Karnataka High Court
State Of Karnataka vs M K Manjunath on 19 March, 2013
Bench: Mohan.M.Shantanagoudar, B.S.Indrakala
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19th DAY OF MARCH 2013
PRESENT
THE HON'BLE MR. JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MRS. JUSTICE B.S. INDRAKALA
CRIMINAL APPEAL No.664 OF 2008
BETWEEN:
State of Karnataka
By the Sub-Inspector of
Police, Arasikere Police
Station, Arasikere. ..Appellant
(By Sri G.M. Srinivasa Reddy, HCGP.,)
AND :
M.K. Manjunath
S/o Channaveerachari
Aged about 36 years
Primary School Teacher
R/o Madihalli Village
Harapanahalli Taluk
Davanagere District. ..Respondent
(By Sri Santhosh Nagarale, Amicus Curiae.,)
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This Appeal is filed under Section 378(1) and (3)
Cr.P.C. praying to grant leave to file an appeal against the
judgment and order of acquittal dated 4.2.2008 passed by
the District and Sessions Judge, Davanagere in
S.C.No.55/2007 - acquitting the respondent/accused of the
offence punishable under Section 376 of IPC.
This Appeal coming on for hearing this day, MOHAN
.M. SHANTANAGOUDAR, J., delivered the following:-
JUDGMENT
This appeal is filed by the State against the Judgment and Order of acquittal passed by the District & Sessions Judge, Davangere in S.C. No.55/2007.
The respondent is the sole accused charged and tried for the offence punishable under Section-376 of IPC.
2. The case of the prosecution in brief is that the prosecutrix Kum. Kotramma, minor in age was studying in 7th Standard in Madihalli Middle School, Harappanahalli taluk. The accused/ respondent is the teacher working in the said school. At about 5.30 p.m. on 26.12.2006 the 3 accused with an intention to commit rape on the victim girl, called her to his house on the guise of cleaning the utensils; after cleaning the utensils, the accused took her inside the room and committed rape on her after threatening her that she would be failed in the examination if she discloses the said fact to the third party. The accused also repeated the same act on 1.1.2007 at about 1.30 p.m. in his house. Though the incident has taken place on 26.12.2006 and 1.1.2007, the complaint came to be filed on 1.4.2007 as per Ex.P1 by the victim girl.
3. Based on the said complaint, Crime No.22/2007 was registered in Arasikere Police Station for the offence punishable under Section-376 of IPC. During the course of investigation, the statements of all the relevant witnesses are recorded including the statements of the teacher as well as the Head Master of the school; the victim was subjected to medical examination; the victim's petticoat and the clothes worn by the accused and the victim as well as 4 vaginal swab were sent to Forensic Science Laboratory for investigation. After completion of the investigation, the Police laid the charge sheet for the aforementioned offence.
4. During the course of trial, the prosecution in all examined 13 witnesses and got marked 20 witnesses and 12 material objects. The trial Court on evaluation of the material on record and after hearing, acquitted the accused giving the benefit of doubt to the respondent/accused.
5. PW-1 is the victim girl. She has deposed about the incident in question. She has also lodged the complaint as per Ex.P1; PW-2 is the father of PW-1. According to PW-2, his daughter has disclosed the incident to him belatedly inasmuch as the accused has threatened PW-1 that he would be killed if the incident is disclosed; PW-3 is a witness for Ex.P2 - seizure mahazar under which clothes of the victim are seized. PW-3 is also a witness for scene of offence mahazar - Ex.P3. Mos.5 to 7 are the clothes of the 5 complainant which are seized; PWs.4,5 and 6 are the friends of the complainant. They were supposed to speak about the complicity of the accused. They are circumstantial witnesses, but they have turned hostile; PW- 7 is the teacher working in the same school. Though he has supported the case of the prosecution to certain extent, he is treated as hostile inasmuch as he has not supported the case of the prosecution in material particulars; PW-8 is the Medical Officer who examined the victim and issued the certificate as per Ex.P13; PW-9 is the Medical Officer who examined the accused and has given the certificate as per Ex.P14 which discloses that the accused is able to perform sexual act; PW-10 is the person who has prepared the sketch of scene of offence as per Ex.P16; PW-11 is the Head Master of the school and he has issued the certificate as per Ex.P17, which shows the date of birth of PW-1 - Kotramma as 12.8.1993. He has been partly treated as hostile; PW-12 is the PSI who registered the case against 6 the accused for the offence punishable under section-376 of IPC in Crime No.22/2007; PW-13 is the Inspector of Police who took up investigation and laid the charge sheet.
6. The important witnesses in this matter are PWs.1,4,5 and 6. According to the case of the prosecution, PW-1 - Kotramma and PW-4 - Asha went together to the house of the accused on 1.1.2007 and that PW-4 was sent out by the accused telling her that she may have her lunch in her house and come back. According to the case of the prosecution, PW-4 left the house of the accused and PW-1 continued in the house of the accused where the incident took place. But unfortunately PW-4 has turned hostile. Eventhough PW-4 says that she and complainant were studying in the same school and PW-5 is her classmate and the accused was a teacher teaching Mathematics, she has deposed that she has not gone to the house of the accused and she did not know what took place in the house of the accused. Same is the evidence of PW-5. According to 7 PW-5, the complainant has not stated anything about rape committed on her. PW-6 is the neighbour of the accused. He has also turned hostile. Thus the evidence of PWs.4,5 and 6 do not support the case of the prosecution.
7. PW-2 is not an eye-witness to the incident. He is a hearsay witness. He is none other than the father of the complainant. He has deposed that his daughter told him about the incident after three months. Thus his evidence is of no avail to the prosecution and consequently what remains is the evidence of PW-1 and the medical records.
8. Though the complaint reveals that the accused committed rape on the victim on 26.12.2006 and 1.1.2007, PW-1 has given gobye to the said version in her examination-in-chief. She has deposed in the examination- in-chief itself that on the first occasion when she had gone to the house of the accused to clean the utensils, the accused asked her to sit on the cot and he removed her 8 petticoat and chaddi and she told the accused not to do so. Thereafter she got up and she was allowed to go out. This was the version of PW-1 in respect of the incident that occurred on 26.12.2006.
So is the version of PW-1 with regard to the alleged incident on 1.1.2007. PW-1 has further deposed in the examination-in-chief that on 1.1.2007 she was asked to come to the house of the accused and she went there at 1 p.m.; no one was there in the house; she was asked to lie on the cot; the accused lifted her petticoat and when she was about to get up, Asha had come and accused asked her to wait and told her to go after cleaning the house. This evidence of PW-1 before the Court in the examination-in- chief does not disclose the offence of rape by the accused. The evidence of the complainant may reveal the offence of outraging the modesty. But, definitely such material would not be sufficient to convict the accused for the offence under section-376 of IPC. Absolutely no materials are 9 placed by PW-1 in the examination-in-chief itself about the alleged offence of rape. PW-1 herself was treated as hostile by the prosecution and it was got elicited that in the complaint she has stated that the accused has committed rape on her. The trial Court on evaluation of the material has concluded that the victim is a minor and was not in a position to understand what is meant by 'samboga' though the word, 'samboga' is used by her both in the complaint as well as in the Court.
9. According to PW-1, she went to school on 26th, 27th, 28th, 29th, 30th and 31st of December-2006. However, she did not inform the incident to her classmates. She even did not inform the matter to PW-4, who was her close friend. It is further admitted by her that she participated in the school activities on those days. On 30th December 2006 itself she was informed to come to school on 1.1.2007. She went to school on 1.1.2007 at 10.00 a.m. and all the students have come there. But the classes were not 10 taken. She has further admitted that though she struck to her mind that because of the earlier incident on 26.12.2006, she should not go to the house of the accused again, she went to the house of the accused on 1.1.2007.
10. PW-11, the Head Master of the school has admitted in the evidence that the school was closed from 25.12.2006 to 31.12.2006 because of Christmas vacation and the students as well as teachers have not come to school. According to PW-11, 1.1.2007 was also a holiday because of Bakrid. In the light of the evidence of PW-11
- the Head Master of the school, the case of the prosecution appears to be highly suspicious. If the school was closed from 25.12.2006 to 1.1.2007, there is no reason as to why the complainant should go to school alongwith other students and further she go to the house of the accused. It is not that the complainant went from her house to the house of the accused directly. On the other hand, the version of the complainant is that she went to school for 11 school activates and she attended the classes from morning till evening from 26.12.2006 till 30.12.2006. Even on 1.1.2007, according to the complainant she went to school and attended the classes and then gone to the house of the accused. Since the school was closed, the defence is justified in arguing that the whole case of the prosecution is liable to be rejected inasmuch as there was no occasion for the complainant to come to school and to attend the classes on those dates. This apart, PW-11 has deposed that PW-1 told to him that in December-2006 the accused had given kiss to her. Such factor is not at all disclosed by PW-1 either in her complaint or during her deposition before the Court. From the aforementioned material, it is clear that the prosecutrix has tried to change her case from time to time.
11. PW-1 has admitted in her deposition that there were cultural activities from 26.2.2007 to 7.3.2007 and that they participated in the dance and drama. She has further 12 admitted that the accused taught her dance and drama and it was the accused who prepared her to participate in the drama. Even her parents had come to witness her dance and drama. She has further admitted in the cross- examination that till filing of the complaint, she was looking after the accused with love and respect. These facts clearly go to show that the case is prosecutrix is artificial.
12. The case of the prosecution is not supported by the medical evidence. The doctor - PW 8 who examined the victim has clearly deposed that as per the FSL report, the age of the victim is 12 to 15 years. There are no external injuries sustained by the victim. The hymen was intact. There were no complaints of recent sexual intercourse. His report is at Ex.P13. Thus it is clear that it is not a case of rape at all. The prosecutrix has suppressed the material facts in order to create a false case.
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13. Though the FSL report reveals that item Nos.12 and 13 sent for scientific examination reveals seminal stains, the same is not rightly given importance by the trial Court. Admittedly, the incident of alleged rape has occurred on 26.12.2006 and 1.1.2007. The complaint is lodged on 1.4.2007 i.e., after the lapse of three months. Inner wears of the victim were seized on 2.4.2007 during the course of investigation and were sent to examination. It is highly impossible to have seminal stains retained for a period of three months. According to the material on record, it is clear that the prosecution had washed the clothes on 4 -5 occasions prior to seizure. The Court can take judicial notice of the fact that seminal stains can be completely cleared by washing the clothes on 4 or 5 occasions. The expert examined before Court has also deposed the said fact. In the statement recorded under Section 313 Cr.P.C., the accused has alleged that his transfer and retransfer to Madihalli School is the reason for 14 this false case. In this view of the matter, the trial Court has rightly disbelieved the case of the prosecution by granting the benefit of doubt in favour of the accused.
14. Since we find that the view taken by the trial Court is one of the possible views under the facts and circumstances of the case and as we find that the view taken by the trial Court is just and proper, no interference is called for.
The appeal fails and the same stands dismissed. We place on record the assistance rendered by Sri Santhosh Nagarale, amicus curiae while deciding the matter. Office is directed to pay Rs.3,000/- (Rupees three thousand only) as honorarium to the learned amicus curiae.
Sd/-
JUDGE Sd/-
JUDGE Gss/nk-