Bangalore District Court
SPL.C/284/2014 on 24 November, 2015
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 23rd DAY OF NOVEMBER, 2015
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 284/2014
COMPLAINANT :
The State of Karnataka by
Viveknagar Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED :
1. Tony Philip @ Tony
S/o Peter
Aged 19 years, r/at
No.862, Near BDA Quarters Park,
Neelasandra,
Bengaluru.
2. Jaikiran @ Satish
S/o Late Shiva
Aged 19 years, r/at
No.41, Slum Board Quarters,
Jayarajnagar,
/2/ Spl.C.C.No.284/2014
Bengaluru.
3. Bala (split up)
[Rep. by H.V.Subramanya & Associates,
Advocate.]
***
JUDGMENT
Viveknagar Police, Bangalore City have charge sheeted the accused No.1 and 2 alongwith accused No.3 for the offences punishable under Sections 376 R/w Section 149 I.P.C.
2. The case of the prosecution in brief, is as under :
CW1-Christina was of 15 years in the year 2012.
She had been to her grandma's house which is in Viveknagar during vacation. Her mother is mental retarded and she has been in the hospital since several years. Her grandmother only has been looking after her. In the first week of February, 2012 she came outside searching her cousin George, when she was /3/ Spl.C.C.No.284/2014 nearby the Corporation gym, Jayarajnagar, accused No.1 Tony alongwith accused No.3 Bala and other juvenile in furtherance of common intention misrepresented her that he would show her cousin, took her to the vacant space behind gym wherein they committed gang rape. C.W-4, Sanju, his brother C.W-
5, Shyam @ Anand were returning from their duty on the way to their house they had been to that vacant place for nature call. Then they found the rape being committed by the accused, on being seen C.W-4 and 5, accused No.1 and 2 alongwith accused No.3 and other juvenile fled away from the place. C.W-1, prosecutrix disclosed the incident. After getting dinner, she had dinner and went. Again on 14/02/2012 at 6.00pm while she was going to her friend's house again accused No.2 alongwith accused No.3 and other juvenile in furtherance of common intention forcibly took her to old house not being used by anybody which is behind the library nearby Ambedkar Statue, committed gang rape on her. After C.W-6, Menaka /4/ Spl.C.C.No.284/2014 and C.W-2, Kiran enquired the prosecutrix about the incident as they overheard from the localits, then she disclosed about the two incidents, thereafter C.W-1 had lodged a complaint on the advise of C.W-6.
Viveknagar police by registering the case against accused No.1 and 2 alongwith accused No.3 and other juvenile, drew necessary Mahazar, recorded the statement of prosecutrix. Accused No.1 and 2 had been arrested. The prosecutrix and accused No.1 and 2 had been sent to hospital for medical examination.
Investigating Officer had recorded the statement of other prosecution witnesses. By completing the investigation he submitted the Charge Sheet against accused No.1 and 2 alongwith accused No.3 and also filed a separate Charge Sheet against juvenile before the Juvenile Justice Court for the aforesaid offences.
3. The chargesheet was submitted to X ACMM Court. The learned Magistrate after taking cognizance, ordered to split up the case against accused No.3 and /5/ Spl.C.C.No.284/2014 committed this case to the Court of Sessions for trial. After registering the case in S.C.No.1254/2012, it was entrusted to FTC-III. Then Presiding Officer of FTC-III had framed charge against accused No.1 and 2 for the offence punishable under Section 376 R/w Section 149 of I.P.C. After the examination of P.W-1 to P.W-10 on the point of jurisdiction, this case has been transferred to this Court. Subsequently P.W-11 has been examined before this Court. On closure of evidence of prosecution side, it was posted for accused statement.
4. On prosecution side got examined as many as 11 witnesses as P.W.1 to P.W-11 out of 16 charge sheet witnesses and got marked documents at Ex.P.1 to Ex.P.11, the details of which are given in the annexure of this Judgment. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
/6/ Spl.C.C.No.284/2014
5. Heard the arguments on both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused No.1 alongwith accused No.3 and juveniles No.1 and 2 in conflict with law-in furtherance of common intention had forcibly taken away C.W-1, the victim to behind the Corporation Gym, Jayarajanagar, in the first week of February, 2012 and committed gang rape on her punishable under Section 376(2)(g) R/w Section 34 of I.P.C ?
2) Whether the prosecution has proved beyond reasonable doubt that accused No.2 alongwith accused No.3 and juveniles No.1 and 2 in conflict with law, in furtherance of /7/ Spl.C.C.No.284/2014 common intention on 14/02/2012 at about 6.00pm when C.W-1 was going to her friend's house near Ambedkar statue within the jurisdiction of Viveknagar Police Station, had taken way her to palumane which is behind library, and committed gang rape on her punishable under Section 376(2)(g) R/w Section 34 of I.P.C ?
3) What order ?
7. 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 final orders for the
following:
REASONS
8. Point Nos.1 & 2 : Point Nos.1 & 2 are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
/8/ Spl.C.C.No.284/2014 The prosecution made serious allegations against accused No.1 and 2 that they alongwith accused No.3 who is absconding and juvenile No.1 and 2 in conflict with law had committed rape on P.W-1, the victim who was then minor. Accused No.1 alongwith accused No.3 and juvenile No.1 and 2 is alleged to have committed gang rape on P.W-1 in the first week of February, 2012 behind Gym within the jurisdiction of Viveknagar Police Station, Bengaluru. Accused No.2 is alleged to have committed gang rape on P.W-1, alongwith accused No.3 and juveniles stated in supra, on 14/02/2012 in the evening i.e., after 6.00pm in 'palumane' behind the Library within the jurisdiction of Viveknagar Police Station, Bengaluru. The complaint was lodged on 28/03/2012. Ofcourse there was delay of nearly 1 ½ month in lodging the complaint. That aspect shall be discussed later. However, under the present circumstance of the case, the age of the victim is very material.
/9/ Spl.C.C.No.284/2014
9. According to prosecution, P.W-1, Christina was of 15 years as on the date of the alleged incident. She had written annual exam of 8th Standard, thereafter she had come to her grandmother's house for vacation. Then, these incidents took place. The learned counsel for accused No.1 and 2 have vehemently argued that there is no documentary testimony produced on prosecution side to prove her age. Therefore, the prosecution at the first style itself failed to prove its case. When there is no proof as to the age of the P.W-1, the delay in lodging a complaint also is fatal to the prosecution. If both are read together, then the case of the prosecution itself is doubtful.
10. It is pertinent to note the delay in lodging a complaint is a different aspect. If the age of the P.W-1, the victim is taken, ofcourse on prosecution side not produced any documents. With this background on going through the oral evidence of the prosecution witnesses very particularly P.W-1, the victim, P.W-6, / 10 / Spl.C.C.No.284/2014 Shakunthala, the grandmother of victim, nowhere denied the age of P.W-1. As per the prosecution P.W-1 was of 15 years. That is also stated by the victim in her evidence. The incident took place in the month of February, 2012. Her evidence was recorded in the month of February, 2013. Then she has given her age as 16 years. In view of her oral testimony she was of 15 years at the relevant point of time (as on the date of the incident). Even the fact of she had written the annual exam of 8th standard and she had come to her grandmother's house during vacation at that time is also not disputed on defence side. Ofcourse there is no separate document with respect to ascertainment of age of prosecutrix. But her age as stated by her has been entered in MLC register at page No.368. Ex.P.9 is the original MLC register. At the time of evidence, P.W- 9, Dr.Sheela had brought the original MLC register and it was got marked as Ex.P.9. Either in the cross of P.W-1 or P.W-6 or even in the cross of P.W-9, a single suggestion as to denial of age of P.W-1 has not been / 11 / Spl.C.C.No.284/2014 made on defence side. Different counsels have conducted the case of accused No.1 and 2. Either on accused No.1's side or on accused No.2's side not even a single suggestion has been made denying the age of the prosecutrix was of 15 years as on the date of the incident. A simple suggestion only is made in the cross of P.W-1 that she has not given document with respect to age of proof to the police. Except this nowhere I can find the specific denial even a simple denial as to the age of the prosecutrix. Under the circumstances, there is no impediment to believe the oral testimony of the P.W-1, prosecutrix that she was of 15 years at the time of the incident. Merely because of negligence by Investigating Officer in conducting the investigation, does not give the benefit of the same to the accused or does not discredit the oral testimony of the victim that she was below 16 years as on that date. This is the case of gang rape. On 2 different dates the accused as mentioned in supra are alleged to have committed gang rape on her / 12 / Spl.C.C.No.284/2014 at two different places. Ofcourse Investigating Officer could have collected the documents from the school in which she was studying. Merely because of non- collecting the document by Investigating Officer, the ocular statement of P.W-1 with respect to her age which has not at all been denied on defence side, cannot be thrown out and it should not be ground to throw the whole case of prosecution in wind. When the age of P.W-1 itself is not disputed on otherside, non-production of the document with respect to her age does not defeat the prosecution case. What is the defence taken on accused No.1 and 2s' side is also to be looked into at the same time. When P.W-1 has specifically stated that she was below 16 years and she had written annual exam of 8th standard and for vacation she had come to her grandmother's house, it cannot be held that she was above 16 years. As per the ocular statement of P.W-1 which inspires the confidence, her age was 15 years as on the date of the incident. There is nothing on record to show her / 13 / Spl.C.C.No.284/2014 animosity against either accused No.1 or accused No.2. Even in cross of PW-6, Shakunthala, the grand mother of the victim, no such suggestion as to age of victim by way of denial is made. Under the circumstances, evidence of victim on the aspect of her age cannot be brushed aside. The prosecution has proved that the victim was of 15 years at the relevant point of time.
11. Now the question arises for consideration is whether the accused No.1 alongwith accused No.3 and juvenile No.1 and 2 in conflict with law had committed gang rape on P.W-1 in the first week of February, behind Corporation Gym, Jayarajanagar within the jurisdiction of Viveknagar Police Station. As per the prosecution in the year 2012 she was studying in 8th Standard. After the annual examination, she had come to her grand mother i.e., P.W-6, Shakunthala's house which is in Jayarajanagar. Her father is separated, residing elsewhere. Her mother is mentally / 14 / Spl.C.C.No.284/2014 retarded. She is kept in Autoraja Ashrama near Kothnur. P.W-6 has been looking after P.W-1, the victim. She was staying in Chaitanya Boarding, studying in St.Phatrick school. In the first week of February, she had come outside at about 6.00pm searching her cousin brother George, when she came near Corporation Gym, her known person one juvenile by name Brito, questioned her what she was doing, when she disclosed about searching her cousin brother, he took her to behind Corporation Gym that he would show her brother, then accused No.1 Tony, alongwith accused No.3 Bala and juvenile No.1 in conflict with law followed them. Immediately juvenile No.1 injected to her right hand, removed her clothes and committed rape, thereafter remaining offenders raped one after another. Thereafter, P.W-3 Sanju and his brother P.W-4, Sham had come to behind the Corporation Gym for their nature call. They found the accused committing rape on P.W-1, the victim. He scolded them, he got dinner through P.W-4 for the / 15 / Spl.C.C.No.284/2014 victim. She had the dinner and she went to her house. She did not disclose this incident out of fear.
12. Again on 14/02/2012 at about 6.00pm she was going to her friend Asha's house, when she was going near bathroom, Jayarajnagar, again accused No.2 Jaikiran alongwith accused No.3 Bala and juvenile No.1 and 2 came in auto, juvenile No.1 was driving the auto, he asked her to come to Garuda mall with them, when she refused, he gave threat to her that he would come to her friend's house, because of that fear she boarded the auto. Then they had come behind the Library nearby Ambedkar statue. They took her to 'palumane' behind Library, when she made an attempt to run away, she was caught hold by juvenile accused No.1 Brito, thereafter they all committed gang rape on her one after another. She came home, even at that time also she did not disclose before anybody out of fear. After some days P.W-5, Menaka, the resident of the house in the second floor / 16 / Spl.C.C.No.284/2014 of the same building asked P.W-1, the people in the locality are talking some bad things against her, then she revealed about two incidents, P.W-2, Kiran was also present, P.W-2 and 5 informed her family members, thereafter she alongwith her cousin brother and maternal uncle had been to the Police Station and lodged a complaint on 28/03/2012. By assigning the reasons that she did not disclose the incident to her family members because of fear till that date, on 28/03/2012 only she had lodged a complaint. This is the story of the prosecution.
13. In order to prove its case, the prosecution has got examined the material witnesses. PW1-Christina, PW2-Kiran, PW3-Sanju, PW4-Sham, PW5-Menaka, PW6-Shakunthala, PW9-Dr.Sheela, PW11- R.Mallikarjunaiah, the Police Inspector who is the Investigating Officer in the present case.
14. The case is based on the direct evidence. Usually in rape cases we may not find eye witness.
/ 17 / Spl.C.C.No.284/2014 But in few cases eye witnesses may be found. As
already mentioned in supra, P.W-3, Sanju and his brother P.W-4, Sham are the eye witnesses. Therefore, P.W-1, the prosecutrix, P.W-3 and 4, the eye witnesses are the material witnesses in the present case. Their evidence assumes more importance in the case on hand. P.W-1, Christina, the adolescent girl has reiterated the whole case of the prosecution. She has given corroborative evidence explaining about the first incident taken place in the first week of February and also about second incident on 14/02/2012. As per the prosecution case accused No.1 Tony alongwith accused No.3 Bala and other two juveniles had committed gang rape on her. Ofcourse she has also named the accused No.2 alongwith accused No.1 and 3, in her chief examination. Merely because of that reason her other part of evidence cannot be parted with. On going through her whole evidence it is found truthful, trustworthy. In the chief examination she has / 18 / Spl.C.C.No.284/2014 unequivocally and unhesitatingly disclosed about the first incident as well as the second incident.
15. If the first incident is taken up in respect of which eye witnesses are there according to prosecution, in the chief examination PW-1 has stated that accused No.1 Tony and accused No.2 are not the strangers to her. Ofcourse in the cross-examination done on accused No.1's side recorded on 20/03/2012, that she does not know accused No.1. But in the cross-examination done on accused No.2's side recorded on 11/12/2014 she has stated that accused No.2 and also other offenders were usually sitting in the park she had come to her school from park side, hence she knew all the accused. The cumulative effect of whole evidence of P.W-1 has to be taken into consideration, but not a stray statement. In the chief examination she has specifically stated that either accused No.1 or accused No.2 and other offenders are not strangers. So also same can be inferred from her / 19 / Spl.C.C.No.284/2014 cross-examination done on accused No.2's side on 11/12/2014. From the stray statement given by her in her cross-examination on 20/03/2012 that she does not know accused No.1 does not have any significance.
16. With respect to identity of the accused, no doubt arises. They are not strangers, they are all known persons, except accused No.1, accused No.2 and others are from same locality. There are 3 accused and two juveniles. This case is against accused No.1 and 2 only. Accused No.3 is absconded. His case was split up by committal Court in CC itself.
17. In her chief examination, P.W-1 has given satisfactory evidence with respect to commission of rape on her by accused No.1 alongwith accused No.3 and juveniles. She has stated in her chief examination that when she was searching her cousin brother George (her uncle's son), while she was going near park it was about 6.00pm, then juvenile No.1 took her / 20 / Spl.C.C.No.284/2014 on the pretext of showing her brother, accused No.1 and others followed her, juvenile took her to back area of Corporation Gym. Juvenile had injected to her right hand, she became semi conscious. From her evidence on this aspect it can be inferred that she was not unconscious, but drowsy, she was in state of understanding the happenings.
18. The presence of accused No.1 shall have to be looked into. Ofcourse P.W-1 has stated at the first instance that juvenile No.1 by name Brito had committed rape on her by removing her clothes. In further she has stated the remaining accused had committed rape on her one after another. She has already stated that accused No.1 Tony alongwith accused No.3 and juvenile No.2 followed juvenile No.1 when he took her to behind Corporation gym. Therefore, there is no doubt about the presence of accused No.1 with other accused at that time. When she has stated that the remaining accused committed / 21 / Spl.C.C.No.284/2014 rape on her one after another, it also includes accused No.1 Tony. In the cross-examination on accused No.1's side she has specifically denied that accused No.1 had not come to near Corporation Gym and had not committed rape on her.
19. The learned counsel for accused No.1 has argued that according to prosecution, the juvenile No.1 had injected to her right hand, but in the cross- examination she has stated that he had injected to her left hand. It is pertinent to note in the chief examination she has stated that it was injected to her right hand. Merely because she has stated in the cross-examination that it was left hand does not take away the whole case of the prosecution when there is other believable and strong piece of evidence about the commission of gang rape.
20. The learned counsel for the accused No.1 has also argued she has stated in her cross-examination that there was no injury caused to her because of that / 22 / Spl.C.C.No.284/2014 injection alleged to have been injected, she has also given admission that after the injection she became unconscious, when P.W-3 Sanju came and sprinkled the water on her face she gained the conscious, till then she had no full conscious, no sensation. Now the question arises whether this portion of the evidence of P.W-1 discredit the other part of her evidence placed before the Court and when there is supportive medical evidence. As already stated in supra in the chief examination she has stated that "she was semi- conscious means she had drowsiness, she was capable of understanding the things going on". When in chief examination at the first instance she has stated that unconsciousness, in further stated that means drowsiness, in a state of understanding the things going on. That itself shows that she has termed the drowsiness as unconsciousness. Apart from that, commission of rape by accused No.1 alongwith others is also supported by the evidence of P.W-3, Sanju, the eye witness.
/ 23 / Spl.C.C.No.284/2014
21. According to prosecution, P.W-3, Sanju and P.W-4, Sham were coming to their house at that time, on their way to their house they had gone behind Corporation Gym for their nature call, then they found this incident. P.W-3, Sanju is the drum beater. He is staying in slum board, Jayarajanagar. He is known person to the family of victim. His house is also in second floor of the same building where house of P.W-6, grandmother of the prosecutrix is in the first floor. In his chief examination he has stated in clear terms that "in the last year that means in the year 2012 in the month of February he and his brother P.W-4 had gone behind the Gym building for their nature call while they were coming to the house from their work, it was about 8.00pm, then he found accused No.1-Tony, accused No.2-Satish, accused No.3-Bala and other two juveniles and also P.W-1, the victim. He has also in further stated clothes of P.W-1 was removed and the accused were enjoying with P.W-1 that means they were / 24 / Spl.C.C.No.284/2014 committing rape on her. Then he scolded them, he got the dinner for her. P.W-1 had gone to her house and he also went off". He also in further stated that he learnt again that accused No.1 and 2 alongwith others had committed rape in vacant space behind Library building. So far as concerned to second incident he is hearsay witness. Whereas concerned to first incident he is an eye witness. Ofcourse he has stated that accused No.2 Satish was found on that day. This portion of his evidence does not go to the root of the case of prosecution as the other portion of his evidence is crystal clear with respect to commission of rape by accused No.1 alongwith other accused. Ofcourse there may be some discrepancies as stated in supra in evidence of P.W-1 and 3, but they are not material contradictions of which defeats the whole case of the prosecution. On this point I have relied upon 2007 Cri.L.J 4704 (Radhu V/s State of Madhya Pradesh) S.C dated / 25 / Spl.C.C.No.284/2014 14/09/2007 (Dn.Bench) wherein the Hon'ble Apex Court held:
"Evidence of prosecutrix should not be rejected on basis of minor discrepancies and contradictions".
It is quite natural that discrepancies may arise when the evidence is given after sometime and it will not come in stereo type. P.W-1, the prosecutrix has given the corroborative testimony. It is also corroborated by P.W-3, Sanju, their evidence are found to be truthful with respect to first incident.
22. The learned counsel for the accused No.1 has argued P.W-4, Sham has not supported the prosecution case, hence the evidence of P.W-3 cannot be believed at all.
23. On going through the evidence of P.W-4, Sham, he has partly supported the prosecution. When it is the case of the prosecution that P.W-3 and 4 found the / 26 / Spl.C.C.No.284/2014 accused No.1 alongwith accused No.3 and juveniles and also P.W-1 behind the Corporation Gym when they had been to that place for nature call, here first question arises whether they are probable witnesses. As already discussed in supra, P.W-3 and 4 are residing in the same building in which the house of grand mother of the victim is there. They are the drum beaters. As per the prosecution after their work they were going home, then for their nature call they had been to back area of Gym building. On this aspect P.W-4, has supported the prosecution though he has not supported rest of prosecution case, he has stated in his chief examination that he and his brother P.W-3 after finishing their work, were going at 11.00pm, his brother had gone behind gym building for nature call. There may be discrepancy in his evidence with respect to timings. But as already stated in supra it is quite natural such discrepancy may arise in usual course when the evidence is given after long gap. But the fact of P.W-3 is the probable witness is supported by / 27 / Spl.C.C.No.284/2014 P.W-4. Ofcourse with respect to other part of the case of prosecution, he has not supported. However, the evidence of P.W-1 and 3 are corroborative. There is also medical evidence favourable to prosecution. Above all, what animosity either P.W-1 or 3 have got against the accused No.1 and other accused is not forthcoming. I do not find suspicion to disbelieve the testimony of P.W-1 and 3.
24. As per the prosecution, PW1-victim and accused No.1 were sent to hospital for medical examination. P.W-9, Dr.Sheela has stated that she had examined P.W-1 on 29/01/2012 and with respect to that examination she had given report as per Ex.P.8. She has also stated that she had given voluntary statement with respect to history of the incident. Same is entered in Ex.P.8. Ex.P.9 is the original MLC register. During the course of cross-examination done on accused No.1's side, the said MLC register was exhibited. The entry in Ex.P.9 is very material here to be taken into / 28 / Spl.C.C.No.284/2014 consideration. Because as per the evidence of P.W-1, the victim and P.W-3, Sanju, the eye witness, accused No.1 alongwith accused No.3 and other juveniles had committed gang rape on P.W-1. The same is also corroborated by oral evidence of P.W-9, Dr.Sheela. The testimony of these witnesses is supported by medical evidence i.e., from Ex.P.9. Ex.P.9 is from pages 368 to
371. In page No.370 mentioned as stated by P.W-1 that "P.W-1, the victim was drowsy, but conscious at the time of incident. P.W-3, Sanju gave food and sent her home". In page No.369, the history of incident is entered as stated by P.W-1. In page No.371, she has noted by specifying the word 'Important'. Under this head she has entered that "She is used to the act like that of sexual intercourse." Ofcourse there is entry no injuries anywhere in the body, specimen was not sent to FSL as the incident was taken place 1 ½ months back. There is also entry that "Vagina admits 2 fingers". From the opinion entered by P.W-9 in MLC register at Ex.P.9 at page / 29 / Spl.C.C.No.284/2014 No.371, the case of the prosecution cannot be doubted at any stretch of imagination. Merely because Investigating Officer has not collected her opinion in separate sheet as medical report, the entry made by her on the date of examination itself with respect to her opinion does not take away the case of the prosecution. There was some gap between the date of incident and medical examination. That may be the reason that no injuries are found on the body. On this point I have relied upon 2010 Cri.L.J 2892 (Santosh Moolya V/s State of Karnataka) S.C (from 2008 (4) AIR KAR.R 242) (Dn.Bench) dated 26/04/2010 wherein Hon'ble Apex Court held :
"Absence of injury on private parts of victim due to fact that they were taken to Doctor after a month and 14 days- Conviction of appellants is proper".
The aforesaid ruling aptly applies to the case on hand. Evidence of PW-1, 4 and 9 are also corroborated by P.W-11, R.Mallikarjunaiah, the Investigating / 30 / Spl.C.C.No.284/2014 Officer. He has stated about receiving the written complaint from P.W-1, and also he drew necessary Mahazar as per Ex.P.2 in the spot shown by her. Ex.P.2 Mahazar is relating to two incidents. The learned counsel for the accused No.1 and 2 has argued that there are no separate Mahazars drawn by Investigating Officer though according to prosecution two incidents took place at different places. It is pertinent to note it amounts only irregularity, it does not doubt the prosecution case at any stretch of imagination.
25. P.W-8, Dr.Pradeep has stated that he had examined accused No.1 and 2 and issued medical report at Ex.P.6 and Ex.P.7 respectively that "there is nothing to suggest that he is incapable of having sexual intercourse". He has been subjected to cross- examination on accused No.1's side of which has been adopted on accused No.2's side. There is suggestion as under :
/ 31 / Spl.C.C.No.284/2014
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The defence is merely based on this portion of evidence of P.W-8. It is pertinent to note as already discussed in supra, the incidents took place about 1 ½ month back. Therefore, there are no marks found on them. So far as concerned to victim, the Doctor after examination can give opinion about the condition of genitalia i.e., whether she is used to act like that of sexual intercourse. Accordingly, P.W-9 has clearly stated in her evidence that she was used to an act like that of sexual intercourse. The Court had put one question to P.W-9 about the mentioning of signs of rape in Ex.P.9. She has answered that on being / 32 / Spl.C.C.No.284/2014 examined the victim, she found two fingers admitted in her vagina, found hymen absent, she is used to sexual intercourse. From this portion of her evidence corroborated by Ex.P.9, eye witness P.W-3 and coupled with testimony of P.W-1 and also P.W-11, Investigating Officer there is no doubt that there was a gang rape committed on P.W-1, victim by accused No.1 alongwith other accused. Merely because P.W-5, Menaka, hearsay witness has not supported the prosecution, does not discredit the corroborative evidence of the aforesaid witnesses. Because she has gone to the extent of stating that she does not know P.W-1, the victim and she has not revealed any incident before her. Whereas P.W-2, Kiran who is none other than the brother-in-law of P.W-5, Menaka when P.W-1 disclosed before P.W-5 he was also present. He has also specifically stated that P.W-1 has stated in their house that rape took place nearby park and another rape nearby Corporation school. He has also stated that his house is in the second floor of the same building / 33 / Spl.C.C.No.284/2014 wherein the house of victim is in first floor. That itself shows P.W-5, Menaka is falsely deposing before the Court. According to prosecution, because of fear she has not disclosed two incidents, when P.W-5, Menaka asked her that people in the locality were talking something about her, then she disclosed. The evidence of P.W-5 itself shows her falsification. When she has gone to the extent of stating that she does not know the P.W-1 though her house is in the first floor of the same building and same is corroborated by P.W-2, Kiran, the brother-in-law of P.W-5, the non-support by P.W-5, Menaka does not defeat the case of the prosecution.
26. Ofcourse the learned counsel for the accused No.1 has also made one suggestion that at the time of fits she feels that someone will attack from backside. Though she has admitted that she has given such a statement before JJB (Juvenile Justice Board), it does not discredit her testimony that there was a gang rape / 34 / Spl.C.C.No.284/2014 committed by accused No.1 alongwith others. Because it is not specific suggestion made on defence side that she was attacked by fits at that time. Their other suggestions by way of denial made in cross of P.W-1 can be termed as admissions on defence side. It is better to reproduce those suggestions made in her cross-examination :
EAdPÀë£ï PÉÆlÖ £ÀAvÀgÀ £À£ÀUÉ ¥ÀæYÕ vÀ¦àzÀAvÉ D¬ÄvÀÄ JAzÀgÉ ¸Àj . £ÀAvÀgÀ ¸ÀAdÄ §AzÀÄ £À£Àß ªÀÄÄRzÀ ªÉÄÃ¯É ¤ÃgÀÄ ºÁQzÁUÀ £À£ÀUÉ ¥ÀæYÕÉ §A¢gÀÄvÀÛzÉ JAzÀgÉ ¸Àj.
The aforesaid suggestion itself makes the prosecution case to be true. In other words on defence side presence of P.W-1, victim on the place of first occurrence is admitted, the giving of injection is also admitted, the presence of P.W-3, Sanju on the spot of first occurrence is admitted. P.W-11, the Investigating Officer has stated that at the time of Mahazar did not find the injection tube there, the accused had stated / 35 / Spl.C.C.No.284/2014 that they had thrown the tube here and there. Non-
seizure of injection tube does not rescue accused No.1.
27. Even in the cross-examination though number of suggestions with respect to Topography of the place have been put to her, but does not help the defence in anyway to disbelieve the case of the prosecution. The first incident took place behind the Corporation gym. It is forthcoming in her evidence that the gym is open till 10.00pm, the windows of the gym are kept open, if galata took place behind the gym, could be heard by persons inside the gym. But these suggestions made on accused No.1's side does not come to the aid of accused No.1. Because one is P.W-1, the victim has acquaintance with accused No.1, he is not a stranger to her. Secondly a girl would not falsely implicate the offence of rape at the cost of her character. In Indian society it is very unusual that a lady with a view to implicate a person would go to the extent of stating that she was raped. Thirdly, her testimony is also / 36 / Spl.C.C.No.284/2014 corroborated by medical evidence. No evidence for false implication is found. Lastly, there is no specific suggestion made in her cross that gym on that day was kept open and the windows of the gym was kept open at that time and persons were inside the gym. The general suggestions made on accused No.1's side does not rescue the accused No.1 from the clutches of law.
28. So far as concerned to second incident, the evidence of P.W-1 is very material. In rape cases the version of victim carries more weight. With respect to second incident there is no eye witness, but there is evidence of P.W-1 only.
29. As per prosecution on 14/02/2012 at about 6.00pm she had been going to her friend Asha's house, when she was going near Corporation bathroom in Jayarajnagar, accused No.2 alongwith accused No.3 and other juvenile had forcibly taken away her in auto to 'palumane' which is behind the Library. By creating apprehension in her mind she was taken in auto to / 37 / Spl.C.C.No.284/2014 that place. P.W-1 has stated with respect to second incident that juvenile Brito had removed her clothes and committed rape on her. Thereafter, the remaining accused one after another committed rape on her. Now the presence of accused in that place at that time is material. She has named that it is accused No.2 Satish alongwith accused No.3 and juveniles. Therefore, the remaining accused means accused No.2 is also one among them. I have already discussed in supra, she did not disclose this incident because of fear. Accused No.2 is not a stranger, but known person. In the cross-examination on accused No.2's side, the learned counsel has put some suggestions that she had problem of fits since her childhood, when it occurs she regains consciousness after half an hour. She has admitted these suggestions. But the another suggestion made by him that she was attacked by fits on 14/02/2012 has been specifically denied by her. He has also extracted from her mouth that through library entrance one had to come to palumane. She / 38 / Spl.C.C.No.284/2014 has admitted the same and in further volunteers that she had been taken away by the accused to palumane through one broken wall which is behind the Library. Ofcourse she has stated that she does not remember the colour of the dress worn by accused No.1 on that day. But it does not doubt the case of the prosecution. She has specifically denied the suggestion made on defence side that accused No.2 had not gone behind Library on 14/02/2012 and not committed rape on her.
30. I have already discussed in detail while discussing the incident about the medical evidence and also oral testimony of P.W-8 and 9. Absence of marks of injuries on the body of the accused and P.W- 1 does not take away the testimony of victim and the eye witness and also other part of medical evidence. Because of reason as assigned in supra that marks are not found since the victim and the accused were taken to doctor nearly 1 ½ month after the incidents.
/ 39 / Spl.C.C.No.284/2014
31. According to prosecution, Ex.P.2 was drawn by Investigating Officer in the presence of P.W-1, the victim. She is also signatory to the same. P.W-2, Kiran who is the brother-in-law of P.W-5, Menaka, is also one of the signatory to the same. He has supported the prosecution. Nothing contrary has been extracted on defence side from his mouth in the cross- examination. Ofcourse he has stated that he does not know the contents of Mahazar. It is pertinent to note but his evidence with respect to drawing of Mahazar by the police in two places of occurrence has remained undisturbed. Merely because he has not stated about the schedule, and he has stated in his cross- examination that he has put his signature in the Police Station, does not make his version in the chief examination unbelievable. This witness is the spot pancha. Chief as well as cross-examination are read together his evidence with respect to drawing of Mahazar by the police in the places of occurrence remained intact. It is also corroborated by testimony / 40 / Spl.C.C.No.284/2014 of P.W-1 and Investigating Officer. Ofcourse P.W-5, Menaka, the hearsay witness has not supported the prosecution. As discussed in supra, PW-5 is hesitating to speak the truth. Hence, non-support by PW-5 is not of much significant.
32. P.W-6, Shakunthala is the hearsay witness. In her chief examination she has stated that she was advising her grand daughter to be careful about the guys in that area as they are not good. She has also further stated that in the month of February the guys in the area had done bad things to her, twice they did it. She is only the hearsay witness.
33. If the delay in lodging the complaint is taken up for consideration, P.W-1 has explained in the complaint itself she did not disclose the incident because of fear, when she was asked by P.W-5 that when people are talking badly about her then she disclosed, P.W-2 and 5 informed her family members, then a complaint was lodged on 28/03/2012. She was / 41 / Spl.C.C.No.284/2014 adolescent girl then, according to her version itself because of fear she did not disclose, when it came to the knowledge of her family members, a complaint was lodged. It has been satisfactorily explained by P.W-1 about the delay in lodging the complaint. Same also finds place in complaint itself. She has no supportive parents, she was under trauma, her father separated long back, he is not taking care of her, her mother is mentally retarded and she is kept in one Ashrama. P.W-6 who is at the age of 80s is only the person who is looking after her. P.W-1 used to visit her grandmother's house during vacation. If the background of P.W-1 is taken into consideration, her helpless condition must have been used by accused No.1 and 2 alongwith others who are from the nearby area/same area. Though accused No.1 is from Neelasandra, according to her version, he is not a stranger, he was often seen with accused in the area of P.W-1, he is the associate of other offenders. The delay in lodging the complaint under the present / 42 / Spl.C.C.No.284/2014 circumstances of the case does not defeat the prosecution case. On this point I have relied upon 2010 Cri.L.J 2892 (Santosh Moolya V/s State of Karnataka) S.C (from 2008 (4) AIR KAR.R 242) (Dn.Bench) dated 26/04/2010 wherein Hon'ble Apex Court held :
"Section 375 of I.P.C-FIR-rape-proof-oral testimony of victims was cogent and reliable-there was delay of 42 days in lodging complaint -same was properly explained by victims-except victims no male member was available in their family to help them to lodge report."
The aforesaid ruling applies to present case which is on similar facts. As already discussed in supra, her care taker is her aged grandmother only who is at 80s.
34. There are proved circumstances to sufficiently corroborate the guilt of accused No.1 and 2. There is also eye witness to the first incident. The oral testimony of prosecutrix so far as concerned to first as / 43 / Spl.C.C.No.284/2014 well as the second incident is found to be truthful, cogent and reliable. When her evidence inspires the confidence prosecution case cannot be doubted and it does not require even the corroboration. On this point I have relied upon 2006 Cri.L.J 139 (State of Himachala Pradesh V/s Asharam) S.C (Dn.Bench) dated 17/11/2005 wherein Hon'ble Apex Court held:
"376 of I.P.C-RAPE-Conviction for, can be founded on the testimony of prosecutrix alone-evidence of prosecutrix is more reliable than that of an injured witness- minor contradictions or insignificant in her statement, immaterial- The testimony of victim of sexual assault is vital unless there are compelling reason which necessitates looking for corroboration of her statement, the Courts should find no difficulty in acting on the testimony of victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable."
/ 44 / Spl.C.C.No.284/2014 2010 Cri.L.J 1655 S.C (Ram Singh V/s State of H.P) (Dn.Bench) dated 28/01/2010 S-376 of I.P.C wherein Hon'ble Apex Court held :
"Testimony of victim inspires confidence- her testimony is not only corroborated by other witnesses but also by medical evidence-Failure of investigating agency to send blood stained clothes for chemical examination-Cannot be ground to discredit her testimony-Absence of injury on private parts of victim may not be very significant- Conviction of appellant is proper".
AIR 2012 S.C 2281 (Narendra Kumar V/s State (NCT of Delhi) held :
376 of IPC-Rape-testimony of prosecutrix-can be sole basis of conviction-corroboration is necessary only when it is doubtful.
The aforesaid rulings aptly apply to the case on hand. In the present case testimony of prosecutrix is found to be reliable, it is also corroborated by eye / 45 / Spl.C.C.No.284/2014 witness, PW-3, Sanju and there is also corroborative medical evidence.
35. The learned Public Prosecutor has argued that victim was below 16 years, hence consent of victim is wholly irrelevant. It is also further argued by him that even if the victim is promiscuous in sexual behaviour is not the determinative factor in rape cases. On this point he has referred me to 2009 Cri.L.J 393 (State of U.P V/s Munshi) S.C dated 28/08/2008.
36. As laid down under Section 375 of I.P.C a man is said to commit rape who has sexual intercourse with a woman with or without her consent when she is under 16 years of age. Therefore, it is rightly argued by learned Public Prosecutor that the consent of minor is wholly irrelevant. Section 376(2)(g) embodies a principle of joint liability and essence of that liability is existence of common intention. That common intention presupposes prior consent which may be determined from the conduct of offenders revealed / 46 / Spl.C.C.No.284/2014 during the course of action and it could arise and be formed suddenly, but there must be meeting of minds. In the present case also the same can be inferred from the conduct of offenders. There was meeting of minds to commit rape on victim girl.
37. Accused No.1 alongwith accused No.3 and others had committed gang rape during the first week of February and accused No.2 alongwith accused No.3 and others had committed gang rape on 14/02/2012. The prosecution has proved the guilt of accused No.1 and 2 beyond reasonable doubt by producing corroborative, sufficient, convincing and cogent evidence. Accused No.1 and 2 are found guilty of the offence under Section 376(2)(g) of I.P.C. Hence, I hold points No.1 and 2 in the Negative.
38. Point No.3: In view of my above discussion and findings, I proceed to pass the following:
/ 47 / Spl.C.C.No.284/2014
ORDER
Accused No.1 and 2 are found
guilty of the offences punishable under Section 376(2)(g) R/w Section 34 of I.P.C.
To hear regarding sentence.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court on this the 23rd day of November, 2015.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** ORDER ON SENTENCE Heard on both the sides regarding the sentence. The learned counsel for the accused No.1 and 2 has submitted that they are youngsters, they have parents to be looked after by them. The leniency may be shown in imposing the sentence. Accused No.1 / 48 / Spl.C.C.No.284/2014 and 2 have submitted that they have not committed any offence.
2. The learned Public Prosecutor has submitted that offence committed by accused No.1 and 2 punishable under Section 376(2)(g) is heinous in nature. Therefore, there is no scope to show leniency in imposing the sentence. The maximum sentence may kindly be imposed to the accused No.1 and 2 as it is the case of gang rape.
3. This is the case of rape where there were two incidents, accused No.1 alongwith accused No.3 and others committed gang rape on the prosecutrix. So also accused No.2 alongwith accused No.3 and other offenders committed gang rape on the prosecutrix on another day by using her helpless condition and taking advantage of her family background. The prosecutrix was below 16 years. While awarding sentence the Court must keep in view the nature of crime, the social background of the accused, the / 49 / Spl.C.C.No.284/2014 personal factors connected with the accused which are some of the relevant factors. At the same time Courts have obligation while awarding sentence to impose appropriate punishment so as to respond to society's crime for justice against such criminals. It is the duty of each Court to award proper sentence having regard to nature of the offence and the manner in which it was executed or committed. The Court must not only keep the rights of the criminals, but also the rights of the victim and society at large while considering the imposition of appropriate punishment. Rape is not only a physical violation on a woman, but it is also violation of her dignity. Undue sympathy to impose inadequate sentence would do more harm to the justice system. The minimum sentence has been prescribed by the legislature making 10 years rigorous imprisonment and fine a statutory mandate. There are no special and adequate reasons for reduction in terms of acceptance. There are no mitigating circumstances / 50 / Spl.C.C.No.284/2014 for such reduction. Accused deserve no mercy and they should suffer for their deeds. Having regard to all these facts and circumstances of the case the ends of justice could be met by imposing sentence as under. Hence, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C. accused No.1 and 2 are hereby convicted for the offence punishable :
a) Under Section 376(2)(g) R/w Section 34 of I.P.C and sentenced them to undergo Rigorous Imprisonment for a term of 10 years and shall also be liable to fine of Rs.10,000/- each, in case of default to pay the fine amount, they shall undergo Simple Imprisonment for a period of one year.
The J.C. period of accused No.1 and 2 from 03/04/2012 to 23/11/2012 and their J.C. period / 51 / Spl.C.C.No.284/2014 on 23/11/2015 and 24/11/2015 (in all 7 months 22 days) be setoff as laid down under Section 428 of Cr.P.C.
After deposit of fine amount , the same be paid to P.W-1, the prosecutrix as compensation after appeal period is over.
Issue copy of judgment free of cost to the accused No.1 and 2 forthwith.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court on this the 24th day of November, 2015.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION P.W.-1 Chirstina / 52 / Spl.C.C.No.284/2014 P.W-2 Kiran P.W-3 Sanju P.W-4 Shyam P.W-5 Menaka P.W-6 Shakunthala P.W-7 Sathya P.W-8 Dr.Pradeep P.W-9 Dr.Sheela P.W-10 Nayaz Ahmed P.W-11 R.Mallikarjunaiah LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Complaint Ex.P.1(a) Signature of P.W-1 Ex.P.1(b) Signature of P.W-11 Ex.P.2 Mahazar Ex.P.2(a) Signature of P.W-1 Ex.P.2(b) Signature of P.W-2 Ex.P.2(c) Signature of P.W-11 Ex.P.3 Statement of C.W-5 Ex.P.4 Statement of C.W-6 Ex.P.5 Statement of C.W-7 Ex.P.6 Medical certificate of accused Ex.P.6(a) Signature of P.W-8 Ex.P.7 FSL report Ex.P.8 Report / 53 / Spl.C.C.No.284/2014 Ex.P.9 MLC register Ex.P.10 Report Ex.P.11 F.I.R Ex.P.11(a) Signature of P.W-11 LIST OF MATERIAL OBJECTS MARKED
-NIL-
LIST OF WITNESSES EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
***