Bangalore District Court
SPL.C/246/2014 on 31 March, 2015
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 31st DAY OF MARCH, 2015
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 246/2014
COMPLAINANT :
The State of Karnataka by
K.R.Puram Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED :
Krishnamurthy
S/o Late Vishwamithra
Aged 68 years, r/at
No.26, 3rd main, 8th cross,
Sir.M.V.Nagar, Kalkere main road,
Ramamurthynagar,
Bengaluru.
[Rep. by learned Counsel
Sri. M.Lakshmana ]
***
/2/ Spl.C.C.No.246/2014
JUDGMENT
K.R.Puram Police, Bangalore City have chargesheeted the accused for the offences punishable under Sections 506, 376 of I.P.C.
2. The case of the prosecution in brief, is as under :
Accused was a teacher in the school in KNSS School, which is in Anandapura, T.C Palya, Bengaluru during the year 2012. C.W-2, the prosecutrix was studying in 5th Standard in the school, the accused was taking Maths and Science subjects for 5th Standard. He used to call the prosecutrix to do sums on board, while doing the sums by her, having had a sexual intention, touched her body, pulling her, when she bent forward to pick the chalkpiece, giving punch on her buttock, poking with stick on her buttock. When she protested that she would disclose before her mother, he threatened to fail her in Maths and also issue TC. During leisure hours, he used to send the /3/ Spl.C.C.No.246/2014 students outside the classroom by keeping the victim girl inside and used to commit rape on her. Likewise on 14/02/2012 again he had committed rape on C.W-2, prosecutrix after sending the students outside the class room for playing, when she started crying, he gave threat to fail her in Maths and send out of school with TC. On coming to know this fact, on the same night, C.W-1, the mother of the prosecutrix had lodged a complaint on 15/02/2013. The prosecutrix was subjected to medical examination. After apprehending the accused, he was also subjected to medical examination. The statement of prosecution witnesses including the prosecutrix were recorded. By completing the investigation, the Investigating Officer submitted the Charge Sheet before the Court for the aforesaid offences.
3. After submitting the Charge Sheet to the Court of 10th ACMM, Bengaluru, case was committed to Sessions Court for trial. After registering in S.C No.923/2012, it was entrusted to FTC-11. The learned /4/ Spl.C.C.No.246/2014 Presiding Officer of FTC-11 had framed the charge for the offences punishable under Section 376 and 506 of I.P.C. Accused had pleaded guilty and had claimed to be tried. On prosecution side, P.W-1 to P.W-13 were examined and Ex.P.1 to Ex.P.14 and MO-1 to MO-7 were marked before FTC-11. At this stage, on the point of jurisdiction, the case was transferred to this Court. After examination of P.W-14 and closing the evidence of prosecution side, it was posted for accused statement. Accused statement under Section 313 of Cr.P.C has been recorded by this Court also, accused has denied the whole incriminating evidence against him and has not chosen to lead evidence on his side. Hence, posted for arguments.
4. Heard the arguments on both sides. Perused and posted for Judgment. At this stage, hearing on both side, charge for the offence under Section 376 and 506 of I.P.C has been altered as timings of rape and since one month prior to last incident on 14/02/2012 are not mentioned. Accordingly, altered /5/ Spl.C.C.No.246/2014 charge has been framed and read over and explained to accused. He has pleaded not guilty. On both sides, submitted no further evidence. Hence, posted for judgment.
5. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused being a Maths and Science Teacher in KNSS School, TC playa, had committed rape on C.W-2 on 14/02/2012 at 11.30am and also during span of one month before 14/02/2012 in 5th Standard class room punishable under Section 376 of I.P.C ?
2) Whether the prosecution has proved beyond reasonable doubt that accused on the aforesaid date, time and place, after committing rape, threatened C.W-2 to fail her in Maths subject and also to issue TC if she discloses to anybody /6/ Spl.C.C.No.246/2014 punishable under Section 506 of I.P.C ?
3) What order?
6. My findings on the above points are as under:-
Point No.1 : In the Affirmative for offence under Section 354 of I.P.C.
Point No.2 : In the Affirmative Point No.3 : As per final orders for the following:
REASONS
7. Point Nos.1 & 2 :- Points No.1 and 2 are taken together for discussion to avoid repetition of facts and they are also interconnected to each other. It is the case of the prosecution that P.W-2, prosecutrix was of 11 years, studying in 5th Standard during the year 2012-2013. Accused had joined KNSS Vidya Mandir as a part time Teacher for Science and Maths subjects. During the span of one month prior /7/ Spl.C.C.No.246/2014 to 14/02/2012, he used to ask the prosecutrix to do sums on board, while doing sums, pulling her, when she bent forward to pick up the chalkpiece, poked stick on her buttock, gave punch on her buttock having had sexual intention. When she protested, he threatened to fail her in Maths, not to reveal to anybody. By sending the students out of the class, he did all these things. Likewise, on 14/02/2012 at 11.30am as usual he called the prosecutrix to do sums on board, he had sent other students out of the class for playing, kept the door closed, he did the samething what he was doing earlier, when she bent to pick up the chalkpiece, accused from the backside committed rape on her and also threatened not to reveal to anybody, otherwise she would fail in Maths. On the same day, P.W-1, mother of the victim found her dull for the last one month, as usual she asked the prosecutrix, on 14/02/2012 night at 9.30pm, then she disclosed before her about the act committed by the /8/ Spl.C.C.No.246/2014 accused. On the next day she had lodged a complaint. This is the story projected by the prosecution.
8. In order to prove its case, prosecutrix has got examined 14 witnesses. P.W-1 Sagai Mary, the mother of the prosecutrix, P.W-2 the prosecutrix, P.W-11 Shalini-the classmate of the prosecutrix, P.W-3, Arokya Mary who is also the class mate of the prosecutrix are the material witnesses in the present case. According to prosecution, prosecutrix first revealed the incident before her mother. Sagai Mary is the complainant. According to prosecution, P.W-11 Shalini and P.W-3 Arokya Mary are the eye witnesses to the illegal acts of accused that he used to call the prosecutrix to do sums on board, pulling her, when she was bending to pick up the chalkpiece, poking with stick, giving punch on buttock. Therefore, the evidence of these witnesses shall have to be carefully scrutinized.
/9/ Spl.C.C.No.246/2014
9. As per the prosecution case, the accused had committed rape on P.W-2, prosecutrix on 14/02/2012 in the class room at 11.30am, prior to that date, he had done the samething 2-3 times during the span of one month before the 14/02/2012. The place of occurrence is the class room wherein the class of 5th Standard was running. The victim girl was of tender age. The accused was of 68 years as on that alleged incident. Was there any possibility of committing rape is a big question. As per the prosecution, the accused used to send other students out of the class for playing by detaining the victim girl only inside the class, by keeping the door closed, committed rape on her. Admittedly there are also windows to the class rooms as could be gathered from the spot Mahazar and also from the oral testimony of the victim girl and her classmates. The said room is not in isolated place, as per the prosecution itself in first floor. On right side steps are there, on left side of the said class room, 5th Standard class was running, the chamber of Head / 10 / Spl.C.C.No.246/2014 Mistress was in the same floor nearby the place of occurrence. The Head Mistress used to take a round for inspection every day. Under the circumstances, possibility of committing rape or making an attempt to have sexual intercourse in the class room by sending other students outside appears to be far away from the truth. Truth should be separated from falsehood like separating grains from the chaff. Whether accused had committed rape on victim girl as alleged by the prosecution is to be carefully scrutinized.
10. The learned Public Prosecutor has vehemently argued that there was bleeding in the vagina of the victim girl, it is corroborated by mother of the prosecutrix, bleeding injury found in the genital area of the victim, there was also an injury found on the penis of the accused. P.W-13 Dr.B.M.Nagaraj who subjected the victim to medical examination has corroborated the prosecution case, opined that there was an attempt to rape. The oral testimony of the mother of the prosecutrix and the prosecutrix has strengthened the / 11 / Spl.C.C.No.246/2014 medical evidence. The ocular statement of the prosecutrix is found to be truthful with respect to commission of rape by the accused. She is the proper witness to speak about the act of the accused. The accused had committed rape repeatedly on the victim girl.
11. The learned counsel for the defence has strenuously argued that there are material contradictions found in the evidence of complainant, prosecutrix and her class mates i.e., Shalini and Arokya Mary and also other witnesses, of which go to the root of the prosecution case, several improvements have also been made not only by the prosecutrix, but also the other witnesses. It is also further argued by him the accused was admittedly of 68 years aged person, at any stretch of imagination it cannot be said that he had sexual intention and used to commit rape on her that too in the class room by sending the other students outside the class room. It is unimaginable to say the accused had committed rape on the victim girl.
/ 12 / Spl.C.C.No.246/2014 The prosecutrix was tutored, the accused had never committed the rape on the victim girl, even never committed any sexual abuse on her.
12. On looking to the evidence of the prosecution witnesses, very particularly complainant, prosecutrix, P.W-3 Arokya Mary, P.W-11 Shalini, the classmates of the prosecutrix, very particularly P.W-10 O.V.Mohanan, Administrative officer, KNSS School, Anandpura, Bengaluru, there are some admitted facts. Admittedly the accused had joined the said school in the month of January, 2012. He was taking Science and Maths subjects for 5th Standard. The prosecutrix was studying in 5th Standard, her sister was also going to the same school. P.W-3 Arokya Mary and P.W-11 Shalini were also the classmates of the prosecutrix. It is also an admitted fact that accused used to call victim girl to do sums on board. It is admitted by the accused during the course of recording 313 statement. The matter in question is whether there was commission of rape by the accused on the victim girl / 13 / Spl.C.C.No.246/2014 when he used to call her to do sums on board by sending students outside the class room and kept the door closed.
13. Before touching the oral testimony of the complainant and the prosecutrix, the medical evidence may be taken up for consideration in order to find out whether victim was used to an act of sexual intercourse. Ex.P.10 is the medical report issued by P.W-13 Dr.B.M.Nagaraj. The charge against the accused is he had committed rape on 14/02/2012. On 15/02/2012 the complainant had lodged a complaint, from 2.00pm to 3.00pm the victim girl was subjected to medical examination. As per Ex.P.10, "no external injuries are found. Hymen is intact, not admitted any fingers." There is one bleeding injury measuring 1 cm X 0.2cm X 0.2cm in the left side of Fourchette, the age of the injury is 12-24 hours. As per the opinion given therein, there is no recent sexual intercourse, evidence of attempt to commit sexual intercourse.
/ 14 / Spl.C.C.No.246/2014
14. Ex.P.12 is another medical report relating to accused. Accused was also subjected to medical examination on 15/02/2012. As per this medical report "no external injuries found, Lugol's Iodine Test conducted, it is negative. One injury measuring 1cm X 0.5cm found on backside of penis, the age of the injury is of 1-2 weeks, there is no evidence of sexual intercourse within 4 days". He was of 68 years as on that date.
15. As per Ex.P.10, the medical report relating to victim girl, Hymen is intact, no tears, is not subjected to sexual intercourse. As per Ex.P.12 there is no evidence of sexual intercourse within 4 days by accused. The medical evidence does not support the prosecution case that there is commission of rape on the victim girl. P.W-13 Dr.B.M.Nagaraj has been examined on prosecution side and he has also been subjected to cross-examination at length. It is not the say of Doctor that victim has elastic hymen which could service sexual intercourse, rupture of hymen / 15 / Spl.C.C.No.246/2014 is not necessary in cases of such elastic hymen. In the absence of any materials on this aspect, it is very difficult to believe the story of the prosecution that rape was committed on the victim girl by the accused. At the first instance, the prosecution has utterly failed to put forth the medical evidence on the point of commission of rape on the victim.
16. In the back drop of the aforesaid medical evidence, on going through the oral testimony of the complainant and the prosecutrix, found material contradictions on the point of commission of rape. Whether attempt was made to commit rape or accused had committed sexual assault on her is different aspect. It is the case of the prosecution that he had committed rape on her. There is charge against him that rape was committed on her. Therefore, at the first instance, the truth has to be found out "was any rape on the victim girl".
/ 16 / Spl.C.C.No.246/2014
17. Ex.P.1 is the complaint dated 15/02/2012 lodged by P.W-1 Sagai Mary, mother of the prosecutrix. As per the contents of the complaint, 15 days before lodging the complaint that blood was oozing when she had gone to bathroom. P.W-1 Sagai Mary in her chief examination has stated that the prosecutrix told her that there was bleeding while passing the urine. Admittedly she did not take her to any Doctor for check up. P.W-1 prosecutrix has unequivocally stated in her cross-examination at page No.7 that her mother was not knowing of bleeding in the urine, she did not say before her mother, only at 9.30pm on 14/02/2012 she revealed about bleeding in vagina. On other breath she says that there was no bleeding from vagina at that time i.e., at 9.30pm. It is not the case of the prosecution that underwear or her dress had blood stains at any point of time. Her evidence as to rape is not found to be truthful. Her evidence suffers from material contradictions. There is inconsistency in the / 17 / Spl.C.C.No.246/2014 evidence of prosecutrix and P.W-1, mother of the prosecutrix.
18. As per the case of the prosecution, rape was committed on her at 11.30am on 14/02/2012 in the class room and also prior to 14/02/2012 during past one month. According to prosecution, on 14/02/2012 the accused had committed rape from backside when she bent forward to pick up the chalkpiece. But prosecutrix has stated in her chief examination itself at page No.2
a) "after sending the students outside the class room, he retained her inside, made her lie on the bench, removed his pant, he made an attempt to fall on her, then Head Madam called him, she tried to shout, he closed her mouth and threatened to fail in science subject, by putting on the pant accused went outside".
/ 18 / Spl.C.C.No.246/2014
b) "He made an attempt to fall on her 4 times, the injury was caused in the area of genitalia, at that time Arokya Mary- P.W-3 was outside the class room".
She has also stated that when she bent forward to pick the chalkpiece from the ground, he poked the stick on her buttock, when she protested that she would complain to her mother, he threatened to fail her in Maths and issue TC to her. So far as poking the stick on her buttock, is corroborated by P.W-3 Arokya Mary and P.W-11 Shalini, her class mates. But when the medical evidence does not corroborate the commission of rape on victim, it is very difficult to accept the story of the prosecution.
19. On being examined the prosecutrix, hymen was found intact, there were no tears in the vaginal canal, there were no fresh injuries on the male organ. Even as per the oral testimony of the Doctor, no smegma test was conducted of which is necessary to / 19 / Spl.C.C.No.246/2014 find out as to whether there was smegma on the penis or not, detection of smegma is not only to prove the prosecution case, but also to prove the innocence of the accused. There is also mentioned that vagina does not admit finger. There is no rupture of hymen. In the present case, victim is of tender age i.e., at the age of 11 years only. As per the medical report, one laceration, age of 12 to 24 hours was found. There was no bleeding from her vagina, only injury was found, bleeding was present meant bleeding injury. The presence of injury aged of 12-24 hours does not link the accused even to attempt to rape might have been committed. The evidence of the prosecutrix with respect to commission of rape does not inspire the confidence to hold the guilt of the accused. So far as concerned to asking her to do sums on board, poking the stick on her buttock might have been occurred. The evidence of the prosecutrix as to rape committed by her is not found to be trustworthy. It is very difficult to accept her say that he made her lie on the / 20 / Spl.C.C.No.246/2014 bench by closing the door, he made an attempt to fall on her, then Head Madam called, he went off. As per her say, her class mate Arokya Mary was outside the class room. Nowhere it is stated that windows of the room were kept closed. The prosecutrix has categorically stated in her chief examination at page No.7 even after other students were sent outside the class room, windows were opened. As per the say of P.W-3 Arokya Mary, "the windows are always kept open, a person standing outside can see the things going on inside the class room". Admittedly the 4th Standard/Computer class room is abutting to this room where the occurrence had allegedly taken place. When that is so, it is very difficult to accept the version of the prosecutrix that rape was committed. If the event of rape were to be committed, she could have raised hue and cry. Case of prosecution as to rape is not at all believable, even attempt to rape appears to be doubtful.
/ 21 / Spl.C.C.No.246/2014
20. The complainant is a hearsay witness. P.W-3 Arokya Mary, P.W-11 Shalini are also the hear say witnesses with respect to the act of rape alleged to have been committed by the accused. The other eye witnesses examined on prosecution side are P.W-4 Chowriraj, brother of P.W-1, P.W-5 Karniamma, P.W-6 Sisilia. According to prosecution, they were told by P.W-1. Therefore, the version of the prosecutrix plays an important role in the present case. As already mentioned in supra, it is not the case that mother of the prosecutrix had taken her to Doctor either on 14/02/2012 or prior to that when she complained of bleeding in urine. It is not the case of the prosecution that there was pain or tenderness in the vagina. Medical report at Ex.P.10 does not spell out anything on this aspect. There is clearly mentioned as "PÀ£Áå¥ÉÇgÉ ºÀj¢®è. AiÉÆäAiÀÄ°è ¸Àr®vÉ E®è."
21. According to ocular statement of the prosecutrix, she left the school at 2.30pm. But that is / 22 / Spl.C.C.No.246/2014 not corroborated by her mother. As discussed in supra, on one breath prosecutrix says that there was bleeding in the vagina, on the other breath she says there was no bleeding. Apart from that, as per evidence and also according to her classmates P.W-3 and P.W-11 they were always wearing uniform throughout the week, they had 2 colours of uniform, one is white shirt with long skirt (®AU), another is blue shirt with white long skirt. On Wednesdays and Saturdays they had white uniform, on other days blue uniform. The clothes stated to have been worn by the victim girl at the time of commission of the alleged rape were recovered by the Investigating Officer under Ex.P.8. One is flower designed coffee coloured midi top, another is flower designed maroon coloured long midi, third one is purple coloured underwear. Thus, from stage to stage, inconsistency finds place. Ofcourse, there is no strong defence taken on defence side that why she made such an allegation against a teacher. There is / 23 / Spl.C.C.No.246/2014 one suggestion made in cross-examination of P.W-1 that "for wrongful gain, a false complaint has been made against the accused. He has not committed anything on the victim". It is pertinent to note it is a settled position of law, the prosecution cannot prove its case based on weak evidence of the defence. It has to stand on its own legs. This is the case of January, 2012. The initial and heavy burden lies upon the prosecution to establish its case beyond reasonable doubt that accused has committed the rape on the victim. When the version of the prosecutrix with respect to act of the rape by the accused doesn't command credibility, it is very difficult to implicate the accused for offence of rape. There is no medical evidence as to commission of rape. The oral testimony of the prosecutrix is unworthy of acceptance. The Doctor who examined the victim has given a definite opinion that there was no evidence of recent sexual intercourse, hymen is intact, no tears. Based on uncorroborative and inconsistent evidence of the / 24 / Spl.C.C.No.246/2014 prosecutrix, it is not safe to convict the accused for the offence of rape.
22. P.W-13 Doctor has given another opinion when the Investigating Officer sought for the second time to give definite and separate opinion with respect to whether the sexual intercourse had committed with the prosecutrix, whether the accused had forcible sexual intercourse with her, whether it had been committed by male person or any other object. Ex.P.14 is the separate opinion given by P.W-13 Doctor by answering to the aforesaid 3 questions submitted by the Investigating Officer. The Doctor has given his opinion in Ex.P.14 as under :
a) PÀÄ.eÉÆåÃw ¦æAiÀiÁ¼À ªÉÄÃ¯É ¯ÉÊAVPÀ ¥ÀæAiÀÄwß¹zÀ ¤±Á£ÉUÀ¼ÀÄ PÀAqÀÄ §A¢zÉ JAzÀÄ FUÁUÀ¯É ªÀgÀ¢AiÀÄ°è C©ü¥ÁæAiÀÄ ¤ÃqÀ¯ÁVzÉ.
b) PÀȵÀª Ú ÀÄÆwð ºÀoÀ ¸ÀA¨ÀsÆÃUÀPÉÌ ¥ÀæAiÀÄwß¹gÀĪÀ ¸ÁzÀsåvÉU¼À ÀÄ EzÉ.
c) ºÀoÀ ¸ÀA¨sÉÆÃUÀ ¥ÀæQæAiÉÄ ¸ÀºÀdªÁV ¥ÀÅgÀĵÀ d£À£ÁAUÀ¢AzÁVgÀÄvÀÛzÉ.
What he has stated that attempt to rape had been made by accused is his personal opinion and not / 25 / Spl.C.C.No.246/2014 related to medical science. As already discussed in supra, no semen detected on the clothes or private parts. This does not prove that there is offence of rape or even attempt to rape. Merely because there is one bleeding laceration in the Fourchette, it is not safe to draw the inference that attempt to rape had been made by the accused in the classroom by sending other students to outside the class room. From the proved facts and circumstances, the case of the prosecution itself is doubtful that accused had committed rape or even made an attempt to commit rape. On this aspect, ocular evidence of the prosecutrix does not inspire confidence.
23. There can be no dispute that an expert's evidence is a good evidence. Though Court is not bound by the expert opinion, it is bound to consider the same alongwith other evidence and circumstances appearing in a particular case. The Court can refuse to place any reliance on the opinion of the expert which is not supported by any reasons. So far as the / 26 / Spl.C.C.No.246/2014 medical evidence is concerned, it has never been considered to be a substantive evidence of charge, but has been accepted as corroborative of the charge. A medical man cannot be allowed to give his opinion on matters which are within the province of the Court to decide. When it is not the say of the Doctor that prosecutrix has elastic hymen which could service sexual intercourse, rupture of hymen is not necessary in cases of such elastic hymen, accused can't be held to be guilty of rape.
24. There is no convincing, satisfactory and reliable evidence with respect to penetration, even ejaculation. The sine quo non of the offence of rape is penetration not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape, not actual rape. In the present case, there are no materials to show the ejaculation also. The injury found on the Fourchette could be caused either by washing the private parts or friction of hard clothes. When there are no acceptable materials strengthening / 27 / Spl.C.C.No.246/2014 even attempt to commit rape. It could not be safely said that accused had made an attempt to commit rape because of aforesaid laceration found. The oral testimony of the prosecutrix itself is not found credible and trustworthy. It can be gathered from the oral testimony of the prosecutrix and her classmates P.W-3 and P.W-11, the accused used to call her to do sums on board, used to pull her, when she bent to pick chalkpiece, poked stick on her buttock, used to give punch on her buttock. It would be an offence of outraging the modesty of a woman.
25. The learned Public Prosecutor has referred me to a ruling reported in 2007(1) Crimes 22 S.C (State of Kerala V/s Kurissum Mattil Antony) wherein the Hon'ble Apex Court has held that:
"accused was convicted by trial Court for having committed carnal intercourse against order of nature on victim, corroboration could not be insisted where case spoken to by victim strikes judicial mind as probable-Evidence of a / 28 / Spl.C.C.No.246/2014 victim of sex offence was entitled to great weight, absence of corroboration not withstanding."
26. The aforesaid ruling does not help the prosecution in establishing its case beyond the reasonable doubt that there was rape or attempt to rape by the accused. I have already discussed at length in supra with respect to inconsistency in the evidence of the prosecutrix, her ocular statement does not command credibility. Even according to medical evidence, hymen is intact. Except that one bleeding laceration injury, other things are normal. From the proved facts and circumstances, it is very difficult to hold conclusively that rape or attempt to rape was committed by the accused.
27. The another ruling is (1996) 2 S.C.C 384 (State of Punjab V/s Gurmit Singh and Others) wherein the Hon'ble Apex Court has held :
/ 29 / Spl.C.C.No.246/2014 "the evidence of victim of sexual assault- Corroboration not necessary-Conviction can be founded on her testimony alone unless there are compelling reasons for seeking corroboration- on facts, even though no corroboration is required yet there is sufficient corroboration from the medical evidence and report of the chemical examiner."
28. The aforesaid ruling also is not much helpful to the prosecution to prove the commission of rape or attempt to rape. Ofcourse, minor contradictions or insignificant discrepancy in the statement of the prosecutrix should not be a ground for throwing out the otherwise reliable prosecution case. But in the present case according to oral testimony of the prosecutrix, on one breath she says there was bleeding, she never stated before her mother that she had bleeding in vagina, on the other breath she says while passing urine, bleeding was there, on 14/02/2012 no bleeding was there. There is no / 30 / Spl.C.C.No.246/2014 sufficient and credible evidence to show the bleeding from vagina as on the dates of commission of the alleged rape. As per her say, she left school at 2.30pm, but according to her mother statement, as usual she returned home by 4.30pm and even there is no evidence with respect to pain in vagina or tenderness. Therefore, the contradictions and discrepancies found in her statement cannot be perfectly based to hold the guilt of rape or attempt to rape. From the materials before the Court, it could be held that he had committed the outraging the modesty of a woman punishable under Section 354 of I.P.C.
29. The 3rd ruling is 2004(4) Crimes 50 (Sri Narayan Saha & Another V/s State of Tripura), wherein the Hon'ble Apex Court has held :
"Delay of 5 days in lodging F.I.R and absence of medical evidence to support rape charge- Mere delay in lodging F.I.R would be of no consequence if reason is explained- prosecutrix of sex offence could not be put on / 31 / Spl.C.C.No.246/2014 par with accomplice-Court however must be alive to and conscious of fact that it was dealing with evidence of a person interested in out come of the charge levelled by her-If prosecutrix did not have strong motive to falsely involve the person charged, Court should ordinarily have no hesitation in accepting evidence-conviction based on unimpeached testimony of victim called for no interference.
30. I have no dispute with respect to principles laid down therein, but so far as concerned to whether rape was committed or attempt to rape was committed, I do not find reliable and convincing evidence. The prosecutrix is not an adult, she was of 11 years only what is her mental capacity of understanding the things happened has to be considered alongwith other evidence available before the Court. The totality of the circumstances appearing on record creates the doubt about the commission of rape or even to attempt to / 32 / Spl.C.C.No.246/2014 rape. Merely because the prosecutrix does not have strong motive to falsely involve the person charged, the accused can't be implicated to offence of rape or offence of attempt to rape. Her evidence does not lend assurance for commission of rape, but it could be held an offence under Section 354 of I.P.C only.
31. Last ruling is 2005(1) Crimes 333 Karnataka High Court (Syed Pasha V/s State of Karnataka) wherein the Hon'ble High Court of Karnataka has held that :
"while dealing with rape cases, duty was cast on Court to have utmost sensitivity and to appreciate evidence in totality- Doctor who examined accused had opined that when a robust man aged about 25 years was involved in act of sexual intercourse with a child victim there may or may not be injuries on his penis-non-appearance of injury on penis was of no help to him."
/ 33 / Spl.C.C.No.246/2014
32. The aforesaid ruling has no application to the present case. In the case on hand, the accused was aged about 68 years. Ofcourse, there is a suggestion made on defence side in the cross-examination of prosecutrix witnesses that accused is hard of hearing and also has eye sight problem. Except the bare suggestion, there are no materials to believe the same. This is the matter relating to 2012. Now the accused who has appeared before the Court on hearing dates appears to be old aged person, may be because of the age factor his walking style is not normal. Irrespective of the present things, what was his physical capacity as on the date of the commission of the offence is the point for consideration, but it is nobody's case that he is a robust man running in 20s, 30s, 40s, but was of 68 years as on that date. Therefore, the aforesaid ruling does not extend any help to the prosecution in proving the commission of rape beyond shadow doubt.
33. On prosecution side examined the Investigating Officer as P.W-4. He has reiterated regarding / 34 / Spl.C.C.No.246/2014 investigation, conducting the Mahazar and collecting materials etc. But the prosecution has miserably failed to make out its case beyond reasonable doubt that there was commission of rape by the accused, even there are no acceptable evidence to hold guilt of attempt to rape on the victim. In the complaint at Ex.P.1 not mentioned about bleeding on that day. Even in 161 statement of the prosecutrix, not mentioned about bleeding in her vagina on 14/02/2012 or on any other day prior to that date. Even in 161 statement of the victim, she has not stated about the injury caused by the accused in her genitalia. She had given statement before the Investigating Officer that he committed rape from backside when she bent forward to pick up the chalkpiece. The prosecution has miserably failed to establish the commission of rape by the accused, but accused could be held to have committed out raging the modesty of woman. The prosecution has succeeded in establishing the offence under Section / 35 / Spl.C.C.No.246/2014 354 of I.P.C from the ocular testimony of the prosecutrix, corroborative evidence of P.W-3 and P.W-11. Ofcourse, there is nothing wrong in getting students to do sums on board, but having sexual intention sending the students outside the class room, while doing sums pulling her, while picking chalkpiece from the ground piercing the stick on her buttock, giving punch on her buttock establishes sexual intention of the accused. The accused is found guilty of the offence punishable under Section 354 of I.P.C. I do not find any force in the arguments addressed by the learned counsel for the accused that accused had no interest in sex because of his age factor, when it was as such, there was no possibility of committing any sexual abuse. The prosecution has proved the case for offence of 354 of I.P.C beyond reasonable doubt from corroborative, reliable evidence and otherwise acceptable materials. There is nothing to constitute commission of rape or even attempt to rape, but it could be offence under Section 354 of I.P.C.
/ 36 / Spl.C.C.No.246/2014 When there is charge against the accused for the offence greater in degree, if the offence lesser in degree is found to have been committed by the accused, he could be held guilty for the lesser offence. There is no bar to hold the guilt of the accused for the lesser offence. Hence, I hold point No.1 Affirmative in part as it is affirmative for the offence punishable under Section 354 of I.P.C.
34. Point No.2 : According to prosecution case that accused threatened P.W-4 to fail her in Maths and Science if it is revealed to anybody. He gave such a threat to her not only on 14/02/2012, but also prior to that when he did several times during the span of one month before 14/02/2012. While discussing the point No.1, I have already discussed with respect to this point also about the oral testimony of the prosecutrix and also the allegations made in the complaint at Ex.P.1. The victim girl was of 11 years only. Though that threat was not to cause injury or to cause death, but threat to fail her in Maths and Science made her / 37 / Spl.C.C.No.246/2014 silent without disclosing about the illegal acts of the accused. But she disclosed on 14/02/2012 at 9.30pm only. This is corroborated by the evidence of mother of the prosecutrix. It is also strengthened by the ocular testimony of P.W-4, prosecutrix. The Investigating Officer has also stated that prosecutrix had given such a statement while recording 161 statement. P.W-3 Arokya Mary and P.W-11 Shalini, the classmates of the prosecutrix are the hearsay witnesses, not eye witnesses. However, according to their ocular statement, the prosecutrix subsequently disclosed this fact before them after the incident on 14/02/2012. P.W-11 has not fully supported the prosecution in her chief examination, she was treated hostile. In her cross-examination led by the learned Public Prosecutor, she has fully supported the prosecution, so also she has stated that prosecutrix revealed before them about the threat given by the teacher. She maintained silence, after the incident on 14/02/2012 only it came to light. There is nothing to disbelieve the / 38 / Spl.C.C.No.246/2014 oral testimony of P.W-4, prosecutrix, P.W-3 and P.W-11. The prosecutrix has stated the same in her oral evidence, same allegations have been made in the complaint. Whether it attracts the ingredients of the Section 506 of I.P.C.
35. Section 506 of I.P.C provides punishment for criminal intimidation. It reads as under :
"whoever commits the offence of criminal intimidation shall be punished with imprisonment for a term which may extend to 2 years or with fine or with both."
The prosecution has placed believable, reliable and trustworthy evidence with respect to criminal intimation committed by the accused on the victim girl. Ofcourse, the threat given by him is to fail her in subjects and issue TC. Though he is not proper authority to issue TC, the victim girl is of tender age, her mental capacity of understanding all those things should not be discarded. When the girl who is 11 years studying in 5th Standard might not be knowing / 39 / Spl.C.C.No.246/2014 all these things. The prosecution has proved beyond reasonable doubt that there was commission of criminal intimidation on victim girl. Hence, I hold point No.2 in the Affirmative.
36. Point No.3: In view of my above discussion and findings, I proceed to pass the following:
ORDER Accused is found guilty of the offences punishable under Section 354 and 506 of I.P.C..
To hear regarding sentence.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court on this the 30th day of March, 2015.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
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ORDER ON SENTENCE
Heard on both sides regarding the sentence. The learned counsel for the accused has submitted that health condition of the accused is not good, even he is not in a position to move, he requires someone's assistance to go anywhere. He has heart problem, he is also a diabetic patient. He hails from poor family. Hence, sympathy may be shown in imposing the sentence. The offence proved against the accused punishable under Section 354 and also 506 of I.P.C are punishable with imprisonment for 2 years or fine or both. Under the circumstances, the Court can exercise discretion in imposing the sentence.
2. The learned Public Prosecutor has submitted that he has committed the out raging the modesty of a girl who is of 11 years. The proper sentence may be imposed.
3. On looking to records, the guilt of the accused for the offence punishable under Section 354 of I.P.C / 41 / Spl.C.C.No.246/2014 and Section 506 of I.P.C is proved. The Charge Sheet against the accused was 376 of I.P.C and also for the offence under Section 506 of I.P.C. But the accused is found guilty of the offence under Section 354 of I.P.C, not for the offence of rape and for offence under Section 506 of I.P.C. The offence under Section 354 of I.P.C is punishable with imprisonment for 2 years or fine or with both, so also in the case of offence under Section 506 of I.P.C. As on the date of incident, he was of 68 years. Now he is at 70s. This case has been transferred to this Court on the point of jurisdiction from previous Court. On looking to the accused, he appears to be not in a position to walk on his own, it may be because of his age factor or as submitted by the learned counsel due to old aged ailments. While awarding the sentence, Court must take into consideration, the facts and circumstances of each case, large number of relevant factors. The age of the accused is also relevant. Although the wide discretion has been conferred upon the Court, the same must be / 42 / Spl.C.C.No.246/2014 exercised judiciously. Taking over all view of the facts and circumstance of the instant case, the ends of the justice could be met in imposing the sentence for fine only. Hence, I proceed to pass the following :
ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted :
a) for the offences punishable under Section 354 of I.P.C. and sentenced to undergo Simple Imprisonment of 4 months 26 days and to pay fine of Rs.2,000/- in case of default, he shall undergo Simple Imprisonment of three months.
b) for the offence punishable under Section 506 of I.P.C. and sentenced to undergo Simple Imprisonment of 4 months and to pay fine of Rs.2,000/-, in case of default, he shall undergo Simple Imprisonment of three months.
c) Both the sentences shall run
consecutively.
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d) If fine is deposited, same be paid to PW2-prosecutrix, as compensation.
e) The J.C. period of accused from 15/02/2012 to 11/12/2012 i.e., 8 months 26 days shall be set off as required under Section 428 of Cr.P.C.
Issue copy of judgment free of cost to the accused forthwith.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court on this the 31st day of March, 2015.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
****** ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION P.W.-1 Sagai Mary P.W.-2 Jyothi Priya P.W.-3 Arokya Mary P.W.-4 Chowriraj / 44 / Spl.C.C.No.246/2014 P.W-5 Karniamma P.W-6 Sisilia P.W-7 Panchakshari P.W-8 Krishnamurthy P.W-9 Bhima Nayak P.W-10 O.V.Mohanan P.W-11 Shalini P.W-12 Anthonyraj P.W-13 Dr.B.M.Nagaraj P.W-14 Mallikarjun.M LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Complaint Ex.P.1(a) Signature of P.W-1 Ex.P.2 Mahazar Ex.P.2(a) Signature of P.W-1 Ex.P.2(b) Signature of P.W-2 Ex.P.2(c) Signature of P.W-3 Ex.P.3 Report Ex.P.3(a) Signature of P.W-7 Ex.P.4 F.I.R Ex.P.4(a) Signature of P.W-8 Ex.P.5 Attendance certificate Ex.P.6 Attendance certificate Ex.P.7 Statement of P.W-11 Ex.P.8 Mahazar Ex.P.9 Requisition / 45 / Spl.C.C.No.246/2014 Ex.P.10 Medical report of P.W-2 Ex.P.11 Requisition Ex.P.12 Medical report of accused Ex.P.13 Requisition to FSL Ex.P.14 Opinion of P.W-13 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION MO-1 Flower designed coffee coloured midi MO-2 Flower designed maroon coloured skirt MO-3 Underwear MO-4 Shirt MO-5 Baniyan MO-6 Pant MO-7 Underwear LIST OF WITNESSES EXAMINED, DOCUMENTS MARKED AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
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