Karnataka High Court
The State Of Karnataka vs Sri Narasimha @ Narasimhaiah on 12 December, 2014
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF DECEMBER 2014
PRESENT
THE HON'BLE MR.JUSTICE N.ANANDA
AND
THE HON'BLE MR.JUSTICE PRADEEP D.WAINGANKAR
CRIMINAL APPEAL No.974/2011
BETWEEN:
THE STATE OF KARNATAKA
BY YELAHANKA NEW TOWN
POLICE STATION
BANGALORE. ... APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, HCGP)
AND:
SRI NARASIMHA @ NARASIMHAIAH
S/O MUNIRAJAPPA, 25 YEARS
R/O ATTURU VILLAGE
YELAHANKA HOBLI
YELAHANKA NEW TOWN
BANGALORE. ... RESPONDENT
(BY SRI VIJENDRA REDDY, ADV.)
THIS APPEAL IS FILED UNDER SECTION 378(1) & (3)
CR.P.C., PRAYING TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGMENT DATED 23.03.2011, PASSED IN
S.C.NO.689/2009, ON THE FILE OF PRINCIPAL CITY CIVIL &
SESSIONS JUDGE AT BANGALORE, ACQUITTING THE
RESPONDENT/ACCUSED FOR OFFENCES PUNISHABLE UNDER
SECTIONS 366, 342 & 376 IPC & ETC.
2
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, N.ANANDA. J., DELIVERED THE FOLLOWING:
JUDGMENT
The respondent (hereinafter referred to as accused) was tried and acquitted of offences punishable under Sections 366, 342 and 376 IPC. Therefore, the State has filed this appeal.
2. We have heard Sri.Vijaykumar Majage, learned Government Pleader for the State and Sri.Vijendra Reddy, learned counsel for accused.
3. PW.3 is the victim of offence. PW.9-Akkayamma is the mother of victim; PW.7-Ganganna is the maternal grand father of victim; PW.10-Muniraju is the younger brother of PW.9; PW.4-Manjunath and PW.5-Naveena are stated to be the friends of accused.
4. It is the case of prosecution that on 19.07.2008 at about 6.45 a.m., the accused with the intention of marrying victim, induced victim (a minor girl) and took her from the lawful custody of her parents in Attur village to Karenahalli 3 village of Bidadi Hobli, Ramanagar District. He had wrongfully confined the victim in the house of PW.1- Narasimhaiah for a period of 4 or 5 months. The accused married her by tying a piece of turmeric to her neck. The accused committed rape on her.
5. PW.1-Narasimhaiah who is alleged to have given shelter to the accused and victim has not supported the case of prosecution, so also, PW.2-Kenchaiah. PW.4-Manjunath and PW.5-Naveen, the friends of accused who are alleged to have seen the accused taking victim have not supported the case of prosecution. Therefore, we are left with evidence of victim, the mother of victim (PW.9), evidence of PW.8- T.K.Gayathri Devi (Principal of Digvijya Higher Primary School, Yelahanka) and evidence of investigation officer.
6. PW.3 (victim) has deposed; on the date of offence, she was aged about 16 years; she was studying in Digvijaya High School at Yelahanka Upanagar; accused was a resident of Attur village, Yelahanka Hobli; he was a carpenter by occupation; the accused was constantly following the victim; 4 he was telling her that he had fallen in love with her and he forced her to marry him; the victim had stated that she has not attained the age of 18 years; on 18.07.2008 at about 6.30 p.m., when the victim was walking near the tank of her village, accused came and threatened her that if she does not marry him, he would kill the victim and her family members.
The victim (PW.3) has deposed; on 19.07.2008 at about 6.30 a.m., when she was returning from the shop, accused came there and forced her to accompany him and took her from Attur village to City Market bus stand; the accused took the victim from City Market to Karenahalli village in Bidadi Hobli, Ramanagar District; on the way, accused tied a piece of turmeric to the neck of victim; he took the victim to the house of PW.1 in Karenahalli village and told him that he had married the victim; PW.1 gave a separate house for the residence of accused and victim; the accused committed rape on her and continued to commit rape on the victim for a period of four months; in the month of December' 2008, accused left the place stating that he would go to Attur village; in the afternoon, he returned to 5 that house with the police; the police brought the victim to Yelahanka Upanagar Police Station; she was subjected to medical examination in Dr.Ambedkar Medical College and Hospital; the parents of victim came to the police station and enquired as to what happened to her during her stay with the accused; victim narrated the acts committed by accused; the parents of victim refused to take her to their house; therefore, she was taken to remand home; she stayed in remand home for a day; thereafter, the victim was staying in the house of her elder sister.
During cross-examination, the victim has deposed; that accused forcibly took her when she was purchasing soji in a shop at Attur village; the accused took her from Attur village to Karenahalli village of Ramanagar District via City Market by holding threats to her life.
Contrary to this, her mother (PW.9) has deposed that victim had left the house at about 6.30 a.m., on the pretext of going to bathroom, thereafter, she was not traced. 6
7. From the evidence of victim, we find that she was taken form Attur village to Karenahalli village via City Market in a bus within the public vision. The distance between Attur and Karenahalli is about 50 Kilometers. She had plenty of opportunity to protest against the acts of accused to wriggle out of the situation. However, for the reasons best-known to victim, she had kept quite all along. It appears that victim had accompanied the accused on her volition.
8. In a decision reported in AIR 1965 SC 942 (in the case of S.Varadarajan Vs. State of Madras), the Supreme Court has held:
"9. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of S. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full 7 import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."
9. The conduct of accused when she was staying in the house of PW.1 is not consistent with her evidence. When the accused and deceased were staying in the house of PW.1, she had plenty of opportunities to get away from that place.
10. The victim has deposed that during the period of four months, she was under constant surveillance of the accused. In other words, accused was constantly watching her.
We are unable to accept this part of the evidence. The house of PW.1 is adjacent to the house in which accused and victim were staying. They were staying in a village within the public vision. She had plenty of opportunities to wriggle out 8 of the situation by taking help of public and also help of PW.1. Therefore, evidence of victim that she had been illegally confined in the house of PW.1 cannot be accepted.
11. The victim has deposed that she was subjected to rape by the accused. The medical evidence given by PW.12- Dr.B.M.Nagaraj would reveal that victim was used to sexual intercourse. He had not noticed any violent marks on the person of victim. The victim had not offered any resistance.
12. The learned Government Pleader would submit that as per evidence of PW.8-Smt.Gayathri Devi (Principal of Digvijaya Higher Primary School, Yelahanka) and PW.12- Dr.B.M.Nagaraj, the victim was less than 16 years of age. Even if she had consented for sexual intercourse with accused, an offence under Section 376 IPC is squarely attracted.
13. We have gone through evidence of PW.8 and certificate issued by her. PW.8-Smt.T.K.Gayathri Devi was working as Principal of Digvijaya Higher Primary School at Yelahanka. She had issued the letter as per Ex.P6. In Ex.P6, 9 it is shown that deceased was born on 08.04.1993. If this date is taken into consideration, the victim was aged about 15 years 3 months and 11 days.
The certificate as per Ex.P6 is not the Extract of School Admission Register. PW.8 has not deposed about the date of birth in the School Admission Register when PW.1 was admitted to I Standard. The contents of Ex.P6 would reveal that victim was admitted to Digvijaya Higher Primary School at Yelahanka for the academic year 2008-09. It appears, the victim was admitted to X Standard in the month of June'2008. She had attended the school for a period of two months and thereafter, she did not attend the school.
14. In our considered opinion, evidence of PW.8 and contents of Ex.P6 are hardly sufficient to prove the age of victim on the date of offence.
15. The prosecution has relied on evidence of PW.12-Dr.B.M.Nagaraj. After going through evidence of PW.12, we find that PW.12 had clinically examined the victim to give his opinion that victim was aged about 15 - 16 10 years. There are no records to prove that victim was subjected to radiological examination and her age was assessed on the basis of radiological examination.
16. PW.12 has deposed; that he had gone through radiological examination report but, the report is not made available to the court. The Doctor who had conducted radiological examination was not examined before the trial court.
17. In a decision reported in 2010 (1) SCC 742 (in the case of Sunil Vs. State of Haryana), the Supreme Court has held:
"A. Penal Code, 1860 - Ss 375, 376, 363, 366 - A - Rape - Allegation of rape of minor - Benefit of doubt - When available - Prosecution failing to prove age of prosecutrix - Prosecutrix found as being habitual to sex and her secondary sexual characteristics well developed (as per clinical report of P.W.1) - Appellant- accused frequently visiting prosecutrix's house
- Prosecutrix in love with appellant, never resisting being repeatedly deflowered by him - Allegation that prosecutrix under threat 11 accompanied appellant on a bicycle to another village where she was raped by appellant and then brought back home - Non-performance of tests for proving age of prosecutrix prescribed by the doctor, held, a close and careful examination of age of prosecutrix is imperative, which if not proved, accused is entitled to benefit of doubt, as in present case - Criminal Trial - Age - Need for accuracy in ascertainment of - Held, in a criminal trial conviction cannot be based on an approximate age which is not supported by any record.
B. Criminal Trial - Age - Determination of - Requirement of proper tests and credible evidence - Non compliance and unsatisfactory compliance with - Effect - In allegation of rape of minor, prosecution not conducting examinations by dental surgeon or radiologist of prosecutrix in spite of being referred to for such examination by doctor - School leaving certificate produced showing attendance of only 100 days, prosecutrix being admitted and leaving school in mid-session - Said certificate being obtained after commission of offence and arrest of appellant and prosecution failing to produce any admission form of the school -12
Effect - Although it is not a rule that all these tests must be performed in all cases, but in instant case, in absence of primary evidence, these tests held, were necessary - Said school leaving certificate with 100 days' attendance, on facts, held, is not reliable - Evidence Act, 1872
- S.45 - Age - Determination of."
18. In the case on hand, the crucial point for consideration is:
Whether the victim had attained the age of 16 years on the date of offence ?
19. The prosecution apart from producing the letter (marked as per Ex.P6) has not produced school documents such as Primary School Admission Register to prove the date of birth of victim. The opinion furnished by PW.12- Dr.Nagaraju is based upon clinical examination of the victim. PW.12 has deposed that victim was aged about 15-16 years.
20. The law is fairly well settled that assessment of age by the medical officer is subject to margin of error of two 13 years. If this benefit is given to the accused, the victim was aged about 18 years as on the date of offence.
21. The learned Sessions Judge on proper appreciation of evidence has held that prosecution has failed to prove that accused had kidnapped the victim, he had wrongfully confined her and committed rape on the victim.
22. On reappreciation of evidence, we do not find any reasons to interfere with the impugned judgment. The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Np/-