P5, neither seminal stains nor spermatozoa were detected on the articles i.e., nail clippings, Vaginal smear, vaginal swabs, Pubic hairs and vaginal smear. However, on going through the Medical Report of the victim as per Ex.P10, it is mentioned that, hymen absent, vaginal admits 2 fingers easily and it is opined that, the victim is used to an act like that of sexual intercourse. It is also true that, there is delay of 4 months in lodging the complaint. However, it is pertinent to note that, in so far as false implication of this accused is concerned, the defence of the accused is that, the victim herself fell at the back of the accused and persuaded him to marry her, but, when the accused did not entertain her, the victim has lodged the present false complaint against the accused. At this stage, it is pertinent to note that, during the course of cross-examination of PW1, it is suggested to PW1 that, accused did not love her and on the other hand, she herself told the accused that, she was loving him, but, the accused refused. That suggestion was denied by PW1. On perusal of the evidence of the victim-PW1, it can be gathered that, the victim on the promise of the accused submitted herself to the accused and they had sexual intercourse. Now the accused has denied that, he proposed her to marry. In so far as false implication of the accused is concerned, learned Public Prosecutor has placed reliance on the decision reported in 2008 Cri.L.J. 710 [SC], [Rajendra Datta Zarekar Vs. State of Goa], wherein it is observed that:
"Sec.375 IPC-Rape-false implication of accused-normally improbable-Rape leaves a permanent scar and has a serious psychological impact on victim and also her 40 SC No.1351/2014 family members-No one would normally concoct a story of rape just to falsely implicate a person".
Further, from the discussions made in the aforesaid Paragraphs of this Judgment, this court has believed and accepted the version of the victim-PW1 that, she had consented for sexual intercourse on the promise made by the accused that he would marry her. Looking into the evidence of the victim-PW1 and further on going through the principle laid-down in the aforesaid decision, this court is of the opinion that, the arguments canvassed by the learned defence Counsel that, the accused has been falsely implicated, is not sustainable.
60. It is true that, there are minor contradictions and omissions in the evidence of the prosecution witnesses, the Investigating Officer has not collected the clothes, bed-sheet, there is a delay in lodging the complaint, further the Investigating Officer has not collected the E-Mail chat details, not collected any evidence with regard to the galata that had taken place in the house of the accused at Chennai with regard to the marriage proposal of the accused with the victim. Inspite of the defects in investigation, this court believed and accepted the evidence of the victim-prosecutrix, taking support from the observations made by the Hon'ble Supreme Court of India in case of State of Uttar Pradesh Vs. Naushad reported in 2014(1) Crimes 347 (SC), wherein it is observed that:
" A woman's body is not a man's plaything and he cannot take advantage of its in order to satisfy his lust and desire".41 SC No.1351/2014
61. In so far as discrepancies, contradictions in the evidence of prosecution witnesses is concerned, learned Public Prosecutor has relied upon the following decisions:
In the decision reported in 2015[3] Crimes 152 [SC], (Sanjeev Kumar Gupta Vs. State of UP [Now State of Uttarkhand] it is observed that:
"Appreciation of evidence-Statement given in FIR and in court-Discrepancy-Not fatal particularly when the medical evidence supports the prosecution case- such testimony held reliable, without improvement".
Similarly in the case reported in 1983 Cril.L.J 1096 [SC], (Bhoginbhai Kirjibhai Vs. State of Gujarat) wherein it is observed that:
"Much importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basis version of the witnesses, therefore, cannot be annexed with undue importance".
Similarly, in the decision reported in AIR 2010 Supreme Court 1894, (Utpal Das Vs. State of West Bengal), wherein it is observed that:
" Statement of the victim in cross-examination which was not stated by her in FIR- cannot be used for contradicting her-Cannot be said that she went on making improvements".
Similarly in the decision reported in 2013 Cri.L.J 194[SC], (State of Uttar Pradesh Vs. Munesh) wherein it is observed that:
42 SC No.1351/2014"Contradictions in their statement given to police and evidence given in court trivial- rejection of their evidence and acquittal of the accused improper".
Similarly, in the decision reported in 2010 [4] Crimes 666[Cal.], (Sk.Khelafat Moji Vs. State of West Bengal) wherein it is observed that:
"A statement of witness recorded under Sec.164 of Code of Criminal Procedure in rape case could not only be used either to contradict or to corroborate the maker thereof".
Therefore, taking support of the principles in the aforesaid decisions, in the present case, though there are minor contradictions, those contradictions are not go to the root of the case of the prosecution, so as to acquit the accused.
62. To sum up in this case, the prosecution in order to bring home the guilt of the accused by examining the victim-PW1, her parents -PW2 and PW3, her sister-PW4 and her brother-PW17 who are all deposed about the friendship of the victim with the accused, they had gone to the house of the accused at Chennai to talk about the marriage proposal of the accused with the victim and their evidence is accepted by this court and further the prosecution examined the spot mahazar witness-PW7 who supported the case of the prosecution that, the police conducted spot mahazar, PW8-Doctor who conducted medical examination of the victim, PW9-WPC who took the victim to the hospital for medical examination, PW10- Head constable who had taken the accused to the hospital for medical examination, PW11-FSL Officer, 43 SC No.1351/2014 PW12-PSI who received the complaint, PW13-Investigating Officer, PW14 and PW16 who had secured the accused. In so far as defects in investigation is concerned, this court is of the opinion that, it was not at all fatal to the case of the prosecution, as discussed in the aforesaid Paragraphs of this Judgement. Further this court has come to the conclusion that, the victim though consented for sexual intercourse, it was given under misconception of facts. Therefore, for all these reasons, this court is of the opinion that, the prosecution has proved the guilt of the accused that, he [accused] has committed the offences punishable under Secs. 376 and 417 of IPC. Accordingly, I answer POINT NOS. 1 AND 2 IN THE AFFIRMATIVE.
63. POINT NO.3:- In view of my aforesaid discussions, I proceed to pass the following ORDER The accused is found guilty for the offences punishable under Secs.376 and 417 of IPC.
To hear regarding sentence by 23/2/17.
(Dictated to the Stenographer partly and directly on the computer, corrections carried out and then pronounced by me in the Open Court on this the 22nd day of February, 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
44 SC No.1351/201423.2.2017: Accused produced from judicial custody. His Counsel also present, learned Public Prosecutor is also present. Heard regarding sentence. On hearing the accused personally submitted that, he did not commit the alleged offence, he is aged 27 years, his father passed away and he is having mother aged 65 years and he has to look after her and he is working in BPO [Call centre] and he is the only bread earner in the family and therefore prays for taking lenient view in imposing the sentence. The learned defence counsel has placed reliance on the decision reported in 2003 SC (Cr) 775- Uday Vs. State of Karnataka.
On the other hand, the learned public prosecutor has submitted that the accused has committed heinous crime against a woman and he does not deserve any leniency in imposing the sentence. Further learned Public Prosecutor has relied upon decision reported in AIR 2013 Supreme Court 3246 [State of Harayana Vs.Janak Singh] wherein it is observed that:
"Sec.376 of IPC- Most heinous crime against woman- It dwarfs her personality, erodes her confidence, violates her right to life- Sentence bargaining not permissible in rape cases".
Further, learned Public Prosecutor has relied upon another decision reported in AIR 2013 SC 2997, wherein it is observed that:
"The courts must not only keep in view the rights of victim of crime but, also the society at large while considering imposition of appropriate punishment".45 SC No.1351/2014
Hence, learned Public Prosecutor prays for awarding maximum punishment.
After hearing the accused personally, as he has submitted that, he is aged 27 years, his mother is aged 65 years, considering his background, I proceed to pass the following:
ORDER REGARDING SENTENCE In this case, the accused is found guilty and convicted for the offences punishable under Secs.376 and 417 of IPC.
As per the Criminal Law Amendment Act 2013, provides punishment for rape under Sec.376 of IPC as under:
"Rigorous Imprisonment of not less than 7 years, but, which may extend to imprisonment for life and with fine".
Sec.417 of IPC provides punishment as under:
"Whoever cheats shall be punished with imprisonment of either description for a term which may extend to One Year or with fine or with both".
In the present case, the accused is aged 27 years, considering the submission made by him that, as he has to look after his aged old mother, he is the only bread-earner of the family and working in BPO, further the prosecution has not placed any documents to show that, the accused is a rich person having movable and immovable properties, so as to pay huge fine amount. Considering all these aspects, I proceed to pass the following Sentence.
46 SC No.1351/2014SENTENCE The accused shall undergo rigorous imprisonment for a period of 7 Years for the offence punishable under Sec.376 of IPC and to pay a fine of Rs.25,000/-. In default of payment of fine amount, the accused shall undergo simple imprisonment for a further period of Three Months.
The accused shall undergo rigorous imprisonment for a period of 6 Months and shall pay a fine of Rs.5,000/- for the offence punishable under Sec.417 of IPC. In default of payment of fine amount, the accused shall undergo simple imprisonment for a further period of One Month.
The substantial sentence imposed for both the offences shall run concurrently. However, the sentence imposed in default of payment of fine amounts for both the offences, shall run consecutively.
The period of detention undergone by the accused in judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided u/Sec. 428 of Cr.P.C.
Office is directed to supply the free copy of this judgment to the accused forthwith.
After the recovery of total fine amount of Rs.30,000/- from the accused, a sum of Rs.25,000/- ordered to be paid to the victim as compensation, as provided under Sec.357(A) of Cr.P.C.
Further, the Office is directed to write a Letter to the District Legal Services Authority, Bangalore Urban, for awarding additional 47 SC No.1351/2014 compensation to the victim, as per the Schedule provided under the provisions of Victims Compensation Scheme [apart from the compensation awarded to the victim by this court payable out of the fine amount].
(Dictated to the Stenographer, in the open court, corrections carried out and then signed by me on this the 23rd day of February, 2017) (RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURES Witnesses examined for the prosecution:
Pw.1 Victim CW1 16.4.2015 Pw.2 S.Venugopal CW3 9.6.2015 Pw.3 Vijaya CW4 19.6.2015 Pw.4 Radhika CW2 19.6.2015 Pw.5 Dr.Nirmala CW8 19.8.2015 Pw.6 Dr.K.V.Sathish CW9 19.8.2015 Pw.7 Raghavan CW6 19.8.2015 Pw.8 Dr.Sheela CW7 19.8.2015 Pw.9 Renuka.D.Roy CW11 21.9.2015 PW10 Rachaiah CW12 21.9.2015 Pw.11 D.Malathi CW10 30.9.2015 PW12 Guruprasad.G CW15 30.9.2015 PW13 D.Ashok CW16 30.9.2015 PW14 K.M.Somashekaraiah CW17 19.10.2015 PW15 Venugopal.B.T CW14 16.11.2015 PW16 Balasubramanyam CW18 7.12.2015 PW17 Kishore Kumar CW19 11.1.2016 48 SC No.1351/2014 Documents marked for the prosecution: Ex.P1 Complaint dated: 14.8.2011 Ex.P1(a) Signature of PW1 Ex.P1(b) E-Mail ID of the accused Madan Ex.P1(c) Signature of PW1 Ex.P1(d) Signature of PW12 Ex.P2 Spot Mahazar conducted at Bangalore in the house of the victim Ex.P2(a) Signature of PW1 Ex.P2(b) Signature of PW7 Ex.P2(c) Signature of PW13 Ex.P3 Serology Report of the victim Ex.P3(a) Signature of PW5 Ex.P4 Medical Certificate of the accused Ex.P4(a) Signature of PW6 Ex.P4(b) Signature of the accused Ex.P5 FSL Report Ex.P5(a) Signature of PW11 Ex.P6 Sample seal Ex.P6(a) Signature of PW11 Ex.P7 FIR Ex.P7(a) Signature of PW12 Ex.P8 Requisition letter sent to FSL Ex.P8(a) Signature of PW13 Ex.P9 Acknowledgement issued by FSL for having received the articles 49 SC No.1351/2014 Ex.P9(a) Signature of PW13 Ex.P10 Medical Certificate of the victim Ex.P10(a) Signature of PW8 Ex.P11 Original MLC Register returned to the Doctor-PW8
Ex.P11(a) Original Page Nos. 184 to 187 in the said MLC Register returned to the Doctor-PW8 Ex.P12 Xerox copy of the preliminary certificate Ex.P13 Report given by PW16 to the complainant police Ex.P13(a) Signature of PW16 Witness examined & documents marked for the accused: NIL LIV Addl., City Civil & Sessions Judge, Bangalore.
50 SC No.1351/201422.2.2017 Accused is present.
Judgment pronounced in open
court:[ Vide separate detailed
Judgment]
The accused is found guilty
for the offences punishable under
Secs.376 and 417 of IPC.
To hear regarding sentence
by 23/2/17.
[RAJESHWARI.N.HEGDE]
LIV ADDL., CITY CIVIL
& SESSIONS JUDGE,
BENGALURU CITY.
51 SC No.1351/2014
23.2.2017 Accused produced from judicial custody.
Sentence pronounced in open court:
[vide detailed separate Sentence] The accused shall undergo rigorous imprisonment for a period of 7 Years for the offence punishable under Sec.376 of IPC and to pay a fine of Rs.25,000/-. In default of payment of fine amount, the accused shall undergo simple imprisonment for a further period of Three Months.
The accused shall undergo rigorous imprisonment for a period of 6 Months and shall pay a fine of Rs.5,000/- for the offence punishable under Sec.417 of IPC.
In default of payment of fine amount, the accused shall undergo simple imprisonment for a further period of One Month.
The substantial sentence imposed for both the offences shall run concurrently. However, the sentence imposed in default of payment of fine amounts for both the offences, shall run consecutively.
The period of detention undergone by the accused in judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided u/Sec. 428 of Cr.P.C.52 SC No.1351/2014
Office is directed to supply the free copy of this judgment to the accused forthwith.
After the recovery of total fine amount of Rs.30,000/- from the accused, a sum of Rs.25,000/- ordered to be paid to the victim as compensation, as provided under Sec.357(A) of Cr.P.C.
Further, the Office is directed to write a Letter to the District Legal Services Authority, Bangalore Urban, for awarding additional compensation to the victim, as per the Schedule provided under the provisions of Victims Compensation Scheme [apart from the compensation awarded to the victim by this court payable out of the fine amount].
[RAJESHWARI.N.HEGDE] LIV ADDL.,CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.