Karnataka High Court
Muniswamy @ Ranganath vs State Of Karnataka on 6 November, 2009
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her father (accused) should not come to the
house. On the same day i.e. on 13.11.2006 at
about 9.00 p.m. the coniplainaritistt'[father
(accused) came to the
after coming into the house, st-3€1""ted
'- __ _2"',
. . . « at' «.»--:------i~T% 5 0.;
shouting saying, ta'/~/._tga8:."'
L
C.:'='}:UE?
On seeing this:"h.e1* rriother went out of
the h.du.s_e d_t1e"_tor--:'t'ea'0ir".-ffhe accessed beat her
(Kum.$}iharaIiy_aj}'.V -her junior aunt
a;1itervei1ed.,,:'thVe' scolded her also and
hei""xot.1i't ,of"'the-Vwhouse and closed the
Vaccttsed beat her {Sharanya)
.... 11a11.c1s aizdbbptit his foot on her chest and
it it saying; 'i?5ZEEC;.r:»2,jo 'E'53"JO:'m€'W'3
-- ofi"z>§?é.*':*c:r2'~.:¥ 15,3; %:°;:;§§Q6e;i.>
'""'CC-V»-A -;-- .. t :3 1 -
be-$15 via 0:: Lg»? CLZ'.:"D ¢€i'G:*»; :2 a :1 Q"C9.§;i§§
~
'_ _2'€;_,~&§,E;;:%P§*5 »w:;e;"';'= n::b 253$
W
ma
,w.._fl
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While abusing so, the accused removed her
clothes and committed forcible sexual
intercourse on her and went away.
(dlon 1'?.11.2006 at about 10.00 a.m., he (PW4
complainant) took the girl (Kum.Sharanya) to
NIMHANSK One D1-.Suresh {PW 3} examined her and
found that, on account of sexual assault on her, she
i5_
Flomy is the teacher in Arunodaya convent whom the victim girl
is said to have met first after the incident. PW 11 Smt.Kar.pugam
is the mother of the Victim girl, PWl3 Venugonal,--ll,:'Vilolice
Inspector of Vijayanagar PS is the E0. PWs.l0 axial'
police witnesses.
4. The accused has gotV,,ve2:aminedl"DWl
maternal junior aunt of pi'osecult'i'.i;il'in sup'p.o_rt'of defence,
however, he has not choserrto produce._a.n'y~-- document.
5. Sri Y.S.Shijra 'counsel for the
appellant the oral evidence of
PW2 Dr.S1"'i'<'ielv*i. V the prosecutrix on
22.1 1.20ij6 Ex.P3 the certificate issued by
the said report do not established that
the prosecutrix waslsulbjected to sexual intercourse in the recent
1.3lastVan,d i5W1ll1A~__Smt.Karpugam, the mother of the prosecutrix, haslnotlsu.§ported_the prosecution case that she was present in thelhouse time of occurrence of the alleged incident of ~ rape on 1:iro__s'ecutrix by the accused, who is none other than the the prosecutrix and husband of PWII, and therefore, "--.ignorting all these facts, the Trial Court convicted the accused for said offence only on the basis of the testimony of PW8 prosecutrix and hence, the impugned Judgrnent, and Order of conviction deserves to be set aside. He further contended, that {' Lu: k
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the Trial Court has not properly appreciated the evidence of DWI Smt.Chitra who is none other than the maternal junior-.__aunt of the prosecutrix and therefore the findings recorded Court that the prosecution proved its case against fl beyond reasonable doubt for the offence' 2. {PC cannot be sustained in law and"-con_sec1uei1tly..l'»tne deserves to be acquitted of thcl__s"a.id offence. aieO"'wcoxitendedl that, the prosecution has the delay caused in filing the cor'r'1;.:*l~.l'a1'n1lt.y. the facts that the alleged incident Ofxrape on 13.11.2006 and the on 22.11.2006 and therefore the for the said offence is bad in law. contended that even if it is held thatlthe established that the incident of some indecent assault by the accused on the prosecutrix did occur; thefsarne does not constitute an offence under Section Vityrnay constitute the one under Section 354 IPC. E?er'eontra, Sri Vijayakumar Majage, the learned High C3oAtIr1;_ Government Pleader, strongly contended that the vprosecutrix was subjected to forcible intercourse on 13.11.2006 she was examined by PW2 lady Medical Officer on if 22.11.2006 and therefore it was quite natural that there could be no evidence as to the sexual intercourse comn1itt:ed on her in M ~...._..-.........---m -3- the recent past and therefore, the Trial Curt has rightly believed the evidence of prosecutrix as to the occurrence of_.-forcible sexual intercourse on her by the accused who is none' other than her natural father. He further contended. that since ' being the naturai father of the p1'osecutrix said ' . act, the prosecutrix was very rn=ucl:i_"l'depresAsed pa'n'd.lAi'she approached PWs.4, 5, 7 and Qdvirith whorri shel'vvas_°ae.qdaintedd' and the evidence of these \vitnesses__c}earIytexpvleiige the delay caused in filing the complalint He further contended that the. evidencebofe Abraham and that of PW3 the prosecutrix respectively" clearly establishes the aver;rneni:s [Ex.P5 that as a result of the incident of .r_rappe onthis:_ll'un'i'ortunate prosecutrix by her own natural {'at11e1': she'vvasV' totally depressed and she was given .t1r*eatriient¥"by the saidlldodctors during the period from 14.1 1.2006 .«_2li therefore she herself could not file the complaint ,agaifnst her father in respect. of the said incident. n e 7.zE'.'_'.'i?'1 Dr.K.V.Satish has stated in his evidence that on A at about 11.00 am. he examined the accused who brought to him and issued certificate Ex.P3 to the effect ~ .. .that he was capable of periorrning sexual intercourse. He has further deposed on the same day at about 12.30 p.m.. he
-gw examined the prosecuirix for ascertaining her age and issued certificate as per Ex.P2 to the effect that she was agedgbetween 16 and 18 years as on the date of his examination. 'I'£iis"eiii.dence has remained totally unchallenged. Therefore, it prosecution has establish beyond reasonable llthat Vihedj' accused was capable of performing 'sexi3.al"lintercoLirse lithe girl was aged between 16 and 'years as' on V-releyaiit 'date of V occurrence of the incident of a1legedA"rape_Vgon herby the accused. Thus, it is further clear thatshe wags below 16 years of her age as on the said date.
8. PW4=i' the Co--ordinator of 'APSA' has iifiiiis "e:s;aminaltion--in--chief substantially the same facts als:_alleged_" 'ihi_sl'cicyol1V:1plaint Ex.I-"35. PW13 Venugopal. the Police Inspector Vijvayanagar PS has stated in his evidence .~.that 8.00 pm. PW»/:1 Nagesh Nayaka l"appgear..'t3fC1.};;eioirel"h.irI1 and lodged his written complaint as per tat-hle basis of the said complaint, he [PW13) registered case in Crime No.660/2006 of his PS against the K for the offence under Section 378 of IPC and proceeded investigation. it is suggested to this PW}3 in the cross» "..exaininaiion made on behalf of the accused that ihe said case came to be registered by him falsely at the instance of the said complainani. On careful reading of evidence of PW4 "IO-
complainant, it could be seen that his evidence in examination- in~chief that on 22.11.2006 he filed his complaint Ex.I?;'*i.'§}Qefore the police of Vijayanagar PS has remained totally Therefore, the Trial Court has rightly held that-'..'fi'ling::oif Complaint by PW4 complainant has»-.b&ee{jl1 fj' prosecution beyond reasonable doubt} '
9. On careful reading evidenee"o'f Nagesh Nayaka it could be seen that his evidence many of the relevant facts He has stated in his that about 11.00 a.m. one Sister PW9 [Sister Filomy) telephoned fprosecutrix to his custody and at thvaittime; and suffering from fever. He has further he enquired with her. she did not anything "exceptsaying that she was feeling vomiting f"and:fdifticu_ity fpassing urine and therefore, on 16.11.2006 he got Dr.Shantha Abraham [PW6}. He has further deposed that the advice of the said Dr.Shar1tha Abraham, he V' 'got theprosecutrix examined by the doctor at Nimhans Hospital, «.fBan-gallore. He has further deposed that when hirnseif and other "..n1'e'rnbers of his ZAPSA' enquired with the girl, she disclosed that her father had attempted to commit rape on her. He has further deposed that when the said girl. was taken to hiimhans Hospital »%'x, -11- on 17.11.2006, the doctor at Nimhans advised that she should be got examined by a lady Medical Officer. as she was subjected to sexual assault and therefore, he. along with other of 'APSAI took the giri to Vanivilas hospital on 20. further deposed that on that daywth.ep xVanivx'ilasbj ' hospital told him that it was a 'medico and he should inform the police cornea to along' V with police. Therefore, he discu--ssed..:§the matter with other members in liisiIiistitotion'land':thereafter he lodged complaint as per'.'Er:.P5:.A'oi1~._ the police of Vijayanagar the ii-fiiorifiation given to him by the prosecutrix, ti» has stated in her evidence that on 14.1l.2Ot)t<3,pPW9:Sister<.--l5lomy informed her over telephone ..,t_hat one girl n"a'm.e....K_«um.Sharanya, was depressed and she V".nee;de'dVsl7I.el'ter~_a'nd then. herself and PW4 complainant Nagesh Nayal{=.ttogeth'el--rlivtrerit to Arunodaya Convent and met Sister 'Flomy arid" the said Sister gave the prosecutrix to their custody at_that' time, the prosecutrix was depressed and was not in to say anything. She has further deposed that they "--.hroi}.ght. the prosecutrix to their 'APSA'. gave her tablets for her iever and asked her to take rest. She has further deposed that on 16.11.2006 they {PW5 and PW?) took the girl to the clinic of ea-----r._".""""\»v .42- PW6 Dr.Sl1antha Abraham, who treated her and also advised that she should be got examined by a gynaecologist and-"also the doctor at Nirnhans and therefore. she took the girl '§\ll'mfhans Hospital on 17.11.2006 where. the doctor, afterf:exarriiiiilirigflthé. girl. advised that she should be takerrto.gynlaecologistl She has' j further deposed that accordingly she'l«tool_{ the lady Medical Officer at Vanivilas._Vho.spital"who since it was a medico legal case, a complairn shou'ld..beHg'iven to the police and then she should be the---.,hospital.
11. PW6 in her evidence that on 16. aqm. PW? Susan Thomas brought: llkum .Sharanya and at that time of pain in her abdomen and was suflei'ing~-fromte-3/elr, has further deposed that she came V. to l:{I7__'O'l'.Z\[ the pr'os.e.C'u'trix was sexually assaulted. V *1 Aibrrsuresh. the Assistant Professor at NIMHANS I-{ospital hasdstated i.n his evidence that on 17.11.2006 the '.proseclui,rlX:_ Sharanya was brought to him by one Kavitha and V' Menaka who were Working in 'APSA' and at that time §prosecutr'ix was depressed and she disclosed before him that '".her father had committed forcible sexual intercourse on her and therefore felt that she should C01'I1I}}ll, suicide. isle further deposed tliat the pmsecrutrix was not exalnfned. by any lady €:_m~é -14-
15. There are some discrepancies in the evidence of PWs.2 to 9 as to t.he persons who brought the girl to 'APSA', who took her to the clinic of PW6 Dr.Shantha Abraham, to and Vani Vilas hospitals, and also by what exacts-teirne met, PWs.5. 7 and 9 respectively Sheela y'l'h:ornas_ Sister Flommy. etc. Referring to these',disereparieielsfthle :i'e_ar=:;1ed counsel for the appellant.~accusled__ strongly conr.tehlded_VVth:at lthel; evidence of these witnesses as facts not have been believed by the Trtallfitloulrt. 1-Oh"~.aa_care1"ul reading of the above evidence ofA1?Ws.2AAt.ov:.9-.Vitl._could'*be:fse'en that the said discrepancies lai'e'Vmir';loi- and deserve to be ignored inasmuch as they do not go to the prosecution case. Besides this. the facts that" thegorolsecutrix approached PW5 Smt.Sheela irrtthexeariy h1o'1'ning of 14.1 1.2006 and thereafter PW9 about .rc:)lr""E1 a.In. and then she met PW4 complainant by _ll1t:.'}Zf3'§J:: who got her examined by the doctors as H,,,..«.latoresaidihave all remained totally unchallenged. Further. notltihgg. is brought in the crosswexamination of these witnesses _.._l"to show that they have deposed falsely against the accused with "any definite motive. On the other hand. all these witnesses were independent witnesses having no ill~will or enmity against. the accused nor. did they have any special interest in the M% _15- prosectitrix. 'l"herefore. I am of the opinion that the Trial Court did not commit any illegality or irregularity nor has it shown any arbitrariness in accepting their evidence.
16. The above evidence of P'Ws.2 to 9 clemlly the averments in Ex.P5 complaint th_a1.o_n unééf » by 14.11.2006 the prosecutrix met PWA5 S;mt;lShfeela then she met PW9 Sister Flo1ny:_a.n_d at that tiniet'she.was.3i.ot.ailyf' depressed and suffering from feyeir'-aiid.'therefore. was given some tablets by PW9 a11d"sh'e_Was gg,i'.flelr';--_svhAelter in 'APSA' by PW4 complainant and.._ she yw-'as_ Dr.Shantha Abraham for fe§éer_. .2t_lOvF3llandmthereafter by PW3 Dr. Suresh at"Nlnaphans:xfleloslpitallori"".El?;'l1.2006 and then by PW2 Dr.Sride\h._ the Medical Officer, Bangalore. _'l'hel above evidence of the said witnesses clearly llestgabilishes lllirther 'thatthe prosecutrix informed them all that ll'she.was forcible sexual intercourse during the n.ig.h.t b€t\i\7f:p€l11 1~3'-lfiand 14*" November 2006 and. since the said act 1"-<.___lwas conri.rnltted on her by her natural father. she was totally l ldepresnsed and was suffering from fever and pain in her private "~.l:;lpar§ts.
18. In order to see whether the delay caused in filing the complaint in respect of the alleged incident of forcible sexual '»_-*~«=~«.£."'\.r°-*""'~----»~--~="**"
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intercourse on the proseeutrix is sufficiently explained by the prosecution. all these attending circtimstances are to be taken into coiisideration. Having regard to all the said facts as deposed by PWs.2 to 9. 1 am of the considered opinion tirlatT.they eoiistituted proper explanation as to why there occ1.1rred:'dee'i.ay' in lodging the complaint Ex.P5. Besides this. exreryldeiaiyrin information to the Police cannot b'eHmhelC'.. 1;«O be the T prosecution Case in the absence of an.yh_materilavl on '~reeorr:llto show that the said informationtpplleotild be fabricateldll falsely; against the accused. T'nerefoire;" *Ilt_:'Ein'd._i1o substance in the submission made by the VA for the appellant accused that thedeiay tha.i;1'--o1'1e Week caused in filing the com'plaint is'i?atal"to the"~p__ro.9ecution and the Trial Court has last sight oifthep sa1'i1e.'-at ll As toll"L'he....incide1'1t of indecent behaviour of the l.'--..a'cc.u"se,d prosecutrix that occurred on 11.11.2006, and her.atternptll-"tolleonimit suicide on i2--1l--O6. ewe prosecutrix [has statediri her evidence that, at about 8 pm. on 11.1 1.2006. :i?'Jl'lAA€lV'l"l".'16I'll'I1Otl'1€I' was not in the house. her father behaved with indecently by putting his hand on her chest. but some how she escaped from him and went out of the house saying that some orie. were ealiing her. She has further deposed that some time thereafier. she returned to the hoiise and went to €,,,_,_£'"'\..,¢""'a-' -17- sleep. She has further deposed that on 12.11.2006 she met the sister at Arunodaya Convent: and informed her that. since her father was beating her, she. would not go to her house, to that. the said sister told her that the parents would bedhheating t.he children for the good of the children and ,:s'3:.ae should return to her house. She has fu1*ther advised by the said sister, she returned t.o'her_ house'-an_d'.'"after mid--night of 12.11.2006, at about. 3v4'a.n1.,_.o11 attempted to commit suicide by pout-ajiig ke'm'se'ne'.=orijher person and litting fire to he1'se1f;"b.ut her"Enother.fiextinsguished the fire and also scolded her for doing; deposed that, on the next day 1jnorn--ing to "the Sister of the said Convent it/tz.._ her that her father was beating her and the:'§:to1fe,'sV'oe"waes'hot' f5i'epared to stay with her parents and at , that. tinfie, 'her rnothver also came there and took her to ho1,tser'~ass.i1Ai'i1*igL that she would make some arrangelnent in the said _r:r1att_e'i;_ 'Z'he_re_}.appear no reasons to disbeiieve this evidence of PWB asV.to:t:hetse facts.
20: ';¥?or proving the occurrence of the incident of forcible esexuatgintercourse on the prosecutrix by the accused. the d'"'vp_rQE§ecutio11 has got examined PWI1 Karpugarn. who is the A " .. «inother of the prosecutrix and the wife of the accused. She has not supported the prosecution case. She has denied the «t-:-r"'"-=-»~"-»~«*
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suggestion of the iearned Public Prosecutor that she stated before the 10 as per Ex.P'I1 the substance of which is: "at about 9 pm. on i3.11.2006, she and also her sister STI1t',.Chi"7;!7E:l:"-{"1:>)V'.,N1) were in the house and. at that time, the sccused--§Vc2tn'1eV:'t.oV' _ house and, on seeing the prosecutrixin the hoLise':{~he'vV}3ecarne"V. angry at her and asked her {prosecut,ri;<.] sis she to the house and then he sent 1:-'oth_VPW1' L end tfihitradx ; (DWI) out of the house and C1OS€'fC.1m§:tVVf1'_€:'t;t.(V)'»OI' house. though PW11. knocked the door to open it) he did not open it for sorne~--tirne. time, he opened the door and "she {PW} 1] saw the prosecutr'ix_'V1yin~g;-on house weeping, when she (PWt1} 'ssvto what had happened, she informed herpdthati by her father". The evidence of DW1 Smt.iA.Chitra. ciearlyddestsblishes the presence of this PW} 1 in t'heyhouse'°v.rhen the incident of forcible sexuai intercourse on the prosiecutrixh"byythe accused occurred. By not supporting the prosecutioiicstse, this PWH has chosen to side her husband w- K""--._VVlaecused;,_.it is clear that she has deposed falsely with intent to _ save her husband from being punished.
21. As to the occurrence of the incident of forcible sexual intercourse on the prosecutrix by the accused on the Q~=~« H19"
night of 33.11.2006, PW8 p1'ose(tut.1'ix has deposed that on the night. of 13.11.2006. While she had siept in her house, the younger sister of her mother {I)W--1 SrI1i..Chit.ra] was in the house and at that time, t.he a(:c;used came to _.as»sattItvihethy putting his foot on her chest and, __on,_seeih'gwt"r.1ef»sasmet he?» mother and her said aunt both i11terVe.r1ed;tb't1t "the'~aee1iseCl' both of them out. of the house and t.heh C.orh:1e1'A1t«tted.Wforcihiei"
sexual intercourse on her by ur1dressing._her an--d_ sayirig:
" :3; 8': s;2s;j§§' .i;-::~..:§so:<=és.ies'e?;et;;:5:oéo»'a'§3¢33 .»%§:5JiQ°f;§ me tea Lrés t z _ . - '>2,' V 2 x.» ,.> 'd (more E99 Li} v=:5§V't7<'?>§°g§' fie;
¢ _ _ meflomfi xéoejimsd _ Q _ ,?._g,' ,,,_\": fl A K 'E0 *c'*:i2-'£;=2;..<:e2E5~ §*"'v.% FIT . ii
22. d' This Q;3.ro's.eC1,tt'ri;?E'has further deposed in her evideneejv t:hat.. 1'oz*_t.\;vo days she was made to stay in 'APS.A' and to NIMHANS hospital where she was bviigfzsniresh WW3) and that there was cotmseiing by the said If}-oe_tfo=:*Aa111d du1'i.r1g the counseling, she disciosed before u him t.hat,_hfer father had con"1m1'tted forcibly sexual intercourse & jV.oh'hetf.~z1nd therefore, the said {Doctor advised that she should be examinecl by the Lady Medical Officrer and therefore. she was :.V'br0ugi1t. back to 'A.PSA' inst4it.ut.io1'1. She has further deposed that Eherea£'t,e1' she was t.ai«;en to Police Statio1'1 and then to C% M20- Victoria Hospital where she was examined by the Lady Medical Officer.
23. PW2 I)r.Sridevi Sanganna is the Lady Medicaii":C'5'fficer, who examined this proseeuirix. on 22.11.2006 at gii giii.d issued report as per I:'.x.P3. Though the ora-_}h of Medical Officer and the contents of E:§r'.P3»:if'epvo'i7i'. and¥1'};so,VV:E;i§V.VPi«4 FSL report do not disclose that i;l.'1_e giri.'-vviérs subje.t_;teCi to '{'oi*eii51'e..L sexuai intercourse in the recent in viev.r__ofi.he factiiihat the said incident took place oHz1'~~..t;_he and she was subjected to medical exan1imsit;:io't')."i:rrtk;.2jiii"' on 22.11.2006, it is quite 1iatui~.ai"i_h}1i, there (?:fC)1,11'(,'1".i'i'£)_"iVVb€':ffOL1nd on her person any sign;§oi"ise.x'iia]_ iriA:i.erco.ur-se iIi"'E'i'i'€V'vI'€C€13.i', past. in such eases Where the 'p1'osec'uiIi*i.x'i'.eou1ei._.not be subjectied to medicai examiriation"'i11m1eciiaie!yfa'i'ie1" oc.currence oi" the incident of ' '.fC)I'(:i.1}.§'1L"~ s_exi,ia1 irfiertrourse on her. the entire case of the V'-.A1;)'1'os';eeiii:io:'1rc'a.n"1"1ot' be disbelieved on the groi.u'1d that no signs of in'tereou1".<3e. oil lcier in the recent. past were noticed on her person 'by the iDo'et:or who examined her on a later date.
24. On careful rezidirig oi' the .i1b()V€ evidence of the upr__osecLii,rix ziiid aiso the averizienis in E.3x.P5 co1i1p]air1't. the ihfilirig oi' which by PW4 e()n;"1p]a.inai1t.. on the basis of the facts disclosed by the. ;)r()s;e~.ci,1i.i'i.,x before liim 2'u'1(.i other pros;ecui.ior1 wimesse-*5. is moi st--:i"ic:)iisiy cIis1:.)i_.:ieci. it crciizid be seen that the %uM-
_2;_ evidence 01" PW8 pr()se(.:u1,1'ix g__{iven before the Court is quite Consisieni with the averme1'1i' in the said e<)1'1'1pIain1..
25. Learned Counsel for the appellant '*..§ie.eu_$ed strongly eoxiiended that. the Trial Court should not the evidence of p1*0secuE'rix in the absence of"eda'z{<':ho'i~ati9n medical evidence. In SL1pp()1"'E'. of ihis'~.._e0riie._r.'1;ic)';1. he" hé1.:3:Kp1ai:ed reliance on the decision of the C$1l'e.:Liii.a i~Ii.gi1 Cc)i;1'i"it' i.i1.1,_iH1e ease F Ananth Bandhu Kundu ~vs-- The Stiiteb Wes.t'Ber'14:}alV}:1nd Others reported in 1996 CRI.L...-I_.fi'--344{9 ..V_j&h_eE.decisi0n of Horfble Supreme Couri in the (TdS€...0.1:;-D,ili_p' aind".ari6the:=:' ~vs-- State of M.P. reported in 2o0:e;'Se;c%i1'{cRi;A592:'V 267, I11'AIi'i3$3Vi.HV(jf',U1'€ é3tb_D'J.€? said (raises i..e., in the case of Ananth Bandhit K1m:da;.'i'vihie-,_I;a.::t.s eor1st.i£utii1g the ease of the proseeinii ()11"--'.3Ve.i'¢:é :
was 1'esiden1' of a village in inVi"M1i"fs}1id:ii)e1ci She was 51.1"] em.p1()yee under Aeeused had. _}ewe11€I'y busiriess at
-,,.E3<)1:i'1'i'i--§i_y Vguvziicl he had 22. Eat. at Bombay.
""'~-ii)i,1.:fi1'1§"tithe month of July 1989, the proseeutrix :aeei.3i9ni3a1r1iec§ the zutei,1.Sc~:ci to 11301'ni3e-ay mid siayeci with 'E1111': dS his SCI'\F&1I'11 in his H211". ai. £301'31be;1y for few' days. i\E0 oihei" s<:1'v:;:1'1i or any other 11 1E'.1'1'1b€'.1' oi' i"r1e. farnily of the i1(',('§}.%SCd .~;i.aizye(i in the Said flat di.11'1'ng the said
1)e1*ioci. 'I'1:1e e1<'ei.;s("'(i <*()I1'1mitiec.i Sex1.12;1E i1'11'.e1'(:.-(>u1"s3e on her (iiu1'i1'15_.__>; '£.1'1e .<aa.1i(.:1 pe1'%.(.)(i wiihmit. her ('()I'IF3€I]1 and
2.-pg:--iiiisi her will by [')1.§Hi11§._{ her i.11'1{:i<-*1' £.h1'<:='e':l to her life.
cwfmmmw"
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with her life by the accused persons therefore she did not make any attempt. at rescuing herself from the clutches of the accused persons. The fact stat.ed'"by her in the Court that the accused Dilip had th«rt;tst:'--.a"--V piece of her saree in her mouth so to dyisa'btel_'li_e_i'* from raising any cry was not stated it she was unable to explain gthiswcontradiction by omission. Soon after the incident. 1wt1.e11 she'~came of her house, she had fou~n€l__ many_a'person'ltrnovinglto "
and fro on the main road o'pposit.e hé:1f_hou_se leecause that was a festival day. that sl1e.An_e:J§er had sex at any time prior the "of..rt.l1'e.bbinetdent and it was false t.o s11ggestV_t.hatV sexual life. The act of 't'l1¥€"_'aoe§use§Cll_:perso'ns~_hadf'caused swelling on her. ._a.iz.d the:bloodmwhich had oozed out l1ad--...st'ained i%_er.,1't-gs arid the frock which she was wearing atd»:i_heV't:in1e._ot7_the incident. The swelling and tl1e"«bloods'tai1':s*._were»-shown by her to Dr (Mrs) Jitp111'Q._._V ~prAose'e.nlti'ix stated that her underwear __§which was taken oft' by accused Mohari was not worn by her. «was left behind lying in the house " nntilylit; wads"-seized by the police.
~ _l§3.AlPW 3, the maternal aunt of the proseeutrix does support the proseeutrix to the extent that soon A '*._after the incident the prosecutrix had complained to her of having been ravished by the two accused- appellants. However. she stated that at. that time the prosec.ut;ri.x was wearing the underwear. The underwear was seen by her but she did not find any blooclstains thereon ztItlmt.1gl1 a few white stains were there. The {rock of the proseeutrtx also did not have S€'._XuEil ._ ?s:_sa'=..i_15t. without .2']'_ material particulars. if for some reason the court finds it difficult to place implicit reliance on her testimony. it may look l'o'f." evidence which may lend assurance to her-.°'- ' testimony. short of corroboration requiired V the case of an accomplice. The ._ the prosecutrix must behlappreciated' in tt_1t'::l" ' background of the e11tri1*el'ca's1_e A'a1id"the-,t1"L.a1v T court must be a1ive_ifo,its re"spo:'1sibi_li'tA§,{and be sensitive while x°*d_eal_ing 'width cases involving sexual mol'est.at.ilons'.-.,_ . . .
154. The""ageb (l')'f;"'l:VKl'l1lL'4_1,5?fdS.eCL1t1'iX was around a..t_li_t1»le more. The fact _rernains_that;._she was not just a child who would haV'e»l'sui'1=e1:de1-ed herself to a forced offering any 1*esista_nce whatsoever. Without going into testiiag ll;itl°:'tI'11l'lf]l¢L1lI1€SS of the explanation by the proseeut'rix that because of l overawed by the two accused persons, . she was not able to resist, the fact remains that the "probabilities factor" operates against the p1'osec1:t.1'ix. The gzing rape is a1.leged to have been committed at about. 2 p.m.. in her own house. situated in a populated village by the side of the main road where people were moving on account.
of I---loli iestivai. The prosecutrix did raise a C"
lgg-
incident becomes basically infirm on account of being contradicted by the statement of her own aunt and medical evidence and the report of the Forensic Science Laboratory.fll"
The defence has given suggestion in cr_o}s"s"~' . examination for false implication l' accused persons which. h;'oJ\vever.«_ have it gone beyond being sL1ggestions:'_'rn~elrely, not necessary for us 'dwell iipon i"urthe'r find out the probabilityvlvlofhlltgriith contai.ried."i:nH Q the suggestions" b_e(:a1:se" not flsa'tisfic§d generally of thestory as told by the prose--eii_1i*ix; l._V'\:?e jVdi'1'ficult to hold in as one on wh'.olse."testilii._1onyjp':--aii. _ reliance can be «_ .
28. vE'.'ll"L.'_tl'lt3 iof» or PUNJAB --vs- GURMIT SINGH reported in which is referred to by the "'.1:1on'b'l_e«:.Siipreme.lC'ouift__in the above said case, it is observed as hundeiz». .
l' . H must, while evaluating evidence, .44i*en'iain"'alive to the fact that in a case of rape, no A. se1'l7+respecting woman would come forward in a " -_ rCourt just to make a humiliating statement against her honour such is involved in the commission of rape on her..."
''...In cases irivolving sexual molestation, supposed considerations which have no me"-1i,.er§.al effect on ,,»--«.{'"""""e=~e~==* -33- time of the occurrence. the accused PWEI Karpugarn, DWE Chitra were present. in the house of PWi1. the scene of offence. Though it is settled that accused need not prove his defence beyond reasonable doubt, the evidence of DW1 and the suggestions put on behalf of the accused, to all the Witnesses. including the prosecutrix, do not in pro'ba'bal"1'sé~.'_ that PW4 complainant falsely filedV-hiis--comlplaintflagainst 'the'; accused and other witnesses who belliopngedllto the prosecution, with any de'fini.te__fnotive.against V-t:_lie.._acewused.
32. Placing reliance on.<'thre_:e dt:.eisio'nsV'in"'{i} {2006) 3 sec (cm) 398 {Tejpal --u§-l Vlstaie..éf:'M,f;}.,v'*'»{ti).2008 Cri.L.J. 675 {State of #z:.s----.'.Rt1meshft:ar Shridhar Jaware and anotherland '(iiVi]l 483 (Bachcha --vs-- State of U.P.), the learnedlV'cCou.nsel_ appellant strongly contended that evenit held that some indecent; behaviour by the accused l.4_fiv.*itVl~;..;he__Aprosecutrix is proved by the prosecution. the accused for the offence under Section 376 of IPC,
-- at the best. he could be convicted for the offence under Section IPC. I have not been able to accept. this contention for the reason that no circumstances are brought on record, through any of the prosecution witnesses. from which it could be held ff that the accused behaved only indecently with the prosecutrix and he did nothing more than outragi.ng her modesty. e"""""'f'\wwR"/C l34l Therefore. I am of the considered opinion that the findings recorded by t.he Trial Court in its judgment that the prosecution has proved its case against the accused beyond reasonable doubt for the offence under Section 376 of {PC deserveuto be confirmed.
33. As to the sentence of Rigorous lH1}:):'iSQ:I%ll1l€i.l:t for years imposed on the appellant -- accusedlbjy for l the offence under Section 376 o£'7'l1?C. thelearned.vCTo.uVnsell:';forthes appellant - accused contends th'a_t'the sa~i.df"sent.e:r;ce is very harsh and therefore. t.he"s.ameAf be reduced. The accused was aged about 46 of the offence.
Besides there' as his first wife. he had a second wifealso. _ was aged between 16 and 18 years. It t.l:.e7ac(rused. being the natural father of the to"pif.otect her chastity by taking care that she 'V-.,A\2v21V.sl"n,ot~v._vsu'oj~ecte_d to any indecent. assault; or such forcible sexuaiilintercouyrse by any stranger. it is very shocking to any 'one tl"1at."" accused. who was bound to protect his minor l_:daughter."l himself committed such an am; cw her. It is very
-.l.'.--uunfort.unate that the natural father of the girl comrnitted this " heinous offence against. her. Learned Counsel for the appellant
-- accused vehemently contended that, it would be very hard to believe that. ' natural_fai.her ' of a minor girl would commit such ¢"
M35, heinous act of forcible sexual intercourse on his own daughter. It is equally hard to believe that. for whatever reason. a minor daughter would falsely allege against her own father that he committed forcible sexual intercourse on her. If it c:o~ugld be impossible that a father would commit such an own daughter. it could also be impossible that a make such allegations against her ownhfather'. Allfthe and i T circumstances proved in this case have clearly .establi.shed.. that the accused herein has made possible, the firstAigm.po*ssibility via; impossibility of a father coxmmigt~tiiigiVp_:rap'e._on hlisiown daughter. Therefore, in my opinion. lithe.'ae'c1zse:d~appel1ai:t does not deserve to be called a '.vh1:1:I'Ti:-!_1_n ian "incident could only occur amongst aiiir-'3._al's. if
34. 'rn¢_ loi,"v1?e'ri:;t$" 'Section 375 of UPC is punishable with niiinimum sentencevoi' imprisonment of seven years, which maybe exi.en.d'e..r;l to ten years or even to life imprisonment. The Trialf..Coti1't;'_~v.a_ft'e.r"considering all the facts and circumstances of V _ the case also the submissions made before it by the learned .Cou,n_selV"i'or the accused, has imposed on him sentence of
-_R'i.goroi1s Imprisonment for ten years. Thus. the Trial Court is " quite justified in imposing this sentence. In View of all the facts " and circumstances of the case, the appellant. -~ accused does not deserve any lenience to be shown in his favour. 'l'herefore I do r'""--€'_"'""""'"""'"
364
no find any reasons to interfere with the impugried order of sentence. Since the instant, appeal is aga1ins1 conviction and no appeal is filed by the State seeking enhancement of sentence imposed on the appellant ---- accused by the Trial Court cannot enhance the sentence imposed on Court.
35. In View of my foregoing diseussison, 'the._'pres'eiit__.ap;.»eaI ' is hereby dismissed as being ciievoid .irn_j1'§)1,ig11ede. judgment and order of oonvictionlllmjid sentenoeldjated 20.8.2009 passed in s.c.No.4e2/2007 ibbyisAf.11eV._iF'ast Traok oourmx. Sd/-i JUDG