Bangalore District Court
SPL.C/262/2014 on 17 February, 2016
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 17th DAY OF FEBRUARY, 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO.262 / 2014
COMPLAINANT :
The State of Karnataka by
Mahadevaura Police Station,
Bengaluru.
[Represented by learned Public
Prosecutor, Bengaluru.]
/ VERSUS /
ACCUSED :
Ravindra alias Ravi son of Late
Nagappa, 31 years, resident of
No.755, residing in rented Shed of
Smt. Gangamma, Ambedkar colony,
Slum of J.D. tree, Bannerughatta
road, Mico layout, Bengaluru.
[Represented by learned counsel
Smt. Prapulla.K.]
***
/2/ Spl.C.C.No. 262 / 2014
JUDGMENT
Mahadevapura Police, Bangalore City have charge sheeted the accused for the offences punishable under Section 366-A, 342, 376 of I.P.C.
2. The case of the prosecution, in brief, is as under :
CW2 Bhavani is the minor daughter of CW1 Chamundamma. The accused used to visit her house as he has acquaintance with his family members. He had put a proposal to marry the victim girl, but CW1 refused as she was minor. On 13.2.2012 at 2.00 p.m. the accused had kidnapped her in Mahindra Maximo Goods vehicle bearing Reg.No.KA 05-MC-5648 with intent to seduce her to illicit intercourse. After visiting several places in the local, took her to his house in J.P. Nagar, where he had confined her till 18.2.2012. He had repeatedly committed rape on her against her will during that period in his house. On 18.2.2012 she escaped from his house. In the meanwhile PW3 /3/ Spl.C.C.No. 262 / 2014 Chamundamma had lodged the complaint on 17.2.2012 alleging that accused had kidnapped her.
I.O. on receiving the complaint registered the case, drew necessary mahazars. After complainant took the victim girl to the Police Station, IO had recorded her statement. Accused was apprehended and the vehicle was seized. He recorded statement of other prosecution witnesses. Both accused and victim were sent to hospital for medial examination. By completing the investigation IO submitted charge sheet to the Court for the aforesaid offences.
3. The charge sheet was submitted to X ACMM Court and learned Magistrate after taking cognizance, committed this case to the Court of Sessions for trial. After committal this case was made over to this Court and registered in Spl.C.C. After following the procedure laid down under Law the Presiding Officer of FTC III framed charge for the offences punishable under 366A, 342 and 376 of I.P.C and read over to the accused.
/4/ Spl.C.C.No. 262 / 2014 Accused has pleaded not guilty and claimed to be tried. Hence, posted for evidence on prosecution side.
4. On prosecution side got examined as many as 13 witnesses as P.W.1 to P.W.-13 out of 22 charge sheet witnesses and got marked documents at Ex.P.1 to Ex.P15 and the details of which are given in the annexure of this Judgment. On closure of evidence on prosecution side, it was posted for accused statement. 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.
5. Heard the arguments on both sides. Perused and posted for Judgment. Charge under 1st and 2nd head for offences under Section 366-A and 343 of IPC has been subsequently altered hearing on both sides. Charge for offence under Section 366 and 343 of IPC has been framed by way of alterations. On both sides /5/ Spl.C.C.No. 262 / 2014 submitted no further evidence, no further arguments. Hence 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 had kidnapped CW2-
Bhavani, minor daughter of CW1 Chamundamma on 13.12.2012 at 2.00 p.m. from near her house No.101, 5th cross, Tigalarapalya, Hoodi village, within the jurisdiction of Mahadevapura Police Station with intent to seduce her to illicit intercourse punishable under Section 366 of IPC?
2) Whether the prosecution has proved beyond reasonable doubt that accused after kidnapping CW2 on the aforesaid date, time and place, wrongfully confined her till 18.2.2012 in his house No.755, Ambedkar Colony, J.D. Marada Slum, /6/ Spl.C.C.No. 262 / 2014 Banneraghatta road, Mico Layout punishable under Section 343 of IPC?
3) Whether the prosecution has proved beyond reasonable doubt that accused had committed rape on CW2 in his house during the period from 13.2.2012 to 18.2.2012 punishable under section 376 of IPC?
4) What order?
7. My findings on the above points are as under:-
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : In the negative
Point No.4 : As per final orders
for the following:
REASONS
8. Point Nos.1 & 2:- These points are taken together for common discussion as they are interconnected to each other. The accused is alleged to have kidnapped PW4 Bhavani, the minor daughter of PW3 Chamundamma on 13.2.2012 at 2.00 p.m., in his /7/ Spl.C.C.No. 262 / 2014 Mahendra Maximo vehicle bearing Reg.No.KA 05 AC 5648 from her house with intent to seduce her to illicit intercourse. According to prosecution her age was of 17 years at the relevant point of time. Before touching other points, age of the prosecutrix shall have to be looked into at the first instance. The incident took place prior to Protection of Children from Sexual Offences Act, 2012. Hence the said Act does not apply to the present case.
9. In order to prove the age of the prosecutrix the prosecution got examined PW3 Chamundamma, PW4 Bhavani, prosecutrix, PW10 Dr B.M. Nagaraj and PW5 Muniraju-Head Master of Hoodi Government Primary School. PW3-Chamundamma in her complaint at Ex.P4 mentioned the age of prosecutrix was 17 years at that time. PW10 Dr. B.M. Nagaraj had subjected the prosecutrix to medical examination. He was requested to assess her age. Based on physical development and dental test he certified that her age is from 14-16 years and issued Ex.P12 to that effect also.
/8/ Spl.C.C.No. 262 / 2014 She was not subjected to ossification test. PW5
Muniraju is the Head Master of Government Primary School, Hoodi village. He had issued Ex.P7-the extract of admission register and also separately issued certificate at Ex.P8 mentioning the date of birth of prosecutrix as 9.6.1994. PW5 is also examined and he has reiterated the entries at Ex.P7 and 8. He is not subjected to cross examination as there was no representation on accused side. The evidence of PW5 has remained unchallenged. These documents are issued by the Head Master of Government School. The same is also corroborated by the evidence of PW5 and also PW3 Chamundamma-mother of prosecutrix and PW4 the victim girl. According to Ex.P7 and 8 PW4 was of 17 years 8 months as on the date of incident. The incident took place on 13.2.2012. Her date of birth is 9.6.1994. Under these circumstances Ex.P12 issued by PW10 that victim girl is from 14-16 years is difficult to be based. Only based on physical development and dental test he has assessed her age.
/9/ Spl.C.C.No. 262 / 2014 But Ex.P7 and 8 are the conclusive documents issued by the Government Schools. The victim girl studied from 1st standard to 7th standard in that school of which could be seen from Ex.P7 and 8. I do not find any other evidence contrary to Ex.P7 and 8. Of course during the course of recording of accused statement the accused has denied that her age was 17 years. But in the absence of any other evidence of which contradicts Ex.P7 and 8, denial by the accused cannot be accepted. Based on Ex.P7 and 8 her age can be concluded that she was 17 years 8 months as on the date of incident, she was on the verge of attaining the majority.
10. Now the next question arises whether accused had kidnapped PW4-prosecutrix on 13.2.2012 at 2.00 p.m. from her house in his goods vehicle with intent to seduce her to illicit intercourse. Enticing or taking away is the essential ingredient of offence of kidnapping. Section 366 of IPC provides kidnapping, abducting or enticing woman to / 10 / Spl.C.C.No. 262 / 2014 compel her to marriage, etc. Whoever kidnaps any woman with intent that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse is said to commit offence under Section 366 of IPC. Section 366 of IPC consists of two parts, one is the kidnapping and another is with intent to compel her to marriage against her will or force or seduce to illicit intercourse. In the present case the accused had kidnapped victim girl with intent to force her to illicit intercourse. The initial burden lies upon the prosecution to establish its case beyond shadow.
11. In order to prove the offence of kidnapping punishable under Section 366 of IPC the prosecution has got examined PW3-Chamundamma-mother of prosecutrix, PW4-prosecutrix, PW8-Gowramma-eye witness to the offence of kidnapping, PW10 Dr.B.M. Nagaraj, who are the material witnesses. PW1 Srinivas and PW2 Munikrishna are Panchas.
/ 11 / Spl.C.C.No. 262 / 2014
12. As per the prosecution, accused is not a stranger to the family of the prosecutrix. It is the case of the prosecution itself that accused used to visit her house. Ex.P4 is the complaint lodged by PW3 Chamundamma. The prosecutrix studied up to 7th standard in Hoodi Government School, thereafter she discontinued her education about three years prior to the alleged incident. Since one year before the incident she was working in Shoe factory nearby ESI Hospital. Thereafter she left the said job and was doing housekeeping in the apartment with her mother PW3 Chamundamma. Two months prior to the date of incident, accused came in contact with prosecutrix, he used to have talks with prosecutrix on phone. On 13.2.2012 at 9.00 a.m., PW3 had gone to her work as usual, on her return at 2.00 p.m., found missing of her daughter. On being enquired with neighbours she came to know that accused had forcibly taken away PW4-prosecutrix in Tata Ace vehicle. During the course of searching her daughter, complainant / 12 / Spl.C.C.No. 262 / 2014 received phone call from the accused. He said, "Her daughter is with him, don't search for her daughter, he himself will bring her back on 19.2.2012" Then she had lodged a complaint on 17.2.2012. The accused after taking away the victim girl in his goods vehicle, took her to several visiting places. Thereafter took her to his house where his mother and his sister were there. She was wrongfully confined in that house till 18.2.2012. In his absence she escaped from his house on 18.2.2012. PW3 Chamundamma had taken the prosecutrix to Police Station on 22.2.2012 where IO had recorded her statement. Prosecutrix made allegations against the accused "that he forcibly took her on the pretext of taking her to visiting places, accordingly both of them visited Cubbon Park, Halasuru Lake, Metro Railway Station, thereafter took her to his house in J.P. Nagar. During night, on 14.2.2012 he had forcible sexual intercourse with her, likewise he repeated the same 3 to 4 times till 16.2.2012. In his absence on 18.2.2012 she escaped / 13 / Spl.C.C.No. 262 / 2014 from his house." Thereafter she was sent to hospital for medical examination. This is the case of the prosecution.
13. As already mentioned in supra, evidence of PW3, 4, 5 and 8 is very material in the present case. PW3 Chamundamma is the complainant. She is also mother of the prosecutrix. PW4 Bhavani is the prosecutrix. PW8 Gowramma is an eye witness to the offence of kidnapping by the accused. She is sister-in- law of PW3. She was residing near by the house of the complainant. On going through the evidence of PW3, 4 and 8 accused is not a stranger to the family of the compliant. He was regular visitor to her house. Even the neighbours also had seen him coming to the house of the complainant. The prosecutrix was of 17 years 8 months at the relevant point of time. She studied up to 7th standard, she discontinued her education and started working. As per the prosecution case itself at the first instance she worked in shoe factory thereafter she left it and started working as housekeeper in the / 14 / Spl.C.C.No. 262 / 2014 apartment. As per say of accused while recording accused statement under section 313 Cr.P.C the complainant herself was forcing him to marry PW4. Another aspect is PW4 Bhavani herself had come to his house, then he informed the complainant that her daughter was with him, he had the duty, he would bring her back within one or two days.
14. With this background on going through the complaint lodged by the complainant, very strange things are found on record. Ex.P4 is the complaint lodged by PW3 Chamundamma on 17.2.2012. Her daughter was found missing on 13.2.2012. As per the complaint at Ex.P4 itself she came to know from neighbours that accused had forcibly taken away the prosecutrix. She returned home from her duty at 2.00 p.m. on 13.2.2012, then she was told by the neighbours about the alleged incident. Even according to prosecution, PW8 Gowramma had also seen the accused taking away the victim girl in his vehicle. According to prosecution PW8 and her husband were / 15 / Spl.C.C.No. 262 / 2014 coming to the house of PW3, when they had seen the accused taking the victim girl, they went back under the impression "she has gone outside with the accused." The case of the prosecution itself as such that accused is not stranger to the family of the complainant, he was regularly visiting the house of the complainant, it was seen by the neighbours and it was also known to her relatives very particularly PW8 Gowramma. Therefore, PW8 Gowramma simply returned without doubting the accused. When PW3 Chamundamma approached PW8 Gowramma then she revealed that accused had taken PW4 Prosecutrix. When PW3 Chamundamma came to know about whereabouts of prosecutrix from the neghbours and also PW8 Gowramma, why she did not report the same to the police is not explained by PW3 Chamundamma. Of course in Ex.P4 complaint mentioned that accused himself had called her on mobile and informed that he would bring her daughter on 19.2.2012. But when he telephoned is not mentioned in the complaint dated / 16 / Spl.C.C.No. 262 / 2014 17.2.2012. Her daughter was missing on 13.2.2012, on the same day she came to know about missing of her daughter and she was taken away by the accused. Even otherwise she did not report the same to the police. The cause of delay in lodging the complaint is not at all explained either by the complainant or by IO. That itself shows something fishy in the allegations made by the complainant. According to her oral testimony accused was forcing her to perform her daughter's marriage with him. But she wanted her daughter to attain majority first. But she was kidnapped on 13.2.2012. Whereas, according to the say of the accused himself he was being forced by the complainant to marry the victim girl. On going through the entire evidence on prosecution side it came to light that accused is the married person. He himself has stated while recording his statement that he has his wife and two children. But it is not disclosed by the complainant either in the complaint or in her statement. Even she did not say anything / 17 / Spl.C.C.No. 262 / 2014 before the court about the family of the accused. Her say is only that accused was compelling her to give her daughter to him. Version of the accused and oral testimony of the complainant, are vice-versa. Irrespective of all these things though the complainant had the knowledge that her daughter was with the accused, she did not make any attempt to approach the Police, she had lodged complaint on 17.2.2012 after the lapse of four days. There is also another instance of which discredit version of the complainant that she did not take the prosecutrix to the Police Station immediately after her return to the house. According to prosecution she escaped from his house on 18.2.2012, but complainant took her to the P.S. on 21.2.2012. Why she made such delay is not stated by her. There is nothing on record to show that evidence of PW3 is worthy of acceptance. Her evidence appears to be unnatural. Accused had fairly admitted while recording accusation statement "he had brought back PW4-prosecutrix to her house and left her, then the / 18 / Spl.C.C.No. 262 / 2014 police apprehended him." His statement has been corroborated by evidence of Chamundamma, herself. In para 2 of her chief examination she has stated that he brought back the prosecutrix to the house after one day. It is better to reproduce relevant portion of her evidence as under:-
"JgÀqÀÄ ¢ªÀ¸ÀªÁzÀgÀÆ ¨ÀsªÁ¤ ¸ÀĽªÀÅ ¹UÀ°®è. DUÀ £Á£ÀÄ ¥ÉÇðøï oÁuÉUÉ ºÉÆÃV ¦üAiÀiÁ𢠺Éý §gɹzÉÝãÉ."
"2 ¢ªÀ¸ÀPÉÌ £Á£ÀÄ £À£Àß ªÀÄ£ÉAiÀÄ°èzÁÝUÀ £À£Àß ªÉƨÉʯïUÉ DgÉÆæ PÀgÉ ªÀiÁr ¨ÀsªÁ¤ vÀ£Àß §½ EzÁݼÉAzÀÄ w½¹zÀ. £À£Àß «£ÀAw ªÉÄÃgÉUÉ DgÉÆæ ¨ÀsªÁ¤AiÀÄ£ÀÄß PÀgÉzÀÄPÉÆAqÀÄ £À£Àß ªÀÄ£ÉUÉ MAzÀÄ ¢ªÀ¸ÀzÀ £ÀAvÀgÀ §AzÀ. PÀÆqÀ¯Éà £Á£ÀÄ ¥ÉÇðøÀjUÉ ¥ÉÇÃ£ï ªÀiÁrzÉ. DUÀ ¥ÉÇðøÀgÀÄ §AzÀgÀÄ. DgÉÄÁæAiÀÄ£ÀÄß oÁuÉUÉ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ. £Á£ÀÄ ªÀÄvÀÄÛ ¨ÀsªÁ¤ PÀÆqÁ C°èUÉ ºÉÆÃzɪÀÅ".
The aforesaid version of PW3 is very much contrary to the case of the prosecution. It is also say / 19 / Spl.C.C.No. 262 / 2014 of the accused as stated by Chamundamma that he was apprehended by the Police from the house of the complainant itself, when he brought back the prosecutrix to her house. As per prosecution case accused was apprehended after the prosecutrix was brought by the complainant to the police station on 22.2.2012. The accused was arrested on 24.2.2012 from Hoodi circle. Whereas as the oral testimony of the complainant and say of accused in 313 Statement contradict the prosecution case. Of course the date of bringing the victim to her house by accused is not disclosed either by the complainant, or even by the accused while recording statement under Section 313 Cr.P.C. From the evidence of complainant and the say of the accused during the course of statement under Section 313 Cr.P.C the fact remains that prosecutrix was in the house of accused, she was brought back by the accused himself to her house. This evidence found on record disbelieves the case of the prosecution itself that accused had forcibly taken her to his house / 20 / Spl.C.C.No. 262 / 2014 and wrongfully confined her till 18.2.2012. The dates of each event is very material in the present case. There is also delay in reporting the missing of the prosecutrix though the complainant was very much within the knowledge of taking away the prosecutrix by the accused. There are two things. One is either prosecutrix must have voluntarily gone to his house or accused must have taken away her forcibly.
15. It is the specific case of the prosecution that he had forcibly taken her from his house on 13.2.2012 in the absence of his family members and it had been seen by PW8 Gowramma, who is sister-in-law of PW3 Chamundamma. But there is no piece of evidence to support this aspect. In view of oral testimony of PW4- prosecutrix, "accused requested her mother to perform her marriage with him., he used to contact her on phone. She has also further stated that at about 11.00 a.m. she had gone outside for shop. He took her away in the Tata vehicle to Cubbon park, Halasur lake, thereafter to his house at 6.00 p.m. His mother and / 21 / Spl.C.C.No. 262 / 2014 sister were in his house and he kept her in his house for four days. Thereafter she escaped from his house." It is pertinent to note the victim girl was not under the age of 16 years, though she was under the age of 18 years. As per school records issued by the school authorities based on the admission register, she was on the verge of attaining the age of majority. She was at the age of 17 years 8 months. Only four months less to complete her 18th year. She is brought up in Bangalore. She worked in some factory, thereafter by leaving the sad job she was doing house keeping work. She does not appear to be an innocent girl. She had the capacity of understanding the pros and cons of what she was doing. There is no evidence brought on record that she sought help from the public when he had taken her to Cubbon park, Halasur Lake and Metro Railway station. It is not the case of the prosecution itself that she protested the accused, she made an attempt to escape from him. That itself indicates prosecutrix voluntarily joined him. Whereas / 22 / Spl.C.C.No. 262 / 2014 according to the say of the accused it is the victim girl who had voluntarily come to his house by giving information on phone. When the prosecutrix kept quiet till 18.2.2012 itself makes the prosecution case suspicious that she was wrongfully confined by accused in his house. Firstly there is no convincing and reliable evidence that prosecutrix had been forcibly taken away by the accused or even it is the accused who took her to his house. Secondly she did not raise any alarm at any point of time though she had ample opportunity to do so. Thirdly there is absence of threat or any kind of inducement.
16. Admittedly mother and sister of the accused were also living with him in his house. As per mahazar at Ex.P1 the said house is like a shed having sheet roofing. The shed itself is like a single portion where he along with his mother and sister was living. Admittedly there are so many adjacent sheds and other residential houses in that locality. According to prosecution case itself there are other neighbouring / 23 / Spl.C.C.No. 262 / 2014 witnesses who had seen the stay of the prosecutrix in his house, but it is nobody's case that she had protested and sought help from the neighbours or the people in the locality. CW8 to 11 are the persons residing in the said locality and they had seen the accused bringing the victim girl and kept her in his house. But none of these witnesses were secured on prosecution side to prove its case. On going through the entire evidence of the prosecutrix, it is not found to be truthful statement. It does not inspire confidence to draw the inference against the accused. Of course prosecutrix has to be placed on higher pedestal than an injured witness, when a court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. But her testimony does not appear to be trustworthy and even circumstantial evidence do not lend any support to the same. It is not at all say of the / 24 / Spl.C.C.No. 262 / 2014 prosecutrix that she was threatened by the accused. If the case of the prosecution were to be true that accused had forcibly taken her to his house and wrongfully confined her, she would have raised alarm or she would have made an attempt to escape from him. There was sufficient opportunity for her to come out of his clutches. But that is not so here. Apart from that according to prosecution though she was missing on 13.2.2012 and it was very much within the knowledge of PW3 that accused had taken away she did not report the same to the Police. Even on return of the prosecutrix on 18.2.2012 she did not take her immediately to Police Station. As per prosecution she took her on 22.2.2012 only. There is no explanation given by her for delay in reporting to the police and even for delay in taking the prosecutrix to the Police Station after her return. There is no evidence on record that prosecutrix suffered from trauma. When it is the case of prosecution itself that prosecutrix was missing from home and it came to the knowledge of the / 25 / Spl.C.C.No. 262 / 2014 complainant that it is the accused none else, who had taken her, in such a situation it was a normal expectation that the mother would have lodged a missing report at the Police Station. The same was not done. This action of the complainant really shows that great challenge to the common sense, even no explanation has been offered for such delay. In rape cases lodging of FIR normally takes more time for various reasons including mental trauma, social concerns, etc. However undue delay without sufficient cause even after giving allowances for various reasons factors would be fatal. On this point I have relied on the decision reported in 2015(2) Crimes 84(SC) (Mohhammed Ali alias Guddu V/s. State of U.P.).
17. Of course on prosecution side examined Police official witnesses i.e., PW9 Siddana Gowda, H.C. According to prosecution he had apprehended the accused on 24.2.2012 from Hoodi Circle and produced him before the IO PW12 S.R Manuunatha, PSI, who has partly investigated. He had recorded statement of / 26 / Spl.C.C.No. 262 / 2014 the prosecutrix. He had sent accused and victim to hospital for medical examination. He has not at all stated anything why the victim girl was brought by the complainant after 4-5 days. No explanation for delay is brought on record on this aspect. Though PW13 K.M. Nagraj then PSI who had partly investigated the present case has reiterated the case that he had drawn necessary mahazars and recorded statement of other prosecution witnesses, but does not offer any explanation with respect to non reporting the missing / kidnapping the victim girl, by the complainant without any delay, or even no explanation offered as to delay in bringing the victim by complainant to Police Station. Prosecutrix also maintained silence on this aspect. Under the circumstance, unreliable evidence of prosecutrix cannot be safely based to accept the prosecution case that accused had forcibly taken away and he had intention of compelling her to marry him. Above all there is no evidence on record that whether accused had gone on duty during that period.
/ 27 / Spl.C.C.No. 262 / 2014 Because according to the prosecution he took her to his house and wrongfully confined in his house, when he had gone outside for shop then she escaped from his house. Therefore the evidence of PW7 C. Kumar owner of the vehicle is very material on this aspect. But no material is brought on record on this aspect on the prosecution side.
18. According to the case of the prosecution she escaped from his house in his absence on 18.2.2012. It is pertinent to note it is the case of the prosecution itself that neighbours and persons in the locality had seen the victim staying in his house. That house is like a shed as already discussed in supra. When that is so, the case of the prosecution that there was wrongful confinement in his house is far away from the truth. If the accused had such an intention he would have kept the house locked when he had gone outside the house. But there is no circumstantial evidence of which would lend assurance to accept the testimony of the prosecutrix that she had been forcibly taken by / 28 / Spl.C.C.No. 262 / 2014 him and wrongfully confined in his house. Her evidence is not found so natural and truthful to inspire confidence. Merely because she was just below the age of 18 years the accused cannot be held guilty for the offence under Section 366 of IPC and for offence under Section 343 of IPC also. From the aforesaid discussion it is very clear that the prosecutrix was capable of understanding the consequence of leaving the house and staying in the house of the accused. She voluntarily joined him. The delay in FIR and also in taking the victim to Police Station after her return has left a mark of doubt to treat the testimony of the prosecutrix as so natural. Delay in FIR is fatal to the prosecution.
19. In the present circumstances of the case the prosecution has miserably failed to establish its case by placing convincing, truthful and corroborative evidence. The prosecution has miserably failed to prove its case beyond reasonable doubt. The benefit / 29 / Spl.C.C.No. 262 / 2014 of doubt should go to the accused. Hence, I answer points 1 and 2 in the negative.
20. Point No.3:- Another charge against the accused is offence of rape. According to prosecution when prosecutrix was alleged to have been confined in his house from 13.2.2012 to 18.2.012 he had committed rape on her. On this aspect PW4 prosecutrix, PW3 Chamundamma, PW10 Dr. B.M. Nagaraj, PW11 Dr. K.V. Sathish are the material witnesses in the present case. The learned Public Prosecutor has argued that there are some external injuries found over the body of the prosecutrix. PW10 Dr. B.M. Nagaraj has stated in his evidence that one week back she was involved in the sexual intercourse, prior to that she was not having sex. Even the prosecutrix has also stated that accused had repeatedly committed rape on her.
21. The learned counsel for the accused has vehemently argued that evidence of doctor by itself is / 30 / Spl.C.C.No. 262 / 2014 not reliable to base the conviction of the accused for offence of rape. The victim girl was above 16 years even according to the prosecution itself. It is not the case of the prosecution that she had complained to anybody against the accused that he had committed rape on her. This attending circumstance itself doubts the case of the prosecution.
22. On going through the evidence of prosecutrix after the accused took her to his house, during that night itself at 12.30 a.m. he had forcible sex with her. It is pertinent to note, that mother and the sister of the accused were very much present in the house itself. Of course it was night. As already discussed in supra that house is a shed like single portion all had to sleep in that small portion only. If she had really been forced by the accused and he had sex with her against her will she would have raised her voice or she would have protested it. But it is not found in her evidence in chief examination. In the cross examination led on accused side she has clearly / 31 / Spl.C.C.No. 262 / 2014 admitted that there are several residential houses adjacent to the house of the accused. The age of sister of accused is 15 years, she was also sleeping adjacent to her. She has also further stated that while he was having sex she did not disclose anything to the sister of the accused, she shouted but they did not get up. It is pertinent to note this is the improvement found in her evidence. It is not at all the case of the prosecution. Even she has not stated in her chief- examination also. Her above improved statement is of no value. The evidence of PW3 Chamundamma does not corroborate the evidence of the prosecutrix. She has stated in her chief examination itself that the prosecutrix has stated that she was taken away by the accused, except that, she did not say anything. Her evidence doesn't suggest offence of rape committed by accused on victim.
23. PW10 Dr. B.M. Nagaraj has issued Ex.P12 mentioning some of abrasion injuries found on the portion of her neck and below her stomach. In the / 32 / Spl.C.C.No. 262 / 2014 cross-examination he admits that such injuries could be possible due to self infliction. As per Ex.P12 he has not opined that there was a rape committed on her. Contrary to this he has stated in his chief examination that the victim girl was involved in sexual act one week back. His version in the cross examination is very much inconsistent with that of his statement in chief examination at page 3. He has stated that she was not used to like that of sexual intercourse, but there are signs to show the attempt to have sex. As per medical evidence there is no intercourse occurred, but there are only signs of attempt to have sex. The version of the oral testimony of the prosecutrix that accused had forcible sex with her is not corroborated by medical evidence. If the ocular statement of the prosecutrix is believed for a while that accused had sex with her forcibly, she would have raised alarm or at least she would not have stayed in his house till 18.2.2012. According to her version he had committed rape on her three times. But it is very clear from the / 33 / Spl.C.C.No. 262 / 2014 facts and attending circumstances and also from medical evidence there was no rape committed on her.
24. Firstly there is no medical evidence that she was involved in sex during that period, but only there were signs for an attempt as per medical evidence. That itself destroys the whole case of the prosecution that accused had committed rape on the prosecutrix. The conduct of the prosecutrix under such circumstances is very material. According to her though he had forcible sex with her she did not make any attempt to come out of his house. There was sufficient opportunity for her to seek help from the neighbours or the people in the locality or at least from the family members of the accused. It is not the case that she was threatened by the accused not to disclose his act to anybody. As per the medical evidence her hymen is intact. No admissibility of fingers. Admittedly age of the victim was above 17 years, she was on the verge of attaining the age of majority. From all these circumstances found on record reveal no / 34 / Spl.C.C.No. 262 / 2014 offence of rape committed on her. The version of the prosecutrix is not found to be reliable. Conviction of the accused for offence of rape is not sustainable. Undue delay without sufficient cause even after giving allowance for various factors would be fatal to the prosecution. The prosecutrix is above the age of 16 years there is no reliable evidence on prosecution side to come to the conclusion that there was rape committed on her. Even there is no supportive medical evidence. As per medical evidence no rape committed. Even so far as concerned to attempt to rape is also not proved beyond shadow due to lack of sufficient and reliable evidence. There is no corroborative, cogent and trust worthy evidence on that aspect. Under these circumstances it is not safe to convict him for attempt to rape. The prosecution has miserably failed to prove its case beyond reasonable doubt. Accused is entitled to benefit of doubt. Hence, I hold point No.3 in the Negative.
/ 35 / Spl.C.C.No. 262 / 2014
25. Point No.4: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offences punishable under Sections 366, 343 and 376 of I.P.C.
The Interim custody of property in P.F.No.43/2012 Mahindra Maximo Goods vehicle bearing Reg.No.KA 05-MC-5648 given to R.C. owner by name B. Chinnappa son of Boralingaiah, is hereby made absolute after appeal period is over. (Though the son of R.C. owner had taken the custody of the vehicle from the Police). (Dictated to the Judgment Writer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 17th day of February, 2016.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** / 36 / Spl.C.C.No. 262 / 2014 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW 1 Srinivasa PW 2 Munikrishna PW 3 Chamundamma PW 4 Kumari Bhavani PW 5 B.N.Muniraju PW 6 Shylaja PW 7 C.Kumara PW 8 Gowramma PW 9 Siddanagowda PW 10 Dr.B.M. Nagaraj PW 11 Dr. Sathish K.V. PW 12 S.R. Manjunath PW 13 K.S. Nagaraj LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Mahazar Ex.P 1(a) Signature Ex.P 1(b) Signature of PW2 Ex.P 1(c) Signature of PW13 Ex.P 2 Mahazar Ex.P 2(a) Signature of PW2 Ex.P 2(b) Signature of PW Ex.P 2(c) Signature of PW13 Ex.P 3 Photo Ex.P 4 Complaint / 37 / Spl.C.C.No. 262 / 2014 Ex.P 5 Further statement of CW1 Ex.P 6 Spot Mahazar Ex.P 6(a) Signature of PW3 Ex.P 6(b) Signature of PW12 Ex.P 7 Extract of Admission Ex.P 7(a) Signature of PW5 Ex.P 8 Certificate Ex.P 8(a) Signature Ex.P 8(b) Signature of PW13 Ex.P 9 Photo Ex.P 10 Statement of CW8 Ex.P 11 Report of HC 937 Ex.P 11(a) Signature of PW13 Ex.P 12 Medical report of victim girl Ex.P 12(a) Signature of PW10 Ex.P 12(b) Signature of PW14 Ex.P 13 Medical Report of accused Ex.P 13(a) Signature of PW11 Ex.P 13(b) Signature of PW13 Ex.P 14 Report Ex.P 14(a) Signature of PW12 Ex.P 15 Accused statement Ex.P 15(a) Marked portion Ex.P 15(b) Signature of PW13 LIST OF MATERIAL OBJECTS MARKED
-NIL-
/ 38 / Spl.C.C.No. 262 / 2014 LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** / 39 / Spl.C.C.No. 262 / 2014 17.02.2016 State by Public Prosecutor Accused on bail - PK For Judgment Judgment pronounced in the open court, operative portion of which reads as under:-
Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offences punishable under Sections 366, 343 and 376 of I.P.C.
The Interim custody of property in P.F.No. 43/2012 Mahindra Maximo Goods vehicle bearing Reg. No. KA 05 - MC - 5648 given to R.C. owner by name B. Chinnappa son of Boralingaiah, is hereby made absolute after appeal period is over (Though the son of R.C. owner had taken the custody of the vehicle from the Police).
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.