Karnataka High Court
Narasimhegowda vs State Of Karnataka on 23 September, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 23RD DAY OF SEPTEMBER 2014
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.964 OF 2009
BETWEEN:
Sri. Narasimhegowda,
Son of Late Chaluvegowda,
Aged about 70 years,
Residing at Haralahalli,
Pandavapura Taluk. ...APPELLANT
(By Shri. S. Rajashekar, Advocate for M/s. Black Coats Law
Firm, Advocates)
AND:
State of Karnataka,
By Pandavapura Police,
Represented by State Public Prosecutor.
...RESPONDENT
(By Shri. K.R. Keshava Murthy, State Public Prosecutor 1)
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the advocate for the
appellant praying to set aside the judgment and conviction order
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and sentence dated 25.1.2008 in S.C.No.3/2005 on the file of
Additional District and Sessions Judge, Mandya, convicting the
appellant for the offences punishable under Section 376 and
448 of IPC and etc;
This appeal coming on for Final Hearing this day, the
Court delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned State Public Prosecutor.
2. The facts are that, Puttamma, the complainant is said to be a resident of Haralahalli village of Pandavapura Taluk. She is the mother of four daughters and two sons. Three of her daughters are married. Her youngest daughter was mentally retarded and was said to be afflicted with Down's Syndrome and she was deaf and dumb. She was 26 years old as on the date of the complaint and was living with the complainant. It is alleged in the complaint that ten months prior to the complaint, the accused, the appellant herein who was related to the complainant, who was aged about 60, would frequently visit the house of the complainant during her absence. Though the 3 complainant learnt about this, she had not prevented the appellant from visiting her home. Two months prior to the complaint, it is claimed that the victim PW-3 Shashikala did not have her regular menstrual cycle and therefore, she was taken to the Pandavapura Hospital where she was said to have been administered certain medication to avoid pregnancy. It is thereafter that the complainant harboured serious doubts about the bona fides of the accused in visiting her home and her doubts were confirmed when on 26.09.2004 at about 10.00 a.m., she had left Shashikala alone at home and had gone out to wash clothes and when she returned, she found the front door of the house was bolted from inside and when she had knocked on the door, there was no answer from inside. Thereafter, she had called her neighbour Chennamma, who unfortunately had died by the time the charge-sheet was filed in the case, and thereafter on their raising an alarm, the accused is said to have opened the door from inside. When the complainant had gone into the house, she had found that Shashikala was lying down on the 4 floor with her clothes in disarray and when she enquired as to what had happened, Shashikala had indicated by signs that the accused had gagged her and thrown her on the ground and performed certain acts on her and she is said to have opened her blouse and indicated scratch marks on her chest. In the meanwhile, the accused is said to have fled from the scene. It is in this background that a complaint was lodged on 30.09.2004, that is four days after the incident, alleging that the appellant had committed rape on Shashikala. It was further clarified insofar as the delay in filing the complaint was concerned, that the village elders were informed about the incident and there were talks about the matter being amicably settled, whereby it was said to have been proposed that the accused appellant pay a substantial compensation. Since the appellant had failed to abide by the decision of the village elders, the complainant had decided to initiate the complaint.
On the basis of the said complaint, the police had registered a case and during the course of investigation, the 5 victim was examined by a Teacher at the Deaf and Dumb School, Mysore, to interpret the signs made by Shashikala and the statement of the teacher who had examined her was said to have been recorded as Exhibit P1. The victim was also said to have been taken to one Dr. S. Venkateshan, working as The Professor and Head of Department of Clinical Psychology in the Indian Institute of Speech and Hearing, Mysore, to test her Intelligence Quotient and her mental status. Thereafter, with the material so collected, the police had filed a charge-sheet against the accused for the offences punishable under Sections 448 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity) alleging as aforesaid.
After further proceedings, charges had been framed against the accused, to which the accused had pleaded not guilty and claimed to be tried. The prosecution had then examined 20 witnesses and marked 17 exhibits and after hearing both the sides and on recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 6 1973 (hereinafter referred to as 'the Cr.P.C.', for brevity), it is stated that it was admitted that Shashikala was mentally retarded and she was also deaf and dumb. But however, he had denied the evidence of the Medical Practitioner to the effect that he was capable of performing sexual intercourse and had claimed that he was suffering from sexual disability and claimed that a false case had been foisted against him. On the basis of the above, the court below had framed the following points for consideration:
"(1) Whether the prosecution has established beyond all reasonable doubts that on 26.9.2004 by about 10.00 a.m. the accused criminally trespassed into the house of the complainant in Haraganahalli village and thereby committed an offence punishable under Section 448 IPC?
2. Whether it has established beyond all reasonable doubts that on the said day, at the said time and at the said place, the accused had forcible sexual intercourse with P.W.3 against her wish and without her consent and thereby committed an offence punishable under Section 376 IPC?
3. What order?"
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The Trial Court answered the above Points 1 and 2 in the affirmative and convicted the accused and sentenced him to rigorous imprisonment for a period of seven years for the offence punishable under Section 376 IPC and to pay a fine of Rs.30,000/- and rigorous imprisonment for one year for offences punishable under Section 448 and to pay a fine of Rs.1,000/-. Out of the fine amount, a sum of Rs.25,000/- was to be paid as compensation to the victim. It is this conviction which is under challenge in the present appeal.
3. The learned counsel for the appellant would contend that first and foremost, there was inordinate delay in filing the complaint. The incident allegedly having taken place on 26.09.2004, the complaint was filed only on 30.09.2004. The explanation put forth is not acceptable nor can it be a reason for condoning the delay, especially when the basis for the conviction of the appellant rests completely on the complaint and nothing more. For, the learned counsel would point out 8 that there was no eye-witness to the incident. There is also no indication of any physical violence that has been committed by the appellant on the victim. There is no medical evidence of any sign whatsoever of any sexual activity and significantly, he would draw attention to the medical report of the sexual parts of the woman concerned, which reads as follows:
"There were no injuries on her breasts................. I examined the pubic hairs of PW-3 (victim) and collected the same and sent for chemical examination. The vulva was normal. No external injuries were seen around vulva. Hymen was intact. Fourchette was intact. Perineum was intact. On pelvic examination, I noticed that vagina admitted one finger. Uterus was of normal size. I collected the smears from vagina, urethra and posterior fornix. I got her urine for pregnancy test, which was negative. I also got her abdominal pelvis scanned. There was no evidence of pregnancy. Hydro salpinx was present over the left tube of uterus. I have given my certificate regarding my examination as per Ex.P.12. As on the date of Exhibit P-12, the police had not yet furnished me the report of the chemical examination. Therefore I did not give any opinion. I had also asked the police 9 to get PW-3 (victim) examined by a psychiatrist. The police did not furnish the report of psychiatrist to me.................There were no signs of recent sexual intercourse on her. I don't think that prior to my examination she had any termination of pregnancy........."
The learned counsel would therefore point out that apart from the fact that there was apparently no penetration of her vagina as indicated by the Medical Practitioner, there was also no sign of pregnancy. On the other hand, the complainant had stated that the victim had missed two monthly cycles and therefore, was prompted to take her for treatment and she was administered certain medication. There is no indication of the nature of medication that was administered and the purpose for which it was done and whether she had resumed her menstrual cycle. In any event, the alleged scratch marks on her chest, which the victim is said to have disclosed to the complainant, are also not spoken to by the Medical Practitioner. Hence, he would submit on the face of it, the prosecution was required to 10 prove that there was sexual intercourse committed by the appellant on the victim, with or without her consent, and that there was sexual intercourse by penetration of her sexual organ. That not having been established, the allegation that the appellant had committed rape is not proved, on the face of it. And he would submit therefore that the petitioner being visited with a stringent punishment of seven years of rigorous imprisonment apart from fine, is without basis.
In this regard, the learned counsel would take this Court through the record and the evidence of the several witnesses, none of whom have spoken about the actual incident of sexual assault committed by the appellant. There was no occasion to collect any evidence as to the commission of the act by the present appellant. It was his fervent claim that he was aged more than 60 at the time of the incident and even according to him, was incapable of performing the sexual act. Therefore, he would submit that even if the entire allegations are unrebutted, it would not establish the case of the prosecution. When the 11 appellant had challenged the case of the prosecution throughout, it is inexplicable that the court below has yet arrived at adverse findings when the ingredients of the offence punishable under Section 448 or under Section 376 IPC were totally absent. The mere say of the complainant or the mere say of the victim that there was violence perpetrated on her and that the appellant had committed rape, is not forthcoming from the material on record and hence, he would submit that the judgment of the court below be set aside and the appellant be acquitted in the face of the glaring circumstances which would indicate that the prosecution had failed to prove its case at all yet alone, beyond reasonable doubt and seeks acquittal of the accused.
4. On the other hand, the learned State Public Prosecutor would vehemently oppose the appeal and would emphasize that the victim though physically a grown woman, was found afflicted with the Down's Syndrome and she was also deaf and dumb. Her mental maturity has been assessed by Dr. S. 12 Venkateshan, Head of the Department of Clinical Psychology, Indian Institute of Speech and Hearing, Mysore as not more than that of a four year old and therefore, was a child, mentally. The circumstance that the complainant had come home and found the door locked from inside and on repeated calling there was no answer from within and ultimately on the complainant having been joined by one of the neighbours and after much delay the door having been opened by the accused who had come out from inside and when the victim was found lying on the floor and the appellant having assaulted her and particularly having had sex with her, which had been indicated by Shashikala through hand signs and further, the scratch marks that were also disclosed by the victim to the complainant, were sufficient to hold that there was commission of rape.
The learned State Public Prosecutor would draw attention to the provisions of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the PCSO Act', 13 for brevity) and particular attention is drawn to Section 3 of the said Act, which reads as follows:
"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if -
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or
(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a child or makes the child to do so with him or any other person; or
(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person."
He would submit that for all purposes, the victim was a child of four. Though she was physically well-developed, the manipulation of any part of the body of the child so as to cause a penetration into the vagina, urethra or anus or any part of the 14 body of the child or makes the child do so with him or any other person, constituted a sexual assault. Hence, the offence committed by the appellant ought not to be restricted to the confines of the definition of 'rape' as shown under the provisions of the IPC and ought to be viewed in the light of the fact that the victim was mentally a child of four and the provisions of the PCSO Act would automatically get attracted and the commission of the offence cannot be ruled out merely because of the evidence to indicate that there was no penetration of the vagina, when the body of the woman could have been manipulated in so many different ways to bring it within the purview of the definition of sexual assault as contemplated under the PCSO Act. Therefore, he would submit that the emphasis by the accused to the effect that the prosecution had failed to discharge the burden to establish the case beyond all reasonable doubt in demonstrating that there was sexual intercourse committed by the appellant on the victim and that there was penetrative sex, is not to be insisted 15 upon in the present case on hand having regard to the above circumstances where the woman was actually a child of four. And hence seeks that the court view the matter in the above perspective and confirm the sentence imposed by the court below, which is however not the maximum sentence which would indeed be warranted in a case of this nature.
5. By way of reply, the learned counsel for the appellant would contend that firstly, insofar as the charges framed against the accused are concerned, it is only with reference to the provisions of the IPC. The question of applying the provisions of the PCSO Act would not arise, as the said Act has come into force only with effect from 3.2.2013. In any event, the prosecution has not gone to the extent of claiming that the victim was a child. Even though there is medical evidence to the effect that the mental age of the child was only four, that was not the manner in which the prosecution has viewed the case nor has it chosen to bring the charges with respect to that circumstance. Therefore, it would result in a miscarriage of 16 justice if the said PCSO Act is applied and if it is held that the appellant was guilty of an offence with which he was not charged, which is impermissible in criminal jurisprudence. The burden of proof was heavy on the prosecution and if the prosecution has been unable to bring the offence alleged within the meaning of the provisions of the IPC, it is not possible to uphold the conviction. The learned counsel would reiterate that insofar as the case of the prosecution is concerned, it cannot be said that the prosecution has proved its case beyond all reasonable doubt to bring home the charges that were framed against the appellant and seeks his acquittal.
6. From a close perusal of the record and the rival contentions, it is indeed found that there was a delay of four days in lodging the complaint. The complainant offering explanation that there was a talk of a settlement and therefore, there was a delay is plausible. But then, by virtue of the delay in lodging the complaint, the evidence that was possibly available to bring home the charge against the accused, if not 17 sexual intercourse by penetration of the vagina, there was possibility of the appellant committing other forms of sex, which could also have been brought under the provisions of Section 354 IPC. But unfortunately, that evidence which would have been available has been lost. This is the effect of the delay having been caused, for whatever reason, in lodging the complaint against the appellant. Therefore, the case is seriously diluted by virtue of the delay alone.
7. Secondly, apart from the complainant, there was one other witness namely CW-5, Chennamma. Though she was witness to, the front door of the home of the complainant having been locked from inside and having been opened by the appellant from inside and also having seen the victim lying on the floor and the accused having run away, was not established by examination of the said independent witness Chennamma, as she had unfortunately died before the charge-sheet could be filed. Hence, her evidence was also lost to the prosecution. 18
Though the prosecution had tendered one more witness namely Jayalakshmi PW-4 to reiterate what Chennamma had in her statement made to the police, she had however turned hostile as she had not supported the case of the prosecution. Hence, the prosecution was left with the strong medical evidence that the victim though seemingly a mature woman, was actually a child of 4, having regard to her mental condition and hence it could be said that for purposes of the case, she could have been treated as a child and the provisions of the PCSO Act also have been applied. However, unfortunately the said Act has come into force only with effect from 3.2.2013 and was not available to be applied in respect of the present incident which is alleged to have been committed in the year 2005. In any event, the prosecution is left with a daunting task of establishing that there was rape committed as defined under the provisions of the IPC which requires that, there should be sexual intercourse and that there should be penetration, 19 apparently of the vagina, and that has not been established in the face of medical evidence.
In the instant case, the medical report indicates that the woman's hymen was intact and it permitted one finger, in the sense that it was intact and it was not ruptured and further, the Medical Practitioner has also affirmed that the woman was not pregnant and there was no other sign of sexual intercourse which would clearly demonstrate that the case of rape as sought to be made out against the appellant, was prima facie not established. In that view of the matter, the evidence of the victim to state that the appellant had abused her possibly by manipulating her body or even scratching her on her chest, etc., has not been supported by any cogent evidence, especially having regard to the delayed complaint. Even if there were minor scratches, it would have led to a presumption that if not having committed rape, the appellant was certainly guilty of abusing the body of the victim, which was possible in several different ways. Therefore, the delay has not enabled the 20 prosecution to gather such evidence as would have been necessary even to frame a charge against the accused or find him guilty of other sexual offences if not rape.
Hence, the prosecution has utterly failed to establish its case beyond all reasonable doubt and consequently, the appeal is allowed and the judgment of the court below is set aside. The appellant is acquitted. The bail bond executed by the appellant stands cancelled. The fine amount if any paid shall be refunded to the appellant.
Sd/-
JUDGE KS