Karnataka High Court
Annaiah vs State Of Karnataka on 9 August, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRL.A.No.251/2005 (C)
BETWEEN:
Annaiah S/o Narayana,
Aged about 26 years,
Residing at Gandatturu Village,
H.D.Kote Taluk,
Mysore District. ... Appellant
[By Sri.M.S.Rajendra Prasad, Senior Counsel]
AND :
State of Karnataka,
By Beechanahalli Police,
Represented by State Public Prosecutor,
High Court Building,
Bangalore-560 001. ... Respondent
[By Sri.G.M.Srinivasa Reddy, Government Pleader]
This Criminal Appeal is filed under Section 374
Cr.P.C. praying against the judgment dated 17.12.2004
passed by the Presiding Officer, Fast Track Court-III,
Mysore in S.C.No.53/2001-convicting the
appellant/accused for the offence punishable under
Section 376 of IPC and sentencing him to undergo R.I.
for 7 years and to pay a fine of Rs.30,000 in default to
undergo R.I. for 1 year for the offence punishable under
Section 376 of IPC.
This Criminal Appeal coming for hearing on this
day, the court delivered the following:
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JUDGMENT
This appeal is by the convicted sole accused in S.C.No.53/2001 before Fast Track Court-III, Mysore and is directed against the judgment of conviction and order of sentence dated 17.12.2004 passed in the said case convicting him for the offence punishable under Section 376 of IPC and sentencing him to undergo rigorous imprisonment for 7 years and also to pay fine of Rs.30,000/-.
2. The case of the prosecution in brief is as under:
PW.10, the victim is the daughter of PW.6- Ammanamma and CW.5-Devarasegowda and are the residents of Gandatturu Village in H.D.Kote Taluk. PW.11-Prakash is younger brother of PW.10. PW.6 and her husband were coolies by profession and they used to go out of the village for coolie works to earn their livelihood by leaving their young children in the house. About 5 days prior to 29.12.1999, PW.6 and her husband left the village and had gone to the neighbouring Kerala State for work. Therefore, PWs.10, 3 11 and their two younger brothers were in the house.
At about 10.00 or 10.30 p.m. on 29.12.1999, while PWs.10, 11 and their younger brothers were sleeping inside the house, she heard some sounds of galata outside the house, therefore, by holding a kerosene lamp in her hand, PW.10 opened the door and came out of the house. At that time, she saw the accused standing in front of the house. Immediately, the accused put off the lamp which was in the hand of PW.10 and then dragged PW.10 to a nearby Teakwood tree and there he made her to lay down on the ground and committed forcible sexual acts on her and thereby committed the acts of rape. On hearing her cries and screaming sounds, the neighbours-PW.1-Govindaraju and PW.2-Swamy came there. On seeing PWs.1 and 2 coming there, the accused ran away from there. Thereafter, PW.10 told PWs.1 and 2 about the acts committed by the accused. PWs.1 and 2 consoled her and made her to return to the house. On returning to the house, she explained the incident to her younger brother PW.11 who was inside the house. However 4 since her parents were not in the village, she did not take any steps with regard to the acts committed by the accused. About a week later, the parents of PW.10 returned to the village and on their return, PW.10 informed them about the incident. Thereafter CW.5 met the elders of the village and the community and requested them to hold a panchayath so as to settle the matter at the village level itself. Accordingly, a panchayath was convened at the leadership of PW.5 and others. At the panchayath, the accused admitted having committed the acts of rape on PW.10. The panchayathdars directed the accused to marry PW.10 for which he took some time. However later he disowned the act and declined to obey the direction of the panchayathdars. There were series of panchayaths and since ultimately, the accused disowned the acts said to have been committed by him, the panchayathdars directed PW.10 to file a complaint. Accordingly, complaint came to be filed on 17.5.2000 by PW.10 on the basis of which, the police registered the case and took up investigation. Soon after the 5 registration of the case, PW.10 was subjected to medical examination. The accused was apprehended and he was also subjected to medical examination. During investigation, the statements of the witnesses were recorded and after completing the investigation charge sheet came to be filed for the offence punishable under Section 376 of IPC.
3. Upon committal of the case, the appellant - accused appeared before the learned Sessions Judge and pleaded not guilty for the charge levelled against him and claimed to be tried. The prosecution in order to bring home the guilt of the accused for the charge levelled against him examined PWs.1 to 15 and relied on documentary evidence Exs.P.1 to P.12 as well as M.Os.1 and 2. During his examination under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him in the evidence of the prosecution witnesses and claimed to be tried. However, the accused did not choose to lead any 6 defence evidence. The defence of the accused was one of total denial and that of false implication.
4. After hearing the parties and on assessment of the oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal held that the prosecution has proved beyond reasonable doubt the guilt of the accused for the charge levelled against him. The learned Sessions Judge repelling the contention of the accused that there has been long delay in lodging the complaint and this long delay has been utilised to falsely implicate him in the case since he refused to accede to the demand of the parents of PW.10 to marry her, held that the delay in lodging the complaint has been satisfactorily explained in the evidence of PWs.6 and 10 as well as by producing documents viz., Ex.P.8 which is the proceedings of various panchayaths held. The learned Sessions Judge placed strong reliance on the testimony of PW.10 with regard to the incident alleged and therefore the learned Sessions Judge was of the opinion that the accused is 7 guilty of the charge levelled against them and in that view of the matter, the learned Sessions Judge convicted the appellant for the offence punishable under Section 376 IPC and sentenced him to undergo imprisonment as stated supra. Aggrieved by the said judgment of conviction and order of sentence, the appellant / accused is before this Court.
5. I have heard Sri.M.S.Rajendra Prasad, learned Senior Counsel appearing for the appellant as well as Sri.G.M.Srinivasa Reddy, learned Government Pleader appearing for the respondent - State.
6. Learned Senior Counsel for the appellant contended as under:
that the judgment under appeal is highly perverse and illegal since the learned Sessions Judge has placed strong reliance on the document which was neither recovered during investigation nor produced along with the charge sheet and the contents of the said document has not been proved by examining the author, as such the judgment under appeal suffers from serious 8 infirmity therefore, it is not sustainable; that there has been a long delay of more than 4 months in filing the complaint and the said delay has not been satisfactorily explained by the prosecution as such the case of the prosecution ought to have been viewed with suspicion; that the evidence of PW.10 the alleged victim, is highly inconsistent and discrepant as such it does not inspire the confidence of the court, therefore, the learned Sessions Judge ought not to have placed reliance on the sole testimony of PW.10 for recording a finding of guilt; that the totality of the evidence on record would indicate that there was love affair between the appellant and PW.10 and in that background, the parents of PW.10 demanded the appellant to marry her and when he declined to marry her, a false complaint came to be filed after a period of about 4½ months; that the medical evidence on record clearly indicate that PW.10 was aged more than 16 years and less than 18 years and thus she was capable of giving consent for sexual act and the totality of the evidence indicate that the alleged sexual act was with the consent of the victim, therefore, no 9 offence under Section 375 punishable under Section 376 of IPC has been committed. Therefore, learned Senior Counsel sought for setting aside of the judgment under appeal and acquittal of the appellant.
7. Per contra, the learned Government Pleader sought to justify the judgment under appeal and contended as under:
that the judgment under appeal does not suffer from any perversity or illegality since the learned Sessions Judge on proper appreciation of the oral and documentary evidence has recorded a finding of guilt which is sound and reasonable regard being had to the evidence on record and therefore the judgment under appeal does not warrant interference by this court; that the delay in lodging the complaint has been satisfactorily explained by the prosecution by showing that series of panchayaths were held after the incident which spanned over a period of 4 to 5 months and during these panchayaths, though initially, the accused admitted having committed the act and promised to 10 marry the victim, later disowned his acts and declined to marry her, therefore, the learned Sessions Judge is justified in holding that the delay in lodging the complaint has been satisfactorily explained; that the learned Sessions Judge has assigned cogent and acceptable reasons in this regard, which are sound and reasonable; that the evidence of PWs.10 who is the victim is consistent and cogent and therefore the learned Sessions Judge is justified in placing reliance on the testimony of PW.10 as such the judgment under appeal does not call for interference by this Court.
8. I have bestowed my anxious considerations to the submissions made by both sides and closely scrutinized the evidence on record.
9. In the facts and circumstances of the case and in the light of the submissions made on both sides, the points that arise for consideration in this appeal are:
(1) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court? (2) Whether the learned Sessions Judge is justified in convicting the appellant / 11 accused for the offence punishable under Section 376 IPC?
10. As noticed supra, the alleged incident said to have occurred at about 10.30 p.m. on 29.12.1999 in Gandatturu village of H.D.Kote Taluk. According to the prosecution, complaint in respect of this incident came to be lodged before the jurisdictional police station on 17.5.2000 as per Ex.P.7. Thus according to the case of the prosecution, First Information Report about the incident alleged came to be lodged nearly about 4½ months after the incident alleged. The perusal of the judgment under appeal indicates that the learned Sessions Judge has recorded a finding that the prosecution has explained this long delay in lodging the report. According to the learned Sessions Judge, there were series of panchayaths held in the village in respect of this incident and ultimately since the accused disowned his acts and declined to obey the directions of the panchayathdars, a complaint came to be filed. Perusal of the judgment under appeal further indicates that in this regard the learned Sessions Judge has 12 placed strong reliance on oral testimony of PWs.6 and 10 as also contents of Ex.P.8.
11. No doubt mere delay in lodging the complaint by itself is not fatal to the case of the prosecution unless from the circumstances it can be deduced that the delay in lodging the First Information Report has been utilised for false implication or for projecting a coloured version. In State of Punjab v. Ramdev Singh, (2004) 1 SCC 421, the Supreme Court has held thus;
" 9. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in the prosecution version on account of such delay, the same would be fatal to the prosecution. X x x x x "13
In Ramdas v. State of Maharashtra, [ (2007) 2 SCC 170 ] at paragraph 24 the Apex Court has held thus, "24. x x x x x x In the case of sexual offences there is another consideration which may weigh in the mind of the court i.e. the initial hesitation of the victim to report the matter to the police which may affect her family life and family's reputation.
Very often in such cases only after considerable persuasion the prosecutrix may be persuaded to disclose the true facts. There are also cases where the victim may choose to suffer the ignominy rather than to disclose the true facts which may cast a stigma on her for the rest of her life. These are cases where the initial hesitation of the prosecutrix to disclose the true facts may provide a good explanation for the delay in lodging the report. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case.
Different cases have different facts and it is the totality of evidence and the impact that it 14 has on the mind of the court that is important."
In the case on hand, as noticed supra, there has been delay of nearly 4½ months in lodging the First Information Report. This is sought to be explained by stating that there was series of panchayath held in the village.
12. Prosecution to prove convening of the panchayath, has examined PW.5. According to the evidence of PW.5, the elders held a panchayath as CW.5 had orally requested them to decide with regard to the rape committed by the accused on PW.10 on 29.12.1999 at about 10 or 10.30 p.m. According to PW.5, in the said panchayath, himself, CW.10- Chinnappa and others were present; that the panchayath called PW.10 and accused and enquired them about the incident; that at that time PW.10 explained about the incident of accused forcibly dragging her from near her house and sexually assaulting her. According to this witness the accused 15 did not admit the said fact, therefore, the panchayathdars advised PW.10 to file complaint to the police. Of course this witness has been cross-examined by the learned counsel for the accused wherein suggestions have been put to the effect that there was no such panchayath.
13. From the perusal of the evidence of PW.5, it is clear that panchayath was held only once and at that time the accused disowned the alleged act, therefore, the panchayathdars directed the victim to lodge a complaint with the police. However PW.6 who is the mother of the victim and the victim herself examined as PW.10, in their evidence have stated that there were series of panchayaths during the period of about 5 months and since ultimately the accused disowned the act and declined to obey the directions of the panchayathdars, the panchayathdars directed PW.10 to file complaint and therefore there is delay in filing the complaint. The oral evidence of PWs.6 and 10 with regard to the series of panchayaths, is not corroborated 16 by any other evidence. At this stage, it is necessary to note that during the examination of PW.10, a document said to be proceedings of the panchayaths held was produced by her. When the prosecution wanted to admit the same in evidence, the defence counsel objected for the same on the ground that the said document was neither recovered during investigation nor was produced along with the charge sheet and therefore the same cannot be permitted to be produced and admitted in evidence. Nevertheless, the learned Sessions Judge allowed the production of the said document and the same was marked as Ex.P.8. Perusal of the record does not indicate as to whether before admitting the said document in evidence, a copy of the Fsame was made available to the accused. The learned Sessions Judge, as could be seen from the judgment under appeal, has placed strong reliance on Ex.P.8 to hold that the evidence of PWs.6 and 10 with regard to conducting series of panchayaths is corroborated. At the first place it has to be noted that mere marking of a document does not amount to proof of its contents. At 17 the second place it is to be noted that Ex.P.8 has not come from proper custody inasmuch as it is not explained by PW.10 as to how this document could come to her hands. At the third place, it has to be noted that the contents of Ex.P.8 have not been proved by examining any of the signatories therein.
14. Perusal of Ex.P.8 shows that it comprises 3 parts. The first part is written on a letterhead of " Shri Basaveshwara Grameena Abhivruddi Yuvakara Sangha, Gandatturu village H.D.Kote Taluk, Mysore District "
and it is dated 12.2.2000. It is signed by the President, Secretary and the memebrs of the said Sangha. It is addressed to the Police Sub-Inspector, Beechanahalli Police Station, H.D.Kote. According to the contents of this document, the panchayath comprised of the elders of the village was held on 7.1.2000 to discuss the issue regarding the alleged act of rape on PW.10 by the accused and in the panchayath it was revealed that the accused has committed the said offence and after discussion the panchayathdars decided that the 18 accused should marry the victim for which the father of the accused accepted but the accused sought for 3 days time, however, thereafter the accused absconded from the village and when another panchayath was convened on 14.1.2000, the father of the accused declined to accept the decision of the panchayath held on 7.1.2000 and challenged the said decision, therefore, the office bearers of the said Sangha requested the Police Sub- Inspector to take action against the accused. As this document is addressed to Police Sub-Inspector, Beechanahalli Police Station, this could not have been in the hands of PW.10. If really such a complaint had been addressed to the Police Sub-Inspector, Beechanahalli Police Station on 12.2.2000, it ought to have been presented before the Police Sub-Inspector and on receipt of the same, the Police Sub-Inspector ought to have taken steps in accordance with law. The very fact that the said document is available in the hands of PWs.10, it is clear that the same was not handed over to the Police Sub-Inspector. Therefore, the genuineness of this document coming into existence on 19 12.2.2000 is highly doubtful. None of the signatories of this document have been examined before the Court to prove the contents thereof.
15. The second part of this document relates to the proceedings of the panchayath said to have been held on 18.3.2000 and it is said to bear the signatures of several villagers. Similarly, the third part of the document is in relation to the proceedings of the panchayaths held on 3.12.2000. Once again even this third part is said to have been signed by several villagers. However none of the villagers have been examined before the Court to prove the contents thereof.
16. Though these 3 documents found to contain the signatures of PW.5, when PW.5 was in witness box this document was not confronted to him nor PW.5 was recalled after production of Ex.P.8. Thus the contents of the entire document marked as Ex.P.8 was not proved in accordance with law. In spite of the same, the learned Sessions Judge has proceeded to place strong reliance on the document to come to the conclusion that 20 series of panchayaths were held in the village to discuss the incident alleged and ultimately on 3.5.2000, the panchayathdars directed the victim to file the complaint. In my opinion, no reliance could have been placed on Ex.P.8. The reliance placed on Ex.P.8 is opposed to law as the same is contrary to the provisions of the Indian Evidence Act. Therefore, Ex.P.8 is eschewed from consideration. If Ex.P.8 is eschewed from consideration what remains is the oral evidence of PWs.6 and 10.
17. The evidence of PWs.6 and 10 with regard to holding series of panchayaths is controverted by the evidence of PW.5 who was one of the panchayathdars. From the evidence of PW.5, it is indicated that the panchayath was held only once. Therefore, the finding of the learned Sessions Judge that long delay of 4½ months in lodging the complaint has been satisfactorily explained on the ground that there was series of panchayaths held, is not based on any acceptable evidence.
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18. From the evidence on record, it is clear that the victim had disclosed the alleged incident to everyone in the village within about a week after the date of the incident. Thus it is not as if having regard to the nature of the incident, the same was not disclosed to anyone in the village. Therefore, there was no reason for the victim or her parents for not lodging a report about the incident to the police within a reasonable time thereof without waiting for any decision in the panchayath. If really an incident of this nature had occurred, the same could not have been decided at the village level. Thus, the explanation put forth regarding delay in lodging the FIR is not satisfactory. Therefore, it is necessary to find out the background with which the complaint came to be filed about 4½ months after the date of the alleged incident.
19. In the cross-examination of PW.6, it is elicited that one Devarsegowda is the elder member of the village and the said Devarsegowda told her that the accused is not hearing to their words and therefore, 22 they lodged the complaint to the police. It is further elicited from her that the complaint was drafted by the elders of the village. According to her, when they first went to the Police Station, PW.10 had not accompanied them. However, later PW.10 was taken to the Police Station as per the directions of the police. To a question as to whether the accused had liked her (PW.10)?, this witness has answered saying that as accused liked PW.10 he had come to her house. She has denied the suggestions that the wife and parents of the accused were against the accused marrying PW.10. The witness though denied the suggestion that they had approached Vivekananda Institution near Sargur in connection with this incident, admitted the suggestion that on the date of her giving evidence, a lady member of the said Organisation had come to the court. She has admitted the further suggestion that the village elders asked the accused to give 2 acres of land and cash of Rs.1 lakh to PW.10 if he refused to marry her. She has admitted the further suggestion that the accused refused to give land and cash as he had not committed any wrong. She has 23 admitted the further suggestion that due to the said reason of repetition of their requests and refusal by the accused, 5 months elapsed in that process. The witness has voluntarily stated that the said demand was made by the panchayathdars and she had no intention to give PW.10 in marriage to the accused as the accused was already married. Lastly, she has denied the suggestions that since they intended to give PW.10 in marriage to the accused and since the parents of the accused refused, a false complaint came to be filed after 5 months.
20. PW-10 the victim in her cross-examination has stated that the complaint was written by the police and at that time, her father was present, but the police did not give her a copy of the complaint. According to her, she lodged the complaint after about one week or 10 days of the incident. She has admitted that, they had approached Vivekananda Institution before filing of the complaint and at the time of lodging complaint, persons connected to the said institution had come to the police 24 station. She has admitted that during hearing of the case and even on the date of her examination before the Court, members of the said organisation had come to the Court. She has admitted that, the members of the Vivekananda Institution had asked accused to give her compensation and accused refused to pay any compensation. She had denied the suggestion that, she had intention to marry the accused before the alleged incident and her parents were also intending to perform her marriage with the accused. Thus, from the above answers elicited in the cross-examination of PW.6 and PW.10, it is clear that the complaint lodged after about 4 ½ months after the incident was not a voluntary act of PW.10. The complainant appears to have been directed by the villagers and persons connected with NGO namely Vivekananda Institution after long discussions and on account of refusal on the part of accused to marry PW.10 or to pay money. Therefore, possibility of this delay having been used to project a coloured version at the instance of the villagers and others cannot be ruled out.
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21. Even according to the evidence of PW.10, after hearing her screams, PW.1 and 2 came there and on seeing them accused ran away from the place, thereafter, she told them about the incident. Thus, according to PW.10, PW.1 and PW.2 came to the alleged scene of occurrence immediately. However, PW.1 and PW.2 in their evidence have not supported the case of the prosecution in this regard. According to PW.1, PW.10 had love affair with accused about four years prior to his deposition before the Court and on one day, wife of the accused made galata with PW.1 in relation to the love affair with the accused. According to PW.1, he had not seen PW.10 and accused together nor he has made any statement before the police about PW.10 informing him about any incident involved in this case. The witness has been declared as hostile and he has been cross-examined by learned Public Prosecutor, wherein he has denied all the suggestions put to him. He has denied of having made any statement before the police as per Ex.P.1.
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22. PW.2 in his oral evidence has stated that, his house and house of PW.10 are separated by two other houses. According to this witness, about 5 years prior to the date of the incident on one day at about 9.00 p.m. or 10.00 p.m. he saw PW.10 on the road near his house in the company of accused. According to him, he does not know anything about the alleged incident. This witness was also declared as hostile and cross- examined by learned Public Prosecutor. In the cross- examination, he has denied all the suggestions put to him by the learned Public Prosecutor. He has denied of having made statement before the police as per Ex.P2.
23. Thus the evidence of PW.1 and 2 are not of any assistance to the prosecution in proving its case. Merely because, these witnesses have been declared hostile, and permitted to be cross-examined, it cannot be said that, the witnesses have deposed falsely before the Court. Admittedly, they are residents of the same village and they are residing in the neighbourhood of the house of PW.10. Although they denied the suggestion 27 that they came to the scene of occurrence after hearing screaming sound of PW.10, their evidence indicates that, there was love affair between PW.10 and accused and this was opposed by wife and parents of the accused.
24. As noticed supra, PW.6, wanted his daughter to be married to accused. Even elders of the village who held panchayat, directed the accused to marry her for which she refused. PW.6 in categorical terms has admitted that on account of refusal on the part of the accused to marry PW.10, a complaint came to be lodged. Therefore, from the above it is clear that lodging of the complaint was sequal to refusal of the accused to marry PW.10. Admittedly, accused was already married even as on the date of the alleged incident. Therefore, he could not have married PW.10. It is in the evidence that, the family of the accused is financially sound. Therefore, the possibility of false implication of the accused in the complaint lodged about 4½ months after the alleged date of incident cannot be completely ruled out. 28
25. From the evidence of PW.14, Dr.M.R.Shashi Kumar, it is established that, from the radiological examination conducted for assessment of the age of PW.10, doctor was of the opinion that PW.10 was aged more than 16 years and less than 18 years.
26. Section 375 of IPC, defines rape. According to this Section a man is said to commit rape if he has sexual intercourse with the women against her will and without her consent. However as per sixthly of this Section, if act of sexual intercourse has been committed even with the consent of woman below 16 years of age, it would constitute rape punishable under Section 376 of IPC. In other words, as per the Section, consent given by a woman below 16 years is no consent in the eye of law and as a corollary woman aged more than 16 years though a minor is capable of giving consent and if the circumstances indicate such consent by woman aged more than 16 years, the act complained would not constitute as rape within the meaning of Section 375 of IPC.
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27. In the case on hand as noticed supra, PW.10 was aged more than 16 years. Therefore, she was capable of giving consent. The evidence of PW.1 and 2 read together would indicate that, there was love affair between PW.10 and the accused and they were moving together even in the late hours in the night. Though the incident said to have occurred on 29.12.1999, the report about the said incident was not lodged for about 4½ months. The medical examination on PW.10 conducted after registration of the case indicated that there was no evidence of recent sexual intercourse. However, during medical examination, the doctor had noticed absence of hymen. In the light of the same, Investigating Officer sought clarification from the doctor as to whether there was any possibility of the victim having been subjected to sexual intercourse about 5 or 6 months prior to the date of medical examination. PW.3-Dr.Pushpa Rani who had earlier examined PW.10 had given her further opinion on the clarification sought by the Investigating Officer stating that, since hymen 30 was absent there was possibility of girl having being subjected to sexual intercourse about five to six months earlier to the date of the alleged incident. In the cross- examination, PW.3 has accepted the suggestion that absence of hymen could occur for any reason other than sexual intercourse. Thus, in the light of the discussions made above, possibility of alleged incident having taken place with the consent of PW.10 cannot be completely ruled out. No doubt, PW.10 in her evidence before the Court has stated on oath that she was subjected to forcible sexual intercourse. Of-course in a catena of decisions, it has been held that in sexual offence cases, evidence of victim is not required to be corroborated. However, this is not an absolute rule.
In Vijayan v. State of Kerala, [(2008) 14 SCC 763], the Apex Court has held thus in para 5;
" 5. x x x x x x x x In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for 31 rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. X x x x x x x x "
In Tameezuddin v. State (NCT of Delhi), [(2009) 15 SCC 566], the Apex Court has observed thus:
" 9. It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter. We are of the opinion that the story is indeed improbable."
In Dinesh Jaiswal v. State of Madhya Pradesh, [(2010) 3 SCC 232], the Apex court referring to the 32 principle that the evidence of the prosecutrix is liable to be believed save in exceptional circumstances has observed thus:
"10. Mr C.D. Singh has however placed reliance on Moti Lal case to contend that the evidence of the prosecutrix was liable to be believed save in exceptional circumstances.
There can be no quarrel with this proposition (and it has been so emphasised by this Court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence. We are of the opinion that the present matter is indeed an exceptional one."
28. Thus from the above principles it is clear that, if the evidence of victim does not inspire the confidence of the Court, the conviction cannot be based on the sole evidence of victim. The evidence of victim in the case on hand read in the context of the long delay in lodging First information report and antecedent possibilities of 33 love affair with accused and PW.10 would suggest that, the act alleged was the result of the consent by PW.10 and PW.10 appears to have resorted to lodge the report since accused later refused to marry her. Therefore, I am of the opinion that the trial Court is not justified in placing reliance on sole testimony of PW.10 to come to the conclusion that, accused is guilty of the charge of committing rape of PW.10.
29. The observation of the learned Sessions Judge that PW.11 younger brother of PW.10 also had an opportunity to see the presence of the accused near the house and dragging PW.10 to the nearby place is perverse for the reason that, even according to the evidence of PW.10, her younger brother was sleeping inside the house when she came out by holding lamp and soon after she opened the door and saw the accused he put off the lamp and drgged her. Assuming for the purpose of arguments, as observed by the learned Sessions Judge, PW.10 might not have seen her younger brother following her from behind since 34 immediately, the lamp was put of, the brother had no opportunity of seeing the person if any standing in front of the house. According to PW.10, when she returned to the house, PW.11 was inside the house and she explained to him the incident. If really PW.11 had seen accused dragging PW.10, PW.11 would not have kept quiet, instead he would have atleast raised a hue and cry. Therefore, the observations of the learned Sessions Judge that, evidence of PW.11 would corroborate the evidence of PW.10 with regard to the alleged incident is improper and is the result of improper appreciation of evidence of PW.10 and PW.11.
30. In view of the above, I am of the considered opinion that, the finding recorded by the learned Sessions Judge that, the accused is guilty of offence punishable under Section 376 of IPC is highly perverse and illegal and is not supported by acceptable and legal evidence. The Judgment suffers from infirmity. Therefore, it cannot be sustained as such the appeal deserves to be allowed.
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31. Accordingly, the appeal is allowed. The judgment of conviction and order of sentence dated 17.12.2004 passed by the Presiding Officer, Fast Tract Court-III in Session Case No.53/2001, convicting the appellant / accused for the offence punishable under Section 376 of the Indian Penal Code is hereby set aside. The appellant/accused is acquitted of the said charge.
The bail bond and surety bond executed by the appellant /accused is ordered to be discharged.
Fine amount, if any, deposited by the accused is ordered to be refunded to him.
SD/-
JUDGE Pages 1 to 23 - RS/* Pages 24 to 35 - KSR