Karnataka High Court
The State Of Karnataka vs Ameen Sab on 2 September, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2ND DAY OF SEPTEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.2587 OF 2008
BETWEEN:
The State of Karnataka,
By C.P.I., H.B. Halli Police
Station, Bellary District. ...APPELLANT
(By Shri V.M. Banakar, Advocate)
AND:
Ameen Sab,
S/o. Baba Hussain Sab,
55 years,
Agriculturist,
Resident of Banakal Village. ...RESPONDENT
(By Shri S.R. Hegde & Associates, Advocates)
---
This appeal is filed under Section 378(1) and (3) of the
Code of Criminal Procedure, 1973 by the State Public
Prosecutor for the State praying to grant leave to appeal against
the judgment and order of acquittal dated 16.6.2008 passed by
the Fast Track Court-III at Hospet in S.C.No.145/2007,
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acquitting the respondent accused of the offence punishable
under Section 376 of the Indian Penal Code, 1860, and etc.
This appeal coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
Heard the learned Additional State Public Prosecutor and the learned counsel for the respondent.
2. The State is in appeal questioning the acquittal of the respondent for offences punishable under Section 376 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.', for brevity). It was the case of the prosecution that PW-2, a minor aged 5 was residing at Benakal village in Hagaribommanahalli Village within Hagaribommanahalli Police Station limits. The respondent who was the accused, was her neighbour. On 26.07.2007 at about 3.30 p.m. when the child was alone in her house, the respondent is said to have gone there and committed rape on her. PWs 9 to 13 were cited as witnesses who had seen the respondent going to the house of PW-2 and again coming 3 out of that house. PW-1 was the mother of the child who was an agricultural coolie and had returned to the house and saw the closed door of the house with her child inside. She also saw the accused coming out of her house and he informed her that he went in to give bread to the victim child. However, on enquiry PW-1 had learnt that the accused had committed rape on the child. PW-1 had immediately examined the child and found that the child's vagina was swollen. On the same night, PW-1 had lodged a complaint with the aforesaid police station. The complaint was received at 11.30 p.m. and a case was registered against the accused and an FIR was submitted. The child was sent for medical examination. On 27.07.2007, the Medical Officers who examined the child had furnished a report as per Exhibit P4, and Exhibits P9 to P12. The accused was arrested and he has was medically examined by PW-3, who had issued certificates Exhibits P6 to P8. It was also opined that he was capable of performing the sexual act. He was aged 55 at the time of the incident. PW-14 had visited the scene of offence 4 and a mahazar was drawn and seized a blanket MO-4. The accused had pleaded not guilty and claimed to be tried. The prosecution had tendered evidence through PWs 1 to PW16 and marked Exhibits P1 to P-24, apart from marking material objects MOs 1 to 14. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to 'Cr.P.C.', for brevity) and after hearing the rival contentions, the court below had framed the following point for consideration namely, 'Whether prosecution proves that accused committed rape on PW-2', The court below answered the same in the negative and acquitted the accused. It is that which is under challenge in the present appeal.
3. The learned Additional State Public Prosecutor would contend that the victim was a minor and was aged 5. The complaint was lodged by the mother but the examination of the child was conducted only on the next day, as the mother was 5 made to move from the Primary Health Centre of one village to another in the search of a lady Medical Practitioner to get the child examined and furnish a report. It is only later on the next day that the child could be examined by a Medical Practitioner, by which time, the violence on her sexual parts if any, by penetration, had possibly receded by lapse of time. Even otherwise, when the child was examined by the concerned, it was found that the child complained of pain when her parts were touched. It is for that reason the PV examination was not conducted, as endorsed in the respective reports.
The learned Additional State Public Prosecutor would further point out that there is no dispute that the child's hymen was ruptured and hence, there is indication of foul play by the respondent. The definition of 'rape' has been strictly applied and on that ground has held that there was no penetration, no sign of injury or other evidence of violation of the child, and the court below has proceeded to absolve the respondent of guilt and the evidence of the minor has been viewed by the court 6 below strictly in order to come to the conclusion that the evidence was not genuine, as the child had candidly stated that her parents had told her to make statements which she gave in her evidence. This according to the court below indicated that the witness had been tutored and therefore, has held that in the absence of any other incriminating evidence, such an injury or blood stains or semen stains left behind by the accused, it could not be said that there was sexual violation. This the learned Additional State Public Prosecutor would say, is unfair, as there is clear evidence by the mother as well as the victim that on account of the respondent having taken advantage of the young child, her vagina was swollen at the time of the incident. Since the examination of the child has taken place only on the next day, the swelling having receded and no sign of such violation being present, has enured to the benefit of the respondent. Hence, the evidence tendered ought not to be discarded as not being an offence punishable under Section 376 IPC. 7
4. The learned counsel for the respondent - accused on the other hand, would point out that in the absence of any evidence of sexual violation, the court below having acquitted the accused, cannot be faulted, as the medical reports clearly indicate that there was absolutely no injury on the child. Except that the hymen was ruptured to the extent of 2 millimetres, which permitted the insertion of the tip of a finger and nothing more, it could not be said that the respondent had committed rape, which required penetration of his penis into her vagina, which was not possible in the presence of her hymen. Her hymen was only punctured to the extent of 2 millimetres and would submit that the rupture of the hymen to that extent could not be on account of rape committed on the child, as there is no other sign of injury or other sign of recent sexual activity even on examination of the clothes of the accused, which were carried out. Hence, the learned counsel would justify the finding of the court below.
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5. Going by the definition of 'rape' as contained under the unamended provision and even according to the amended provision, which has come into force in the year 2013, the commission of the offence of 'rape' could not be said to have been established on the basis of the material that is produced on the record. Even if the respondent had possibly taken advantage of the child who was alone and had misbehaved with her, in the absence of any evidence to that effect, it cannot be said that there was any offence committed which is capable of being punished. Hence, given the set of the evidence that is available, it cannot be said that the prosecution had made out any case of a commission of an offence punishable under Section 376 IPC or an attempt thereof. Hence, there is no warrant for interference. The appeal is dismissed.
Sd/-
JUDGE KS