Bangalore District Court
State By Yelahanka New Town Police vs G.Manjunatha on 27 April, 2016
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH.55).
Dated this the 27th day of April 2016.
Present: SMT.VIJAYALAXMI S.UPANAL, M.A., LL.M.,
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY.
S.C.No.1057/2012
COMPLAINANT State by Yelahanka New Town Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED G.Manjunatha,
S/o.Gangaraju, 24yrs,
R/at at Manjunatha Nilaya,
1st Main, 6th Cross,
Attur Main Road,
Yelahanka New Town
Bangalore.
(By Sri.K.T.G,Advocate)
1 Date of commission of offence 10-04-2012
2 Date of report of occurrence 11-04-2012
3 Date of arrest of Accused 11-04-2012
Date of release of Accused 17-11-2012
Period undergone in custody 07months & 6days
by Accused
4 Date of commencement of 06-04-2013
evidence
5 Date of closing of evidence 09-10-2015
2 S.C.No.1057/2012
6 Name of the complainant Victim girl
7 Offences complained of Sections 342 & 376 of
IPC
8 Opinion of the Judge Accused is convicted
9 Order of sentence As per the final order
JUDGMENT
This is case against the accused for the offences punishable under Section 342 and 376 of IPC is came to be registered on the strength of charge sheet submitted by Police Inspector-Yelahanka New Town Police Station in Crime No. 101/2012.
2. The brief facts of the prosecution case are as under:
The victim-girl was residing in house No.58, 6th Cross, 2nd Main, Attur Layout, Yelahanka New Town, Bangalore, along with her parents. She is aged about 19years. As per prosecution case, in front of house of victim-girl there are two houses belonging to the ownership of Saraswathamma, wife of Mariyappa. In one house Saraswathamma and her family members are residing and in another house Anil and his two friends including the accused are tenants. On 10-04-2012 at 3 S.C.No.1057/2012 about 12.30noon, the victim-girl had been to the house of Cw.14 bearing No.66, which is situated in front of her house.
10-15mintues thereafter she came out from the said house in order to go to her house, at that time the accused being the tenant in the neighbouring house of Cw.14 suddenly dragged her inside the house by holding her hands, kept her under threat of life by showing knife in his hands and thereafter raped her forcibly. After sometime he has pulled the victim girl into the bathroom of his house, and left the house. He has wrongfully confined her in the said house upto 6.30p.m. Hence this charge sheet.
3. On the basis of the complaint lodged by the complainant-Cw.1 the case is registered against the accused for the offences punishable under Section 342, 376 of IPC.
4. Pw.11-Smt.Annapoorna-AS.I., has deposed that on 11-04-2012 as per the direction of the Investigation Officer, she has taken the victim girl for medical examination to Dr.B.R. Ambedkar Hospital, after completion of her medical examination she has brought her back to the Police Station and produced her before the Investigation Officer.
4 S.C.No.1057/2012
5. Pw.12-Padmacharan.S.P., and Pw.14-Puttaraju- Police Constables, Yelahanka New Town Police Station have deposed that as per the direction of Investigation Officer on 11- 04-2012 they have gone to search for accused. They had been to the house of accused, wherein the accused was present in his house, they took him to their custody, brought him to the Police Station and produced him before the Investigation Officer. In that regard Pw.14 gave his report as per Ex.P7. Both the witnesses have identified the accused person. In the cross- examination by the learned counsel for accused they both have deposed that at the time of going to search the accused, no written memo was given to them and they have not drawn mahazar on the spot where they have taken the accused to their custody.
6. Pw.13-Raghavendra.V-Police Constable, Yelahanka New Town Police Station has deposed that as per the direction of Investigation Officer, on 11-04-2012 he has taken the accused person for medical examination to Dr.B.R.Ambedkar Hospital and after completion of his medical examination, he has brought him to the police station and produced him before 5 S.C.No.1057/2012 the Investigation Officer.
7. Pw.16-Umesh.M.H., Police Inspector, Yelahanka New Town Police Station has deposed that on 11-04-2012 at about 01.30noon he was in charge of Police Station, the victim girl appeared before him and lodged the complaint as per Ex.P1. He has registered the same in Crime No.101/2012 and submitted FIR as per Ex.P11. On the same day at about 02.00p.m., he has sent the victim girl for medical examination along with Cw.8-Annapoorna-Woman Police Constable along with his requisition. On the same day at about 02.00p.m., Cw.2 and Cw.3 brought the accused and produced before him. He has arrested the accused by following the arrest rules. In that regard Cw.2 gave his report as per Ex.P7 and Cw.3 gave his statement. On the same day at about 03.30p.m., he has sent the accused person for medical examination to Dr.B.R. Ambedkar Hospital with Cw.9. The said requisitions sent by him are at Ex.P9 and Ex.P10. After completion of medical examination, the victim girl and accused were produced before him. On that day at about 06.30p.m., to 07.00p.m., the complainant has produced her clothes in the Police Station 6 S.C.No.1057/2012 which were worn by her at the time of the alleged incident. He has seized them in the presence of Panchas-Cw.4 and Cw.5 and drawn mahazar as per Ex.P2. The said clothes are at MO1 to MO4. The seized articles were mentioned in P.F.No.42/2012. On that day in between 07.45p.m., to 08.45p.m., he has visited to the spot of offence shown by the victim girl, on the spot in presence of Panchas-Cw.6 and Cw.7 he has drawn mahazar as per Ex.P3. At the time of drawing the mahazar, the complainant has shown the knife on the spot of offence used by the accused to keep her under threat. The said knife is at MO5. He has deposed that when he visited the said house it was under lock and the key was with the members of the complainant's family. He has opened the doors of the said house by using the said key and entered into the said house. He has drawn the rough sketch on the spot as per Ex.P12. He has recorded the statements of Cw.10 to Cw.17. He has received the khatha and other documents relating to the spot of offence from Cw.14 in which the alleged offence was committed. He has got the said documents marked at Ex.P13 to Ex.P16. He has received the medical examination reports of accused and victim girl as per 7 S.C.No.1057/2012 Ex.P4 and Ex.P8 on 20-04-2012. After completion of investigation on 04-06-2012 he has submitted the charge sheet before the Court against the accused for the offences punishable under Sections 342 and 376 of IPC.
8. After receipt of charge sheet against the accused, the learned Chief Metropolitan Magistrate-Bangalore City, took cognizance of the offences alleged against the accused and registered a case against him in C.C.No.15424/2012 on his file for the offences punishable under Sections 342 and 376 of IPC.
9. After securing the presence of the accused before the Court, the learned Chief Metropolitan Magistrate-Bangalore City, has complied with the provisions of Section 207 of Cr.P.C., by furnishing copies of charge sheet and prosecution papers to the accused. The offence alleged against accused punishable under Section 376 IPC is exclusively triable by Sessions Court, the learned Chief Metropolitan Magistrate, Bangalore City, under Section 209 of Cr.P.C., has committed the case against the accused to the Principal City Civil & Sessions Judge, Bangalore City, for trial and the same came to be registered in S.C.No.1057/2012 on the file of Principal City Civil & Sessions 8 S.C.No.1057/2012 Court, Bangalore City, who in turn has made over the case to FTC-VII for disposal in accordance with law.
10. After transfer of the case to FTC-VII, the learned Presiding Officer of said Court has secured the presence of accused before the Court and after hearing both sides on the charge to be framed against the accused, the learned Presiding Officer of FTC-VII has framed the charge against the accused under Section 376 and 342 of IPC.
11. The charge was framed, read over and explained to the accused in the language known to him. The accused has pleaded not guilty and claimed to be tried. Thereafter the prosecution was called upon to lead evidence on its side to prove the guilt of the accused.
12. Thereafter this case has been transferred to this Court as per the notification No.RSB.21/14 dated 14-02-2014 of Hon'ble High Court of Karnataka.
13. In order to prove the guilt of the accused, the prosecution has examined in all Pw.1 to Pw.16 and got marked Ex.P1 to Ex.P15 and MO1 to MO5 in support of its case.
14. After recording the evidence adduced by the 9 S.C.No.1057/2012 prosecution, the statement of accused under Section 313 of Cr.P.C., has been recorded. All the incriminating subsistence appearing against him in the evidence of the prosecution witness has been read over and explained to the accused in the language known to him. The accused has totally denied the same. Total denial is the defense of accused.
15. I have heard argument on both sides.
16. The points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond all reasonable doubt that on 10-04-2012 at 12.30noon within the jurisdiction of Yelahanka New Town Police Station, Bangalore, the accused with sexual intention, suddenly took the victim-girl in side his tenanted house belonging to Cw.14 and by keeping her under threat of life, raped her without her consent and forcibly thereby committed an offence punishable under Section 376 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that during the same period, time and place, the accused has committed sexual assault on the victim-girl and since 12.30p.m., to 06.30p.m., wrongfully confined her in the said house thereby committed an offence punishable under Section 342 of IPC?
3. What Order?10 S.C.No.1057/2012
17. My findings on the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: As per the final order for the following:
REASONS
18. POINT No.1 and 2 : These two points are interconnected with each other. To avoid repetition of discussion I take up these points together for consideration.
19. It is for the prosecution to prove the guilt of the accused beyond all reasonable doubt by adducing proper evidence. In order to prove the guilt of the accused for the offences alleged against the accused, the prosecution has to prove the following ingredients beyond all reasonable doubt.
◄ That the accused on 10-04-2012 has taken the victim-girl forcibly inside his house, raped her forcibly and without her consent by keeping her under threat of life.
◄ That the accused during that period wrongfully confined the victim-girl in the tenanted house, owned by Cw.14 since 12.30p.m., to 06.30p.m., on 10-04-2014.
20. The prosecution in order to bring home the guilt of the accused totally it has examined 16 witnesses, viz., Pw.1-the 11 S.C.No.1057/2012 victim-the complainant, Pw.2-Shivananjaiah-Panch to mahazar marked at Ex.P2, Pw.3-Smt.Chandrakala-Pancha to Mahazar marked at Ex.P3, Pw.4-Veeraraju and Pw.5-Sowbhghyamma- parents of victim-girl, Pw.6-Meenaksi-Co-sister of Pw.5, Pw.7- Narasimha Murthy-brother of Pw.4, Pw.8-Mariyappa-the owner of house No.66, where the offence alleged to be committed, Pw.9- Madhu-neighbouring resident of the said area, Pw.10-Anil- another tenant in the said house along with accused, Pw.11- Smt.Annapoorna-Assistant Sub-Inspector, Pw.12-Padma Charan
-Police Constable, Pw.13-Raghavendra-Police Constable, Pw.14- Puttaraju-Police Constable, Pw.15-Dr.B.M.Nagaraj and Pw.16- M.H.Umesh-Investigting Officer.
21. The prosecution in support of the allegations made against the accused has produced documents marked at Ex.P1 to Ex.P15. Ex.P1-the complaint, Ex.P2-Seizure Mahazar, Ex.P3- Spot Mahazar, Ex.P4-Medical certificate relating to the victim- girl, Ex.P5-Statement of Pw.8, Ex.P6-Statement of Pw.10, Ex.P7- report submitted by Pw.14, Ex.P8-Medical certificate relating to accused person, Ex.P9 and Ex.P10 are the requisitions submitted by the Investigation Officer, Ex.P11-FIR, Ex.P12- 12 S.C.No.1057/2012 sketch of spot of offence, Ex.P13-copy of document, Ex.P14-copy of tax paid receipt and Ex.P15-copy of Assessment extract relating to the title of house where the alleged offence has been committed.
22. The prosecution has also got marked MO1 to MO5- Chudidar top, pant, bra, panty and knife at MO1 to MO5.
23. Relying on the oral and documentary evidence, the prosecution has submitted that the accused has committed the offences punishable under Section 376 and 342 of IPC and he is liable for punishment.
24. Before proceeding to appreciate the evidence available on record, it is necessary to know the averments made in the complaint which is marked at Ex.P1.
25. The complainant is the victim in this case and she has lodged the complaint on 11-04-2012 at 01.30noon. According to this complaint the victim-girl aged about 19years is residing in house No.58, 2nd Cross, 2nd Main, Attur Layout, Yelahanka New Town, Bangalore. She has studied upto PUC. On 10-04-2012 at about 12.30noon, the grand child of Saraswathamma came to her house. Therefore the complainant 13 S.C.No.1057/2012 in order to send back the said child to its house took the said child to the house of Saraswathamma, whose house is situated in front of her house. When the complainant had been to the said house, in their house the C.D. was playing in the T.V. relating to the marriage of Puspa. The complainant also sat there in order to see the C.D., 15minutes thereafter she heard the sound of two wheeler vehicle and assuming that the said vehicle is belonging to her father and her father has returned to the house, she came out in order to return to her house. At that time accused by name-Manjunatha, who is resident in the neighbouring house of Saraswathamma, suddenly took her inside his house, kept her under threat of life by showing knife that he would kill her if she made any noise. Due to the said threat the victim-girl kept quiet without making any noise. The accused removed her clothes and committed rape on her by showing the knife towards her. He has also threatened her not to disclose the said incident to anybody else and showed the knife and not allowed her to go out from the house. She sat near the doors under threat as directed by the accused about 30 or 45minutes. Thereafter she heard the sound of her mother, 14 S.C.No.1057/2012 who was searching for her daughter. Her mother had knocked the doors of house of Manjunatha, the said Manjunatha opened the doors to a short extent and told that he has not seen her daughter. Therefore, her mother had gone from the said spot. The said Manjunatha again closed the doors. He has called his friend-Anil through phone, who is residing in the same house as tenant, when the said Anil returned to the house, they both have discussed about the incident and at that time the mother of Manjunatha came there and knocked the doors, for which the accused told to his mother without opening the doors that he will come later on and send her back. After some time the sister of Manjunatha came there, and called her brother, at that time also the accused told her that he will come later to the house. Thereafter the said Manjunatha along with Anil pulled her inside the both room and gone out from the said house. At that time she has lost her conscious. At about 06.30p.m., she regained her consciousness, only when her parents along with her uncle and wife of her uncle came inside the said house, put water on her face and made her to regain her conscious. They all took her to their house. After recovering from the said shock, she 15 S.C.No.1057/2012 informed about the incident to her parents, uncle and aunt, thereafter they took her to the Police Station and informed the incident to the police. Hence, this complaint.
26. Keeping in mind the contents of the complaint and the allegations made against accused, now we have to see the evidence of victim-girl.
27. Pw.1-victim-girl has deposed that 10-04-2012 at about 12.30noon she had been to the house of Saraswathamma, which is situated in front of her house in order to send back their child. There was marriage C.D., playing in the T.V. in the house of said Saraswathamma, the victim-girl sat there sometime by seeing the said T.V. She heard the sound of two wheeler and assuming that her father has returned to the house, she came out from the house of Saraswathamma, in order to return to her house. At that time suddenly the accused being the resident of neighbouring house of Saraswathamma and residing in the said house along with his friend-Anil, took her inside the house and closed the doors, showing her knife he threatened her that he will kill her if she makes any noise. Thereafter he removed her clothes and committed rape on her. In order to 16 S.C.No.1057/2012 escape from the hands of accused the victim-girl bites the accused and scratched on his body by her nails. However the accused has not left her and committed rape on her forcibly. The victim-girl who was under threat of life, worn her clothes and sat on the side of the doors at the instance of accused. The accused by showing the knife threatened her not to inform the said incident to anybody else and also not allowed her to go out from the house and made her to sit near the doors. Half-an- hour thereafter she heard that her mother is calling her name and she was searching for her daughter. In the process of searching her daughter, her mother had also come near the house of Manjunatha, knocked the doors and asked about her daughter, for which the accused told that he has not seen her daughter and closed the doors. The accused has called his friend
-Anil through phone and when the said Anil came to the said house, they both were talking about the incident. In the meanwhile the mother and thereafter the sister of accused came to the said house and called Manjunatha to come to their house. The accused told them he will come within a short time and sent them back without opening the doors of his house. After some 17 S.C.No.1057/2012 time the accused pulled the victim-girl in side the both room of the said house, by which the victim-girl has lost her conscious and he went out from the said house along with his friend Anil. At about 06.30p.m., when her parents put water on her face then she regained her conscious, her parents, uncle and aunt brought her to their house by holding her hands as she was much tired.
28. According to the prosecution case the said Manjunatha and Anil both were tenants in the said house and the parents of Manjunatha are also residing in the house situated in the backside of said tenanted house. On the alleged date of incident, another tenant-Anil was not in the said house and the accused-Manjunatha was alone there when the victim girl was forcibly taken inside the house.
29. In the cross-examination of Pw.1, done by learned advocate for accused she has shown her ignorance that the house of accused is situated on the back side road of her house. She has deposed that till the date of incident, she has not known about the accused, name of his parents, the work of accused etc. She came to know about all these only after the 18 S.C.No.1057/2012 said incident. She has no knowledge about the property of father of accused. She is belonged to Vakkaliga Caste and shown her ignorance about the Caste of the accused. She admits that till the date of lodging the complaint, she had no knowledge about the name of the accused and also about the Anil, who were residing in the house where the incident was happened. She admits that there is 10feet width road in front of her house and on another side of the said road there is house belonging to Saraswathamma and the said house is constructed in half site. She admits that the house of Saraswathamma which was given for rent is abutting to the road and it has got two windows open towards the road. One photo was shown to the witness and she has admitted that the window situated on the road side is a bathroom window and the said window is constructed by cement having a glass. The said house has got one door and further deposed that there may be about 4feet distance in between the doors of house of Saraswathamma and her tenanted house. Unfortunately the said photo is not produced before the Court and it is not marked. She has deposed that her father is doing business of coconuts near Yelahanka New Town Police Station. 19 S.C.No.1057/2012 When the suggestion is made that if anybody call by standing in the house of Saraswathamma, the said call may be heard by the resident of her house, for which she has deposed that if the member of her family are inside the house, the call from the house of Saraswathamma will not be heard, but if they are outside the house they can hear the sound if any from the house of Saraswathamma. She has deposed that occasionally she used to visit to the house of Saraswathamma, but she has no knowledge to whom Saraswathamma gave the house on rental, who are all residing in the said house and at what time the said tenant go out and return to the house. The suggestion is made that if any sound is made in the house of Saraswathamma or in the tenanted house, the persons of her house may hear the said sound, for which she has deposed that if the T.V., is on, such sound will not be heard. She has deposed that when she was in the house, where the incident was happened, she was hearing the T.V. sound from the house of Saraswathamma. When she was seeing the T.V., in the house of Saraswathamma, she was hearing the sound of vehicles going on the front road.
30. Further she has deposed that on 10-04-2012 at 20 S.C.No.1057/2012 about 12.00 mid-night, she has gone to the Police Station along with her parents, uncle and aunt. At that time she has not lodged the complaint marked at Ex.P1. The police have taken her signature and asked her to come on the next day morning. On the next day morning she had been to the Police Station along with her parents and submitted Ex.P1 by writing the same in her own hand-writing.
31. She admits that she has not mentioned the injuries sustained by her at the time when she resisted the act of accused, in the complaint. She admits that even she has not mentioned about the injuries caused by her on the body of accused at the time of resisting the act of accused, in the complaint. She admits that she has not told about these injuries to the police. Further she has deposed that on 10-04- 2012, in the midnight and even on next day morning when she had gone to Police Station, she had worn the same dresses, which were worn by her at the time of alleged rape. On that day at about 03.30p.m., she was sent to Ambedkar Hospital for medical examination. She has deposed that at the time of medical examination, the doctor has not collected her clothes. 21 S.C.No.1057/2012 She admits that on that day, the Police Inspector has enquired the accused, his parents and her parents and also the members of layout wherein herself and accused are residing. She has deposed that when she came out from the house of Saraswathamma, it was 12.30noon. She admits that when he has taken her inside the house forcibly, he had no knife in his hands. Further she has stated that when the accused has taken her suddenly inside the house and shown the knife, it was not possible to her to scream or cry. Further she has deposed that when she was taken inside the house the knife was in his hands and he himself has removed her clothes forcibly. As he had knife in his hand, it was not possible for her to scream or to make noise as she was under fear at that time. Further she has deposed that as she was under fear and she has not observed whether he had a knife in his hands at the time of rape, but she has resisted the act of rape, but it was not possible for her to scream or cry. Half-an-hour after the said rape, she heard the voice of her mother, who was searching for her daughter. Her mother even came to the house of accused, knocked the doors and asked him whether he has seen her daughter, for which the 22 S.C.No.1057/2012 accused has shown his ignorance about her daughter. She admits that the door of the house is opening towards left side and if the door is opened, the hall, kitchen and bath room can be seen. She has further deposed that after the rape, she worn the clothes and sat behind the doors, in a small place. The suggestion is made that after the rape, she had no fear, for which she answered that the accused was having knife in his hands made her to sit behind the doors by saying not to say anything to anybody else. Another question was put to her by defence counsel that when her mother knocked the doors, the victim girl had chance to scream and call her mother, for which she answered that the accused has opened the door by his one hand and was having knife in another hand showing the same to the victim girl, who sat behind the said door, that is why it was not possible to her to scream. Five minutes after her mother visited to the said house, the accused made phone call to one person and that person came inside the said house within 15minutes. She has not known the said person, but the accused at the time of making phone to that person he called him as Anil, that is why she came to know that the person who 23 S.C.No.1057/2012 came inside the house is Anil. She admits that she herself has written the complaint marked at Ex.P1. She has deposed that at the time of lodging the complaint, she has not stated that the said Anil is residing in the house of Saraswathamma as a tenant. The suggestion is made that when the said Anil came inside the house, why she has not asked him to help her, for which she has deposed that the said person came to support the accused, how he can help her. Thereafter the mother of accused and after some time the sister of accused also came there and called the accused, the accused without opening the doors of the house told them from inside that he will come within a short time. The suggestion is made that when the accused and Anil have gone out from the said house, then also she has not raised any voice to call the people for help, she has answered as under:
"CªÀ£ÀÄ £À£ÀߣÀÄß §ZÀÑ®Ä ªÀÄ£ÉUÉ zÀÆQzÀÄÞ £Á£ÀÄ C°èAiÉÄà ©zÀÄÝ ªÀÄÄAzÉãÁAiÀÄÄÛ CAvÀ £À£ÀUÉ UÉÆvÁÛUÀ°®è. CªÀj§âgÀÆ ºÉÆgÀUÉ ºÉÆÃzÀ JµÀÄÖ ¸ÀªÀÄAiÀÄzÀ £ÀAvÀgÀ £À£ßÀ vÀAzÉ C°èUÉ §AzÀ£ÉAzÀÄ £À£ÀUÉ UÉÆwÛ®è. DzÀgÉ £À£ÀߣÀÄß J©â¹ ªÀÄ£ÉUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÁUÀ ¸ÀAeÉ ¸ÀĪÀiÁgÀÄ 06.30 CVvÀÄÛ........ "
32. She admits that in her complaint itself she has mentioned that at about 06.30p.m., when her father and uncle 24 S.C.No.1057/2012 came inside the said house and made her to wake up, then only she became conscious. As she was very tired, her parents left her to take some rest. At about 10.30p.m., after taking rest, she has informed the said incident to her parents. Thereafter her parents have taken her to the Police Station on the said day at midnight and on the second day. Further she has deposed that she has informed about the incident to every one in her house. Thereafter she was taken to the police Station. When she reached the Police Station, she informed the incident to the police also, the police got written the same, obtained her signature and asked her to come by tomorrow. On the next day the Police Inspector was present in the Police Station and she prepared the complaint in her own hand writing and submitted the same. She has deposed that the police have enquired her parents, but she has no knowledge that the police have enquired even the parents of accused. After lodging the complaint she has seen the father of the accused and at that time she had no knowledge about the name of father of accused. Further she has deposed that on the date of incident at about 06.30p.m., she was not in a position to talk and to give the complaint. Even in 25 S.C.No.1057/2012 the mid-night when she had gone to the Police Station, she was not in a position to write the complaint in her hand writing and to submit the same. She admits that she is belonging to Kunchitigaru Caste and shown her ignorance that the accused is also belonging to the same Caste. She came to know that the accused is the only son to his father. But she has shown her ignorance about the properties of the accused. She has denied that her parents and relatives called the parents and relatives of accused to the Police Station and demanded them to perform her marriage with the accused. The suggestion is made by the defence council that when the parents and relatives of accused refused to take her in marriage to the accused, due to the difference of economic conditions in between both the families and that the family of accused is very rich, the victim girl has specifically deposed that her parents have not asked the parents of accused to take the victim girl in marriage to their son. She has further denied that her father and other relatives demanded the father of the accused to transfer one of their properties in the name of the victim girl, and they should take the victim girl in marriage to the accused. She has denied that when the 26 S.C.No.1057/2012 parents of accused refused to transfer the property in the name of the complainant and refused to take the victim girl in marriage with accused, she has lodged the false complaint. She has also denied that to compromise this matter herself and her parents have demanded Rs.5lakhs from the parents of accused. She admits that after the said incident there were quarrels 2-3 times in between her father and the father of accused and in that regard the case and counter case are made before the Police Station. She admits that one case is registered against her father in Chief Metropolitan Magistrate Court. She has denied that herself and her parents by colluding with each other with an intention to give her in marriage to the accused, whose economic condition is better than her father, she has lodged false complaint to harass the accused.
33. She admits that knives like-MO5 are available in the shops. The said knife had a black handle. She has deposed that when the police came to the said house herself and the owner of that house were present and the police called Muniraju and Chandrakala, who are neighboring residents to the spot. She has shown her ignorance, whether Saraswathamma and her 27 S.C.No.1057/2012 husband had no knowledge about the alleged incident held in their tenanted house till the arrival of police to their tenanted house and deposed that the said Saraswathamma and her husband started to quarrel with the family members of complainant in respect of lodging of the complaint. When the police had come to the said house, the accused was not present. She has denied that she herself gave MO5-knife belonging to her house to the police. The suggestion is made that the house adjacent to the house of Saraswathamma is in the name of Manjunatha, the victim girl has deposed that she came to know about the said fact through police at the time of drawing mahazar. She has denied that the key of the tenanted house of Saraswathamma was with her. She has denied that the accused has not committed rape on her and she is deposing falsely in that regard.
34. Pw.4-Veerataju, the father of the victim girl has deposed that the victim girl is his daughter and she has studied upto PUC. On 10-04-2012 he had gone on his business, his wife and daughter was in the house. His son had also gone to the school to see his result. At about 01.00p.m., he returned to the 28 S.C.No.1057/2012 house. His wife informed him that their daughter is not found in the house, for which Pw.4 told to his wife that perhaps she may be in the neighbouring houses. Therefore his wife started to search for her daughter in the neighbouring houses, but of no use and informed the same to her husband. Pw.4 also started to search for his daughter and at about 02.30p.m., he informed the same to his brother-Narasimha Murthy and to other relatives through phone and started to search for their daughter in all possible localities. At about 05.00p.m., he returned to the house, whereas his brother and his sister in law have come to his house. They all searched for the victim girl, calling their relatives through phone, but of no use. At about 06.20p.m., he had gone to the main road to get currency to his mobile. When he was in the said shop, one boy called him that he wants to talk with him something, for which Pw.4 asked that boy who is he and why he is calling him, and when he came outside the shop, he saw there were two bikes, and three persons. The said boy asked him to sit on the bike, but Pw.4 has not agreed for the same, suspecting on the said boy, he returned to the house, took his bike and gone near the said boy who has called him when he 29 S.C.No.1057/2012 was in the shop. The said boy started to move and Pw.4 was following him, two persons on another bike were also following the vehicle of Pw.4. They have gone near Veerasagara burial ground and then Pw.4 stopped his vehicle and asked those persons if they want to say anything they can say there only and he will not follow them any further. The said boy gave one key Pw.4 and told him that he is a tenant in the house of Saraswathamma and his daughter is inside the said house. He has further told that his daughter herself came to his house having knife in her hands and told him that she will die. Therefore Pw.4 returned to the house, informed the said fact to his brother and other family members, and they all gone to the tenanted house of Saraswathamma, opened the lock, seen that his daughter was inside the bathroom in a state of unconscious. He put water on her face and made her to wake up, brought her to his house. His daughter was very tired and she was not in the state of talking. Pw.4 suspected on the boy who gave the key to him. When they all came outside the house, the boy who gave the key along with two other persons was standing outside the house. Pw.4 asked that boy what has happened, at that time 30 S.C.No.1057/2012 the parents of that boy-Gangaraju and his wife and their daughter all came there. Then the said Gangaraju told that the said boy is his son, then only Pw.4 came to know that the boy who gave the key is Manjunatha and he is the son of Gangaraju. He has identified the accused that he is the person who gave the key of tenanted house of Saraswathamma on the date of incident. When he started to ask Manjunatha the said Gangaraju and his family members started to make galata.
35. He has further deposed that on the same day at about 10.30p.m., his daughter has some what recovered. She informed him that on that day at about 12.30noon, the child from the house of Saraswathamma had come to her house and she had gone to Saraswathamma's house to leave the child. At that time the marriage C.D., was playing in the T.V., of Saraswathamma's house and the victim girl sat there by seeing the said T.V. Within a short time she heard the sound of two wheeler vehicle and assumed that her father might have come, and came out from the house of Saraswathamma in order to return to her house. At that time suddenly the said Manjunatha dragged her inside the house by holding her hands and put her 31 S.C.No.1057/2012 under threat of life by showing the knife in his hands. Thereafter the said Manjunatha by keeping her under threat of life raped her and not allowed her to go out from the house. Thereafter she sat there with fear and the accused was also sitting there, having knife in his hands. After some time the said Manjunatha called his friend through phone, after the arrival of Anil they both were talking with each other. When her mother came there in order to search her daughter, Manjunatha opened the door to some extent and told her mother that he has not seen her daughter. After some time his mother and thereafter his sister came near the said house and called Manjunatha, for which the Manjunatha without opening the doors told them that he will come within a short time. Thereafter he pulled the victim girl inside the bath room, where she fell unconscious. After hearing all these facts from his daughter at about 12.00 midnight himself and his family members took the victim girl to Yelahanka New Town Police Station, where his daughter informed about the incident to the police and the police have obtained her signature, asked them to come at 08.00a.m., by next day. On next day morning again they all gone to the Police 32 S.C.No.1057/2012 Station, the victim girl gave written complaint. Thereafter the police took her to Ambedkar Medical College and Hospital for medical examination.
36. Pw.5-Smt.Soubhagyamma, the mother of victim girl has deposed supporting the evidence of her husband-Pw.4 and also the evidence of her daughter-Pw.1.
37. In the cross-examination of Pw.4 and Pw.5 it is the defence of accused that the father of accused is very rich person in the locality, having several properties and he is receiving the rent amount nearly Rs.5lakhs per month from his properties. The complainant and accused are belonging to the same Caste. Pw.4 and Pw.5 were intending to give their daughter to Manjunatha in marriage, but the said Manjunatha and his parents were not agreed for it on the ground that the economic condition of Pw.4 is lower than the economic condition of them. When the parents of accused refused to take the victim girl in marriage to their son, Pw.4 and Pw.5 by using their daughter have lodged false complaint making false allegation of rape on their son. Pw.4 and Pw.5 have denied these suggestions. They have also denied that before lodging the complaint, the Police 33 S.C.No.1057/2012 Inspector of Yelahanka New Town Police Station has called Pw.4 and Pw.5, the parents of accused and the Panchas of that locality and talked with them. Pw.4 has further denied that himself and Gangaraju are belonging to the same Caste, he told to the Police Inspector that he is ready to give his daughter in marriage to Manjunatha and to end the matter in compromise. They have shown their ignorance about the economical status of the parents of accused.
38. Pw.7-Narasimha Murthy is the brother of Pw.4 and Pw.6-Meenakshi, the wife of Pw.7 have also deposed supporting the evidence of Pw.4 and Pw.5.
39. Pw.8-Mariyappa is the owner of the house in which it is alleged that the incident was happened. He has deposed that he has got two houses at Attur Layout and they are standing in the name of his wife-Saraswathamma. His family members are residing in one house and they have given another house on rental to Anil. He knows the accused-Manjunatha, as he is friend of Anil and used to visit his tenanted premises. He has deposed that sometimes the victim girl used to visit his house. But he don't know what is happened to victim-girl on the date of 34 S.C.No.1057/2012 incident. As he has not deposed as per his statement recorded by police, he is treated as hostile witness by the prosecution.
40. In his cross-examination by the learned Public Prosecutor, he admits that the house of Pw.4 is situated in front of his house. He admits that on that day in the afternoon the victim girl left the Baby in his house and gone out from his house by saying that her father had come. At about 02.30p.m., the mother of victim girl came to his house and asked him whether her daughter had come to their house. He admits that the mother of victim girl had searched for her daughter, but her daughter was not found. In the cross-examination by the learned Public Prosecutor Pw.8 has deposed as under:
"ªÀÄzsÁåºÀß CªÀ¼À vÀAzÉ §gÀÄvÁÛgÉ CAvÀ ºÉý ªÀÄUÀĪÀ£ÀÄß ªÀÄ£ÉAiÀÄ°è ©lÄÖ ºÉÄÁgÀUÉ ºÉÆÃzÀ¼ÀÄ CAzÀgÉ ¸Àj. ªÀÄzsÁåºÀß 2.30gÀ ¸ÀĪÀiÁjUÉ gÉÃSÁ¼À vÁ¬Ä £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀÄ £ÀªÀÄä ªÀÄUÀ¼ÀÄ §A¢zÁݼÁ CAvÀ PÉý ºÉÆÃzÀgÀÄ CAzÀgÉ ¸Àj...... ¸ÀAeÉ 6.30UÀAmÉUÉ «ÃgÀgÁdÄ ªÀÄvÀÄÛ «ÃgÀgÁdÄ«£À ºÉAqÀw ºÁUÀÆ «ÃgÀgÁdÄ«£À vÀªÀÄä ºÁUÀÆ vÀªÀÄä£À ºÉAqÀw §AzÀÄ vÀ£ßÀ ªÀÄUÀ¼ÀÄ ¨ÁrUÉ PÉÆlÖ ªÀÄ£ÉAiÀÄ°èAiÉÄà EzÁÝ¼É CAvÀ ºÉý ªÀÄ£ÉAiÀÄ ©ÃUÀ vÉUÉzÀÄ M¼ÀUÉ ºÉÆÃzÀgÀÄ CAzÀgÉ ¤d. D jÃw ©ÃUÀ vÉUÉzÀÄ M¼ÀUÉ ºÉÆÃzÁUÀ gÉÃSÁ D ªÀÄ£ÉAiÀÄ §ZÀÑ®Ä ªÀÄ£ÉAiÀÄ°è EzÀݼÀÄ 35 S.C.No.1057/2012 CAzÀgÉ £À£ÀUÉ UÉÆwÛ®è. ¸ÀzÀj «ÃgÀgÁdÄ, DvÀ£À ºÉAqÀw, «ÃgÀgÁdÄ«£À vÀªÀÄä ªÀÄvÀÄÛ DvÀ£À ºÉAqÀw ¥ÀæeÉÕ vÀ¦à ©zÀÝ gÉÃSÁ¼À£ÀÄß ¤ÃgÀÄ ºÁQ J©â¹ ªÀģɬÄAzÀ ºÉÆgÀUÉ PÀgÉzÀÄ PÉÆAqÀÄ §AzÀgÀÄ CAzÀgÉ £Á£ÀÄ £ÉÆÃr®è ."
41. This witness though admits that the parents of victim-girl had searched for her and at about 06.30p.m., they entered his tenanted premises by opening the key and saying that their daughter is inside the said house but shown his ignorance that Pw.4 and other brought their daughter outside from their tenanted premises. He has denied that he gave his statement before police as per Ex.P5.
42. In the cross-examination by defense counsel Pw.8 has deposed that he knows the parents of accused and also the Pw.4. He admits that they both are belonging to the same Caste. He admits that his neighbouring house is belonging to the ownership of Gangaraju. He admits that Gangaraju and his wife are residing in the house situated behind the house of Pw.8. He admits that said Gangaraju has got sufficient properties and receiving rent amount to the extent of Rs.5lakhs. He admits that he has not given the said house for rental either to Manjunatha 36 S.C.No.1057/2012 or to Gangaraju. He admits that Manjunatha was not visiting his tenanted premises. He has shown his ignorance that on the alleged date of incident the parents of victim girl had entered the said house by saying that their daughter is inside the said house. He admits that if there is any sound in the tenanted house, the members residing in his house can hear the said sound. He has deposed that when the police came to the said house, the key of the tenanted house was with Pw.4 and Pw.4 himself has opened the doors. He has not enquired with Pw.4 why the police came there and what has happened.
43. Pw.9-Madhu is the witness who is alleged to be present at the time when the victim girl was brought outside from the tenanted house of Pw.8. He has deposed that on 10- 04-2016 at about 02.30p.m., when he was working near his house, he heard the talks of neighbouring people about the missing of victim girl. At about 06.00p.m., Veeraraju i.e., the father of victim girl came from outside and told to his wife that their daughter is in the tenanted house of Saraswathamma, i.e., the wife of Mariyappa. Thereafter the said Veeraraju, his wife, his brother and his brother's wife all gone to the tenanted house 37 S.C.No.1057/2012 of Pw.8, opened the key and gone inside the said house. At that time this witness was standing outside the said house. After some time Veeraraju and others brought the victim girl outside from the said house and at that time the victim girl was not in a position to talk. Thereafter Veeraraju told him that Manjunatha took him away and gave the key of the said house. After sometime the said Manjunatha and his friends came near the said house. Veeraraju started to ask Manjunatha that how his daughter came in his house and why he put the lock to the said house by keeping his daughter inside the house. At the relevant time the parents and sister of Manjunatha came there and started galata by saying that their son is good person. On next day the neighbouring persons were talking that the said Manjunatha at about 12.30p.m., dragged the victim girl inside his house, raped her by showing knife and thereafter pulled her inside the bath room. In that regard he gave his statement before police.
44. It shows that this witness has supported the case of prosecution that the victim girl was in the tenanted house of Mariyappa which was given on rental basis to Anil, where the 38 S.C.No.1057/2012 accused-Manjunatha was also used to go there. In his cross- examination by the learned advocate for accused, he has deposed that he knows Gangaraju, but he don't know about Manjunatha. He admits that the building adjacent to the building of Saraswathamma is owned by Gangaraju. On 10-04- 2012, the said incident was happened. He admits that prior to 6 O' clock on that day he had no knowledge what was all happened and he came to know about the incident only when Veeraraju informed him. He has deposed that when Veeraraju came and opened the doors of tenanted house, there were 15-20 persons standing in front of said house. He has deposed that when the galata started between Gangaraju and Veeraraju, he was present there and he came to know that the galata was in respect of daughter of Veeraraju. He heard about the incident when the neighbouring persons were talking in that regard. He admits that Gangaraju has got several properties at Attur layout and shown his ignorance about the economical condition of Gangaraju. He has also shown his ignorance that Veeraraju was intending to give his daughter to the son of Gangaraju i.e., to Manjunatha and when Gangaraju not agreed for it, this witness 39 S.C.No.1057/2012 is deposing falsely at the instance of Veeraraju.
45. Pw.10-Anil is the person who was tenant in the house of Mariyappa and accused-Manjunatha is his friend. He has denied that on the date of the incident at about 04.00p.m., he returned to the house and saw that the victim girl was sitting near the door. He has denied that he asked Manjunatha about the said girl and the Manjunatha informed him about the incident. He has denied that after sometime himself and Manjunatha called the father of victim girl and gave the key of tenanted premises informing that their daughter is inside the said house. He has denied that he gave statement before the police as per Ex.P6. Therefore Pw.10 being the friend of Manjunatha, who is accused has not supported the prosecution case and turned hostile against the prosecution case.
46. Pw.15-Dr.B.M.Nagaraj, Medical Officer has deposed that on 11-04-2012 in between 03.30p.m., to 04.30p.m., he has examined the victim girl on the history of sexual assault. He has found the injuries on the right neck, left chest of victim-girl. After examining them he opined that those injuries were caused 40 S.C.No.1057/2012 to her within 24hours to 48hours prior to her medical examination. The hymen was not in tact and there was bleeding in the injury. There was pain in the vagina. He has collected liquid from her vagina and sent it for examination. As per the report No.EC.No.41/12 dated 13-12-2012, the presence of dead and degenerated spermatozoa were found. He opined that the victim girl was about 19years on the date of examination. There were signs of recent sexual intercourse and there were no signs that the victim girl was involved in sexual intercourse prior to the said incident. In that regard he gave his certificate as per Ex.P4 and the report is at Ex.P4(d).
47. Further the doctor has deposed that on the same day at about 04.30 to 05.30p.m., he has examined the accused person and there was nothing to suggest that he was incapable of performing sexual intercourse. On his body on the left cheek, ear, left neck and on left arm, injuries were found. There was also injury on his penis with pain. He opined that one or two days prior to the medical examination of said person the said injuries were caused. He has collected the liquid found on the penis for Urgo Iodine test and the report is in positive. He 41 S.C.No.1057/2012 opined that the said person is aged about 24years and there were signs of recent sexual intercourse. In that regard he gave his certificate as per Ex.P8.
48. In his cross-examination by learned advocate for accused he admits that he examined the victim girl and the accused one after another. The victim girl has not given the clear answer when he asked her that whether she has taken bath after the incident. He admits that he has not collected the pubic hair and the cloths of victim girl, not handed over them to the police. According to him at the time of examining the victim girl, no spermatozoa were found near the vagina of the victim girl. He has not examined the clothes of the victim girl which were worn by her at the time of the alleged incident. He has not sent the dead spermatozoa for DNA test. He has deposed that mere reddish with pain in Labia Mojora and Labia Minora it is not possible to say that there was sexual intercourse. He has deposed that at the time of examining the victim girl and the Manjunatha, he has seen the injuries caused by nails to the injured and he has not seen the bleeding near the injuries caused by teeth and nail. Further the doctor has deposed that 42 S.C.No.1057/2012 at the time of examination of the victim girl, she has already taken the bath and changed her clothes, that is why he has not collected her cloths or any liquid from the victim girl.
49. Pw.1-complainant has clearly deposed that how she was pulled inside the tenanted house of Mariyappa, wherein the accused-Manjunatha was present. She has deposed that Manjunatha has raped her by showing the knife to her and kept her under threat of life. She has clearly identified the accused, as the person who has raped her.
50. It is not disputed that the house of victim girl is situated in front of house of Saraswathamma, wife of Mariyappa and the said property of Saraswathamma is consisting of two houses having compound gate. Though the advocate for accused has confronted one photo in the cross-examination of Pw.1, about the actual seen of house, wherein the offence alleged to be committed, but he has not got marked the said photo and even not produced the same before the Court. However, the existence of the house of Saraswathamma is not disputed. It is not disputed that one of her house is given on rental basis to Anil and his friend. As discussed above, Mariyappa has admitted 43 S.C.No.1057/2012 that the said house is standing in the name of his wife- Saraswathamma and according to him he gave the said house to Anil. He has admitted that the said Manjunatha is friend of Anil and the accused used to visit the house of Anil often. He has admitted that on the date of incident in the afternoon, the complainant had come to his house along with the child belonging to his family and thereafter she had gone out from his house by saying that her father has come.
51. Pw.10-Anil has though denied that himself along with accused and another friend are tenants in the said house and paying rent of Rs.1,800/- per month, he has not said that the accused-Manjunatha is not his friend. The evidence of Mariyappa that the accused is the friend of Anil and used to visit to the house of Anil, is remained intact.
The defenses taken by the accused are:
1. Delay in filing the complaint.
2. First information report or the first complaint lodged by the complainant on 10-04-2012 at 12.00p.m., is not seen the light.
3. The clothes belonging to the victim-girl and accused which were worn by them at the time of alleged incident were not sent for FSL examination and for DNA test.44 S.C.No.1057/2012
4. The complainant and accused are belonging to the same caste. The father of the accused is very rich in the locality, his economic condition is far higher than the economic condition of Veeraraju-the father of victim girl. Pw.4-Veeraraju and his wife were intending to give the victim girl in marriage to the son of Gangaraju, i.e., Manjunatha and when the accused and his father not agreed for it, false story of rape is created in order to compel Gangaraju to take the victim-girl in marriage with his son-Manjunatha.
On these defence the learned advocate for accused has vehemently argued that the accused has not committed the offences alleged against him and the complaint is based on concocted story that if the such complaint is lodged by the complainant, who was intending to marry the accused, the said Gangaraju and his son may agree to take the complainant in marriage with the accused.
52. He has relied upon the rulings reported in 2014(1) Crimes 198 (Karnt)-Maruthi Gangappa Metagud Vs. State of Karnataka, wherein it is held that inordinate and unexplained delay in lodging report for offence of rape would suggest a doubt in prosecution story. In the said ruling, there was delay of 7days in lodging the complaint.
53. In that regard the learned Public Prosecutor has 45 S.C.No.1057/2012 relied upon the ruling reported in 2009 (1) Crimes 251 (Kar) (Short Note)-Santhosh Moolya and Another Vs. State through Police Circle Inspector, wherein the Hon'ble High Court of Karnataka has held that delay of 42dyas in lodging the FIR is not fatal to the case of prosecution. It is observed that in cases of rape, delay in lodging the complaint is not fatal to the case of prosecution.
54. He has further relied upon the ruling reported in 2009(1) Crimes 111 (SC)-State of U.P., Vs. Manoj Kumar Pandey, wherein the Hon'ble Supreme Court has observed that apart from that normal rule regarding the duty of the prosecution to explain the delay in lodging the FIR and the lack of prejudice and or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape.
55. On perusal of all the above rulings referred above, the delay in lodging the FIR specifically in case of rape, not fatal to the case of prosecution. In the present case admittedly as per the evidence of Pw.1-complainant, Pw.4 to Pw.7, the incident was happened on 10-04-2012 at 12.30noon. It is the case of the prosecution that the accused pulled the victim girl to the bath 46 S.C.No.1057/2012 room and she fell unconscious. She regained her conscious after 06.00 or 06.30p.m., on the same day when her parents and relatives came inside the said house and made her to awoke by sprinkling water. She was brought out from the said house by her parents, as she was very much tired; her parents left her to take rest. After 10.00p.m., on the same day night when she recovered from the shock, she informed the incident to her parents and other members in her family. Immediately at about 12.00p.m., they all had gone to the Police Station and informed about the incident. Pw.1 and her parents specifically deposed that the police have questioned her, obtained her signature and asked her to come in the morning. On the next day at about 08.00a.m., they all gone to the Police Station and the complainant has lodged written complaint which is registered at 01.30noon. Therefore it cannot be said that there is delay in filing the complaint. Pw.1 gave her proper explanation for delay in lodging the complaint and the same is not shaken in her cross-examination.
56. The learned advocate for accused has further submitted that the complainant has not stated the contents of 47 S.C.No.1057/2012 her deposition in the complaint itself. Therefore the evidence of Pw.1 and her parents with regard to the allegations against accused are nothing but an improvement made in the evidence of prosecution witnesses.
57. In that regard the learned Public Prosecutor has relied upon the ruling reported in 2015(3) Crimes 83 (SC)- Kamla Kant Dubey Vs. State of U.P., & Others, wherein the Hon'ble Supreme Court has observed as under:
"Criminal trial-Appreciation of evidence- Improvement over FIR in deposition-Giving more details in deposition in Court than stated in FIR-FIR need not contain all detail-Such deposition even if considered improvements, instantly not going to the core of the matter-Not fatal Evidence of the witness trustworthy-His presence at the place of occurrence natural"
58. Further he has relied upon the ruling reported in 2015(3) Crimes 193 (SC)-V.K.Mishra & Another Vs. State of Uttarakhand & Another, wherein the Hon'ble Supreme Court has observed as under:
"Code of Criminal Procedure, 1973-Section 154- FIR-Neither meant to be an encyclopedia nor expected 48 S.C.No.1057/2012 to contain all the details of the prosecution case- Sufficient if broad facts of prosecution case are stated in the FIR-Unless there are indications of fabrication, prosecution version can not be doubted merely on the ground that FIR does not contain the details".
"Code of Criminal Procedure, 1973-Section 161 and 162 r/w. section 145, Evidence Act, 1872- Statement before police u/s 161-Not substantive piece of evidence-Can be used for limited purpose of contradicting the witness, that too, if proved-statement u/s.161 can be used only by drawing attention of the witness to the parts intended for contradiction- Instantly neither Pw.1 nor the investigating officer were confronted with the statement and questioned about it-PW.1's statement u/s.161 Cr.P.C. cannot be looked into for any purpose, much less to discredit the testimony of Pw.1 and the prosecution version".
59. He has rightly relied on the said rulings. The principles laid down in the above rulings made it clear that the FIR is neither meant to be an encyclopedia nor expected to contain all the details of the prosecution case. The statement of witnesses recorded under Section 161 and 162 is not substantive piece of evidence and it can be used only for a 49 S.C.No.1057/2012 limited purpose of contradicting the witnesses. Therefore the submission of the learned advocate for accused that entire evidence of victim-girl is not included in the FIR and complaint holds no water.
60. It is further submitted that on 10-04-2012 when the victim and her parents had gone to the Police Station at about 12.00p.m., as per the evidence of Pw.1 she has lodged the complaint and the police have got written the same and obtained her signature, the said complaint is not produced. It is vehemently argued that the first complaint lodged by the complainant on 10-04-2012 has not seen the day of the light and it is not produced before the Court. But the complainant herself has deposed that on the date of the incident, she has gone to the Police Station, she informed to the police about the incident and the police have written the same and obtained her signature, called her to come on next day morning, wherein she has lodged the written complaint as per Ex.P1. In that regard the Investigation Officer who is examined as Pw.16 has specifically deposed in his cross-examination by the defence council that no such complaint has been lodged and registered 50 S.C.No.1057/2012 on the previous day. Therefore there is nothing on record to show that on 10-04-2012 itself the first complaint was lodged by the complainant and it has not seen the day of light.
61. The learned advocate for accused has submitted that the clothes of accused are not seized by the police and the clothes produced by the complainant and seized by the police were not sent for FSL examination or for DNA test. Non sending of material for FSL examination and DNA examination is fatal to the case of prosecution and unless there is matching of semen found in the clothes of accused and complainant, it is not possible to say that the accused has committed rape on the victim girl.
62. He has relied upon the ruling reported in 2015 (1) Crimes 425 (P&H)-Ajit Singh V.s State of Haryana, wherein it is observed that "Major contradiction in prosecution case as to who had handed over the underwear of prosecutrix to police found lying on spot-Medical Officer did not find any mark of external injury on external genitalia-No semen was detected in vaginal swab. It is also held that the prosecution failed to match the semen found in the petticoat with stains on the under wear 51 S.C.No.1057/2012 of accused-conviction could not be sustained. It is also held that where the testimony of prosecutrix in a rape charge did not inspire confidence conviction could not be based without sufficient corroboration.
63. The learned advocate for accused has relied upon the ruling reported in 2014(4) Crimes 2 (Raj)-Richpal Kharra Vs. State, wherein it is observed that under Section 53-A of Cr.P.C., when the accused is charged with offence of rape, examination of accused by medical examiner is mandatory and he was entitled to submit his material for DNA profiling.
64. Admittedly in the present case the complainant was sent to medical examination on 11-04-2012, wherein she had already taken the bath and changed her clothes. Therefore the doctor has not collected the clothes, but she has produced the clothes which were worn by her at the time of alleged incident before the police which were seized by the police as per Panchanama marked at Ex.P2. If we see the report submitted by the Medical Officer after examining the victim, he has sent the material collected from the victim girl for medical examination in the hospital itself as such facility is available in 52 S.C.No.1057/2012 the said hospital.
65. In this regard the learned Public Prosecutor has relied upon the ruling reported in III (2003) CCR 158 (SC)- State of Madhya Pradesh Vs. Mansingh & Others, wherein the Hon'ble Supreme Court has observed as under:
"Criminal Trial: Evidence of injured witnesses gave greater evidentiary value: Unless compelling reasons exist: Their statements not to be discarded lightly."
"Criminal Trial: Deficiencies in investigation: No ground to discard prosecution version which is authentic, credible and cogent".
66. He has relied upon the ruling reported in (2011) 3 SCC 654-Sheo Shankar Singh Vs. State of Jharkhand & Another, wherein the Hon'ble Supreme Court has observed as under:
"Criminal Trial-Investigation-Defective or illegal investigation-Failure of Investigating Officer in sending bloodstained clothes to forensic science laboratory and empty cartridges to ballistic expert-Effects-Whether such failure sufficient to reject version given by eyewitnesses and fatal to prosecution case-Held, failure to make reference to forensic science laboratory 53 S.C.No.1057/2012 is in circumstances of the case no more than deficiency in investigation of case-Any such deficiency does not necessarily lead to conclusion that prosecution case is totally unworthy of credit- Deficiencies in investigation by way of omissions and lapses on part of investigating agency cannot in themselves justify a total rejection of prosecution case- Aforementioned failure on part of investigating officer not sufficient in present case to reject version given by eyewitnesses-This was especially so, when reference to ballistic expert had no relevance, since weapon from which bullets were fired was not recovered from accused and was not, therefore, available for comparison by expert".
67. Relying on these rulings, the learned Public Prosecutor has argued that not sending the clothes and materials collected from the accused and victim for FSL examination and DNA examination is only failure on the part of investigating agency and it is not proper to hold that the accused has not committed such offences on the ground that his clothes and the clothes of victim girl and the material objects collected from them were not sent for FSL and DNA text.
68. The learned advocate for accused has relied upon the 54 S.C.No.1057/2012 following rulings:
1. 2013(4) Crimes 397 (Chhatt.) (Short Note)-
Narayan Vs. State of Madhya Pradesh- wherein it is held that when the prosecutrix did not raise any alarm and did not make any efforts to save her from clutches of accused, when the door was knocked by some one asking as to who was inside, prosecutrix replied there was nobody and she herself did not open the door. The unnatural conduct of prosecutrix showed that she was a consenting party to act of accused and the accused cannot be convicted.
2. 2011(3) Crimes 646 (Cal)-Goutam Mondal Vs. State of West Bengal and Others, wherein it is held that after committing rape on prosecutrix, when prosecutrix tried to raise alarm, the accused fell on her feet and promised to marry her, thereafter the sexual activity between them was continued and she became pregnant and delivered a child, where the accused has refused to marry her. It shows that she is a consenting party to the sexual intercourse.
3. 2014(1) Crimes 682 (Raj)-Virendra Singh Vs. State of Rajasthan, wherein it is observed that in rape cases conviction can be based on sole testimony of prosecutrix, but it has to be corroborated by other 55 S.C.No.1057/2012 medical and chemical evidence. Allegations of rape not corroborated by medical evidence-none of neighbourers has supported the prosecution story-the accused and victim girl both are adults, the evidence cannot be said to be sufficient to prove the guilt of accused.
4. 2012(4) Crimes 169 (Bom)-Chandrashekar Vs. State of Maharastra-wherein it is observed that the victim was 16½years old girl. The accused was teacher and took the prosecutrix on a pretext to get her treatment for leucoderma and indulged in sexual intercourse with her while staying in lodging house. The conduct of prosecutrix suggested her consent.
69. Relying on these rulings, the learned advocate for accused has argued that the victim girl has got sufficient opportunities to raise alarm at the time of the alleged incident and even she has not made any hue and cry when her mother knocked the doors of said house, shows that she is a consenting party and further no such incident has been occurred as stated by the complainant.
70. On the other hand the learned Public Prosecutor has relied upon the following rulings:
56 S.C.No.1057/2012
a. 2010 Crl.L.J. 4283-Satpal Singh Vs. State of Haryana, wherein it is held that when a woman has given consent only if she has freely agreed to submit herself while in free and inconsistent position of her physical and moral power to act in a manner she wanted. An act of helplessness on the face of inevitable compulsions cannot be considered as consent in law. It is not necessary that there should be actual use of force, threat or use of force is sufficient.
b. (2013) 3 SCC (Crl) 660-Deepak Gulati Vs. State of Haryana, wherein it is held that rape on a woman and children violates human rights of victim, causes psychological and physical harm, degrades and defiles victim's soul, honour and dignity and leaves a permanent scar on life. It is a crime against society.
c. AIR 2013 SC.3077-Md.Iqbal & Another Vs. State of Jharkhand, wherein it is held that in case of rape, uncorroborated testimony of prosecutrix can be made basis for conviction.
d. (2010) 8 SCC 191-Vijay Alias Chinee Vs. State of Madhya Pradesh, wherein it is held statement of prosecutrix if found to be worthy of credence and reliable, requires no corroboration, Court may convict the accused on the sole testimony of the prosecutrix.57 S.C.No.1057/2012
e. 2010 Crl.L.J. 1655-Raml Singh Vs. State of H.P. wherein it is held that in rape cases, testimony of victim if inspires confidence and her testimony is not only corroborated by other witnesses, but also by medical evidence, failure of investigating agency to send blood stained clothes for chemical examination cannot be ground to discredit her testimony. Absence of injury on private parts of victim may not be very significant.
f. 2009 Crl.L.J. 393-State of U.P. Vs. Munishi g. 2009 Crl.L.J. 831-State of Orissa Vs. Sukru Gouda, wherein it is held that acquittal of accused in rape cases on conclusions that single man cannot rape on healthy adult female and there was no eye-witness except prosecutrix and one other-improper.
h. (2010) 2 SCC 9-Wahid Khan Vs. State of M.P. wherein it is observed that in rape cases, the corroboration of evidence of prosecutrix is not mandatory. Taking judicial note of (1) social repercussions, (2) backward looking Indian society, (3) dangers of being ostracized and survival difficulties, and (4) the resultant psychology of an Indian girl or woman to admit rape without rape actually having been committed, held-evidence of prosecutrix stands on equal footing with that of injured witness and if her evidence inspires confidence, corroboration is not necessary.58 S.C.No.1057/2012
i. Supreme Court of India-Ganga Singh Vs. State of M.P.,-judgment dated 04-07-2013.
j. Supreme Court of India-Md. Iqbal & Another Vs. State of Jharkhand-Criminal Appeal Nos.109 and 110 of 2011, wherein it is held that in cases of rape, besides the psychological trauma, there is also social stigma to the victim. It is violation of her right of privacy. Such victims need physical, mental, psychological and social rehabilitation.
k. Supreme Court of India-State of Karnataka Vs.Bantara Sudhakara @ Sudha & Another, wherein it is held that it was not for the victim to show that there was no consent for sexual intercourse. The question of consent is really a matter of defence by the accused and it was for him to place materials to show that there was consent.
l. Supreme Court of India-O.M.Baby (Dead) by Legal heirs Vs. State of Kerala-Criminal appeal No.133/ 2007, wherein it is observed that while appreciating the evidence of prosecutrix the Court must keep in mind that in the context of values prevailing in the country, particularly in a rural India, it would be unusual a woman to come with a false story of being a victim of sexual assault so as to implicate an innocent person. In 59 S.C.No.1057/2012 the context of Indian culture a woman victim of sexual aggression would rather suffer silently than to falsely implicate some body. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the Courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look of corroboration of her testimony is unnecessary and uncalled for.
m. Supreme Court of India-Rajendra @ Raju Vs. State of H.P.-Criminal Appeal No.670/2003[ 2009 Crl.L.J.4133].
n. 2015(3) Crimes 152 (SC)-Sanjeev Kumar Gupta Vs. State of U.P., wherein the Hon'ble Supreme Court has observed as under:
"Criminal trial-Appreciation of evidence-
Statement given in FIR and in the Court-
Discrepancy-Not fatal particularly when medical evidence supports prosecution case-Such testimonies held reliable and without improvement.
Criminal trial-Faulty Investigation-Non-recovery of weapon-Recovery of bloodstained clothes after 60 S.C.No.1057/2012 six days-Prosecution case cannot be thrown out merely on these grounds when other impeccable ocular and medical evidence support the prosecution case."
Keeping in mind the principles laid down in the above rulings referred by both the parties, now we have to see whether the prosecution has proved the guilt of the accused beyond all reasonable doubt.
71. It is further case of the prosecution that on 10-04- 2012 at about 12.30noon, the victim girl in order to leave the child belonging to the family of Saraswathamma had gone to the house of Saraswathamma. After sometimes she heard two wheeler vehicle sound and came out from the house thinking that her father has returned to the house. When she came out from the house of Saraswathamma, the accused who is residing in the neighbouring house of Saraswathamma, suddenly took the victim girl inside the house by holding her hands, closed the doors, put her under threat of life by showing the knife point towards her and raped her by removing her clothes forcibly. After committing such rape, the accused made the victim girl to sit in the corner of his house and thereafter the accused and his 61 S.C.No.1057/2012 friend-Anil by discussing with each other, the accused pulled the victim-girl inside the bath room and gone out by keeping lock to the said house. When the victim girl was pulled inside the bath room she fell unconscious and the accused left the said place. After 06.00 or 06.30p.m., the accused himself has handed over the key of the house belonging to Saraswathamma and told that his daughter is inside the said house. Therefore at about 06.00 or 06.30p.m., the victim-girl was brought out from the tenanted house of Saraswathamma. Therefore it is alleged that the accused has raped the victim-girl, gave threat to her life if she disclosed the same to anybody else and further kept her in wrongful confinement in the rented house belonging to Saraswathamma from 12.30noon to 06.30p.m.
72. In that regard Pw.1-victim-girl has deposed in detail as stated above. Her evidence is supporting the contents of the complaint lodged by her.
73. In that regard the learned advocate for accused has contended that the accused is an innocent person. He has not committed any offence as alleged by the prosecution. If really the said incident was happened, it is not believable that the 62 S.C.No.1057/2012 accused having knife in his hands, how he himself removed the clothes of victim girl. As an ordinary prudent man, if really such incident was happened, immediately after the incident or when her mother has knocked the doors of the house where the incident is alleged to be happened, she has to make hue and cry attract the neighbourers and her mother. But according to Pw.1, she kept quiet upto she pulled into the bath room without making any noise. When her mother herself knocked the doors, keeping silent inside the house is not believable and the evidence of Pw.1 in that regard is false evidence.
74. The family of victim-girl is belonging to Vakkaliga caste as suggested by the advocate for accused in her cross- examination. Further the accused is also belonging to the same caste. There is no allegation that the victim-girl is of bad character or she is belonging to a family having no good reputation or the victim-girl was used to talk with the accused and there was any love affair between them. Under such circumstances it is not reliable on the submission made by the advocate for accused that the prosecutrix has made false allegation against the accused. As discussed above, it is well 63 S.C.No.1057/2012 settled that no self-respecting woman would put her honour at stake by falsely alleging commission of rape on her. Therefore it cannot be said that the victim-girl has made false allegation of rape against the accused.
75. To see whether during that period the victim-girl was present in the house of Manjunatha, it is necessary to see the evidence of Pw.8-Mariyappa. Though he has turned hostile against the prosecution, he has clearly deposed that the accused being the friend of Anil is used to visit the said house. Further he has deposed that the victim-girl came to his house along with the child belonging to his family and after leaving the child, she left his house. He has admitted that at about 02.30p.m., the mother of victim-girl came there and enquired about her daughter. He has admitted that the mother of victim-girl has informed him that they are searching for their daughter and she is not found. Further he has admitted that about 6.30p.m., Veeraraju and his family members came there and told him that their daughter is in the tenanted house belonging to him, opened the said door and entered the said house. The further suggestions made by learned Public Prosecutor that Pw.4 and 64 S.C.No.1057/2012 others brought their daughter from his tenanted premises, is also not denied by Pw.8, but he has shown his ignorance about the same.
76. Pw.9-Madhu, who is also resident of the same area has deposed that on 10-04-2012 at about 02.30p.m., he heard neighbourers were talking that the victim-girl is not found. At about 06.00p.m., Veeraraju came there and told to his family members that their daughter is in the tenanted house belonging to Saraswathamma and opened the doors. Veeraraju, his wife, brother and brother's wife all entered into the said house and brought the victim girl. Therefore the visit of accused to the tenanted house of Mariyappa and the presence of victim-girl in the said tenanted house is supported by the evidence of Pw.8 and Pw.9, who are independent witnesses. In their cross- examination the evidence about the presence of the victim-girl in the rented house belonging to Saraswathamma and opening the doors of said house at about 06.30p.m., by Veeraraju and his family members, bringing back the victim-girl from the said house are proved beyond all reasonable doubt. The question arises why the victim-girl was present in the said house and why 65 S.C.No.1057/2012 she fell in the bath room of the said house, for which there is no answer on the part of the accused.
77. The victim-girl is belonging to the respectable family, even though as per the suggestions made by the learned advocate for accused, her father is not economically sound, but it is not acceptable that she herself gone in the said house, where the accused was present and subjected herself to the accused. It may be fact that even though when the said incident was happened when the mother of the victim-girl has knocked the doors of the said house, the victim-girl has not made any hue and cry to attract her mother inside the house. But this itself is not sufficient to hold that she is consenting party to the rape.
78. Pw.1 has deposed that when for the first time her mother knocked the doors of the said house, the accused opened the door to some extent only, having knife in his one hand showing towards the victim-girl, told to the mother of the victim- girl that he has not seen her daughter. In view of rape by the accused on the victim-girl, according to the prosecution the victim-girl was under mental shock and she was not in a 66 S.C.No.1057/2012 position to make any hue and cry, in view of knife point shown towards her by the accused. If she was in a position to make any hue or cry she would not have kept quite up to 06.30p.m., even after when the accused left the said house by keeping the house under lock. According to Pw.1 immediately when she pulled in the bathroom, she fell unconscious.
79. The main defence of accused is that himself and victim-girl are belonging to the same caste. Veeraraju being the father of victim-girl was intending to give his daughter in marriage to the accused, but the father of the accused is very rich and the economic status of the father of victim-girl is not equivalent to the economic status of the father of the accused. Therefore the father of accused has refused to take the victim- girl in marriage to his son. It is argued that the victim-girl along with her parents by colluding with each other have created the story of rape, that if such story is created, the accused and his father may agree to take the victim-girl in marriage to the accused. The suggestions are also made in the cross- examination of Pw.1 and her parents that the Inspector has called the elders of the said area, wherein the discussion was 67 S.C.No.1057/2012 held to take the victim-girl in marriage with the accused and tried to compromise the matter. The said suggestion is entirely denied by Pw.1, Pw.4 and Pw.5. Assuming for a moment that the parents of victim-girl were intending to give their daughter in marriage to accused and after commission of such incident the parents of victim-girl talked with the father of the accused for the marriage between the accused and their daughter, then also it is for the accused to prove his defence as required under law. During recording his statement under Section 313 Cr.P.C., the accused has not come forward to lead defence evidence to prove that the parents of victim-girl have tried to give their daughter in marriage to the accused even prior to the incident and when the accused and his father have not agreed for the same, the victim- girl and her parents have created the story of rape. No single witness is examined on behalf of the defence, who have alleged to be taken part in the compromise talks alleged to be held in the presence of Police Inspector. Further it is not believable that the parents of the girl belonging to respectable family may create such story of rape by keeping the future life of their daughter in a stake.
68 S.C.No.1057/2012
80. As discussed above in cases of rape, the evidence of prosecutrix if reliable, no corroboration of her evidence is necessary. Admittedly in cases of rape, normally eye witnesses are not available. In the present case the evidence of Pw.4 and Pw.9 discloses that the victim-girl was inside the tenanted house of Saraswathamma, wherein the accused was also residing. Now it is necessary to see the medical evidence in that regard.
81. Pw.15-Dr.B.M.Nagaraj, the Medical Officer has deposed that on 11-04-2012 at about 03.30pm., he has examined the victim-girl and gave his report as per Ex.P4. The victim-girl has clearly deposed that when the incident of rape was happened, she resisted the act of the accused and she made scratch marks on the body of the accused. Further she has deposed that the accused himself also made some injuries on her body. In Ex.P4 at Page No.2 the medical officer has mentioned the injuries found on the body of the victim-girl.
1. Four abrasions measuring about 1cm x 0.2cms on the right side of the neck,
2. two abrasions injuries on the bone of right neck,
3. bite marks injuries caused by the teeth measuring 4cms x 2.5cms on the left breast 69 S.C.No.1057/2012
4. abrasion injury caused by nails.
He has opined that these injuries were caused on her body within 24 to 48hours prior to her medical examination.
82. On local genital examination he has mentioned in the report as under:
Labia Mojora- QjAiÀÄ ¨ÀsUÉÆ¶× PÉA¥ÀUÁV G©âPÉÆArzÉ. Labia Minora- QjAiÀÄ ¨ÀsUÉÆ¶× PÉA¥ÀUÁVzÀÄÝ £ÉÆë¤AzÀ PÀÆrzÉ.
Clitoris - d£À£ÁAUÀzÀ CAUÀ¼À PÉA¥ÀUÁVzÉ
Fourchette - ............
Hymen - PÀ£Áå¥ÉÇgÉ EwÛÃZÉUÉ ºÀj¢zÀÄÞ ºÀjzÀ vÀÄtÄPÀÄUÀ¼ÀÄ
10-2£Éà UÀAmÉAiÀÄ ¸ÁäÜ£ÀzÀ°è PÀAqÀÄ §A¢zÀÄÝ CAZÀÄUÀ¼À°è gÀPÀÛ¸ÁæªÀªÁUÀÄwÛzÉ.
Vagina - AiÉÆäAiÀÄ°è 1¨ÉgÀ½£ÀµÀÄÖ ¸Àr®vÉ £ÉÆë¤AzÀ PÀÆrzÉ.
He has collected the material from the vagina of the victim-girl and sent it for examination to the Department of Pathology in his hospital, wherein it is reported that smears show the presence of dead and degenerated spermatozoa as mentioned in Ex.P4(d). After completion of medical examination he has opined that the victim-girl is aged about 19years and there are signs of recent sexual intercourse that the victim-girl was subjected to, sexual intercourse one or two days prior to her 70 S.C.No.1057/2012 medical examination. Prior to said sexual intercourse no signs to say that the victim-girl was often involved in sexual intercourse. It shows that at the time of medical examination of the victim-girl she was subjected to sexual intercourse recently.
83. Ex.P8 is the medical report relating to the accused person. His body development was normal. The injuries found on his body are mentioned at Page No.2 of Medical report as under:
1. Two abrasion injuries near his left cheek and left ear,
2. Four abrasion injuries in the middle portion of left neck measuring 1cm x 0.3cms caused by nails,
3. Bit marks measuring 4cms x 4cms on the left arm.
84. He has opined that these injures were caused one or two days prior to the examination of the accused. On local genital examination he has found as under:
²±Àß vÀi¢ PÉA¥ÀUÁVzÉ. aUÀÄlÄ PÀAqÀÄ §A¢®è. ²²ßzÀ »A§¢ ZÀªÀÄðzÀ°è 1cm x 0.4cm GzÀÝUÀ®zÀ UÁAiÀĪÁVzÀÄÝ UÁAiÀÄzÀ CAZÀÄUÀ¼ÀÄ PÉA¥ÀUÁV ¨sÁUÀ±ÀB ªÀætªÁVzÀÄÝ ¥ÀjÃPÁë PÁ®PÉÌ MAzÉgÉqÀÄ ¢£ÀUÀ¼À CAvÀgÀzÀ°è F UÁAiÀĪÁVgÀĪÀ ¸ÁzÀsåvÉ EgÀÄvÀÛzÉ.
85. He has collected the material found on the penis and sent for Leegol's Iodine test, wherein the said test showed 71 S.C.No.1057/2012 positive result about the involving of that person in sexual intercourse within four days. He has opined that the accused person is aged about 24years. There were signs of recent sexual intercourse within one or two days prior to his medical examination. There was nothing to suggest the said person is incapable of performing sexual intercourse.
86. In the cross examination of Pw.15 several suggestions are made by the learned defence council that the Medical Officer has not collected the clothes of the victim-girl and the materials from vagina, not sent them for FSL examination or DNA examination. He has admitted that if there is a injury in Labia Mojora and Labia Minora itself is not sufficient to say that there was sexual intercourse, but he has deposed that at time of examination as per the report of Pathology Department there were dead and degenerated spermatozoa. Further he has deposed that he has not collected the nail clippings of the victim-girl or the accused on the ground that no skin pieces were found in the nails of both the accused and the victim-girl. He has admitted that the bleeding in vagina may be due to the injury caused therein. It shows that there 72 S.C.No.1057/2012 was injury on the vagina after the alleged rape and there was bleeding to some extent with pain.
87. As per Ex.P2, on 11-04-2012, the Investigation Officer has called the Panchas to the police station, wherein the victim girl has produced her clothes before the Investigation Officer in presence of Panchas. The Investigation Officer in between 06.30p.m., to 07.15p.m., has drawn mahazar in presence of Panchas and seized the clothes-MO1 to MO4. They are, top, pant, bra and panty. Pw.2 though not stated the corrected date of Panchnama, he has identified the clothes produced by the complainant and deposed about the drawing of Panchnama as per Ex.P2 and seizure of MO1 to MO4. In his cross-examination by the learned advocate for defense, the production of clothes by the complainant, alleged to be worn by her at the time of rape, the seizure of said clothes and drawing Panchnama as per Ex.P2 are not slackened.
88. Pw.3-Smt.Chandrakala is a Pancha to Ex.P3. She has deposed that she is the neighbouring resident of the house of victim girl, she has attended the Panchnama in the tenanted house of Saraswathamma on 11-04-2012 at about 07.45p.m. 73 S.C.No.1057/2012 The police came to the tenanted house of Saraswathamma and called herself and one Muniraju as Panchas. In the said house near the main door there was a knife and the same was shown by the victim girl, the police have seized the same and drawn mahazar as per Ex.P3. She has identified the said knife at MO5.
89. In her cross-examination by learned defense counsel, she has deposed that she used to go to attend her work at about 07.00a.m., and used to return to her house at 12.00noon. The police have opened the key of the said house after her arrival to the spot, but she don't know to gave the key to the police. She admits that the said house is residential house. In the said house some papers and one bed sheet were there. She has deposed that she has not questioned the police why they have taken the said knife from the said house and why the police came to the said house.
90. Though she has shown her ignorance about the contents of Ex.P3, she has clearly deposed about the arrival of police to the spot of offence and seizure of knife-MO5 from the said house, drawing of Panchnama as per Ex.P3. She has specifically deposed that on the spot of offence itself she put her 74 S.C.No.1057/2012 signature on Ex.P3. She has denied that she has got close friendship with the mother of victim girl. She has denied that herself and her husband by colluding with the father of victim girl were trying to perform the marriage of victim girl with the accused. Therefore the evidence of Pw.3 with regard to seizure of knife and drawing Panchnama-Ex.P3 are not slackened and the same is proved by the prosecution.
91. Therefore I am of the opinion that the evidence of Pw.1 that she was raped by the accused person on the alleged date of incident is supported by the medical evidence. It is also proved by the evidence of Pw.4 to Pw.7 and neighbouring witnesses-Pw.8 and Pw.9 that on the date of incident at 06.30p.m., Pw.4 to Pw.7 have opened the lock of the tenanted premises of Saraswathamma and they brought the victim-girl outside from the said house. It shows the present of victim-girl in the said house since 12.30noon to 06.30p.m., to which house the accused was used to visit as admitted by Pw.8. There is nothing to say that the evidence of victim girl is not reliable and she has lodged complaint on concocted story. Under these circumstances, I am of the opinion that the prosecution has 75 S.C.No.1057/2012 proved that the accused has raped the victim-girl by keeping her under threat of life by showing the knife point towards her neck.
92. Further as discussed above, according to the victim- girl she was taken inside the house by the accused around 12.30 noon. After the incident he made her to sit near the doors and at that time also she was kept quite under threat of life. Subsequently the accused has pulled the victim-girl in the bath room, where she fell unconscious. It shows that the accused has put the victim-girl in a wrongful confinement wrongfully restrained her in such a manner as to prevent her from proceeding beyond certain circumscribing limits, where she has right to proceed. Therefore the allegation of keeping the victim- girl under wrongful confinement is also proved by the prosecution beyond all reasonable doubt.
93. When the prosecution has proved the guilt of the accused as required under law, the burden shifts on the accused to prove his defence by rebutting the evidence adduced by the prosecution, but in this case though defence is taken that the parents of the victim-girl were intending to give victim-girl in marriage to the accused and when the accused and his father 76 S.C.No.1057/2012 were not agreed for the same, the victim-girl and her parents have created a story of rape. According to the defence, immediately after the complaint lodged by the complainant, the Police Inspector called her parents and the parents of accused, along with the elders of that locality. In the said meeting the talks about the marriage between accused and victim-girl were held. In that regard no single witness is examined by the defence. Therefore the evidence of prosecution with regard to the rape committed by the accused by keeping the victim-girl in a wrongful confinement and causing alarm to her by showing knife point remained intact.
94. On the above discussion, it is clear that except some stray sentences in the evidence of Pw.1, her evidence with regard to the dragging her inside the house by the accused at the time of alleged incident, and the commission of rape on her by the accused is not slackened in her cross-examination. Pw.4 to Pw.7 i.e., the parents, uncle and aunt of the victim girl all have supported the case of prosecution that on the date of incident, the victim girl was not seen since 12.30noon to 06.30p.m., and she was brought out from the house of tenanted premises of 77 S.C.No.1057/2012 Saraswathamma in which Anil was tenant and the accused being a friend of Anil was used to visit the said house. The evidence of Pw.8 and Pw.9 also supports the prosecution case that on the date of incident the parents, the uncle and aunt at about 06.30p.m., have opened the doors of tenanted premises of Pw.8 and brought the victim girl to their house. Therefore there is nothing on record to disbelieve the evidence of Pw.1 in respect of allegations made against the accused. The prosecution has produced the cogent and convincing evidence to prove the guilt of accused beyond all reasonable doubt. Hence, I answer the above points accordingly.
95. POINT No.3: In view of my findings on the above points, the accused is liable for conviction to the offences punishable under Section 342 and 376 of IPC. In the result, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C., the accused is convicted to the offences punishable under Sections 342 and 376 of IPC.78 S.C.No.1057/2012
To hear regarding quantum of sentence at 03.00p.m.
(Dictated to the Judgment Writer transcribed & typed by her and also computerized by the Judgment Writer to my dictation, corrected, revised and then pronounced by me in the Open Court on this the 27th day of April 2016).
(VIJAYALAXMI S.UPANAL) LIV Addl., City Civil & Sessions Judge, Bangalore.
SENTENCE The learned advocate for accused is present and submits that the accused is the only son to his parents. They are old aged persons. The accused has to look after his parents in their old age. It is further submitted that the accused is of young age, if he is detained in jail for a long period, his future will be spoiled. It is also submitted to give benefit under Section 428 of Cr.P.C. Therefore it is submitted to take lenient view.
2. The learned Public Prosecutor submits that the accused has committed the rape on the complainant-victim-girl, which is heinous in nature. The victim girl was about 19 years old at the time of alleged incident and now she is about 22 years 79 S.C.No.1057/2012 old. Due to the act of the accused, her future life is spoiled. She has to go for a long period in her life, having the stigma of rape. It is very difficult to perform her marriage, that too in the Indian society. Therefore it is submitted to impose maximum punishment to the accused and to give compensation to the victim girl, which may help for her future life.
3. The learned Public Prosecutor has relied upon the ruling reported in AIR 2013 Supreme Court 2997- wherein the Hon'ble Supreme Court has observed that at the time of imposing the sentence, the Court has to look into the facts and circumstances of each case, nature of crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of accused etc. Un due sympathy to impose inadequate sentence would do more harm to the justice system and undermine the public confidence in the efficacy of law. The Court must not only keep in view the rights of victim in crime, but also the society at large while considering the imposition of appropriate punishment.
4. He has further relied upon the ruling reported in AIR 2013 Supreme Court 3246- wherein the Hon'ble Supreme Court 80 S.C.No.1057/2012 has observed that the rape is one of the most heinous crimes committed against the woman. It insults womanhood. It violates the dignity of a woman and erodes her honour. It dwarfs her personality and reduces her confidence level. It violates her right to life guaranteed under Article 21 of the Constitution of India.
5. He has rightly relied on the said rulings. I perused the records. The offences alleged against accused are heinous in nature. The act of accused in committing rape on the victim- girl/complainant, who was aged about 19years is too heinous in nature. Now she is about 22 or 23years old. Therefore, it is not fit case show any mercy towards the accused or to take lenient view in that regard. Hence, I proceed to pass the following;
6. Section 342 of IPC deals with the punishment for wrongful confinement. According to this Section, the said accused shall be punished with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs.1,000/- or with both.
81 S.C.No.1057/2012
7. The discussion made above shows that the accused has put the victim girl on the date of the incident in a wrongful confinement, since 12.30noon to 06.30p.m.
8. The punishment for the offence punishable under Section 376(1) of IPC, who ever except in the case provided for by sub-section(2), commits rape, shall be punished with imprisonment of either description for a term which shall not be less than seven years, but which may be for life, or for a term which may extend to ten years and shall also be liable to fine, unless the woman raped is his own wife and is not under 12years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.
ORDER
The accused is sentenced to undergo
rigorous imprisonment for a period of ten years and fine of Rs.5,00,000/- for the offence punishable under Section 376 of IPC and in default of payment of fine amount to undergo simple imprisonment for one year.
82 S.C.No.1057/2012
The accused is sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs.1,000/- for the offence punishable under Section 342 of IPC and in default of payment of fine amount to undergo simple imprisonment for three months.
The substantive sentence of imprisonment stated above shall run concurrently, but the sentence in default of payment of fine, in case, the fine amount is not paid, shall run consecutively.
The period of detention in judicial custody, if any, undergone by the accused already is given set off u/s 428 Cr.P.C.
If the fine amount is recovered, Rs.3,00,000/- out of Rs.5,00,000/-, shall be paid to the victim-Pw.1 as compensation.
MO1 to MO5-Chudidar top, Chudidar pant, bra, panty and knife being worthless, shall be destroyed after expiry of appeal period.
83 S.C.No.1057/2012
The office is directed to supply free copy of the Judgment to the accused immediately.
(Computerized by the Judgment Writer to my dictation, corrected, revised and then pronounced by me in the Open Court on this the 27th day of April 2016).
LIV Addl., City Civil & Sessions Judge, Bangalore ANNEXURE Witnesses examined for the prosecution:
Pw.1 V.Rekha Cw.1 06-04-2013
Pw.2 Shivananjaiah Cw.4 06-04-2013
Pw.3 Chandrakala Cw.7 27-04-2013
Pw.4 Veeraraju Cw.10 17-06-2014
Pw.5 Sowbhgyamma Cw.11 17-06-2014
Pw.6 Meenakshi Cw.13 02-07-2014
Pw.7 Narasimha Murthy Cw.12 25-08-2014
Pw.8 Mariyappa Cw.14 29-09-2014
Pw.9 Madhu Cw.16 29-09-2014
Pw.10 Anil Cw.15 27-10-2014
Pw.11 Annapoorna Cw.08 19-02-2015
Pw.12 Padmacharan Cw.3 19-02-2015
Pw.13 Raghavendra Cw.9 11-03-2015
Pw.14 Puttaraju Cw.2 25-03-2015
Pw.15 B.M.Nagaraj Cw.15 25-03-2015
Pw.16 Umesh.M.H. Cw.19 30-05-2015
Documents marked for the prosecution:
Ex.P1 Complaint Pw.1 06-04-2013
Ex.P1a Signature of Pw.1 Pw.1 06-04-2013
Ex.P1b Signature of Pw.1 Pw.1 06-04-2013
84 S.C.No.1057/2012
Ex.P1c Signature of Pw.16 Pw.16 30-05-2015
Ex.P2 Mahazar Pw.1 06-04-2013
Ex.P2a Signature of Pw.1 Pw.1 06-04-2013
Es.P2b Signature of Pw.2 Pw.2 06-04-2013
Ex.P2c Signature of Pw.16 Pw.16 30-05-2015
Ex.P3 Mahazar Pw.1 06-04-2013
Ex.P3a Signature of Pw.1 Pw.1 06-04-2013
Ex.P3b Signature of Pw.3 Pw.3 27-04-2013
Ex.P3c Signature of Pw.16 Pw.16 30-05-2015
Ex.P4 Medical Report Pw.1 02-04-2014
pertaining to victim-girl
Ex.P4a Signature of Pw.1 Pw.1 02-04-2014
Ex.P4b Signature of Pw.1 Pw.1 02-04-2014
Ex.P4c Signature of Pw.15 Pw.15 25-03-2015
Ex.P4d Pathology report Pw.15 25-03-2015
Ex.P5 Statement of Pw.8 Pw.8 29-09-2014
Ex.P6 Statement of Pw.10 Pw.10 27-10-2014
Ex.P7 Report of Pw.14 Pw.14 25-03-2015
Ex.P7a Signature of Pw.14 Pw.14 25-03-2015
Ex.P7b Signature of Pw.16 Pw.16 30-05-2015
Ex.P8 Medical Report Pw.15 25-03-2015
pertaining to accused
Ex.P8a Signature of Pw.15 Pw.15 25-03-2015
Ex.P8b Signature of accused Pw.15 25-03-2015
Ex.P8c Signature of accused Pw.15 25-03-2015
Ex.P9 Requisition of I.O. Pw.15 25-03-2015
Ex.P9a Signature of Pw.16 Pw.16 30-05-2015
Ex.P10 Requisition of I.O. Pw.15 25-03-2015
Ex.P10a Signature of Pw.16 Pw.16 30-05-2015
Ex.P11 FIR Pw.16 30-05-2015
Ex.P11a Signature of Pw.16 Pw.16 30-05-2015
Ex.P12 Sketch Pw.16 18-06-2015
Ex.P12a Signature of Pw.16 Pw.16 18-06-2015
Ex.P13 Copy of document Pw.16 18-06-2015
Ex.P14 Challan Pw.16 18-06-2015
Ex.P15 Tax Pw.16 18-06-2015
85 S.C.No.1057/2012
Material objects marked for the prosecution:
MO.1 Chudidar Top Pw.1 06-04-2013
MO.2 Chudidar Pant " "
MO.3 Bra " "
MO.4 Panty " "
MO.5 Knife " "
Documents marked for the accused:
-Nil -
Witness examined and material objects marked for the accused:
- Nil -
LIV Addl., City Civil & Sessions Judge, Bangalore.