Bangalore District Court
The State Of Karnataka vs Anil @ Anil Kumar on 21 February, 2018
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU
Dated this the 21st Day of February 2018
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
Bengaluru
SPECIAL C.C. No. 255/2014
COMPLAINANT:
The State of Karnataka
By Kodige Halli Police Station,
Bangalore
[Public Prosecutor-Bangalore]
/ VERSUS /
ACCUSED:
Anil @ Anil Kumar
S/o Sriramappa, 23 years,
R/at. Seva Mandira
Madakashira Road,
Hindupur,
Ananthapura District,
Andhra Pradesh.
[By Sri.H.N.C.K. Advocate]
1 Date of commission of offence 16-03-2012
2 Date of report of occurrence 26-03-2012
3 Date of arrest of Accused 29-03-2012
Date of release of Accused 04-07-2013
Period undergone in custody 05 Days &
by Accused 03 months
2 Spl.C.C.No.255/2014
4 Date of commencement of evidence 19-02-2013
5 Date of closing of evidence 19-04-2017
6 Name of the complainant Lakshmi Narayana
7 Offences complained of Section 366 &
376-IPC
8 Opinion of the Judge Accused is
acquitted
9 Order of Sentence As per the
final order
JUDGMENT
This charge sheet filed by Sub-Inspector of Police, Kodige Halli Police Station-Bangalore against the accused for the offences punishable under Section 366-A and 376 of IPC.
2. Since it is a case of kidnap and rape of minor girl, as such the name of the victim girl is no where shown in the course of judgment as mandated under Section 227(A) of Cr.P.C. However her name is referred to as 'victim girl' wherever her name is necessary.
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
That on 16-03-2012 at about 07.30 p.m., the accused near Kodige Halli Railway Station-Bengaluru, induced Cw.2-the 3 Spl.C.C.No.255/2014 victim girl stating that he is going to marry her, kidnapped her and raped her against her will. On 28-03-2012 the accused and the victim girl were traced by Cw.7, Cw.8 and Cw.12, brought and produced before SHO. On the basis of complaint lodged by the complainant, the respondent/police registered the case against the accused for the offence punishable under Section 366-A IPC. After recording the statement of the victim girl, section 376 of IPC was inserted and thereby committed offences punishable under Section 366-A and 376 of IPC.
4. The Investigation Officer has investigated the same and filed charge sheet against accused for the offences punishable under Section 366-A and 376 of IPC. Thereafter, after filing charge sheet, as usual the accused appeared before the Court. The committal Court furnished free copy of charge sheet to the accused as contemplated under Section 207 of Cr.P.C. Since the victim girl is minor, the committal Court passed an order committing the case to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru, for further proceedings.
4 Spl.C.C.No.255/2014
5. Initially the case was made over to FTC-VI for disposal and registered as S.C.No.745/2012. Thereafter as per notification No. RSB No.67/2014 dated 08-05-2014 of Hon'ble High Court of Karnataka, Bengaluru the said case transferred to this Court-CCH-51. After receiving the record by this Court, the summons was issued to the accused, he has appeared before this Court and he was enlarged on bail by executing personal bond and producing like sum surety. Thereafter the learned advocate for accused submitted no arguments before framing charge. On perusal of charge sheet, the learned predecessor in office framed charge under section 366 and 376 of IPC, since the facts and circumstances attract only in respect of said offences and not under section 366-A of IPC on 11-02-2013. Hence, the contents of the charge read over and explained to the accused in Kannada, he has pleaded not guilty and submit crime to be tried. Thereafter the case against accused was set down for prosecution evidence.
6. The prosecution in order to establish the guilt of the accused has examined in all 12 witnesses as Pw.1 to Pw.12, got marked 6 documents as Ex.P1 to Ex.P6 and closed its side 5 Spl.C.C.No.255/2014 evidence. In view of available incriminating evidence appeared against the accused, he was examined under Section 313 of Cr.P.C., by recording his statement. The accused denied the alleged incriminating evidence appeared against him. While cross-examining the prosecution witnesses the accused got marked Ex.D1 to Ex.D3, but no defense evidence is produced. Earlier to that he has complied the provisions of Section 437-A of Cr.P.C, by executing personal bond and surety. Thereafter arguments heard from both the sides and the matter is set down for judgment.
7. The learned advocate for accused relied on the decisions reported in (1) 2011 Cr.R. Page 582 (2) 2003 Crl.L.J. Page 4914 (3) 1987 Crl.L.J. Page 1266 (4) 1997 Crl.L.J. Page 1018 (5) 2009 Crl.L.J. Page 3255 (6) 1983 Crl.L.J. Page 1819 (7) 2006 Crl.L.J. Page 3276 (8) 2004 Crl.L.J. Page 4776 (9) 1977 Crl.L.J. Page 238 (10) 1979 Crl.L.J. Page 1087 (11) 1990 Crl.L.J. Page 511 (12) (1987) 1 SCC Page 679 (13) 2004 Crl.L.J. Page 4776 (14) 2003 Crl.L.J. Page 5002 (15) LAWS (PAT) 2015 Page 1032 and (16) 2001 Crl.L.J. Page 1176.
6 Spl.C.C.No.255/2014
8. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arise for my consideration are as under:-
1. DgÉÆæAiÀÄ ¢£ÁAPÀB16-03-2012 gÀAzÀÄ ¸ÀAeÉ 07.30 UÀAmÉAiÀÄ°è ZÁ¸Á.2-£ÉÆAzÀ ¨Á®QAiÀÄ£ÀÄß PÉÆqÀÄUÉúÀ½î gÉ樀 ¤¯ÁÝtzÀ §½¬ÄAzÀ CPÉAiÀÄ£ÀÄß ªÀÄzÀĪÉAiÀiÁUÀĪÀÅzÁV ¥ÉæÃgÉæ¹ ¥ÀŸÀ¯Á¬Ä¹ C¥Àºj À ¹PÉÆAqÀÄ ºÉÆÃV ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ 366gÀÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªgÀ ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ ¥Àr¹gÀĪÀgÃÉ ?
2. DgÉÆæAiÀÄ £ÉÆAzÀ ¨Á®QAiÀÄ£ÀÄß CPÉAiÀÄ EZÉÑUÉ «gÀÄzÀª Ý ÁV £Á£Éà ¤£ÀߣÀÄß ªÀÄzÀĪÉAiÀiÁUÀĪÀÅzÀÄ JAzÀÄ ¥ÀŸÀ¯Á¬Ä¹, CPÉAiÀÄ EZÉA Ñ iÀÄ «gÀÄzÀª Ý ÁV ¸ÀA¨sÉÆÃUÀ ªÀiÁr ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ 376 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £À ÀÄß J¸ÀVzÁÝgAÉÀ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ ¥Àr¹gÀĪÀgÃÉ ?
3. AiÀiÁªÀ CzÉñÀ?
9. My findings on the above points are as under:-
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: As per the final orders for the following:
REASONS
10. Point No.1 and 2: As these points are inter-related, hence, I have taken up together for my consideration in order to avoid repetition of reasonings.
11. Perused the entire record, charge sheet, evidence 7 Spl.C.C.No.255/2014 produced both at oral and documentary and arguments canvassed by the learned advocate for the accused and the learned Public Prosecutor coupled with relied on decisions.
12. In order to prove the alleged offences against the accused the prosecution examined in all 12 witnesses as Pw.1 to Pw.12 got marked 6 documents as Ex.P1 to Ex.P6. While cross-examining the prosecution witnesses, the accused got marked Ex.D1 to Ex.D3 and this Court perused the same.
13. As per the prosecution case, Pw.1 is the complainant and father of the victim girl, Pw.4 is the mother of the victim girl, Pw.7 is the victim girl, Pw.6, Pw.8 and Pw.9 are the circumstantial witnesses, Pw.2, Pw.3, Pw.5, Pw.10 are the police witnesses. Pw.11 is the doctor who examined the victim girl and the accused and Pw.12 is the Social worker. Hence, this Court shall proceed to see whether the available evidence of said witnesses is sufficient for establishing the offences alleged against the accused.
14. In order to establish the alleged offences against accused the prosecution is required to prove that on 16-03- 8 Spl.C.C.No.255/2014 2012 at about 07.30 p.m., the accused near Kodige Halli Railway Station-Bengaluru, induced Cw.2-the victim girl stating that he is going to marry her, kidnapped her and raped her against her will and thereby committed offences punishable under Section 366 and 376 of IPC. Hence, this Court shall proceed to see whether the prosecution has succeeded in establishing all the aforesaid ingredients of the alleged offences against accused beyond all reasonable doubt.
15. Before venturing into scan the available materials evidence on record, it is necessary to mention the very definition of offences under Section 366 and 376 of IPC.
Section 366 of IPC defines that:
Kidnapping, abducting or inducing woman to compel her marriage, etc-Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order 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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority to any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.9 Spl.C.C.No.255/2014
Section 376 of IPC defines that:
Punishment for rape-Whoever, except cases provided for by sub-section (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
16. By going through the facts and circumstances, it is just and proper to mention the common contentions of the prosecution with regard to the relationship of victim girl and the complainant and also with the accused. As per the evidence of Pw.1, Pw.4 to Pw.7, it is not in dispute that the complainant having wife by name Lakshmi and they got four children, out of them three are daughters and one is son. The victim girl is the second daughter of the complainant. It is also not in dispute that the accused is known to the complainant since from 3 to 4 years as on the date of alleged incident and both the complainant and the accused were residing at neighbouring houses, but they belonged to different casts. It is also not in dispute that the accused is working as two wheeler mechanic at Kodige Halli. It is also not in dispute that the accused's family and the family of the complainant were in cordial relationship, having friendly atmosphere in both family relationships. The 10 Spl.C.C.No.255/2014 first daughter's name is Ramyashree, second daughter is the victim girl, third daughter's name is Sowmya and son is Pavan Kumar. As on the date of incident, it is their evidence that the age of first daughter is 18 years, second daughter-the victim girl was 17 years and according to them the victim girl was born on 21-11-1995. As on the date of lodging of complaint the victim girl was studying at 10th standard at Seva Mandira Z.P. High School, now she is not studying. The son of the complainant was studying 7th standard and he has not performed the marriage of his first daughter. Further the Pw.1 admitted that:
"£ÀªÀÄä ¥ÀPÀÌzÀ ªÀÄ£ÉAiÀÄ°èzÀÝ DgÉÆæ ªÀÄ£ÉUÉ £ÀªÀÄä ªÀÄ£ÉAiÀĪÀgÄÀ ºÉÆÃUÀÄwÛzÀÄÝ, DgÉÆæAiÀÄ ªÀÄ£ÉAiÀĪÀgÀÄ £ÀªÀÄä ªÀÄ£ÉUÉ §gÀÄwÛzg ÝÀ ÄÀ JAzÀgÉ, ¸ÁQë £ÀªÀÄä-£ÀªÀÄä ªÀÄPÀ̼ÀÄ ºÉÆÃV §AzÀÄ ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀÄ £ÀÄr¢zÁÝg.É £À£Àß ªÀÄUÀ¼ÀÄ ¥ÁªÀ¤ ªÀÄvÀÄÛ C¤¯ï CPÀÌ-¥ÀPÀÌzÀ ªÀÄ£ÉAiÀĪÀgÁV ¸ÉßúÀ¢AzÀ EzÀg Ý ÀÄ J£ÀÄߪÀÅzÀÄ ¸Àj."
It is also not in dispute the complainant working as painter, usually he went to his work in the morning and returns in the night only. He knows Kannada, but not having fluency in Kannada. Further he has admitted that:
"DgÉÆæ £ÀªÀÄä ªÀÄ£ÉAiÀÄ ¥ÀPÀÌzÀ ªÀÄ£ÉAiÀÄ°è ªÁ¸À«zÀÝ JAzÀgÉ ¸Àj. DUÀ DvÀ £À£ÀUÉ agÀ¥j À avÀ£ÁVzÁÝ£A É zÀgÉ ¥ÀjZÀAiÀÄ«zÁÝgÉ JAzÀÄ ¸ÁQë ºÉüÀÄvÁÛg.É "11 Spl.C.C.No.255/2014
17. On perusal of evidence of Pw.4-the mother of the victim girl, she has also supported the admitted evidence of Pw.1. Further she has also stated that:
"WÀl£É DUÀĪÀÅzÀQÌAvÀ ¸ÀĪÀiÁgÀÄ 3 ªÀµð À UÀ½AzÀ DgÉÆæ £À£U À É ¥ÀjZÀAiÀÄ EzÀ.Ý CªÀ£ÀÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ ¥ÀPÀÌ ªÁ¸ÀªÁVzÀ.Ý D 3 ªÀµð À zÀ CªÀ¢Aü iÀÄ°è £ÀªÀÄä ªÀÄ£ÉAiÀĪÀgÀÄ ªÀÄvÀÄÛ DgÉÆæAiÀÄ ªÀÄ£ÉAiÀĪÀgÄÀ ZÉ£ÁßVzɪ Ý ÀÅ CAzÀgÉ ¸Àj. "
On perusal of evidence of Pw.7-the victim girl she has also deposed by supporting the admitted evidence of Pw.1 and Pw.4. She has also admitted that:
"F WÀl£ÉUÀÆ ªÀÄÄAZÉ §ºÀ¼À ªÀµð À UÀ½AzÀ DgÉÆæ £À£U À É ¥ÀjZÀAiÀÄ. DgÉÆæ C¤¯ï £ÀªÀÄä ªÀÄ£ÉAiÀÄ ¥ÀPÀÌzÀ°è ªÁ¸ÀªÁVzÁÝ£.É "
She has also admitted that:
"DgÉÆæ ªÉÄPÁå¤Pï PÉ®¸À ªÀiÁqÀÄwÛz£ ÀÝ ÀÄ. F WÀl£É £Àqz É ÁUÀ £Á£ÀÄ 10£Éà vÀgÀUÀw N¢ ©nÖzÉ.Ý F WÀl£ÉUÀÆ ªÀÄÄAZÉ £Á£ÀÄ 10£Éà vÀgU À w À N¢ 4 ªÁgÀ ªÀÄÄAzÉ ©nÖzÉ.Ý "
By going through the evidence of Pw.8 he has also admitted that:
"DgÉÆæ C¤¯ï £ÀªÀÄä aPÀÌ¥Àà ®Qëä £ÁgÁAiÀÄtgÀªg À À ªÀÄ£ÉAiÀÄ ¥ÀPÀÌzÀ°è ªÁ¸À«zÀg Ý ÀÄ JAzÀgÉ ¸Àj."
Pw.9 has also deposed that:
"DgÉÆæ ®Qëä£ÁgÁAiÀÄtgÀªg À À ªÀÄ£ÉAiÀÄ ¥ÀPÀÌzÀ°z è ÀÄÝ £Á£ÀÄ C°è ºÉÆÃUÀÄvÁÛ §gÀÄvÁÛ 5 jAzÀ 6 ¨sÁj £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄA¢gÀĪÀ CgÉÆæAiÀÄ£ÀÄß £ÉÆÃrgÀÄvÉÃÛ £É."
The above said admitted evidence crystallizes that both the 12 Spl.C.C.No.255/2014 complainant and accused are neighbourers, well known with each other and the accused is not stranger to the family of the complainant. It is also not in dispute that at the time of alleged incident that the victim girl not going to the school and she has studied up to 10th standard. With these observation now left with the available material evidence to consider whether the prosecution has established the alleged offences against accused beyond all reasonable doubt. Now left with the evidence of Pw.1- the complainant
18. Pw.1-the complainant deposed that on 16-03-2012 himself, his wife and the victim girl went to Bengaluru from Hindupur to purchase clothes for Ugadi festival and they traveled in rail. After purchase of clothes they return to Hindupur in a train at about 06.00 p.m., when they reached Kodige Halli railway station at about 07.30 p.m., the victim girl stating that she wants to go for nature call, got down from the rail, but she didn't boarded the train. He was thinking that she has boarded another compartment, but when the rail reached Hindupur, she has not got down from the rail. He returns to home and on the next day he has searched the victim girl, but 13 Spl.C.C.No.255/2014 she was not traced out. After three days of missing of the victim girl the accused called the complainant over phone stating that he has taken the victim girl and also requested not to search her, for that he has lodged complaint on 26th as per Ex.P1 and his signature is Ex.P1(a). The police also conducted mahazar as per Ex.P2 and his signature is Ex.P2 (a). At the time of alleged incident, the victim girl was student of 10th standard, having aged 15 to 16 years. After lodging the complaint the police traced the victim girl and handed over her to her parents. After that he came to know that the accused had taken the victim girl to Kushala Nagar. On enquiry with the victim girl she told that the accused had taken her to Dharmastala and then to Kushala Nagar and then married her before Ganesha Temple and thereafter he has raped her, even though she was not willing. The accused threatened her with dire consequences stating that if she had not consented for marriage, he is going to kill her. He has also identified the accused as the person who had taken his daughter-the victim girl.
19. Here on perusal of Ex.P1-the complaint, he has suspected about the accused and requested to take action 14 Spl.C.C.No.255/2014 against him and except that no such other information stated in the said complaint by him. On perusal of charge sheet he has stated re-statement before the police. The accused tested his veracity by eliciting some commission and omission and elicited the admitted fact as stated supra. In respect of age of the victim girl the accused elicited about school certificate given by him, but he has not produced any horoscope or birth certificate. The certificate issued by Head Master of Z.P. High School, Seva Mandira, A.P., wherein the authorities certified that the victim girl was the student of said institution from 2006-2007 to 2009- 2010 and she was born on 21-04-1996. Admittedly the incident was taken place in the year 2012, as on that day the victim girl was not the student of Z.P. High School as deposed by Pw.1. He has deposed that the victim girl was born on 21-11-1995, whereas the school authority given certificate that she was born on 21-04-1996 in order to prove the genuinity of existence of Ex.P6, the signatory of said document not stepped into the witness box. Moreover the Investigation Officer also not collected the original documents to prove the date of birth of the victim girl is either 21-11-1995 or 21-04-1996 as deposed by the 15 Spl.C.C.No.255/2014 complainant and entry in the school certificate. Non- investigation of the age of the victim girl by the Investigation Officer and non-production of authenticated document coupled with oral and documentary testimony of the said document, it is absolutely fatal to the case of prosecution to believe the age of the prosecurtrix as on the date of incident as 15 to 16 years.
20. At this stage it is worthwhile to emphasis on the decision reported in:
1. (NOC) 710(BOM), wherein it had been observed that:
"S.375, Cl. Sixthly-Rape-Age of victim-Proof-Date of birth mentioned in school certificate-Head Master of her school deposing that entry as to her date of birth was made on basis of school leaving certificate from first attended school-He proving document on basis of original record-Date of birth mentioned in school certificate can be taken as her date of birth ."
2. (NOC) 621 (Raj), wherein it had been observed that:
"S.366-Kidnapping to compel marriage-
Appreciation of evidence-Accused allegedly kidnapping victim, aged 17 years and raping her-Victim and accused residing in neighbourhood and having love affair-Victim deposing that accused after kidnapping her took her from one city to another and also tried to sell her-No alarm raised by victim when she ws taken to different cities raising doubts on her testimony-As per evidence of witnesses, victim going with accused and committing sexual intercourse with her consent-No evidence to prove guilt of accused-Accused entitled to acquittal ." 16 Spl.C.C.No.255/2014 Though the facts and circumstances of the above case decisions and the facts and circumstances of the case on hand are different one but the ratio of principle is applicable to the present case on hand.
21. The accused further cross-examined Pw.1 in respect of non-taking immediate steps, when the victim girl gone out from the railway for nature call and not boarded the train immediately when the train was started to move further. Pw.1 admitted that on that day, except the victim girl the other children not accompanied with the complainant and his wife, since the victim girl made allegations with her parents of not purchasing good clothes for her, as such he as taken the victim girl along with them to purchase the clothes. Further after purchase of the said clothes, he has shown Lalbagh and Cubbon Park to the victim girl and boarded the rail. He has admitted that:
"¨ÉAUÀ¼ÀÆgÀÄ ºÁUÀÆ »AzÀÆ¥ÀÅgÀU¼ À À £ÀqÀÄªÉ 16 gÉʯÉéà ¤¯ÁÝtUÀ¼ÄÀ ¹UÀÄvÀªÛ .É ¥Àæw gÉ樀 ¤¯ÁÝtzÀ°è 2 jAzÀ 5 ¤«ÄµÀU¼ À À PÁ® ¤®Äèvz ÛÀ É JAzÀÄ £À£ÀUÉ UÀÉÆvÀÄ.Û J¯Áè gÉÊ®ÄUÀ¼® À Æè ±ËZÁ®AiÀÄ ºÁUÀÆ ªÀÄÆvÁÛæ®AiÀÄ EgÀÄvÀz Û É J£ÀÄߪÀÅzÀÄ ¸Àj. D ¢£À ¨ÉAUÀ¼ÀÆj¤AzÀ »AzÀÆ¥ÀÅgÀPÌÉ £ÁªÀÅ ¥ÀæAiÀiÁ ªÀiÁqÀÄwÛzÀÝ gÉ樀 ¯ÉÆÃPÀ¯ï gÉ樀 DVvÀÄ.Û D ¢£À £Á£ÀÄ ªÀÄÆgÀÄ nPÉmï ¥ÀqzÉ ÀÄ gÉ樀 ºÀwz Û .É "17 Spl.C.C.No.255/2014
Further he has deposed that:
"£ÁªÀÅ ªÀÄzÀsåzÀ PÀA¥ÁmïðªÉÄAmï£À°è PÀĽwÛzªÉÝ ÀÅ. D ¢£À PÉÆqÀÄUÉà ºÀ½îAiÀÄ°è D ¢£À gÉ樀 2 jAzÀ 3 ¤«ÄµÀU¼ À À PÁ® ¤AwvÀÄ.Û gÉÊ°£À°è vÀÄA¨Á d£ÀjzÀÄÞ £ÀªÀÄä ªÀÄUÀ¼ÀÄ gÉÊ°£À°g è ÀĪÀ ±ÀGZÁ®AiÀÄPÉÌ ºÉÆÃzÀ¼ÉÆà CxÀªÁ gÉʯÉéà ¤¯ÁÝtzÀ°è EgÀĪÀ ±ËZÁ®AiÀÄPÉÌ ºÉÆÃzÀ¼ÉÆà £Á£ÀÄ UÀªÄÀ ¤¸À°®è. £À£Àß ªÀÄUÀ¼ÉÆA¢UÉ ºÉÆÃzÀ £À£Àß ¥Àwß £À£Àß ªÀÄUÀ½UÉ ¤Ã£ÀÄ ¨ÉÃUÀ ¨Á JAzÀÄ ¥ÀPÀÌzÀ ¨ÉÆÃVUÉ ºÉÆÃzÀ £À£Àß ªÀÄUÀ½UÉ ºÉý £À£Àß ¥Àwß £ÀªÀÄä ¨sÉÆÃVAiÀįÉèà ¤AwzÀ¼ Ý ÀÄ."
Again he has deposed that:
"PÉÆqÀÄUÉà ºÀ½î gÉ樀 ¤¯ÁÚ¢AzÀ »AzÀÆ¥ÀÅgÀPÉÌ gÉ樀 vÀ®Ä¥À®Ä 1 UÀAmÉ 30 ¤«ÄµÀ¢AzÀ 2 UÀAmÉ vÀU® À ÄvÀz Û .É ¸Àzj À CªÀ¢A ü iÀÄ°è £ÀªÄÀ ä ªÀÄUÀ¼ÀÄ PÁtÄwÛ®è è J£ÀÄߪÀ DvÀAPÀ £ÀªÀÄUÉ D¬ÄvÀÄ. £À£Àß ªÀÄUÀ¼ÄÀ PÁtÄwÛ®è J£ÀÄߪÀ «ZÁgÀª£ À ÀÄß £Á£ÀÄ CPÀÌ×¥P À ÀÌzÀ°è PÀĽvÀªj À UÉ ºÉýzÉ.Ý ZÉÊ£ÀÄ J¼ÉzÀÄ gÉÊ®£ÀÄß ¤°è¸ÀĪÀ ¥ÀæAiÀÄvÀߪ£ À ÀÄß £Á£ÀÄ ªÀiÁqÀ°®è."
He has also admitted that:
"PÉÆqÀÄUÉà ºÀ½î¬ÄAzÀ »AzÀÆ¥ÀÅgÀ gÉʯÉéà ¤¯ÁÚU¼ À À £ÀqÀÄªÉ 8 jAzÀ 9 gÉ樀 ¤¯ÁÚtUÀ¼ÀÄ EªÉ."
If the above said evidence is taken into consideration, immediately after non-returning of the victim girl to his compartment, knowing fully well the said fact, he has not taken any steps about missing of victim girl and no such explanation given for non taking steps immediately after missing of victim girl by her. When there is toilet available in each of the compartment as admitted, there is no explanation as to why the victim girl get down from the train for nature call got down from the rail. If really the wife of the complainant accompanied with 18 Spl.C.C.No.255/2014 the victim girl for nature call, why she has allowed the victim girl to get down from the rail for nature call or why she was not accompanied with her, that too at night hours is not explained sufficiently by the prosecution to believe the above said facts and circumstances. Under these circumstances there is a doubt of missing of victim girl at Kodige Halli station as stated by the complainant herein. Even the complainant has not taken steps for altering about non-returning of his daughter when the train started to move further. When such being the case there is a doubt whether the victim girl was missed as stated by the complainant or she was missed in any other circumstances or placed and the said benefit of doubt is to be given to the accused only.
22. Further Pw.1 admitted that he has not given any statement earlier to tracing out of the victim girl after lodging of complaint. He has also admitted that:
"zÀÆgÀÄ PÉÆlÖ £ÀAvÀgÀ ºÁUÀÆ ºÀÄqÀÄV zÉÆgÀPÀĪÀ ªÉÆzÀ®Ä £Á£ÀÄ ¥ÉǰøÀjUÀÉ ¨ÉÃgÉ ºÉýPÉ PÉÆlÖ®è."
If the above said piece of evidence is taken into consideration, there is a doubt whether the victim girl was accompanied with 19 Spl.C.C.No.255/2014 the accused since she fell in love and she ran away along with the accused and thereafter Ex.P1 was come into existence. Non- production of corroborative and co-gent oral and documentary evidence, it is absolutely fatal to the case of the prosecution herein.
23. The accused also tested the veracity of evidence of this witness against the ill-will between the complainant and the accused in respect of accused and his family members not helped him in respect of case filed against his wife-Lakshmi in respect of kidnapping of a child by her and also his wife- Lakshmi was a married woman earlier to her marriage with the complainant and the case was registered as per Ex.D3 against her. Viewing from materials available on record through Pw.1, this Court feels to observe that though the police registered case against accused on the basis of complaint lodged by the complainant-Pw.1, at the same time whether the victim girl was missed while coming from Bengaluru to Hindupur at Kodige Halli railway station or she was missed in any other place or on any other circumstances is not proved beyond all reasonable doubt. If really she was missed in the rail itself, the complainant 20 Spl.C.C.No.255/2014 would have taken immediate steps for tracing victim girl, but he has not taken immediate steps for her search by taking legal action. When such being the case, question of considering the alleged offence against accused does not arise.
24. By going through the evidence of Pw.4-the mother of the victim girl and wife of the complainant, she has deposed in her chief examination about the admitted facts. Further she has deposed that on 16-03-2012 herself, her husband and the victim girl went to Bengaluru to purchase clothes for Ugadi festival from Hindupur to Bengaluru in a train and after purchase of clothes, they were returning to Hindupur in a train and when the train reached Kodige Halli railway station, the victim girl, got down from the rail for nature call, at that time it was 07.00 p.m., but she has not returned to compartment. She went near toilet of said compartment, but the victim girl was not found, after that she has searched for her, but the victim girl was not traced out. Thereafter she thought that when the train reached Hindupur, she may get down from some other compartment.
25. Further she has deposed that when they got down at 21 Spl.C.C.No.255/2014 Hindupur railway station, her daughter didn't get down from rail. One Lakshmi Narayana the resident of Hindupur told her that he had seen her daughter-the victim girl and the accused at Kodige Halli railway station. After that nearly for seven days herself and her husband searched for their daughter-the victim girl and thereafter lodged complaint to the police. The accused called her over phone stating that he had taken the victim girl and requested not to search for her. Further she has deposed that after some days the police called them to Kushala Nagar, as such herself and her husband went to Kushala Nagar and found her daughter and accused, thereafter they brought the accused and her daughter. On enquiry with her daughter, she came to know that the accused forcibly raped on her.
26. The learned Public Prosecutor treated her as hostile to the case of prosecution and suggested the contents of Ex.P2 and her signature is Ex.P2(b), for that she has admitted the same. No doubt it is true that the prosecution elicited the evidence that herself along with her husband and the victim girl went to Bengaluru for purchase of clothes to Ugadi Festival and after purchasing clothes when they were returning to Hindupur 22 Spl.C.C.No.255/2014 in a train, when the rail reached Kodige Halli railway station, at that time the victim girl got down from the rail stating that she wants to attend nature call, but she didn't return to the compartment. In view of non-returning of the victim girl to compartment, she has searched for her daughter every where, but she did not traced her. When the train reached Hindupur railway station, at that time one Lakshmi Narayana told that her daughter and the accused were in the Kodige Halli railway station. Even with regard to the alleged incident she has deposed only on hear say as per the statement of the victim girl.
27. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and also tested her veracity with regard to that the complainant is her second husband and she was facing a criminal case in respect of kidnapping of a child at Hindupur registered in Crime No.6/ 2011. Further she was also tested her veracity and elicited that all the three persons were sitting in the same compartment, but the said compartment was not having a toilet. She has denied of each compartment having a toilet in the said rail. Further she was elicited that:
23 Spl.C.C.No.255/2014
"PÉÆÃrUÉà ºÀ½î gÉ樀 ¤¯ÁÝtzÀ°è ¸ÀĪÀiÁgÀÄ MAzÀÄ ¤«ÄµÀ gÉÊ®£ÀÄß ¤°è¸ÀÄvÁÛgÉ CAzÀgÉ ¸Àj. £À£Àß ªÀÄUÀ¼ÀÄ ¥ÁªÀ¤ PÉÆÃrUÉà ºÀ½î gÉ樀 ¤¯ÁÝtzÀ°è ±ËZÁ®AiÀÄPÉÌ ºÉÆÃzÁUÀ CªÀ¼ÀÄ §gÀzÃÉ EzÀÄz Ý j À AzÀ £Á£ÀÄ ¸ÀĪÀiÁgÀÄ 15 ¤«ÄµÀ PÁzÉ. £ÁªÀÅ EzÀÝ ¨ÉÆÃVAiÀÄ°è ±ËZÁ®AiÀÄ E®èzÉ EzÀÄz Ý j À AzÀ £À£Àß ªÀÄUÀ¼ÀÄ ¥ÁªÀ¤ D ¨ÉÆÃV E½zÀÄ ªÀÄvÉÆA Û zÀÄ ¨ÉÆÃVUÉ ±ËZÁ®AiÀÄPÉÌ ºÉÆÃVzÀ¼ Ý ÀÄ. £À£Àß ªÀÄUÀ¼ÀÄ ¥ÁªÀ¤ ±ËZÁ®AiÀÄ¢AzÀ §gÀzÉ EzÀÄz Ý jÀÝ AzÀ £Á£ÀÄ £ÀªÀÄä ¸ÀºÀ ¥ÀæAiÀiÁtôPj À UÉ ªÀÄvÀÄÛ £À£Àß UÀAqÀ¤UÉ D «µÀAiÀĪÀ£ÀÄß ºÉýzÉ."
At the same time she has deposed that herself and her husband searched in each compartment, but the victim girl was not traced. She has shown her ignorance about the information given to the Checking Inspector in respect of missing of the victim girl. Here when the ample opportunity was available to the complainant and to this witness to take steps immediately, after missing of their daughter, but they have not taken any steps immediately after missing of their daughter.
28. She has also admitted that:
"D ¢£À £ÁªÀÅ gÉʯÉÊ ¤¯ÁÝtzÀ°è ºÀÄqÀÄQzÀ ªÉÄÃ¯É £ÀªÀÄä ªÀÄUÀ¼ÄÀ PÁtô¸ÀÄwÛ®è JAzÀÄ gÉʯÉé ¤¯ÁÝtzÀ ¥ÉǰøÀjUÉ PÀA¥ÉA è mï PÉÆqÀ°®è. "
Having knowledge of missing of their daughter in the rail, but they have not lodged any complaint, but no sufficient reasons or explanation given by the complainant of lodging complaint by causing delay. Further she has deposed that:
"D ¢£À £ÁªÀÅ gÉʯÉé ¤¯ÁÝtzÀ°è ºÀÄqÀÄQzÀ ªÉÄÃ¯É £ÀªÀÄä ªÀÄUÀ¼ÄÀ ¹UÀzÉ EzÀÄz Ý j À AzÀ £ÀAvÀgÀ £ÁªÀÅ £ÀªÀÄä ªÀÄ£ÉUÉ ºÉÆÃzɪÀÅ. D ¢£À £ÁªÀÅ 24 Spl.C.C.No.255/2014 »AzÀÆ¥ÀÅgÀzÀ £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀ ªÉÄÃ¯É ªÀiÁgÀ£ÃÉ ¢£À F «µÀAiÀÄzÀ §UÉÎ DgÉÆæAiÀÄ ªÀÄ£ÉAiÀĪÀg£ À ÀÄß PÀgɹ ¥ÀAZÁAiÀÄwAiÀÄ£ÀÄß ªÀiÁqÀ°®è. DUÀ DgÉÆæ CªÀgÀ ªÀÄ£ÉAiÀÄ°è EzÁÝ£ÉÆà E®èªÉÇà JAzÀÄ £Á£ÀÄ PÉüÀ°®è. ¤ÃªÀÅ »AzÀÆ¥ÀÅgÀPÉÌ §AzÀ ªÀiÁgÀ£ÃÉ ¢£À F «µÀAiÀÄzÀ §UÉÎ »AzÀÆ¥ÀÅgÀ ¥ÉǰøÀjUÉ PÀA¥ÉÃè Amï PÉÆnÖ¢ÝgÁ JAzÀÄ PÉýzÀP Ý ÉÌ ¸ÁQë ªÀiÁgÀ£ÃÉ ¢£À £Á£ÀÄ, £À£Àß AiÀÄdªÀiÁ£ÀgÀÄ, £ÀªÀÄä AiÀÄdªÀiÁ£ÀgÀ ¸Éßûw ºÉýzÀ ¥ÀæPÁgÀ PÉÆrUÉúÀ½î gÉ樀 ¤¯ÁÝtPÉÌ §AzÀÄ £ÀªÀÄä ªÀÄUÀ¼£ À ÀÄß ºÀÄqÀÄPÁrzɪÀÅ JAzÀÄ ºÉüÀÄvÁÛg.É "
Even the complainant has not lodged the missing complaint on the next day of missing of victim girl, even though they searched the victim girl on the next day as per the evidence of this witness. Non-taking legal steps immediately by the complainant, it is absolutely fatal to the stand taken by them. At the same time the complaint was lodged on 26-03-2012, after lapse of 10 days. She has also deposed that on 23-03-2012 the accused called this witness over phone and stated that he has married the victim girl and requested them not to search her. Even after receiving of said phone call, the complainant has not made any efforts to lodge the complaint against accused on the very same day. She has also admitted that on 16-03-2012 the friend of her husband told about the victim girl and the accused were present in Kodige Halli railway station. Inspite of having knowledge of the same, the complainant not lodged the complaint on 16-03-2012, for that also no such satisfactory 25 Spl.C.C.No.255/2014 explanation given by the prosecution for delay in lodging of complaint. It is also the defense of the accused that this witness knew about both the accused and the victim girl loving with each other and in order to avoid the same, they have lodged complaint against accused. Here the evidence of this witness also disclose about missing of the victim girl on 16-03-2012 at Kodige Halli railway station, but till 26-03-2012 they have not lodged any complaint is an admitted fact of Pw.4, but at the same time no such satisfactory explanation given for delay caused to them to lodge the said complaint. Unless and until it supports or corroborates with evidence of other witness evidence, it is not safe to accept the evidence of Pw.4 to believe the alleged offences against accused beyond all reasonable doubt
29. By going through the evidence of Pw.6-Lakshmi Narayana, the technician and friend of complainant, he has deposed that on 16-03-2012, he was on the way to Hindupur from Bangalore in the said rail. At about 06.45 or 07.00n p.m., he was in the train. Further he has deposed that at Kodige Halli railway station he saw the accused and the victim girl going by getting down from the train. Therafter he came to know that the 26 Spl.C.C.No.255/2014 complainant and his wife lodged complaint. 3 to 4 days after lodging of complaint, the police summoned him to the station over phone. He has shown to the police the place where the accused and the victim girl were going at Kodige Halli railway station. The police conducted mahazar as per Ex.P2 and his signature is Ex.P2(b). Again he went to the police station and identified the accused, who alleged to have taken the victim girl along with him. The prosecution also elicited that in the police station on enquiry with the victim girl by her parents, she told that the accused induced her and taken her to some place and raped her, for that this witness not accepted stating that he has not heard the same, since he was standing far away from that place. Though the facts and circumstances elicited by the prosecution, but he has shown ignorance about inducing of the victim girl by the accused, taking her to Madikeri and raped on her. At this stage this Court feels to observe that through this witness also the prosecution fails to establish the alleged offences against accused beyond all reasonable doubt.
30. By going through the evidence of Pw.8-Rajashekar, he has deposed that the complainant is his uncle, the victim girl 27 Spl.C.C.No.255/2014 is his sister, he knows the accused who is residing at neighbouring house of complainant. On 16-03-2012 his uncle, his wife and the victim girl went to Bengaluru from Seva Mandir to purchase clothes for Ugadi Festival. His uncle told him the accused had kidnapped the victim girl from Kodige Halli railway station, thereafter they went to station and lodged complaint on 23-03-2012. His uncle told him that the accused has informed him over phone that he has married the victim girl. On 28-03- 2012 the police informed to him and to his uncle that they have traced the victim girl and the accused and he has identified the accused before the Court. Here he has deposed about lodging of complaint on 23-03-2012, whereas Ex.P1 discloses that the complaint was lodged on 26-03-2012 at about 12.15 p.m. No such explanation is produced by the prosecution about non lodging of complaint by the complainant immediately after receiving phone call from the accused.
31. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited that he is an educated person having B.A. Degree. He is working at Super Market as salesman. He has admitted that he 28 Spl.C.C.No.255/2014 doesn't know to read and write Kannada and his mother tongue is Telugu, he came to know about the alleged kidnap of victim girl by the accused, immediately when his uncle return to home, but he cannot remember the said date. He has shown ignorance about the complainant is second husband of Pw.4. He has also deposed that:
"DgÉÆæ C¤¯ï £ÀªÀÄä aPÀÌ¥À-à ®Qëä£ÁgÁAiÀÄtgÀªg À À ªÀÄ£ÉAiÀÄ ¥ÀPÀÌzÀ°è ªÁ¸À«zÀg Ý ÀÄ JAzÀgÉ ¸Àj. £Á£ÀÄ CgÉÆæ-C¤¯ï £ÀªÀÄä ºÀÄqÀÄV ¥ÁªÀ¤AiÉÆA¢UÉ ªÀiÁvÀ£ÁqÀÄwÛzÁÝUÀ C¤¯ï£À£ÀÄß £Á£ÀÄ ªÉÆzÀ® ¨sÁjUÉ £ÉÆÃrgÀÄvÉÃÛ £É. D jÃw £Á£ÀÄ £ÉÆÃrzÀÄÝ WÀl£É £ÀqA É iÀÄĪÀ MAzÀÄ CxÀªÁ MAzÀƪÀgÉ wAUÀ¼À »AzÉ. ¥ÁªÀ¤ ªÀģɬÄAzÀ ¸Àé®à ªÀÄÄAzÉ gÀ¸A ÛÉ iÀÄ°è ¥ÁªÀ¤ ¤ÃgÀÄ vÀg®À Ä ºÉÆÃUÀÄwÛzÁÝUÀ D jÃw C¤¯ï ªÀÄvÀÄÛ ¥ÁªÀ¤ ªÀiÁvÀ£ÁqÀÄwÛzÀÄz Ý £ ÀÝ ÀÄß £Á£ÀÄ £ÉÆÃrzÉ. ¥ÁªÀ¤ ©A¢UÉU¼ À £ À ÄÀ ß ¸ÉÊP¯ À ïUÉ ºÁQ PÉÆAqÀÄ ¤ÃgÀÄ vÀg® À Ä ¸ÉÊP¯ À ï£ÀÄß vÀ½îPÉÆAqÀÄ ºÉÆÃUÀÄwÛz¼ ÝÀ ÄÀ . D ¸ÀªÀÄAiÀÄzÀ°è ¥ÁªÀ¤ ªÀÄvÀÄÛ C¤¯ï ªÀiÁvÀ£ÁqÀÄwÛzÀÄz Ý £ ÀÝ ÀÄß £ÉÆÃrzÉ, £Á£ÀÄ KPÉ D ºÀÄqÀÄUÀ£ÉÆA¢UÉ ªÀiÁvÀ£ÁqÀÄwÛ¢ÃÝ AiÀÄ JAzÀÄ ¥ÁªÀ¤AiÀÄ£ÀÄß PÉýzÉ. ¸ÁQë ¥ÀÅ£ÀB £ÀÄrAiÀÄĪÀÅzÉãÉAzÀgÉ D jÃw £Á£ÀÄ ¥ÀævÉß ªÀiÁrzÀÄÝ C¤¯ï£À£ÀÄß D ¸ÀªÀÄAiÀÄzÀ°è £À£Àß ªÀÄvÀÄÛ C¤¯ï £ÀqÀÄªÉ AiÀiÁªÀÅzÉà dUÀ¼ª À ÁUÀ°®è. D ¸ÀªÀÄAiÀÄzÀ°è C¤¯ï £Á£ÀÄ J¯ÉÆè ºÉÆÃUÀÄwÛzÃÉÝ £É £Á£ÀÄ ªÀiÁvÀ£ÁqÀ°®è JAzÀÄ ºÉý ºÉÆgÀlÄ ºÉÆÃzÀ CzÀgÉ DvÀ vÁ£ÀÄ ¥ÁªÀ¤AiÀÄ£ÀÄß ¥ÉæëĸÀÀÄwÛzÀÝ §UÉÎ £À£Àß°è ºÉüÀ°®è."
Having knowledge of said fact, but he has not informed the same to the complainant. At the same time he has not explained as to why he has not stated the said fact to his uncle in order to avoid contacts between the victim girl and the accused, for the purpose of safety of the victim girl. Further he was also tested veracity about lodging of complaint and about receiving of phone call from the accused in respect of he has 29 Spl.C.C.No.255/2014 married the victim girl, but he has shown his ignorance. At this stage, this Court feels to observe that the evidence of this witness is an hear say one, but he is not an eye-witness of alleged act of the accused with the victim girl.
32. By going through the evidence of Pw.9-Basha he has also deposed that he has seen the victim girl and accused were talking with each other about five months back of the alleged incident, but he doesn't know about the facts of the talks between them. He has not informed the same to the complainant. After that he came to know from the complainant that the victim girl and accused left the house and ran away. If this piece of evidence is taken into consideration, the accused has not kidnapped the victim girl, on the other hand both were ran away from their houses. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and except denial suggestion nothing has been elicited favourable to the defense taken by accused herein. At this stage this Court feels to observe that the evidence of this witness is not an eye-witness evidence and he has is an hear say witness. Unless and until produces the corroborative and cogent evidence 30 Spl.C.C.No.255/2014 by the prosecution, it is not safe to accept the evidence of hear say witness. Now left with the available material evidence produced by the prosecution through the victim girl and it proves that the accused had kidnapped the victim girl and raped her beyond all reasonable doubt has to be looked into.
33. By going through the evidence of Pw.7-the victim girl she has deposed about the admitted facts in respect of relationship of complainant, Pw.4. She has deposed that she was born on 21-04-1996, whereas the complainant deposed that she was born on 21-11-1995. Except production of Ex.P6, no such authenticated documents placed to prove the age of the victim girl as on the date of the alleged incident as 16 years. Even the author of Ex.P6 has not stepped into witness box. At this stage it is worthwhile to emphasis on the decisions reported in:
1. AIR 1965 SC Page 282, wherein it had been observed that:
"Evidence Act (1872) S.35-Entry by person at request of illiterate officer maintaining official record is inadmissible.
An entry of birth made in an official record maintained by an illiterate Chowkidar, by somebody else 31 Spl.C.C.No.255/2014 at his request does not come within S.35 of the Evidence Act.
Evidence Act (1872), S.35-Entry of date of birth in school admission register-value of."
2. Crl.L.J. 2003 Page 2777, it had been observed that:
"Penal Code (45 of 1860), Ss.363, 376-Kidnapping and Rape-Proof-Age of prosecurtrix-Determination- Allegations that accused came to house of prosecurtrix in midnight and took her to another place and committed rape against her will-Ossification tests report proving prosecurtrix was more than 18 years of age-But school certificate showing that she was below 16 years of age- No evidence showing as to on what basis and at whose instance the date of birth was written in the school register-Also non-production of original school register in Court-Failure on part of prosecution to prove that prosecurtrix was below 19 years of age-Conviction of accused, not proper."
3. Crl.L.J. 2004 Page 2359, it had been observed that:
"Evidence Act (1 of 1872), Ss.65, 35-Age of victim girl-Proof-School certificate prepared on basis of admission form cannot be said to be a primary piece of evidence-Non-production of admission form which is primary evidence in Court-School certificate would be in admissible in evidence.
Penal Code (45 of 1860), S-376-Rape-Proof-School certificate showing prosecurtrix below 16 years of age- Said certificate which has been prepared on basis of admission form cannot be said to be a primary piece of evidence-Evidence of witnesses contradictory to each other regarding age of prosecurtrix-Age of prosecurtrix cannot be said to be below 16 years on date of incident in view of opinion of Radiologist-Prosecurtrix not disclosing said incident for near about 4 or 5 months and accused cohabited with her during said period-Story of 32 Spl.C.C.No.255/2014 cohabitation without her consent not inspiring confidence- Conviction of accused, not proper."
4. 2010 Crl.L.J. 839, it had been observed that:
"Penal Code (45 of 1860), S. 376-Rape-Minority of prosecurtrix-prosecurtrix in love with accused and consenting party-Close and careful determination of age of prosecurtrix became imperative-Clinical examination showing that prosecurtrix had well developed secondary sex characters-Reports of Dental Surgeon and Radiologist not produced though prosecurtrix was referred by doctor to them-Admission form of school also not produced- School leaving certificate produced was obtained few days after incident-Father giving age of prosecurtrix only approximately-Conviction of accused on such evidence would be improper."
Though the facts and circumstances of the above case decisions and the facts and circumstances of the case on hand are different one but the ratio of principle is applicable to the present case on hand.
34. Pw.7 further deposed that she know the accused, he is doing mechanic work of two wheeler, he is her neighbour. She has deposed that the accused used to talk with her. The accused told her that she has to marry him, otherwise he is going to murder her parents, often and often he has threatened her with dire consequences. She has told that she is not going to marry him and she got afraid that her parents are going to 33 Spl.C.C.No.255/2014 scold her. On 16-03-2012 her parents took her to Bengaluru for purchase of clothes for Ugadi Festival, after purchase of clothes they boarded train at about 06.30 p.m., to return to Hindupur. She has also deposed that earlier to that day when she went to bring water from outside to the house, at that time the accused threatened her that she has to get down from the train in Kodige Halli Railway station, otherwise he is going to inform about their talking with each other to her parents. As such she got down from the said railway stating that she wants to go to nature call, at Kodige Halli Railway Station, at that time the accused was waiting for her. He told her that they are going to Dharmastala, but she refused, at that time he told her that he is going to assault and taken her to Dharmastala. The train moved towards Hindupur from Kodige Halli railway station.
35. Further she has deposed that they went to Dharmastala, after having Darshan of god at Dharmastala, they return to Chennakaval, where the friend of accused was residing. In the said house the accused demanded her to marry him, but she refused the same, there also he assaulted her. Therafter they went to Vinayaka Temple and before Vinayaka 34 Spl.C.C.No.255/2014 God the accused married her. Thereafter they spend some time in the house of friend of the accused, in that house the accused committed rape on her 2-3 times forcibly without her consent. She has not disclosed the said fact to the inmates of friend of accused. They together stayed for 12 to 15 days in the said house. Thereafter the police came along with her parents and taken them to the station. She has also stated to her parents that even though she has no interest to marry the accused, he forcibly married her and also raped her.
36. On perusal of statement of the victim girl, alleged to have been given before the Investigation Officer, there is some discrepancies in chief examination of this witness and contents of alleged statement of the victim girl. The said statement was recorded on 29-03-2012 that too after three days of securing the victim girl and the accused. Up to the date of giving the statement by the victim girl, she was in the custody of her parents. With these now left with the cross-examination of Pw.7. Here it is relevant to note that even the fact of taking the victim girl by accused to Dharmastala and then to Kushala Nagar and then to Chennakaval along with him, the question is 35 Spl.C.C.No.255/2014 as to why she has neither tried to escape nor complained to anybody by saying that she has been forcibly taken by the accused and raped on her has to be looked into.
37. On perusal of cross-examination of Pw.7, the accused tested her veracity by eliciting some commission and omission and also she has admitted that:
"±Á¯É EzÁÝUÀ ¨É½UÉÎ ¤ÃgÀÄ vÀg® À Ä ºÉÆÃUÀÄwÛzÉÝ E®è¢zÁÝUÀ ªÀÄzsÁåºÀß ºÉÆÃUÀÄwÛz.ÉÝ ¤ÃgÀÄ vÀg® À Ä ¸ÉÊP¯ À ï£À°è ºÉÆÃUÀÄwÛz.ÉÝ ªÀģɬÄAzÀ ¤ÃgÀÄ vÀg® À Ä ¸ÀĪÀiÁgÀÄ CzÀð s Q.«Ä. zÀÆgÀ ºÉÆÃUÀÄwÛz£ ÉÝ ÀÄ. £Á£ÀÄ ¤ÃgÀÄ vÀg® À Ä ºÉÆÃUÀĪÁUÀ CgÉÆæ-C¤¯ï §gÀÄwÛg° À ®è."
This piece of evidence clinches the issue unequivocally points out that she used to bring water to her house from the place which is at a distance of half-a-kilometer in a cycle. The accused has not accompanied with her to bring water. It is also her evidence that the accused came to know about she accompanying with her parents to purchase clothes for Ugadi festival, but how the accused came to know the said fact is not explained by this witness. If really the victim girl was not having cordial relationship with the accused, question of knowing the said fact by the accused does not arise. Even it is not the case of the prosecution that the accused came to know the said fact 36 Spl.C.C.No.255/2014 through somebody. At the same time she has admitted Ex.D1- the statement given by her before S.J.P.U, headed by President- Smt.Meena.K.Jain, Members-Sister Jacinta Lobo, Smt. Anumpama Dinesh Hegade, Smt.Vishalakshi and Sri.T.S.Shiva Mallu. On perusal of said document she has stated that:
"ZPHS ±Á¯É, ¸ÉêÁ ªÀÄA¢gÀ, »AzÀÆ¥ÀÅgÀz° À è 10£Éà vÀgUÀ w À NzÀÄwÛzÀÄÝ 2 wAUÀ½AzÀ ±Á¯ÉUÉ ºÉÆÃUÀĪÀÅzÀÄ ¨ÉÃqÀ JAzÀÄ ºÉýzÀgÀÄ J£ÀÄßwz Û Áݼ.É £À£ÀUÉ C¤¯ï PÀĪÀiÁgï J£ÀÄߪª À £ À ÀÄ 1 ªÀµð À ¢AzÀ UÉÆvÀÄ.Û »AzÀÆ¥ÀÅgÀz° À è £ÀªÀÄä ªÀÄ£É ¥ÀPÀÌ 3 ªÀµð À zÀ »AzÉ C¤¯ï PÀĪÀiÁgï PÀÄlÄA§ªÉÇAzÀÄ ªÁ¸ÀªÁVvÀÄ.Û C¤® PÀĪÀiÁgÀ ¨ÉAUÀ¼ÀÆj£À°è ªÉÄPÁå¤Pï DV PÉ®¸À ªÀiÁqÀÄwÛzÀÄÝ ªÁgÀPÉÌ JgÀqÀÄ ¨Áj »AzÀÆ¥ÀÅgÀPÉÌ CªÀgÀ ªÀÄ£ÉUÉ §gÀÄwÛzÀÄÞ ¥ÀjZÀAiÀĪÁV ¥ÉæêÀĪÁ¬ÄvÀÄ. AiÀÄÄUÁ¢ ºÀ§P â ÉÌ §mÉÖ Rjâ ªÀiÁqÀ®Ä £Á£ÀÄ, C¥Àà CªÀÄä 16-03-2012 gÀAzÀÄ ¨ÉAUÀ¼ÀÆjUÉ §A¢zɪ Ý ÀÅ. 15£Éà vÁjÃT£À ¢£À C¤¯ï PÀĪÀiÁgÀ »AzÀÆ¥ÀÅgÀz° À è EzÀÞ £Á£ÀÄ CªÀ¤UÉ £ÁªÀÅ ¨ÉAUÀ¼ÀÆjUÉ ºÉÆÃUÀÄwÛgÀĪÀ «µÀAiÀÄ ºÉýzÉÞ 16£Éà vÁjÃT£À ¢£À ¸ÁAiÀÄAPÁ® »AzÀÆ¥ÀÅgÀPÉÌ »AwgÀÄV ºÉÆÃUÀĪÁUÀ PÉÆÃrUÉà ºÀ½î ¸ÉÖõÀ£ï£À°è gÉÊ°¤AzÀ E½zÀÄ £À£Àß eÉÆvÉ ¨Á JAzÀÄ C¤® PÀĪÀiÁgÀ ºÉýzÀ.Ý £Á£ÀÄ vÁ¬ÄAiÀÄ §½ AiÀiÁªÀ ¸ÉÖõÀ£ï JAzÀÄ PÉüÀÄvÁÛ PÀĽwzÀÄÝ PÉÆÃrUÉà ºÀ½î ¸ÉÖõÀ£ï §AzÁUÀ ¨Ávï gÀÆ«ÄUÉ ºÉÆÃUÀĪÀ £É¥À ªÀiÁrPÉÆAqÀÄ ¨ÁV® ºÀwg Û À §AzÀÄ ¤AwzÉ.Ý CªÀgÀÄ §AzÀÄ £À£ÀߣÀÄß PÀgÉzÀÄPÉÆAqÀÄ ªÉÄʸÀÆj£À ºÀwg Û À MAzÀÄ ºÀ½îUÉ CªÀ£À UɼAÉ iÀÄ£ÁzÀ ¥ÀŤÃvÀ£° À èUÉ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀ."
No doubt it is true that if this statement is taken into consideration, the victim girl voluntarily accompanied with the accused, but in her cross-examination she has shown her ignorance about said statement.
38. At the same time Pw.12-Shivamallu, clearly deposed that the victim girl staged her statement as per Ex.P1 and it is 37 Spl.C.C.No.255/2014 her voluntary statement, not forcibly taken from her. Further it is his evidence that:
"DPÉUÉ PÀ£ÀßqÀ CµÁÖV §gÀzÃÉ EzÀÄz Ý j
À AzÀ vÉ®ÄUÀÄ ¸ÉÃj¹PÉÆAqÀÄ
ªÀiÁvÀ£ÁqÀÄwÛz¼ ÀÝ ÀÄ. D PÁgÀt¢AzÀ vÉ®ÄUÀÄ §®èªg À £
À ÀÄß PÀg¹
É PÉÆAqÀÄ CPÉAiÀÄ
ºÉýPÉ zÁR°¹zÉ£ÀÄ. ¸Àzj À ºÉýPÉAiÀÄ°ègÀĪÀ ¥ÀæwAiÉÆAzÀÄ ªÁPÀåªÀ£ÀÄß CPÉUÉ
ªÀÄ£ÀªjÀ PÉ ªÀiÁrgÀÄvÉÛÉãÉ."
In the cross-examination also he has admitted that;
"¢£ÁAPÀB 16.03.2012 gÀAzÀÄ ¸ÀAeÉ 7.30 UÀAmÉUÉ £ÉÆAzÀ¨Á®QAiÀÄ£ÀÄß DgÉÆæ PÉÆrUÉúÀ½î gÉʯÉéà ¤¯ÁÝtzÀ°è E½¹PÉÆAqÀÄ, DPÉAiÀÄ ªÀÄ£À¸Àì£ÀÄß §zÀ°¹ DPÉAiÀÄ£ÀÄß ªÉÄʸÀÆjUÉ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀ JAzÀgÉ ¸Àj. DUÀ DPÉUÉ E£ÀÆß 16 ªÀµð À DVgÀ°®è JAzÀgÉ ¸Àj. CªÀgÀ vÀAzÉ vÁ¬Ä UÀªÄÀ £ÀPÉÌ §gÀzÃÉ DPÉAiÀÄ£ÀÄß DgÉÆæ PÀgzÉ ÀÄPÉÆAqÀÄ ºÉÆÃzÀ JAzÀÄ ºÉýzÀ¼ÄÀ JAzÀgÉ ¸Àj."
He has also admitted that:
"DgÀÉÆæ £ÉÆAzÀ¨Á®QAiÀÄ£ÀÄß DvÀ£À ¸ÉßûvÀ ¥ÀŤÃvÀ£À ªÀÄ£ÉUÉ ªÉÄʸÀÆjUÉ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀ JAzÀÄ ºÉýzÀ¼ÀÄ JAzÀgÉ ¸Àj. ¥ÀŤÃvÀ£À vÁ¬Ä ¸ÀªÀÄÄäRzÀ°è AiÀiÁªÀÅzÉà ±Á¸ÀÛç ¸ÀA§AzÀs E®èzÃÉ vÉÆÃjPÉAiÀÄ ªÀÄzÀĪÀÉ ªÀiÁr PÉÆArzÉÃÝ ªÉAzÀÄ ºÉýzÀ¼ÀÄ JAzÀgÉ ¸Àj. CzÀgÀ DzsÁgÀzÀ ªÉÄÃ¯É DUÁUÉÎ DPÉAiÀÄ ªÉÄÃ¯É §®ªÀAvÀªÁV CvÁåZÁgÀ ªÀiÁrzÀÝ JAzÀÄ ºÉýzÀ¼ÀÄ JAzÀgÉ ¸Àj."
Again at the cross-examination of accused he has deposed that:
"£ÉÆAzÀ¨Á®Q £ÀªÀÄä ªÀÄÄAzÉ DPÀÉ DgÉÆæAiÀÄ£ÀÄß ¦æÃw¸ÀÄwÛzÝÀ §UÀÎÉ ªÀÄvÀÄÛ zÉÊ»PÀ ¸ÀA¥ÀPð À PÉÌ M¦àUÉ PÉÆnÖzÀ¼ Ý ÀÄ JAzÀÄ ºÉýzÀ¼ Ý ÄÀ JAzÀgÉ ¸Àj."
If the said evidence is taken into consideration, though the accused had taken the victim girl from Kodige Halli Railway Station, but it disclose that the victim girl voluntarily accompanied with her and thereafter both married in the house 38 Spl.C.C.No.255/2014 of friend of accused and thereafter the accused forcibly raped on her. When such an act taken place, the question is that why the victim girl not made any attempt to escape from that place or made complaint about the act of the accused to other persons who were available at that time. Non-taking said steps by the victim girl, there is a doubt as to whether the victim girl voluntarily accompanied with the accused and voluntarily had sexual intercourse with the accused. Moreover the Investigation Officer not recorded the statement of Punith and his mother, Archaka of Ganapathi Temple of Channakaval to believe alleged act of accused and the Mahazar also not conducted at that respective places.
39. Further Pw.7 has deposed that she has given statement as per Ex.D1 with the fear of the accused, but when ample opportunity was available to her to alarm the act of the accused and without alarming the same, it is not safe to accept about commission of offence by the accused, only forcibly on the victim girl. Further Pw.7 deposed that:
"PÉÆrUÉúÀ½î¬ÄAzÀ CzÉà ¢£À gÉʯÉéà ¸ÉÖñÀ£ïUÉ DmÉÆÃzÀ°è £À£ßÀ £ÄÀ ß PÀgvÉ A À zÀÄ gÉÊ°£À°è zÀª s ÀÄð¸ÀܼP À ÉÌ PÀgz É ÉÆAiÀÄ£ Ý A É zÀÄ ºÉýgÀÄvÁÛg.É PÀÄPÉÌ ¸ÀħæªÀÄtå gÉʯÉé ¸ÉÖñÀ£ï£À°è E½zÀÄPÉÆArj JA§ ¥Àæ±ÉßUÉ ¸ÁQë gÉʯéÉ Ã ¸ÉÖñÀ£ï£À°è E½zÀÄ 39 Spl.C.C.No.255/2014 PÉÆAqÀzÀÄÝ ºËzÀÄ DzÀgÉ CzÀÄ AiÀiÁªÀ eÁUÀ JAzÀÄ UÉÆwÛ®è CAvÀ ºÉüÀÄvÁÛg.É PÀÄPÉÌ ¸ÀħæªÀÄtå gÉʯÉéøÉÖñÀ£ï£À°è E½zÀÄ C°è wAr wAzÀÄ §¹ì£À°è ºÉÆÃVzÀÄÝ JA§ ¥Àæ±ÉßUÉ ¸ÁQë gÉʯÉéà ¸ÉÖñÀ££ À ° À è E½zÀ £ÀAvÀgÀ wAr K£ÀÆ wA¢®è §¹ì£À°è ºÉÆÃVzÀÄÝ ºËzÀÄ CAvÀ ºÉüÀÄvÁÛg.É "
She has also admitted that:
"zÀªs ÀÄð¸À¼ Ü z À ° À è zÉêÀgÀ zÀ±ð À £ÀPÉÌ ºÉÆÃUÀĪÀ ªÉÆzÀ®Ä ¸ÁߣÀ ªÀiÁr PÉÆAqÀÄ ºÉÆÃUÀ¨ÃÉ PÀÄ JAzÀgÉ ¸Àj. £Á£ÀÄ ªÀÄvÀÄÛ DgÀÉÆæ £Àqz É ÀÄPÉÆAqÀÄ £ÉÃvÁæªÀw ¸ÀAUÀªÀÄPÉÌ ºÉÆÃV ¸ÁߣÀ ªÀiÁrPÉÆAqɪÀÅ JAzÀgÉ ¸Àj. §¸ï ¸ÁÖ¥ï¤AzÀ £ÉÃvÁæªÀw ¸ÀAUÀªÀÄPÉÌ £Àqz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀgÉ 20 ¤«ÄµÀU¼ À ÀÄ ¨ÉÃPÀÄ C£ÀÄߪÀÅzÀÄ ¸Àj. zÀª s ÀÄð¸À¼ Ü À zsÁ«ÄðPÀ ¸À¼Ü ª À ÁVzÀÄÝ ¸Á«gÁgÀÄ ¨ÀP s ÁÛ¢UÀ¼ÀÄ C°èUÉ §gÀÄvÁÛgÉ J£ÀÄߪÀÅzÀÄ ¸Àj. ¸ÀAUÀªÀÄPÉÌ ºÉÄÁÃUÀĪÁUÀ £ÀÆgÁgÀÄ d£ÀgÀÄ §gÀÄwÛzg ÀÝ ÀÄ, CzÉà jÃw ¸ÀAUÀªÀÄzÀ®Æè £ÀÆgÁgÀÄ d£ÀgÀÄ ¸ÁߣÀ ªÀiÁqÀÄwÛzg ÀÝ ÀÄ JAzÀgÉ ¸Àj. ¸ÁߣÀ ªÀiÁrPÉÆAqÀÄ §mÉÖ §zÀ¯Á¬Ä¹PÉÆAqÀÄ zÉêÀ¸ÁÜ£P À ÌÉ 11 UÀAmÉUÉ §A¢j JA§ ¥Àæ±ÉßUÉ ¸ÁQë ºËzÉAzÀÄ §AzÀzÀÄÝ JµÀÄÖ UÀAmÉUÉ UÉÆwÛ®è CAvÀ ºÉýgÀÄvÁÛg.É PÀÆå ¸Àé®à EvÀÄ.Û ¸É± à ¯À ï nPÉmï vÉUz É ÄÀ PÉÆAqÀÄ ºÉÆÃVzÁÝ CxÀªÁ ¸ÁªÀiÁ£Àå ¸Á®°è ºÉÆâj JA§ ¥Àæ±ÉßUÉ nPÉmï vÉUz É ÀÄPÉÆAqÀ §UÀÎÉ UÉÆwÛ®è d£À ¸Àé®à EzÀg Ý ÀÄ CAvÀ ºÉüÀÄvÁÛg.É E§âgÀÄ MnÖUÉ zÉêÀgÀ zÀ±ð À £À ªÀiÁrzɪÀÅ JAzÀgÉ ¸Àj. zÀ±ð À £ÀªÁzÀ £ÀAvÀgÀ zÉêÀ¸ÁÜ£z À ¯À ÃèÉ Hl ¥Àæ¸ÁzÀ vÉUz É ÀÄPÉÆAqɪÀÅ JAzÀgÉ ¸Àj. ¨sÉÆÃd£À ±Á¯ÉAiÀÄ°è 200-300 d£À HlPÉÌ EzÀgÝ ÀÄ JA§ ¥Àæ±ÉßUÉ ¸ÁQë 100 d£À EgÀ§ºÀÄzÀÄ CAvÀ ºÉýgÀÄvÁÛg.É "
She has also deposed that:
"D ¢£À gÁwæ zÉêÀ¸ÁÜ£ÀzÀ DªÀgÀtzÀ°è ¨ÉÃgÉ ¨ÀsPÁÛ¢UÀ¼Æ É A¢UÉ PÀ¼z É ª É ÀÅ JAzÀgÉ ¸Àj."
She has also deposed that:
"¨É¼ÀUÉÎ 10 UÀAmÉUÉ ªÀÄrPÉÃjUÉ ºÉÆÃUÀ¯A É zÀÄ PÉJ¸ïDgïn¹ §¸ÀÄì ºÀwz Û ª É ÀÅ JA§ ¥Àæ±ÉßUÉ ¸ÁQë §¸ï ºÀwz Û ÀÄÝ ºËzÀÄ AiÀiÁªÀ HjUÉ UÉÆwÛ®è CAvÀ ºÉüÀÄvÁÛg.É ¸ÀPÁðj §¸ï ºÀwz Û ÀÄÝ JAzÀÄ £À£ÀUÉ UÉÆwÛ®.è D §¸ï£À°è ¨ÉÃgÉ ¥ÀæAiÀiÁtôÃPÀgÀÄ EzÀg Ý ÀÄ JAzÀgÉ ¸Àj. £Á£ÀÄ ªÀÄvÀÄÛ DgÉÄÁæ E§âgÀÄ MnÖUÉ PÀĽwzɪ Ý ÀÅ JAzÀgÉ ¸Àj. §¸ï zÀª Às ÀÄð¸À¼ Ü ª À À£ÀÄß 10 UÀAmÉUÉ ©lÄÖ ¸ÁAiÀÄAPÁ® ªÀÄrPÉÃjUÉ 4 UÀAmÉUÉ vÀ®Ä¦vÀÄ C°è E½¢j JA§ ¥Àæ±ÉßUÉ ¸ÁQë ¸ÀªÀÄAiÀÄ UÉÆwÛ®è JAzÀÄ eÁUÀ AiÀiÁªÀÅzÀÄ JA§ÄzÀÄ UÉÆwÛ®è CAvÀ ºÉýgÀÄvÁÛg.É C°èAzÀ ¨ÉÃgÉ §¹ì£À°è E§âgÀÄ PÀıÁ®£ÀUg À PÀ ÌÉ ºÉÆÃzɪÀÅ JAzÀgÉ ¸Àj. ªÀÄrPÉÃjAiÀÄ°è §¸ï¸ÁÖ¥ï ªÀÄvÀÄÛ PÀıÁ®£ÀUg À À §¸ï ¸ÁÖ¥ï£À°è §ºÀ¼À d£ÀjzÀg Ý ÀÄ JA§ ¥Àæ±ÉßUÉ ¸ÁQë §¸ï¸ÁÖ¥ï£À°è d£ÀjzÀg Ý ÄÀ CAvÀ ºÉýgÀÄvÁÛg.É D §¹ì£À°A è iÀÄÆ ¸ÀºÀ E§âgÀÄ MnÖUÉ PÀĽwzɪ Ý ÀÅ. PÀıÁ®£ÀUg À z À ° À è E½zÁUÀ £À¸ÀÄUÀv¯ ÀÛ ÁVvÀÄÛ, DgÀÉÆæAiÀÄÄ vÀ£Àß ¥sÉæAqï ¥ÀŤÃvÀ££ À ÀÄß ¨ÉÊPï£ÉÆA¢UÉ PÀg¬ É Ä¹ PÉÆAqÀ£ÀÄ C£ÀÄߪÀÅzÀÄ ¸Àj. ¨ÉÊPï CAzÀgÉ UÉÆvÀÄÛ CzÀg° À è E§âgÄÀ ºÉÆÃUÀÄvÁÛgÉ C£ÀÄߪÀÅzÀÄ ¸Àj. D ¨ÉÊQ£À°è C¤Ã¯ï£ÀÄ ªÀÄÄA¨sÁUÀz° À è ªÀÄzÀås zÀ°è £Á£ÀÄ, £À£Àß 40 Spl.C.C.No.255/2014 »AzÉ DgÀÉÆæ PÀĽvÀÄ ¥ÀŤÃvÀ£À HgÁzÀ ZÀ£ÀßP¯ À ï PÁªÀ¯ïUÉ ºÉÆÃV CªÀgÀ ªÀÄ£ÉUÉ ºÉÆÃzɪÀÅ C£ÀÄߪÀÅzÀÄ ¸Àj. ¥ÀŤÃvÀ£À ªÀÄ£ÉAiÀÄ°è ¥ÀŤÃvÀ£® À z è É CªÀgÀ ªÀAiÀĸÁìzÀ vÁ¬Ä ¸ÀºÀ EzÀg Ý ÀÄ JAzÀgÉ ¸Àj. £ÀªÀÄV§âjUÀÆ CªÀgÀ ªÀÄ£ÉAiÀÄ°è EzÀÄÝ ªÀÄ®VPÉƼÀî®Ä ¥ÀŤÃvï ªÀÄvÀÄÛ CªÀgÀ vÁ¬Ä CªÀPÁ±À ªÀiÁrPÉÆlÖgÀÄ C¯ÉÃè ªÀi®VPÉÆAqɪÀÅ JAzÀgÉ ¸Àj."
Again she has also admitted that:
"ªÀiÁgÀ£ÃÉ ¢£À 19£Éà vÁjÃT£ÀAzÀÄ ¤ÃªÀÅ, C¤Ã® ªÀÄvÀÄÛ ¥ÀŤÃvÀ 3 d£À PÀıÁ®£ÀUg À P À ÉÌ ºÉÆÃV vÁ½, ºÀƪÀÅ ªÀÄvÀÄÛ PÁ®ÄAUÀÄgÀ vÀA¢j JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQë ¥ÀŤÃvÀ£À vÁ¬Ä ¸ÀºÀ §A¢zÀg Ý ÀÄ CAvÀ ºÉüÀÄvÁÛg.É £ÀAvÀgÀ CªÉ®ª è £À ÀÆß vÉUz É ÀÄPÉÆAqÀÄ ¥ÀŤÃvÀ£À ªÀÄ£ÉUÉ ºÉÆÃV CªÀgÀ ªÀÄ£ÉAiÀÄ ºÁ¯ï£À°g è ÀĪÀ «£ÁAiÀÄPÀ£À ¥sÉÆÃmÉÆà ªÀÄÄAzÉ ¥ÀŤÃvÀ£À vÁ¬Ä ¸ÀªÄÀ PÀëªÀÄzÀ°è C¤® ¤ªÀÄUÉ vÁ½ PÀnÖzÀ£ÀÄ JA§ ¥Àæ±ÉßUÉ ¸ÁQë EªÉ®ª è £À Æ À ß vÉUz É ÀÄPÉÆAqÀÄ ºÀwgÛ z À °À zè ÀÝ zÉêÀ¸ÁÜ£P À ÉÌ ºÉÆÃVzÉÃÝ ªÉAzÀÄ C°è ¨ÁV®Ä ºÁQzÀP Ý ÌÉ ¥ÀŤÃvÀ£À ªÀÄ£ÉUÉ §AzɪA É zÀÄ ªÀÄ£ÉAiÀÄ°è DgÀÉÆæ vÁ½ PÀnÖzÀ£A É zÀÄ ºÉýgÀÄvÁÛg.É "
The above said evidence also clinches the issue unequivocally points out there was ample opportunity available to the victim girl to give alarm to the public about the act of the accused or to escape from the clutches of the accused or to complain about the act of the accused to the nearest police station, but the victim girl has not made any efforts to alarm the public, or to escape from the clutches of the accused or to complain to the police. Non-making of said efforts, it clearly shows about the willingness of the victim girl who was aged about 16 years at that time and also supported the accused about the commission of alleged offences.
40. Further Pw.7 has deposed that the friend of the 41 Spl.C.C.No.255/2014 accused viz., Puneeth and his mother also forced her to tie Tali by the accused on the neck of the victim girl, but no such statement given by her before the police and it is an improved version of the victim girl. She has also admitted that "vÁ½ PÀnÖzÁUÀ gÁwæ ¸ÀªÀÄAiÀÄ ªÉÃ¼É UÉÆwÛ®.è vÁ½ PÀnÖzÀ £ÀAvÀgÀ D ¢£À ¥ÀŤÃvÀ£À ªÀÄ£ÉAiÀįÉèà G½zɪÀÅ C£ÀÄߪÀÅzÀÄ ¸Àj. ªÀiÁgÀ£ÃÉ ¢£À £Á£ÀÄ, C¤®, ¥ÀŤÃvÀ, ¥ÀŤÃvÀ£À vÁ¬Ä 4 d£ÀgÀÆ ¥ÀŤÃvÀ£À ¸ÀA§A¢üPg À À ªÀÄ£ÉUÉ ²ªÀªÉÆUÀP Î ÉÌ gÉÊ°£À°è ºÉÆÃzɪÀÅ J£ÀÄߪÀÅzÀÄ ¸Àj. D ¢£À gÁwæ CAzÀgÉ 20£Éà vÁjÃT£ÀAzÀÄ ²ªÀªÉÆUÀz Î ° À è G½zɪÀÅ JAzÀgÉ ¸Àj. 21 jAzÀ 24 gÀªg À ÉUÉ ²ªÀªÉÆUÀz Î ° À è eÁvÉæAiÀÄ°è ¥Á¯ÉÆA Î rj JA§ ¥Àæ±ÉßUÉ ¸ÁQë eÁvÉæUÉ ºÉÆÃVzÀÄÝ ºËzÀÄ, ¢£ÁAPÀ UÉÆwÛ®è, 2-3 ¢£ÀU¼ À ÀÄ ºÉÆÃVzÀÄÝ CAvÀ ºÉýgÀÄvÁÛg.É D ¢£ÀU¼ À ° À è ¥ÀŤÃvÀ£À ¸ÀA§A¢üPg À À ªÀÄ£ÉAiÀÄ°è EzÀz Ý ÄÀ Ý C£ÀÄߪÀÅzÀÄ ¸Àj. §®ªÀAvÀªÁV vÁ½ PÀnÖ¹zÀgA ÀÉ zÀÄ ²ªÀªÉÆUÀz Î ° À è EzÀA Ý vÀºÀ ¢£ÀU¼ À AÀ zÀÄ C°è AiÀiÁjUÁzÀgÀÆ F «µÀAiÀĪÀ£ÀÄß ºÉý¢gÁ JA§ ¥Àæ±ÉßUÉ ¸ÁQë ªÀÄÄAzÀĪÀgz É ÀÄ, ºÉüÀ¨ÁgÀzA É zÀÄ DgÀÉÆæAiÀÄÄ ¨ÉÊAiÀÄÄvÁÛ£AÉ zÀÄ ºÉýgÀÄvÁÛg.É "
Even the above said evidence also crystallizes that the victim girl having ample opportunity to escape from the clutches of the accused or to alarm the act of the accused with the public, neighbourers and passengers who were available near by, but she has not made any efforts, simply stated that she was afraid with the accused that he is going to scold her. Further she has admitted that:
"vÁ½AiÀÄ£ÀÄß £Á£ÀÄ vÉUz É ÃÉ £ÀÄ EnÖgÀ°®è. PÀj ªÀÄtô ¸ÀgÀ ªÀÄvÀÄÛ vÁ½ ¤ªÀÄä PÉÆgÀ¼°À è EvÁÛ JA§ ¥Àæ±ÉßUÉ ¸ÁQë ºËzÀÄ CAvÀ ºÉüÀÄvÁÛgÉ ºÁUÉAiÉÄà PÁ®ÄAUÀgÀ ¸ÀºÀ PÁ®Ä ¨Ég½ À £À°v è ÀÄÛ JAzÀgÉ ¸Àj. vÁ½ PÀnÖzÀ £ÀAvÀgÀ ²ªÀªÉÆUÀzÎ ° À è CµÀÄÖ ¢£ÀUÀ¼ÀÄ EzÀA Ý vÀºÀ D ¢£ÀU¼ À ª À ÀgÉUÆ À ªÀÄzÀås zÀ°è ¥sÉÆãÀÄ ªÀiÁqÀ®Ä ¥ÀæAiÀÄvÀß ¥ÀnÖgÁ CxÀªÁ ºÉÆgÀlÄ ºÉÆÃUÀ®Ä ¥ÀæAiÀÄvÀß ¥ÀnÖÃgÁ JA§ ¥Àæ±ÉßUÉ ¸ÁQë CzÀÄ ºÀ½î JAzÀÄ, J°è ºÉÆÃUÀ¨ÃÉ PÀÄ CAvÀ UÉÆvÁÛUÀÄwÛg° À ®è CAvÀ ºÉüÀÄvÁÛg.É "42 Spl.C.C.No.255/2014
Again she has deposed that:
"24£Éà vÁjÃT£ÀAzÀÄ ²ªÀªÉÆUÀ΢AzÀ ºÁ¸À£P À ÉÌ gÉÊ°£À°è §A¢j JA§ ¥Àæ±ÉßUÉ ¸ÁQë §AzÀzÀÄÝ ºËzÀÄ JAzÀÄ J°èUÉ §AzɪA É zÀÄ UÉÆvÁÛU° À ®è CAvÀ ºÉüÀÄvÁÛg.É d£Àg¯ À ï PÀA¥ÁmïðªÉÄAmï£À°z è ªÀÝÉ ÀÅ, 4 UÀAmÉU¼ À ÀÄ ¥ÀæAiÀÄÁt ªÀiÁrzÀÄÝ C£ÀÄߪÀÅzÀÄ ¸Àj. D ¨ÉÄÁÃVAiÀÄ°è §ºÀ¼À d£ÀjzÀg Ý ÄÀ JAzÀgÉ ¸Àj. D ¨ÉÆÃVAiÀÄ°ègÀĪÀ ¥ÀæAiÀÄtôPj À UÉãÁzÀgÀÆ C¤®£ÀÄ §®ªÀAvÀªÁV vÁ½ PÀnÖzÁÝ£É CAvÀ ºÉüÀ®Ä ¥ÀæAiÀÄvÀß ¥ÀnÖgÁ JA§ ¥Àæ±ÉßUÉ ¸ÁQë 23 gÀAzÀÄ C¤®£ÀÄ £ÀªÀÄä vÀAzÉ vÁ¬ÄUÉ ¥sÉÆãÀÄ ªÀiÁr ¤ªÀÄä ªÀÄUÀ¼ÀÄ £À£ÉÆßA¢UÉ EzÁÝ¼É CAvÀ ºÉýzÀ£ÀÄ, £ÀªÀÄä CªÀiÁä£ÃÉ §AzÀÄ £À£ßÀ £ÄÀ ß PÀgz É ÆÉ AiÀÄÄåvÁÛgÉ CAvÀ £Á£ÀÄ AiÀiÁjUÀÆ ºÉýgÀ°®è CAvÀ ºÉüÀÄvÁÛg.É CgÀ¹ÃPÉgÉ dAPÀë£ï£À°è gÉÊ®£ÀÄß 20 ¤«ÄµÀU¼ À À PÁ® ¤°è¹vÀÄÛ JA§ ¥Àæ±ÉßUÉ ¸ÁQëAiÀÄÄ UÉÆwÛ®è CAvÀ ºÉüÀÄvÁÛg.É ²ªÀªÉÆUÀ΢AzÀ ºÁ¸À£P À ÉÌ §gÀĪÁUÀ 4-5 ¸ÉÖñÀ£ïUÀ¼ÀÄ ¹PÀ̪ÀÅ JAzÀgÉ ¸Àj. ¥ÀæAiÀiÁtôPg À ÀÄ DAiÀiÁ ¸ÉÖñÀ£ïUÀ¼° À è ºÀvÀÄw Û zÛ gÝÀ ÄÀ E½AiÀÄÄwÛzg ÀÝ ÀÄ JAzÀgÉ ¸Àj. F ¸ÉÖñÀ£ïUÀ¼À°è ¤ÃªÀÅ E½zÀÄ ºÉÆÃUÀ®Ä ¥ÀæAiÀÄvÀß ¥ÀnÖgÁ JA§ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ E®èªA É zÀÄ PÁgÀt £ÀªÀÄä CªÀÄä¤UÉ DgÉÆæ ¥sÉÆãÀÄ ªÀiÁrzÀ£ÀÄ, £ÀªÀÄä CªÀÄä£ÃÉ §gÀÄvÁÛgA É zÀÄ, eÁUÀ £À£ÀUÉ UÉÆwÛg° À ®è JAzÀÄ ºÉüÀÄvÁÛg.É "
Again she has deposed that:
"24£Éà vÁjÃT£ÀAzÀÄ ºÁ¸À£À¢AzÀ ¥ÀŤÃvÀ£À ªÀÄ£ÀU É É §¹ì£À°è ºÉÆÃzɪÀÅ JAzÀgÉ ¸Àj. ¤ÃªÀÅ ªÀÄvÀÄÛ DgÉÆæ MnÖUÉ PÀĽvÀÄPÉÆAqÀÄ ºÉÄÁâj JA§ ¥Àæ±ÉßUÉ £Á£ÀÄ ªÀÄvÀÄÛ ¥ÀŤÃvÀ£À vÁ¬Ä 2 ¹Ãn£À°è MnÖUÉ PÀĽwzɪ Ý ÀÅ CAvÀ ºÉýgÀÄvÁÛg.É ªÀiÁgÀ£ÃÉ ¢£À CAzÀgÉ 25£Éà vÁjÃT£ÀAzÀÄ PÉ®¸À ºÀÄqÀÄPÀ¯A É zÀÄ ºÉÆÃV vÀ£ÀUÉ 8000 gÀÆ.UÀ¼À ¸ÀA§¼ÀzÀ ªÉÄPÁå¤Pï PÉ®¸À ¹QÌvÉAzÀÄ DgÀÉÆæ £À£ÀUÉ ºÉýzÀgÀÄ JAzÀgÉ ¸Àj."
Even the above stated admitted evidence is also taken into consideration, the victim girl intentionally not escaped from the clutches of the accused, nor complained about the act of the accused to anybody, she has turned hostile to the case deposed before the Court that only with fear she has accompanied with the accused and she has not complained the act of the accused, but the said contention is not acceptable for consideration. Further she has admitted that:
43 Spl.C.C.No.255/2014
"£Á£ÀÄ ªÀÄvÀÄÛ DgÉÆæ zÀª s ÀÄð¸À¼ Ü z À À £ÉÃvÁæªÀw £À¢AiÀÄ°è ¸ÁߣÀ ªÀiÁrzɪÀÅ JAzÀgÉ ¸Àj. £ÉÃvÁæªÀw £À¢AiÀÄ°è ¸Áߣª À ÀiÁqÀĪÁUÀ CPÀÌ¥ÀPÀÌzÀ°è d£ÀgÀÄ EzÀgÝ ÀÄ JAzÀgÉ ¸Àj."
Again she has deposed that:
"D jÃw ¨ÉÃgÉAiÀĪÀgÀÄ EzÀª Ý jÀ UÉ £Á£ÀÄ DgÉÆæ £À£ßÀ £ÄÀ ß §®ªÀAvÀªÁV PÀgz É ÀÄPÉÆAqÀÄ §A¢zÁÝ£AÉ zÀÄ ºÉüÀ®Ä DUÀ°®è PÁgÀt £À£ÀUÉ vÀÄA¨Á ¨ÀA s iÀÄ¥Àr¹zÀ.Ý »A¢£À ¢£À zÀª s ÀÄð¸À¼ Ü P À ÉÌ ºÉÆÃUÀ®Ä £ÁªÀÅ gÉʯÉéà ¤¯ÁÝtzÀ°z è ÁÝUÀ ¨ÉÃgÉ d£ÀgÀÄ EzÀg Ý ÀÄ. £ÁªÀÅ d£Àg¯ À ï PÀA¥ÁmïðªÉÄAmï£À°è ºÉÆÃzɪÀÅ JAzÀgÉ ¸Àj."
She has also admitted that:
"¨ÉAUÀ¼ÀÆj¤AzÀ zÀª s ÀÄð¸À¼ Ü ÀPÉÌ ºÉÆÃUÀĪÁUÀ JµÀÄÖ ¤¯ÁÝtUÀ¼ÀÄ §AvÀÄ JAzÀÄ UÉÆwÛ®è PÁgÀt gÁwæAiÀiÁVzÀj Ý AzÀ £Á£ÀÄ ªÀÄ®VzÉ.Ý £ÁªÀÅ zÀª s ÀÄð¸À¼ Ü PÀ ÉÌ §¸ï£À°è ºÉÆÃVzɪ Ý ÀÅ. D §¸ï£À°è ¨ÉÃgÀÉ d£ÀgÀÄ EzÀÝgÄÀ JAzÀgÉ ¸Àj. £ÁªÀÅ zÀª s ÀÄð¸À¼ Ü z À ° À è zÀ±ð À £À DzÀ £ÀAvÀgÀ gÁwæ zÉêÀ¸ÁÜ£z À À ªÀÄÄAzÉ EzÀÝ eÁUÀz° À è G½zÀÄPÉÆAqɪÀÅ, DzÀgÉ ¥ÁPïð£À°è C®è. £Á£ÀÄ zÀª s ÄÀ ð¸À¼ Ü zÀ ° À è D ¸ÀªÀÄAiÀÄzÀ°è £À£ÀUÉ K£ÀÆ DUÀzÃÉ EzÀÄz Ý j À AzÀ vÀ¦à¹PÉƼÀÄîªÀ wêÀiÁð£À ªÀiÁqÀ°®è."
She has also admitted that:
"£Á£ÀÄ ZÉ£ÀߪÀÄä£À PÁªÀ°£À°è DgÉÆæAiÀÄ eÉÆvÉ vÁ½, PÁ®ÄAUÀÄgÀ, N¯É PÉÆAqÀÄPÉƼÀî®Ä eÉÆvÉUÉ ºÉÆÃVzÉÝ JAzÀgÉ ¸Àj. F J¯Áè ªÀ¸ÀÄÛU¼ À £ À ÀÄß PÉƼÀÄîªÁUÀ ªÀÄzÀÄªÉ ªÀiÁqÀÄvÁÛgA É zÀÄ £À£ÀUÉ UÉÆvÁÛzg À Æ À ¸ÀºÀ £Á£ÀÄ AiÀiÁjUÀÆ ºÉüÀĪÀ ¥ÀæAiÀÄvÀß ªÀiÁqÀ°®è PÁgÀt C°èzª ÀÝ j À UÉ vÉ®ÄUÀÄ §gÀÄwÛg°À ®è."
The above said evidence also clinches the issue unequivocally points out the victim girl having ample opportunity to escape from that place and also having an opportunity to complain about the act of the accused with the others, but she has not made any such efforts. On the other hand she has given reasons that the said person doesn't know Telugu language. Admittedly she has studied up to 10th 44 Spl.C.C.No.255/2014 standard, she know English language. When such being the case, if really she wants to complain, she would have used English language, but she has not made any efforts to escape or to complain about the act of the accused. This shows that she voluntarily accompanied with the accused and got married him. Viewing from available material evidence on record, this Court feels to observe that though the evidence disclose about taking of the victim girl by the accused to Dharmastala and then to Kushala Nagar and then to Chennakaval and married the victim girl at Chennakaval, but no such resistance made by the victim girl with the act of the accused. It is not in dispute that as on the date of the incident she was aged about 16 years, but she ha snot made any attempt to escape from the clutches of the accused or complained about the act of the accused.
41. At this stage, it is worthwhile to emphasis on the decisions reported in:
1. (NOC) 757 (Raj), wherein it had been observed that:
"S.375, Sixthly (Prior to amendment of 2006)- Kidnapping and rape- Consent-At time of incident, prosecurtrix aged more than 16 years-Prosecurtrix leaving with accused at her free will in absence of her 45 Spl.C.C.No.255/2014 parents, showing her consent-Prosecurtrix found to be consenting party as no hue and cry raised against alleged acts despite opportunities-Accused having prior acquaintance and intimacy with prosecurtrix-Prosecurtrix and accused living at several places as married couple, till her recovery-Guilt of accused not established-Accused, acquitted
2. 2011 Cr.R. Page 582(Kant.), wherein it had been observed that:
"Penal Code, 1860-Sections 366-A and 376- Kidnpping and rape-Seven years R.I. and fine of Rs.5,000 awarded-All through 16 days, when victim was with accused, neither she tried to escape nor complained to anybody saying that she has been forcibly taken by accused-Victim is in borderline of 16 years when alleged incident happened-Love letters produced by accused and belonging to victim showing that victim was in love with accused and wanted to go along with him-It cannot be said that accused has either used physical or mental force to induce victim to come with him or to participate in sexual intercourse-Benefit of doubt can be extended to accused-Appeal allowed ."
3. 2003 Crl.L.J. 4914, wherein it had been observed that:
"Penal Code (45 of 1860), S.366, S.376-Charge for kidnapping woman to compel her to marry and for rape- Sequence of events showing that prosecurtrix accompanied accused willingly-Father of prosecurtrix stating in FIR that prosecurtrix accompanied accused willingly-Father of prosecurtrix stating in FIR that prosecurtrix went away by taking clothes and gold chain and some cash showing that there was no threat or inducement-Accused not liable to be held guilty under S.366 or 376 in absence of proper appreciation of evidence in regard to consent of prosecurtrix which is mandatory requirement before finding a person guilty under S.366 or 376."
4. 2006 Crl.L.J. Page 3276, wherein it had been observed that:
46 Spl.C.C.No.255/2014
"Penal Code (45 of 1860), S,.366, S.506-Abdction and criminal intimidation-Proof-Allegations that accused appellant along with other accused at point of a weapon gave threats to prosecurtrix and abducted her against her wishes-Evidence of prosecurtrix that accused persons entered in her house where she was sleeping with her husband who woke up due to commotion and yet they forcibly took her-Is not consistent with story of prosecution as alleged in FIR-Delay in lodging FIR- Evidence of prosecurtrix not showing that accused had abducted her with intention to forcibly marry her against her will or that she may be forced to illicit intercourse- Place of incident and motive of accused in taking away prosecurtrix under a threat is doubtful-Conviction of accused persons, not proper."
5. 1997 Crl.L.J. Page 1018, wherein it had been observed that:
"Penal Code (45 of 1860), S,.361-Kidnapping-Proof- Girl accompanying accused by her own volition without any compulsion of accused-Said facts established from evidence of girl-Does not constitute offence of kidnapping- In absence of any other evidence ot establish guilt of accused for having committed said offence-Order of conviction of accused for offence of kidnapping, not proper.
"Penal Code (45 of 1860), S,.376-Rape-Proof- Accused alleged to have had sexual intercourse with prosecurtrix by promising to marry her-However prosecurtrix not stating that accused had committed rape on her but stating that she did not know what happened to her-Questions put to her elicited from statements made before police and not from facts-Cannot be relied on-Thus no material found to establish guilt of accused-Order of conviction set-aside ."
6. 2009 Crl.L.J. Page 3255, wherein it had been observed that:
"Penal Code (45 of 1860), S,.366-a-Procuration of minor girl-Allegation that accused kidnapped daughter of informant when she had gone to accompany mother of 47 Spl.C.C.No.255/2014 accused to attend nature's call-Evidence by informant as to manner of occurrence was very weak-No explanation offered for delay of 2½ years in filing FIR- Fact that victim did not raise hue and cry when she was being taken by accused in bus also made prosecution story doubtful- None of the villagers had seen accused with victim- Further story put forth by victim that she was sold to truck driver by accused also could not be believed in view of various inconsistencies in evidence-Victim was not medically examined after she returned back after 8/9 months-It cannot be said that accused was responsible for kidnapping victim-Conviction of accused liable to be set-aside.."
Though the facts and circumstances of the above case decisions and the facts and circumstances of the case on hand are different one but the ratio of principle is applicable to the present case on hand.
42. Now left with the available material evidence on record to consider. Pw.2-Nagarju-P.C.8604, he has deposed that on 28-03-2012 he has accompanied with the P.S.I., and another P.C., to bring the accused from Chennakallu Kaval. At that time the parents of victim girl are also accompanied with them. They went to Chennakallu Kaval at about 04.00 p.m., and taken custody of the accused and the victim girl and the victim girl was given to the custody of her parents and they brought the accused to the police station at about 09.30 p.m. 48 Spl.C.C.No.255/2014 The accused tested the veracity of evidence of this witness by eliciting some commission and omission, except denial suggestion nothing has been elicited favourable to the defense taken by the accused. Here it is not in dispute that the accused was brought by the police from Chennakallu Kaval Village.
43. By going through the evidence of Pw.3-Mahadevi, W.P.C, she has deposed that on 28-03-2012 she has taken the victim girl to Government Balakiyara Bala Mandira and on 29- 03-2012 she brought the victim girl to police station at about 10.00 a.m. Thereafter at about 02.00 p.m., she had taken the victim girl for medical examination and P.C.7481 had taken the accused for medical examination to Ambedkar Hospital for examination, against they brought them and produced before SHO. The accused cross-examined this witness by eliciting some commission and omission, except denial suggestion nothing has been elicited favourable to the defense taken by the accused herein. At this stage this Court feels to observe that the evidence of Pw.2 and Pw.3 are formal one.
44. By going through the evidence of Pw.5- 49 Spl.C.C.No.255/2014 Kemparamaiah-P.S.I., he has deposed that on 26-03-2012 at about 12.15 p.m., he was the SHO of the station, at that time the complainant came and lodged complaint as per Ex.P1. On perusal of said complaint, he has registered the case in Crime No.111/2012 under section 366-A of IPC. Thereafter he has prepared FIR as per Ex.P3 and his signature is Ex.P3(b). He went to Kodige Halli Railway Station to the platform and drawn mahazar as per Ex.P2 and his signature is Ex.P2(c). The accused tested the veracity of evidence of this witness by eliciting some commission and omission and except denial suggestion nothing has been elicited favourable to the defense taken by the accused herein. At this stage this Court feels to observe that the evidence of this witness is a formal one.
45. By going through the evidence of Pw.11- Dr.B.M.Nagaraju, he has deposed that on 29-03-2012 he has examined the victim girl with the assistance of Gynecologist and given report as per Ex.P4. On perusal of Ex.P4 she has admitted before the doctor that the accused had forcibly taken her at about 07.30 p.m., on 16-03-2012 and raped on her against her will and also opined in Serial No.1 that there was 50 Spl.C.C.No.255/2014 sexual intercourse recently and signs of recent sexual intercourse found. In Serial No.2 he has stated that on local genital examination, evidence of signs of recent sexual intercourse present. At the same time in Serial No.3 it is mentioned that the individual is not used to an act like that of sexual intercourse previously. If the above said opinions mentioned in Serial No.2 and 3 are taken into consideration, there is a doubt of giving opinion in respect of whether the victim girl undergone sexual intercourse or not. Further why the doctor has given such type of opinion is also unexplained in his evidence. The accused tested the veracity of evidence of this witness and also elicited that at the time of alleged incident she was aged about 15 to 16 years and denied the issuance of Ex.P4 and Ex.P5 for that he has denied the same.
46. By going through the evidence of Pw.10-Jagadish- P.S.I., he has deposed that on 26-03-2012 he has received the case record from P.S.I.Kemparamaiah and conducted further investigation, On 28-03-2012 he has taken Cw.7, Pw.2 and the parents of the victim girl to Chennakaval near Kushal Nagar as per the information received by him, taken the custody of the 51 Spl.C.C.No.255/2014 accused and the victim girl from the house of Puneeth, brought them to the station at about 09.30 p.m, recorded the voluntary statement of accused, since the time was odd hour, he has sent the victim girl to Balakiyara Bala Mandir and recorded the statement of Cw.7 and Pw.2. Thereafter he has produced the accused before the Court on 29-03-2012, the very same day he has summoned the victim girl and recorded her statement, thereafter he has sent both the victim girl and the accused for medical examination to Ambedkar Hospital-Bengaluru with the escort. He has received the medical report of the victim girl on 03-04-2012 as per Ex.P4 and on 29-03-2012 he has received the medical report of the accused as per Ex.P5. On 12-04- 2012 he has recorded the statement of Pw.4, Pw.8, Pw.9 and Pw.6 and after completion of investigation he has filed charge sheet against accused on 09-05-2012. He has received the school documents of the victim girl to know the date of birth of the victim girl. The accused cross-examined this witness by eliciting some commission and omission, except denial suggestion nothing has been elicited favourable to the defense taken by the accused herein. He has also deposed that: 52 Spl.C.C.No.255/2014
"DgÉÆæ ªÀÄvÀÄÛ £ÉÆAzÀ ¨Á®Q EzÀÝ ªÀÄ£ÉAiÀÄ §½ ºÉÆÃV ªÀÄ£É ¨ÁV®Ä vÀnÖzÁUÀ ¸ÀªÀÄAiÀÄ JµÁÖVvÀÄÛ JAzÀÄ ºÉüÀ®Ä £À£V À ÃUÀ ¸ÀjAiÀiÁV eÁÕ¥P À À E®è. DgÉÆæAiÀÄ£ÀÄß ©lÖgÉ D ªÀÄ£ÉAiÀÄ°è £ÉÆAzÀ ¨Á®QAiÀÄ eÉÆvÉ EvÀgÉ d£ÀgÁåjzÀgÝ ÀÄ JAzÀÄ ºÉüÀ®Ä £À£ÀVÃUÀ eÁÕ¥P À À E®è. £ÉÆAzÀ ¨Á®Q ªÀÄvÀÄÛ DgÉÆæAiÀÄ£ÀÄß £ÀªÀÄä ªÀ±P À ÉÌ vÉUz É ÀÄPÉÆAqɪÀÅ JAzÀÄ ºÉüÀĪÀ ¸À¼ Ü z À °À è ¸À¼ Ü À ªÀĺÀdgï PÀæªÀÄ dgÀÄV¹gÀĪÀÅ¢®è, C°è ¸À¼ Ü À ªÀĺÀdgï PÀæªÀÄ dgÀÄV¸ÀzÀ PÁgÀt £À£ÀVÃUÀ ºÉüÀ®Ä DUÀĪÀÅ¢®è."
He has also deposed that:
"ZÁ¸Á.7 ªÀÄvÀÄÛ ¥Áæ¸Á.2gÀªg À À ºÉýPÉAiÀÄ£ÀÄß ¥ÀqÉz£ É AÉ zÀÄ £Á£ÀÄ ºÉüÀÄwÛzÀÄÝ £ÉÆAzÀ ¨Á®Q ºÁUÀÆ DgÉÆæ EzÀg Ý ÉAzÀÄ ºÉüÀĪÀ ªÀÄ£ÉAiÀÄ CPÀÌ¥ÀPÀÌzÀ d£Àg£À ÀÄß «ZÁj¹ CªÀgÀ ºÉýPÉAiÀÄ£ÀÄß £Á£ÀÄ ¥Àq¢ É gÀĪÀÅ¢®è. DgÉÆæAiÀÄ£ÀÄß zÀ¸ÀÛVj ªÀiÁqÀĪÀÅzÀPÉÌ ªÉÆzÀ®Ä CvÀ£À CAUÀ±Æ É ÃzÀ£ s A É iÀÄ£ÀÄß £Á£ÀÄ ªÀiÁrgÀĪÀÅ¢®è. £ÉÆAzÀ ¨Á®Q ªÀÄvÀÄÛ CgÉÆæAiÀÄ£ÀÄß ªÀ±P À ÉÌ vÉUz É ÀÄ PÉÆAqɪA É zÀÄ ºÉüÀĪÀ ¸À¼Ü z À °À è CªÀgÀ ªÉÊzÀåQÃAiÀÄ ¥ÀjÃPÉëAiÀÄ£ÀÄß £Á£ÀÄ ªÀiÁrgÀĪÀÅ¢®è. DzÀgÉ PÉÆrUÉà ºÀ½îUÉ PÀgv É A À zÀ £ÀAvÀgÀ ªÉÊzåÀ gÀ §½ PÀ¼ÀÄ»¹ CªÀgÀ ¥ÀjÃPÉëAiÀÄ£ÀÄß ªÀiÁr¹zÉÃÝ £É."
The above said admissions clinches the issue unequivocally points out about the latches in the investigation. Even he has not produced the medical report from Kodige Halli Doctor. At this stage this Court feels to observe that the evidence of this witness is a formal one.
47. From the available material evidence on record, this Court feels to observe that no doubt the evidence of victim girl disclose about that the accused has taken her to Dharmastala, then to Kushala Nagar and then to Chennakal Kavallu, Shimoga and then harassed her and brought her to Bengaluru, but the investigation is otherwise. There is contrary evidence available 53 Spl.C.C.No.255/2014 on record and also the same is inconsistent and not credible evidence, as such it creates doubt. Moreover, the accused had taken the victim girl through public convenience as per the evidence of the victim girl itself. There was ample opportunity for her to alarm the public in respect of act of the accused or to complain about the act of the accused, but the victim girl has not made any such acts, even though she was aged about 16 years as on the date of the alleged incident. All these 11 days she has not taken any steps and kept quite and whey she accompanied with the accused is not explained. Under such circumstances inference has to be drawn on the given material evidence favourable to the accused and not favourable to the prosecution.
48. The learned advocate for accused relied on the decisions reported in 1987 Crl.L.J. Page 1266, wherein it had been observed that:
"Penal Code (45 of 1860), S,.363,, S.366- Offences under-Age of prosecurtrix-Ossification test-Skeletal age of victim according to Radiologist was 16 or 17 years- Margin of error in such tests varies from 1½ to 2 years- Benefit of margin has to go to accused-Consequently it must be held that victim could be 18 years above."54 Spl.C.C.No.255/2014
and the learned advocate for accused also relied on the decisions reported in 2004 Crl.L.J. Page 4776 (9) 1977 Crl.L.J. Page 238 (10) 1979 Crl.L.J. Page 1087 (11) 1990 Crl.L.J. Page 511 (12) (1987) 1 SCC Page 679 (13) 2004 Crl.L.J. Page 4776 (14) 2003 Crl.L.J. Page 5002 (15) LAWS (PAT) 2015 Page 1032 and (16) 2001 Crl.L.J. Page 1176. In order to consider the accused rebutted the prosecution evidence the ratio of principles laid down in the above said decisions is also followed by this Court. Further the defense of the accused and the facts and circumstances of the case including materials on record discussed above probablizes the defense of the accused rather than the case of the prosecution.
49. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.12 and documentary evidence as per Ex.P1 to Ex.P6, placed on record in respect of alleged offences is insufficient to prove that on 16-03-2012 at about 07.30 p.m., the accused near Kodige Halli Railway Station-Bengaluru, induced Cw.2-the victim girl stating that he is going to marry her, kidnapped her and raped her against her will and thereby committed offences punishable under section 366, 376 of I.P.C., 55 Spl.C.C.No.255/2014 beyond all reasonable doubt. Consequently I hold Point No.1 and 2 in the "Negative".
50. Point No.3:- For the above said reasons and discussions on Point No.1 and 2, I hold that the accused is entitled for an order of acquittal. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C., the accused is hereby acquitted for the offences punishable under Section 366 and 376 of I.P.C. His bail bond and surety bond stands cancelled.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open Court on this the 21st Day of February 2018) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU A N N E X U R ELIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION Pw.1 Lakshmi Narayana Cw.1 19-02-2013 Pw.2 Nagaraju Cw.8 02-03-2013 Pw.3 Mahadevi Cw.10 02-03-2013 56 Spl.C.C.No.255/2014 Pw.4 Lakshmi Cw.3 02-03-2013 Pw.5 Kemparamaiah Cw.11 21-03-2013 Pw.6 Lakshmi Narayana Cw.6 21-03-2013 Pw.7 Victim Cw.2 21-03-2013 Pw.8 Rajashekar Cw.4 04-04-2013 Pw.9 D. Basha Cw.5 16-04-2013 Pw.10 Jagadish Cw.12 12-01-2015 Pw.11 B.M.Nagaraj Addl. W-1 06-06-2015 Pw.12 Shivamallu 19-04-2017 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Complaint Pw.1 19-02-2013 Ex.P 1a Signature of Pw.1 Pw.1 19-02-2013 Ex.P 1b Signature of Pw.5 Pw.5 21-03-2013 Ex.P 2 Mahazar Pw.1 19-02-2013 Ex.P 2a Signature of Pw.1 Pw.1 19-02-2013 Ex.P 2b Signature of Pw.2 Pw.2 02-03-2013 Ex.P 2c Signature of Pw.5 Pw.5 30-10-2017 Ex.P 2d Signature of Pw.6 Pw.6 21-03-2013 Ex.P 3 FIR Pw.5 30-10-2017 Ex.P 3a Signature of Pw.5 Pw.5 30-10-2017 Ex.P 4 Medical report of Pw.10 12-01-2015 victim girl Ex.P 4a Signature of Pw.10 Pw.10 12-01-2015 Ex.P 4b Signature of Pw.11 Pw.11 06-06-2015 Ex.P 5 Medical report of Pw.10 12-01-2015 accused 57 Spl.C.C.No.255/2014 Ex.P 5a Signature of Pw.10 Pw.10 12-01-2015 Ex.P 5b Signature of Pw.11 Pw.11 06-06-2015 Ex.P 6 Date of birth Pw.10 12-01-2015 certificate of victim Ex.P 6a Signature of Pw.10 Pw.10 12-01-2015 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION NIL LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE Ex.D1 Victim's statement Pw.7 13-08-2015 before CWC Ex.D1a Victim's signature Pw.7 13-08-2015 Ex.D1b Signature of Pw.12 Pw.12 19-04-2017 Ex.D2 News paper Pw.1 30-12-2016 Ex.D3 Copy of FIR in Crime Pw.1 30-12-2016 No.6/2011 LIST OF WITNESSES EXAMINED & MATERIAL OBJECTS MAKED ON BEHALF OF DEFENCE NIL L ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU