Bangalore District Court
SPL.C/274/2014 on 6 December, 2016
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
Dated this the 6th Day of December 2016
- : PRESENT: -
SMT. B.S.REKHA B.A. Law., LL.M.
L Additional City Civil & Sessions Judge,
Bangalore.
SPECIAL C.C.No. 274/2014
COMPLAINANT :
The State of Karnataka
By Kamakshipalya Police Station,
Bangalore.
[Rep. by learned Public Prosecutor,
Bangalore.]
/ VERSUS /
ACCUSED :
Ashok.G.E.,
S/o. Erappa, 21 years,
R/at No.Gadadasana Halli Village,
Kuruburu Hobli, Chintamani Taluk,
Chikkaballapura District.
Rep. Sri.Y.S.S-Advocate.]
1 Date of commission of offence 23-09-2010
2 Date of report of occurrence 26-09-2010
3 Date of arrest of Accused 11-10-2010
Date of release of Accused 05-03-2011
Period undergone in custody 24 days & 4 months
by Accused
2 Spl.CC.No.274/2014
4 Date of commencement of 02-08-2012
evidence
5 Date of closing of evidence 13-10-2016
6 Name of the complainant Anjanappa
7 Offences complained of Section 366, 376,
of IPC
8 Opinion of the Judge Accused is convicted
9 Order of Sentence As per the final order
JUDGMENT
The Police Inspector attached to the Kamakshipalya Police, Bangalore City, has filed this charge sheet against the accused for the offences punishable under Section 366-A and 376 of I.P.C.
2. The case of the prosecution in brief is that on 23-09-2010 at about 09.00 a.m., the accused took Cw.2 who is minor daughter of Cw.1, from 7th Cross, Ravinandana School Road, Kaveripura, Kamakshipalya, Bangalore, within the jurisdiction of Kamakshipalya Police Station to Vellur Road, Chittur, Andhra Pradesh by inducing her that he is intended to marry her and thereafter forcibly took her to Balaji Archies Poultry Form, situated at Vellur Road, Chittur, Andhra Pradesh 3 Spl.CC.No.274/2014 and committed rape on her by confining her in the said poultry farm forcibly and there by the accused committed the aforesaid offences.
3. The charge sheet was submitted to V ACMM Court and learned Magistrate after taking cognizance, committed this case to the Court of Sessions for trial. After registering the case in S.C.No.844/2011, it was retrained by the Principal City Civil & Sessions Judge, Bangalore. The Hon'ble Principal City Civil & Sessions Judge after following the procedure laid down under law framed charge under Section 366-A and 376 of IPC and read over to the accused. Accused has pleaded not guilty and claimed to be tried. Hence, posted for evidence on prosecution side.
4. After recording the evidence of Pw.1 to Pw.7, as per the orders of the Hon'ble High Court of Karnataka vide notification No.RSB:21/14 dated 14-02-2014 the case is transferred to CCH-55. As per the orders of the Hon'ble High Court of Karnataka vide notification No. 4 Spl.CC.No.274/2014 RSB: 67/14 dated 08-05-2014 this case is with drawn from CCH-55 and transferred to CCH-51 i.e., this Court and is registered as Special Criminal Case in No. 274/ 2014. Subsequently, charge under the first head for offence under Section 366-A has been altered for offence under Section 366 of IPC after hearing on both sides.
5. On prosecution side got examined as many as 13 witnesses as Pw.1 to Pw.13 out of 20 charge sheet witnesses and got marked documents at Ex.P1 to Ex.P14 the details of which are given in the annexure of this Judgment. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C, has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side but got marked Ex.D1. It was posted for arguments.
6. Heard the arguments on both sides. Perused and posted for Judgment.
5 Spl.CC.No.274/2014
7. The points that arise for my consideration are as under:
1) Whether the prosecution has proved beyond reasonable doubt that on 23-09-
2010 at about 09.00 a.m., the accused forcibly took Cw.2 who is minor daughter of Cw.1, from 7th Cross, Ravinandana School Road, Kaveripura, Kamakshipalya, Bangalore, within the jurisdiction of Kamakshipalya Police Station to Vellur Road, Chittur, Andhra Pradesh, by inducing her that he intent to marry her and to seduce her to illicit intercourse and thereby committed the offence punishable under Section 366 of I.P.C.?
2) Whether the prosecution has proved beyond reasonable doubt that the accused took Cw.2 to Balaji Archies Poultry Form, situated at Vellur Road, Chittur, Andhra Pradesh and committed rape on her by confining her in the said poultry farm during the aforesaid period of wrongful confinement and thereby committed the offence punishable under Section 376 of IPC?
3) What order?
8. My findings on the above points are as under:-
Point No.1 : In the Affirmative Point No.2 : In the Affirmative 6 Spl.CC.No.274/2014 Point No.3 : As per final orders for the following REASONS
9. Point No.1 and 2:- Cw.12-Dr.Dilip Kumar examined as Pw.1 has stated that on 11-10-2010 he received request from Police Inspector, Kamakshipalya Police Station to examine the accused about his potency to perform sexual intercourse. On the same day he examined the accused at 12.30 p.m. and found that there is nothing to suggest that the accused is incapable to perform sexual intercourse. He issued certificate as per Ex.P1. He did not find any fresh injuries on genital. He examined the clothes and identified the accused as the same person.
10. During the course of cross-examination he has stated that he did not find any nail scratches or biting marks on the accused body and there are no injuries on genital. In case of any forcible sexual assault there might be some injuries on the body.
7 Spl.CC.No.274/2014
11. Cw.1-Anjanappa examined as Pw.2 has stated that the victim is his daughter. He knows the accused. Cw.5 and Cw.6 are his sisters. His village is Gadadasana Halli of Chintamani Taluk, wherein his wife, himself and children are residing. He is having four children and the victim is his second daughter. The victim was studying in 8th standard about two years back in his village. She informed that the accused was quarreling with her stating that he loves her and then he sent his daughter to his sister's house at Bangalore with the fear that the accused will continue to harass the victim.
12. On 23-09-2010 his sister called him between 04.00 p.m., to 06.00 p.m., by informing that the victim gone from the house in the morning, but she did not return and at that time he was in the village. He immediately came to Bangalore and searched for his daughter for 2 to 3 days, but he did not find her, then he lodged complaint on 26-09-2010 regarding missing of his daughter.
8 Spl.CC.No.274/2014
13. On 10-10-2010 Kamakshipalya police called and informed that his daughter was found and told to visit the Police Station. On the same day he found his daughter with the accused in the Police Station. When he enquired, his daughter she told that the accused came to her house at 09.30 a.m., and created fear and took her to Kolar and then to Chittor. She also told that the accused had committed rape in these places also. The police have sent her to the hospital and she came back to the Police Station. Thereafter he took her to his sister's house and then went to his village. He had given complaint as per Ex.P2. The incident occurred after six months of his daughter shifting to the house of his sister. During that period the accused was in the village. The victim was aged 16 years at the time of the incident and she was studying in Government Higher Primary School in the village. He does not remember the date of birth of the victim, but she was born prior to 2006.
14. During the course of cross-examination he has stated that his sister informed about the missing of his 9 Spl.CC.No.274/2014 daughter on 23rd and he filed complaint on 26th. The averments of the complaint are under his instructions. He used to sign in English and Kannada. The accused is from his village, but he does not belong to his community. He shifted her to his sister's house in order to avoid the harassment of the accused. He denied that as he was aware of the love affair of the accused with the victim he shifted her to Bangalore. He denied that the victim was attending tailoring classes in Bangalore.
15. Ex.D1 is the photographs which are confronted to this witness, but he has stated that he cannot identify the faces in the photographs. He denied that the said photographs belong to his daughter and the accused. He denied that his daughter loved the accused and requested the accused to marry her. He denied that in order to avoid that marriage he shifted the victim to Bangalore. The accused had taken his daughter from the road. He admits that there is no coercion or force at that time. She did not complain of any force or coercion. He had not produced documents regarding date of birth 10 Spl.CC.No.274/2014 of the victim. He is also having income from sheep and the agricultural work. He denied that the victim was grazing the sheep during holidays and came in contact with the accused. He did not file any complaint when his daughter was in the village about the harassment of the accused.
16. He denied that he was having anger towards the accused and also as he was not from his community, he was not interested. He went along with his daughter to the hospital. He does not remember putting of signature in the hospital. Apart from the complaint, he does not remember about giving any statement to the police. When she was in Bangalore, the victim used to visit the village and also to attend Jathra. He denied that during such visits she was meeting and requesting the accused to meet her at Bangalore. He denied that the victim was telling the accused to take her to some other place in order to live separately. It is also denied that she was telling to the accused that if he does not take her, she is going to die.
11 Spl.CC.No.274/2014
17. Cw.2-victim examined as Pw.3 has stated that Pw.2 is her father. Anasuyamma is her aunt. She knows Cw.5-Akshatha but she is not aware of Cw.10 and Cw.11. She knows the accused and they are from the same village at Gadadasana Halli of Chintamani Taluk, She was residing with her parents, grand parents and her brothers and sisters at Gadadasana Halli. She is studied in Higher Primary School at Gadadasana Halli up to 8th Standard. The accused was telling that he loves her and he will marry her. He was standing on her way to school and he was telling her to love him, otherwise he is going to kill her parents. Thus her father sent her to Bangalore to the house of her aunt at Kamakshipalya. For some time the accused came to her aunt's house and by holding her hands told to come with him and requested her to join him and he took her to the bus stand and then to Kolar and then to Andhra Pradesh- Chittor. Thereafter he took her to poultry farm and stayed in one room.
12 Spl.CC.No.274/2014
18. The accused took her from her house on 21- 09-2010. They reached poultry farm in the evening. The accused had given food at 08.00 p.m., in that room. She slept in that room. The accused came at 10.00 p.m., and there after by removing her clothes and removing his clothes he had committed rape on her forcibly, though she was refusing. During that night he committed intercourse for three times. Herself and the accused were staying in the same room till they returned to Bangalore for 16 days. During that period he was providing food and also committed forcible rape on her. Thereafter he took her to Chittor bus stand on 10-10-2010. The police came there and took them to Kamakshipalya Police Station. Her father and her relative came to the Police Station and she went with her father to her house at Kamakshipalya. The police enquired and she told the details.
19. The police sent her and her father after recording her statement. On the next day the police sent her to the hospital. When she was in 7th or 8th standard, 13 Spl.CC.No.274/2014 the accused had expressed his love affair. On 21-09- 2010 he called Akshatha and she was aged 16 years at that time. Her date of birth is 12-06-1996. She was not aware of good or bad when the accused took her. The accused took her on 23-09-2010 and not on 21-09-2010.
20. During the course of cross-examination she has stated that she is aware of Kannada as she has studied up to 8th standard in Kannada medium. She was born and brought up in Gadadasana Halli. The accused is also from the same place. They belonged to agricultural family. They are also having cattle, sheep and other animals. She saw the accused on such occasion of her grazing the animals. She denied that she used to talk with him. She denied that during such talking her sister and grand father have seen them. She admitted that she has discontinued her education for one year.
21. She was brought to Bangalore and kept in the house of her aunt. She denied that she has given her 14 Spl.CC.No.274/2014 phone number to the accused when she attended the Jathra. She denied that the accused came to Bangalore to meet her. She did not talked with him on 23-09-2010 over phone. She denied that on that day she met her friend-Akshatha and she asked her to come to Garment work. She denied that she told to her that she is going to her village. She did not tell to Akshatha about forcible kidnap by the accused since she did not meet her on that day. She did not inform to anybody when she came from Kamakshipalya to Majestic or during her travel that accused is forcibly kidnapped her.
22. They went to Kolar from Majestic in bus, at that time she did not shout or tell to any body regarding her forcible kidnap. From Kolar they went to Andhra Pradesh, Bettada Halli, poultry farm. They stayed there for 10 to 15 days. She did not observe any other person working in that poultry farm at that time. They stayed in one room in the poultry farm and there are other rooms for other workers. She is not aware that Venkatesh and Amuda were also working in the said poultry farm. 15 Spl.CC.No.274/2014
23. She was not working in the said poultry farm and hence she is not aware of the nature of the work of the accused. She is not aware about the working of Manager, Supervisor and Labourers in that Poultry farm at that time. She did not come out of the room except for bathing and other daily works. She did not tell anybody about her forcible kidnap. She denied that she was working in the poultry farm and wages of Rs.150/- was paid. She admitted that she was comfortable in the room and she had no problem. When they came to Bangalore, the police took her to the doctor who enquired her.
24. She admitted that she has not stated to the doctor about the forcible rape. She had given statement to the police. She is not celebrating her birthday. Her date of birth is not entered in the Panchyath records. She did not produce her birth certificate to the police. She did not scratch the accused face or body with nails when the accused committed rape on her. But she says that she had resisted that act of the accused. She did not bite on any part of the body of the accused. She told 16 Spl.CC.No.274/2014 to the police about the threat caused by the accused. Ex.D1 is her photographs which are taken when she was cordial with the accused.
25. The accused threatened her that if she inform to her parents he is going to kill her. She did not inform to the doctor about any pain in the body after the incident. She was not unconscious during the period of intercourse. There are no injuries on her body. Her parents have no knowledge about her accompanying the accused from Bangalore. She did not file any complaint against the accused when they reached Kolar or in Andhra Pradesh. She is not aware when her parents have lodged complaint. She shown ignorance that her father demanded Rs.1 Lakh and 1 Acre of land from the accused.
26. She shown ignorance about the Panchayath convened, wherein her father demanded these things. She shown ignorance that on refusal of accused and his parents, the false complaint is filed. She denied that 17 Spl.CC.No.274/2014 Akshatha is her close friend and she informed her that she is going with the accused. She denied that she had love affair with the accused and she went with him. She denied that she requested the accused to take her otherwise she is going to die under any lorry or vehicle. She denied that at the time of incident she had attained 18 years of age and compelled the accused to marry her.
27. She denied that she told the accused that she is going to die if he did not marry her. She denied that the accused had taken her with her consent and they were working in poultry farm and living in one room cordially. She denied that due to non-compliance of the demand, her father filed false complaint.
28. Cw.6-Anasuyamma, examined as Pw.4 has stated that Pw.2 is her elder brother and Pw.3 is his daughter. She saw the accused in her native Gadadasana Halli. She is residing in Kamakshipalya from last 12 years with her family. Two years prior to this incident Pw.2 had kept Pw.3 in her house because 18 Spl.CC.No.274/2014 the accused was harassing Pw.3 in the village. She was there for 2 to 3 days. At that time she was doing tailoring work. After 5-6 months Pw.3 was left in her house, when she went to tailoring class at 09.30 a.m., informing her and asked her to come there if she is willing with food to the class at 10.00 a.m., or 11.00 a.m. However she did not turn up and she returned home at 01.00 p.m., and found that Pw.3 was not there.
29. She searched with neighbourers, but she could not find her. Then she called Pw.2 over phone at 04.00 p.m., informing him that Pw.3 is not in the house. Then Pw.2 came to her house at 10.00 p.m., and thereafter they searched and as they could not trace her they lodged the complaint. After 4-5 days of complaint, the Kamakshipalya police called and when they went to the Police Station, they found Pw.3 and the accused. The police sent her to the house in the evening and also Pw.3 was sent to her house at 06.00 p.m. When she enquired Pw.3 she told that the accused took her to Chittor poultry farm and committed rape on her 3 to 4 19 Spl.CC.No.274/2014 times. She had given statement to the police. When Pw.3 was in her house she was doing house hold work and bringing food to the tailoring class.
30. During the course of cross-examination she had stated that her marriage was performed at the age of 15 years. She left the village after the marriage and resided with her husband. Pw.3 was left in her house by Pw.2 due to the harassment of the accused in the village. She did not tell to the police that she is going to the tailoring classes and Pw.3 was giving food. Pw.3 was not doing any other work, but she was coming to the tailoring classes. She cannot say exact date and day when Pw.3 left the house. Pw.2 lodged the complaint 3 days after missing of Pw.3.
31. She did not lodge any complaint. After Pw.2 came to her house, she came to know about Pw.3 going with the accused. She did not search for Pw.3. She saw Pw.3 and the accused in the Police Station. She is not aware of the discussion between Pw.2 and the persons 20 Spl.CC.No.274/2014 about negotiations. She showed ignorance that as those persons did not agree for the proposal, false case is lodged. Pw.3 did not tell anything to her in the Police Station. Pw.3 was not having cell phone. They belonged to Gowda community and accused is S.C. She cannot identify the person who was with the victim in Ex.D1. She denied that Pw.3 loved the accused and she was calling him to Bangalore.
32. She denied that Pw.3 was threatening to end her life if she is disassociated with the accused. She denied that she knows Akshatha as friend of Pw.3. She shown ignorance that Pw.3 met Akshatha on road when she was going with the accused on that day. No body told about the shouting or screaming of Pw.3 when she was going with the accused. She denied that though she is aware that Pw.3 went with the accused on that day, but she is deposing falsely. She came to Court 2 to 3 times with Pw.2 and Pw.3. She denied that Pw.2 had instructed her to depose. Pw.3 is in her house now also. Her son is aged 16 years and daughter is aged 20 years. 21 Spl.CC.No.274/2014
33. Cw.9-Shankar examined as Pw.5 has stated that the victim is daughter of his cousin and his cousin is Anjanappa. On 04-11-2010 police called him to Kamakshipalya Police Station and police were present. He went to the Police Station with Pw.2. Thereafter he was taken by police and Pw.2 to Balaji poultry farm at Chittor. The police have shown the spot and conducted mahazar regarding accused and the victim as per Ex.P3.
34. During the course of cross-examination by learned Public Prosecutor he shown ignorance that the victim told the police that she showed the spot where she was kept. He admitted that the victim took them to Vellur Road, Chittor District on 04-11-2010. He admitted that Balaji Poultry farm is 3 kilo meters away from Chittor and the victim lead to poultry farm which consists of 13 compartments and she shown 5th compartment and told that the accused had committed rape on her.
35. During the course of cross-examination of 22 Spl.CC.No.274/2014 defense he had stated that Pw.4 is his wife and the victim is residing in their house to learn tailoring. His wife is doing tailoring in a garment. Pw.2 is resident of Gadadasana Halli. He is not aware of the quarrel and why they came to his house. He went to Police Station as called by Pw.2 and thereafter he was taken to Chittor and to poultry farm. He has no close contact with Pw.3. He cannot say about the contents of Ex.P3. The victim did not tell that the accused had taken her and kept her in that spot. He also shown ignorance as to how many days the victim was there. He is unable to say the boundaries of the spot.
36. Cw.14-R.Nagaraj-H.C.542 examined as Pw.6 has stated that on 10-10-2010 Cw.15, Cw.16 and himself were deputed to search and apprehend the accused and the victim along with the complainant. When they were searching, the complainant had pointed out them at Plat Farm No.24 in Majestic bus stand and they apprehended them and produced before the Investigation Officer at 02.30 p.m. He identified the 23 Spl.CC.No.274/2014 accused.
37. During the course of cross-examination he had stated that they did not went to other villages or towns in search of the accused and Pw.3. He denied that on coming to know that the complaint was lodged the accused and the victim appeared before Kamakshipalya police.
38. Cw.7-Hemachandra examined as Cw.7 has stated that he know Balaji Archies poultry farm. About two years back Kamakshipalya police visited the said poultry farm along with Pw.2 and Pw.3. They have obtained his signature on blank paper as per Ex.P3. He turned hostile to the case of prosecution.
39. During the course of cross-examination by learned Public Prosecutor he had stated that Pw.2 and Pw.3 with two other persons in Mufti came to the farm and told that they are relatives of Pw.2 and Pw.3. According to him he does not remember that the accused came to the Farm with Pw.3.
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40. During the course of cross-examination of defense he had stated that he is seeing the accused for the first time. He had not seen him at any time earlier. He admitted that the accused did not come to the farm on that day.
41. Cw.17-K.M.Jayaram-P.S.I. examined as Pw.8 has stated that on 04-11-2010 in Crime No.619/2010 the Police Inspector had issued memo and instructed to go to Chittor to prepare spot mahazar along with the complainant and the victim and also to record the statements of neighbourers. Thereafter he went to Chittor along with the complainant and the victim to Balaji Archies poultry farm. The victim showed the place and stated that they lived there and there are some sheds. The victim has stated that in Shed No.5 herself and accused were resided and there the accused committed rape on her and he prepared mahazar as per Ex.P3. He recorded the statement of one Amuda, Venkatesh and thereafter submitted report as per Ex.P5. 25 Spl.CC.No.274/2014
42. During the course of cross-examination, he had stated that he received the memo at 08.30 a.m. He denied that the Police Inspector will not come till 10.00 a.m. He prepared mahazar between 03.00 to 03.45 p.m. They went to Chittor in private vehicle and the department has spent the expenses. But he has not produced the documents. He is not aware that the accused and the victim loved each other. But they told as to how many days they were in that shed. He had not enquired any body regarding their cordiality and salary. He did not found any sperms present at that place. Ex.P5 and Ex.P6 were prepared on the same day. Anjanappa has signed in English to Mahazar. In the complaint the complainant had signed in English. He denied that the victim had not accompanied them to Chittor.
43. Cw.18-N.J.Bette Gowda, retired P.S.I., examined as Pw.9 had stated that on 26-09-2010 at 06.30 p.m., the complainant came and given complaint that his 14 years old daughter was found missing from 26 Spl.CC.No.274/2014 23-09-2010 as per Ex.P2. He sent F.I.R., as per Ex.P7. He conducted the spot mahazar on 27-09-2010 at 08.00 a.m., as per Ex.P8 and then handed over the further investigation to Cw.19.
44. During the course of cross-examination, he had stated that the complaint was lodged on 26-09-2010 and it was written in the Police Station. According to him, the complainant used to sign in Kannada. The victim was in the house of Anasuyamma and she had not lodged the complaint till 26-09-2010. He shown ignorance that as Anasuyamma and father of victim were aware as to where the victim went and hence she did not lodge complaint. There is no shara in the complaint about the delay. But they have stated that they were searching her. He had not obtained the signature of the neighbourers of the house to the mahazar.
45. Cw.20-N.H.Ramachandraiah, Police Inspector, examined as Pw.10 had stated that on 11-10-2010 he received the case papers from Cw.19 and on 04-11-2010 27 Spl.CC.No.274/2014 he had issued memo to P.S.I.Jayaram to go and prepare mahazar of the spot in Chittor along with the victim and to record the statement of the witnesses. Thereafter they went to Chittor and recorded the statement of Mohan, Venkatesh and Amuda and prepared mahazar and thereafter given the report. He received the medical certificate of the accused from Victoria Hospital on 25- 11-2010. On 27-11-2010 he received the medical report of the victim from K.C.General Hospital as per Ex.P9 and thereafter submitted the charge sheet.
46. During the course of cross-examination he had stated that after verification of record only he had submitted the charge sheet. He admitted that he has no knowledge about the information given to Amuda, Mohan and Venkatesh about the physical assault on the victim in Ex.P3. Omissions are suggested to him. He admitted that the victim did not tell about her protest when she was taken from Bangalore to Kolar and then to Chittor. He admitted that the victim told that her date of birth as 31-10-1994 and in Ex.P10 it is noted as 12-09-1996. 28 Spl.CC.No.274/2014 That document was issued by Government Higher Primary School of Gadadasana Halli. There is no recital as to the concerned Municipality or the Village Panchayath within its jurisdiction she was born.
47. He had not enquired about the original records pertaining to her date of birth. He admitted that in Ex.P9, the victim had stated that there was no sexual intercourse during her stay at Battarapalli poultry farm and the victim has not produced any articles to prove the allegation of rape. He admitted that the complainant had signed in Kannada in Ex.P2 and signed in English in Ex.P9. He admitted that the doctor has not noted any external injuries in Ex P9. He admitted that the doctor who examined the victim had noted in Ex.P9. They have obtained report from Radiologist. He admitted that there is no radiology test report in the charge sheet. He denied that in that report the age of the victim is shown as between 18 to 19 years. He had no impediment to obtain that document. He admitted that the victim does not stated before the doctor about her protest when she was 29 Spl.CC.No.274/2014 taken from Bangalore to Kolar and then to Chittor. She did not attempt to bite or scratch the accused.
48. She had not stated that the accused had caused life threat. He admitted that the victim does not say that she is not aware of Amuda or Mohan. He admitted that the victim has not used the word the rape in her statement, but she used other words. He shown ignorance about the Panchayath convened, wherein they demanded Rs.1 Lakh and 1 Acre of land. He denied that as the accused did not accept for this, a false complaint is lodged. He admitted that the accused and the victim were born and brought up in the same village.
49. He admitted that they loved each other. He denied that after completion of 18 years the victim went voluntarily with the accused. He denied that the victim threatened the accused that if he did not take her, she is going to commit suicide. He denied that the victim and accused loved each other, so she went voluntarily with him and hence no offence is made out against the 30 Spl.CC.No.274/2014 accused, but he filed false charge sheet. He denied that though he is aware that the victim was born in the village, he did not obtain document about her date of birth.
50. Cw.13-Dr.Jayanthi Raju examined as Pw.11 had stated that on 10-10-2010 at 09.00 a.m, she had examined 16 years old victim who was brought by W.P.C.-Cw.16-Mangala and it was a referred case. The victim had stated that on 23-09-2010 at 12.00 p.m., one Ashok kidnapped her to Andhra Pradesh-Chittor and they stayed in a hotel and had physical contact and after three days they went to Buttrapalli Farm, wherein she worked with the accused in a poultry farm and stayed for one week, wherein they had no sexual intercourse and thereafter Chintamani police have kept them for two days and then she was brought by Kamakshipalya police. She has stated that her last menstrual was on 05- 10-2010. She had thrown the clothes which she was wearing at the time of kidnap. After obtaining the consent she examined her. She did not find any external 31 Spl.CC.No.274/2014 injuries. There was hymen rupture and two fingers entered to vagina. She referred her to radiologist for age determination. She had given opinion that the victim was used for sexual intercourse as per Ex.P9.
51. During the course of cross-examination, she had stated that the history was stated to her by the victim. The victim told her that there was no sexual intercourse at Buttrapalli Village. She has taken the consent of the father of the victim. She is not aware that the father of the victim was used to sign in Kannada, but he signed in English only on that day. The victim has not stated about the nail marks or bite marks and there are no injuries found on face, lips, breast and fore hand. She did not tell that she was unable to walk and having pain in the body.
52. The victim did not tell about the threat at the time of committing sexual intercourse. She did not tell about her protest. She did not tell that after the sexual intercourse she was unable to walk and having pain, but 32 Spl.CC.No.274/2014 she was a small girl. She did not tell about ejaculation. She did not tell about the discharge, bleeding or seeking assistance from any body and lost conscious and unable to speak, panic attack and stomach ache and any changes after the incident. She has no information about the examination by radiologist. She admitted that it is not possible to ascertain the age if the victim is not subjected to radiological examination. She did not receive radiological opinion before issuing Ex.P9. She admitted that there is chances of hymen rupture in case of cycling, horse riding, lifting of heavy weight and also she has stated that if she is not subjected to sexual intercourse, it is not possible about entry of two fingers in vagina. She did not collect semen. There was no redness, swelling or inflammation in the genital.
53. The additional Charge sheet witness No.1- V.Srirama Gowda is examined as Pw.12 has stated that he was the teacher in Gadadasana Halli Village Government Higher Primary School. He is the author of the document. The grand mother and father of the 33 Spl.CC.No.274/2014 victim requested for date of birth document and he had issued the document based on the admission register. The date of birth as per the record is 12-06-1996 as per Ex.P10.
54. During the course of cross-examination, he had stated that he got admitted the victim to the school. He is the author of Ex.P10. He is transferred about three months back. He did not receive any summons from the Court. He admitted that the father of the victim is before the Court. He admitted that there is a format to issue date of birth certificate. As he had no printed format, he had issued the document in writing. At the time of admission they used to get the document. The uncle of the victim came at the time of admission. He had not obtained any document. The uncle of the victim did not produce any document to show the date of birth of the victim. He had no impediment to produce the admission register. He had issued the date of birth document on request. He told the grand mother of the victim to give application and after receiving the application he had 34 Spl.CC.No.274/2014 issued the document. He admitted that even there are late admission cases. The police have not enquired him about the date of birth of the victim. The police have not recorded his statement.
55. Cw.19-M.R.Harish-Police Inspector, examined as Pw.13 has stated that on 09-10-2010 he took further investigation from A.S.I. and he deputed his staff to search the victim. On 10-10-2010 they have produced the accused and the victim at 04.00 p.m., along with the report as per Ex.P4. He recorded the statement of witnesses and statement of the victim. The victim told that the accused told on 23-09-2010 at 09.30 a.m., that he loves her and he is going to marry her and took her to Chittor at Andhra Pradesh and kept her in a poultry farm and committed rape 3 to 4 times. Based on that he sent requisition to Court to adopt Section 366-A and 376 of IPC. The statement of victim is at Ex.P11. On the same day he sent the victim to K.C.General Hospital along with Cw.16 for medical examination. Thereafter he arrested the accused and recorded his voluntary 35 Spl.CC.No.274/2014 statement. The accused told that he is going to show the place, wherein he committed rape. Then he sent the accused to medical examination to Victoria Hospital along with Pw.6. On the same day he recorded the further statement of the complainant and statement of Akshatha and Anasuyamma and on 11-10-2010 he produced the accused before the Court and he identified the accused.
56. During the course of cross-examination, he had stated that he recorded the statement of Pw.3 and as per her statement her date of birth is 31-10-1994. She was going to garments for training. She belongs to Gadadasana Halli. She told that she came to her aunt's house. He had not collected information as to how they came from Kamakshipalya to Majestic and then to Kolar. He had not enquired as to how they went to Kolar. The victim did not tell that she shouted for help. She did not give statement that she attempted to escape and the accused did not allow her to escape. She did not tell about her protest when she was taken from Kolar to 36 Spl.CC.No.274/2014 Chittor. He had not received any document regarding the age of the victim. He had no impediment to obtain that document. The victim did not tell that she told about this to other persons in poultry farm. It may be true that if she did informed to other labourers the incident would not have occurred. He recorded the statement of Akshatha. He admitted that Akshatha did not say that the accused was forcibly taking the victim. Even she did not say that the victim was crying and protesting.
57. The documents relied upon by the prosecution are Ex.P1 is the medical report of the accused, Ex.P2 is the complaint given by the father of the victim, Ex.P3 is the mahazar conducted at poultry farm in Chittor. Ex.P4 is the report regarding arrest of the victim and the accused. Ex.P5 is the report regarding conducting of mahazar at poultry farm. Ex.P6 is the authorization given to P.S.I. Ex.P7 is the F.I.R. Ex.P8 is the spot mahazar, Ex.P9 is the medical examination report of the victim, Ex.P10 is the age certification of the victim. 37 Spl.CC.No.274/2014 Ex.P11 is the statement of the victim, Ex.P12 is the requisition given to the Court, Ex.P13 is the report of W.P.C. and Ex.P14 is the voluntary statement of the accused.
58. In this case Pw.1 had examined the accused. But it is suggested that no nail scratches or bite marks are found on the body and no injuries on the genitals.
59. Pw.2 who is the father of the victim had stated that when the victim was studying in 8th standard in her village itself, she told that the accused was quarrelling with her and telling that he loves her. Because of this threat he sent the victim to Bangalore to his sister's house in order to avoid the victim from this accused. According to him his sister informed that on 23-09-2010 the victim was found missing and he immediately came to Bangalore and searched, but he did not find and then he lodged the complaint on 26-09-2010. On 10-10-2010 he found the accused and the victim in the Police Station and when he enquired the victim, she told that the 38 Spl.CC.No.274/2014 accused came to her house at 09.30 a.m., and took her to Kolar, Chittor and he committed atyachara and manabhanga on her.
60. According to him the incident occurred after six months of him sending his daughter to his sister's house. He had specifically stated that because of the harassment of the accused, he shifted his daughter to Bangalore and there also he did not leave the victim. Though the photographs are confronted to this witness i.e., Ex.D1, this witness has stated that he cannot identify his daughter in those photographs. It is very pertinent to observe here that a suggestion is made to this witness that the victim was loving the accused and she was asking him to marry her and by knowing this, he shifted the victim in order to avoid the marriage. This suggestion goes to show that the accused was in love with the victim. That particular aspect regarding love affair of the accused is established by this suggestion itself. Even it is suggested that there is no coercion or force when the victim was taken.
39 Spl.CC.No.274/2014
61. Further an attempt is made by the defense that no document is obtained from the Village Panchyath regarding date of birth of the victim. However the school records produced in this case shows that this information was given regarding her date of birth at the time of admission to the school. Hence, the Court has to relay upon that particular document because that document came into existence at the point of time when these things were not expected to say that it is concocted document. Hence the Court has to accept the document given by the school teacher. Even an attempt is made to prove that there is a format to issue birth certificate and the witness has not issued that document in the format. However the witness has stated that as the format was not available, he had given the document in his hand- writing with due signature and seal. Hence with respect to that particular aspect regarding the date of birth of the victim, I am of the opinion that the document and the oral evidence produced by the prosecution itself is sufficient to say that the date of birth as stated by that 40 Spl.CC.No.274/2014 document is valid.
62. If that document is accepted, the date of birth shown is 12-06-1996. The date of incident is 23-09- 2010. Thus the victim was subjected to this incident at the age of 14 years 3 months. Thus even if the victim loves the accused and she forced him to take her, this aspect does not come to rescue of the accused, because she was below 16 years of age as on the date of the incident. Thus what ever defense taken by the defense counsel will definitely come to the help of the victim and not to the help of the accused. Further it cannot be accepted that a girl of immature stage will resist and the attempt made by the accused also to be taken into consideration.
63. According to the victim who is examined as Pw.3, she has specifically stated that she studied in Government Higher Primary School up to 8th standard and the accused was telling that he loved her and he wanted to marry her. He was standing in her way to the 41 Spl.CC.No.274/2014 school and he was telling her to love him otherwise he will kill her parents. Due to this she was sent to Bangalore to her aunt's house. Even in Bangalore also he came to her house. After six months by holding her hand he told her to come, by saying that let us marry and took her to bus stop and then to Kolar and then to Chittor of Andhra Pradesh and stayed in a poultry farm in one room. She had specifically stated that when she was taken, the accused had given her food in that room at 08.00 p.m., and she slept in that room. He came at 10.00 p.m., and thereafter by removing her clothes made her nude and he also removed his clothes and committed Sambhoga on her even after her protest. On that day he committed intercourse for three times in the night. They stayed for 16 days in that room. He was providing food and committing forcible rape on her. On 10-10-2010 when they came to Chittor bus stop, the police came and took them.
64. Even she has stated that the accused expressed his love when she was in 7th and 8th standard. 42 Spl.CC.No.274/2014 She has stated her date of birth as 12-06-1996.// She admitted that the accused is from her place and as both the families belongs to agriculturists, they were grazing the animals and she saw the accused on such occasions. However she denied that she used to talk with him. She discontinued her studies for one year. She denied that she had given her phone number when she came to Jathra in the village. She denied that she met Akshatha on that day and Akshatha asked her as to whether she is coming to Garment factory.
65. However she did not tell regarding the accused kidnapping her, because she did not met her. She did not tell anybody about forcible kidnap. She did not shout through out the way. She is not aware of one Venkatesh and Amuda working in that poultry farm. She was not working there and hence she has no knowledge about the workers. She was in the room from the day one till they came out except coming out for bathing and other daily routines. She did not tell anybody about the kidnapping. Only suggestion which is 43 Spl.CC.No.274/2014 made to this witness in order to prove that it was not a forcible kidnap or forcible sexual intercourse, but all these does not establish that the accused is innocent. It shows that the accused by kidnapping the victim, who was running 15 years, had taken her from lawful custody of her parents and committed rape on her. All these things will in no way help to the defense, but these things strengthen the case of the prosecution.
66. Further there is a discrepancy in the medical record and the statement of the victim regarding place of commission of rape. As per Ex.P9 the history written is that she was abducted by the accused on 23-09-2010 at 12.00 noon from Majestic and they went to Chittor, stayed in a hotel, had sexual intercourse for three days and thereafter they went to poultry farm, wherein she was working in the poultry farm along with him and they have no sexual intercourse for one week. However with respect to this document, the doctor-Pw.11 has stated that the victim has stated these things. However with respect to commission of rape by the accused there is no 44 Spl.CC.No.274/2014 dispute. Because the doctor has stated that there is hymen rupture and admitted easy movement of two fingers in vagina. She has specifically stated that there may be chances of hymen rupture generally, but it is not possible about free movement of two fingers. Thus there may be mistake in the history stated by the victim at that time, but that benefit cannot be given to the accused, because he had committed rape on her.
67. Further the evidence of the victim plays important role regarding place of incident. Even it is elicited regarding appearance of nail or bite marks and information regarding panic status of the victim and uneasy movement, ejaculation. But these cannot be important suggestion which may come to the aid of the accused. Further she has specifically stated that she did not scratch the accused with her nail at the time of Atyachara. That does not mean that she was assisting him in commission of offence. With respect to Ex.D1, she has specifically stated that she was cordial with the accused when those photographs were taken. 45 Spl.CC.No.274/2014
68. With respect to presence of the father of the victim at the time of the medical examination, there is a serious objection raised by the defense that as the victim stated that nobody was present at the time of medical examination, but that cannot help the defense. That no father will be present at the time of the examination, but definitely he will be outside the examination room. Further Pw.2 who is the father had stated that he also went along with his daughter, but he was sitting outside during her medical examination which proves that he went to the hospital, but he was not present at the time of the medical examination. Further the signature of the father of the victim is found on Ex.P9. Even it is contended that he will not sign in English. However when a father taking his daughter for medical examination, one has to imagine his mental status and he cannot look into all these things, but his intention is only to have medical examination of the daughter who under went sexual intercourse. Hence, no much credence could be given to those aspects. 46 Spl.CC.No.274/2014
69. Further it is suggested that as her parents were aware, they did not lodge the complaint immediately. In order to prove that the victim went along with the accused voluntarily, the defense has taken contention that one Akshatha was the close friend of this victim, find this accused and the victim going together and when she asked why she is not coming to garments, this victim told that she is going to her village along with the accused. However the victim has denied and that Akshatha is not examined. Further the defense want to prove that she herself called the accused to take her from Bangalore and if not she is going to die. But when this incident occurred as the victim was below 16 years of age, all this defense will not help to the accused. It is also suggested that the accused did not forcibly kidnapped and committed rape on her, whereas with her consent they went and they were working in a poultry farm and residing in one room in the poultry farm. This suggestion also shows that the victim was taken by the accused to the poultry farm and there the sexual 47 Spl.CC.No.274/2014 intercourse happened and they lived for some time.
70. Further a peculiar suggestion was put to Pw.4 that there was Panchyath convened between Pw.2 and those persons that if Rs.1 Lakh amount and 1 acre of land was given, Pw.2 will not lodge the complaint. But as the accused did not comply, this false complaint is registered. However what was the necessity for the accused person and his people to give land and money is not explained. This shows that such an incident occurred and there is a fault on behalf of the accused.
71. With respect to delay in filing the complaint, the victim was in Bangalore in her aunt's house and her father has to come from Gadadasana Halli and after thorough search made by them, they lodged complaint after 3 days which is not a surprising thing. Because the first intention of the parent is to find out the missed daughter and if they are unable to trace out, then only they will approach the police because it is a question of her future. There is much stress made by the defense is 48 Spl.CC.No.274/2014 that the victim went from Bangalore to Chittor in bus, why she did not cried for help to which, the contention of the victim is that the accused had kept her under threat.
72. Further it is suggested to the victim that she was aged 18 years at the time of the incident, in order to bring this case as a case of consensual sex. However the material documents on record shows that as on the date of the incident the victim was running 15 years.
73. Pw.5 is the witness to mahazar which was conducted at Balaji poultry farm in Chittor. This Pw.5 is the husband of Pw.4, wherein in their house this victim was residing.
74. Pw.6 was the Head Constable who went in search of the accused and the victim who apprehended them when the complainant pointed out them at Majestic bus stand. This shows that they were together at the time of arrest.
75. Pw.7 is the witness who is the resident of 49 Spl.CC.No.274/2014 Chittor and he is aware of Balaji Archies Poultry Farm. He had stated that Pw.2 and Pw.3 along with three persons visited the poultry farm. However he did not state the other things. Though he had stated that he does not remember that the accused the victim were in the poultry farm, but when the other materials on record and the suggestions in the defense shows that they went together to the poultry farm and stayed together there, that is sufficient to say that the incident occurred at that particular place.
76. Pw.8 is the P.S.I., who conducted the spot inspection at Chittor, who had categorically stated about the spot shown by the victim and preparation of mahazar. It is suggested to this witness that in the mahazar it is written that no spermatozoa is found on the spot. But one cannot expect presence of spermatozoa for so many days. The Investigation officer has also supported the case of the prosecution regarding the investigation.
50 Spl.CC.No.274/2014
77. In this case on perusal of the materials available on record, it could be seen that there is a suggestion regarding love affair between the accused and the victim. It is undisputed that they belonged to same village and due to this love affair and harassment of the accused, the victim was shifted to Bangalore. There is a suggestion which shows that the victim herself had given phone number to the accused and forced him to take her. However when the victim herself does support this contention, no much credence could be given. It is also suggested that the accused and victim went to Chittor and stayed there. Further there are materials on record to show that the victim was used for sexual intercourse.
78. The learned defense counsel wanted to establish that when the place of incident itself is not properly stated by the prosecution, the Court has to consider that the offence is not established. However the victim has stated before the Court that the incident occurred at poultry farm in Chittor. There may be some discrepancy in the medical record regarding the place of 51 Spl.CC.No.274/2014 incident, but no much credence could be given to this because under the stress there may be some mistakes crept in during recording of the statement. Thus it is undisputed that the victim was taken by the accused to Chittor, wherein he committed rape on her and medical record establish about the hymen rupture with two finger insertion shows that the prosecution proved its case beyond reasonable doubt.
79. The counsel appearing for the accused has relied upon the following citations:
1. AIR 1998 SC 1796-between Birad Mal Singhvi Vs. Anand Purohit, which relates to date of birth of the victim. Wherein it is held that "the documents regarding school register is of not much evidentiary value to prove the age of the person in the absence of the material on record".
However in this case the author of the original document itself is examined by the prosecution, who had stated that he entered the date of birth of the victim in the school records. This shows that there is a supporting 52 Spl.CC.No.274/2014 material. Hence this citation is not applicable to the case on hand.
2. 1991 Cri.L.J. 1464-between Buta Singh Vs. State of Punjab, wherein it is held that: "When two versions are before the Court, the version which is supported by objective evidence cannot be brushed aside lightly unless it has been properly explained".
Which relates to the effect that the objective evidence should also to be produced by the prosecution? In this case no such material objects were seized. Further it is a case of rape and kidnap, but it is not expected that any such objective evidence should be placed on record. Hence, this citation is also not applicable to the case on hand.
3. 1994 Cri.L.J. 2471-between Hira Lal Vs. State of Hariyana, wherein it is held that:
"Section 366-Kidnapping-Appreciation of evidence-Discrepant evidence as to age of prosecutrix-Failure to produce birth record by prosecution-Entry in school admission register being of little evidentiary value not relied on-Mere opinion of Doctor in absence of ossification test, that age of prosecutrix was 17 years is of no consequence."53 Spl.CC.No.274/2014
Which says that the entire school admission register being of little evidentiary value and mere opinion of doctor in the absence of ossification test, that age of prosecutrix was about 17 years is of no consequence. Plea of accused that she was above 18 years appeared probable.
In the present case on hand, the victim has stated that when she was in 8th standard, the accused was standing on her way to school and immediately after six months this incident occurred. Further when the old records are available regarding the age of the victim, the other things are of no use.
4. (2003) 8 SCC 745-between Narbada Devi Gupta Vs. Birendra Kumar Jaiswal & Another, wherein it is held that: " Proof of contents of documents-Mere production and marking of a document as exhibit not enough-Execution has to be admitted by the signatories thereto and then marked as exhibits, held, no further to lead additional evidence to prove the writing and its execution survives ".
54 Spl.CC.No.274/2014In the present case on hand, documents are also exhibited and the witnesses are also examined. Hence this citation is not acceptable.
5. ILR 2003 KAR 2820-between State of Karnataka Vs. Shankarappa Basappa Ontihalli, wherein it is held that:
"Complainant alleging forced sexual intercourse by accused on two occasions- Evidence of complainant contrary to the allegations-Conduct of complainant questionable because when complainant was subjected to sexual intercourse on the 1st occasion and at that juncture, the accused had gone out for two hours, the normal conduct of a person under the said circumstances would be to take to her heels. But the complainant stayed back of her own volition and therefore since there is no evidence that she had in mind to escape from the clutches of the accused but she could not and therefore the order of the Sessions Judge acquitting the accused cannot be interfered with".
With respect to this citation, the victim was taken to Chittor and she is a girl from village, who had no occasion to meet others and she had no occasion to escape from the place. Hence this citation is not applicable.
55 Spl.CC.No.274/2014
6. (2009) 7 SCC 283-between CIDCO Vs. Vasudha Gorakhnath Mandevlekar, wherein it is held that: "Entry in Municipal Births and Deaths Register-Certificate issued by predecessor of municipality i.e., Gram Panchayath-Effect-Held, the said entry prevails over entry in school register, particularly in the absence of any proof that the same was recorded at the instance of employee's guardian-Further the same was recorded at the instance of employee's guardian-Further held, certificate issued by municipality could not be discarded on the ground that employee's birth, took place prior to creation of municipality as the certificate was issued on the basis of records maintained by pre-deceassor body, namely, Gram Panchayath."
In this case there is no evidence to the effect that there is an entry in the birth and death Register of Village Panchyath, but the school document is produced. In the presence of such certificate, then the school register is of no use. However there is no such document on record which is issued by the Grama Panchyath regarding the age of the victim. Hence in the present case on hand the school document on record which is duly supported by the evidence.
56 Spl.CC.No.274/2014
7. 2009 (5) KCCR 3529-between F.Nataraja Vs. The State by Hiriyur Police, wherein it is held that: "Admittedly the prosecutrix herein is less than 14 years of age-The lady doctor-Pw.5-Deposed that when she examined her private parts, she did not notice any injury and the hymen was found intact-She has further deposed that since the prosecutrix was not subjected to sexual intercourse during the past seven days from the date of her examination, she did to find any signs of recent intercourse on her- Parents of the prosecutrix besides being inconsistent, does not in any way establish that the prosecutrix was subjected to sexual intercourse at any time during the said period by the accused. ."
In the present case on hand, the hymen was ruptured. There was movement of two fingers in vagina. Further the Doctor has stated that though there are many reasons for hymen rupture, but two finger movement is only possible in case of sexual intercourse. Hence this citation is not applicable to the case on hand.
8. (2010) 1 SCC (Cri) 910 & (2010) 1 SCC 742-between Sunil Vs. State of Haryana, wherein it is held that: "Rape, kidnapping and procuration of minor girl-Age of minor-Benefit of doubt-When available-prosecution falling to prove age of prosecutrix-Prosecutrix found as being 57 Spl.CC.No.274/2014 habitual to sex and her secondary sexual characteristics well developed (as per clinical report of Pw.1)-Appellant-accused frequently visiting prosecutrix's house-Prosecutrix in love with appellant, never resisting being repeatedly deflowered by him-Allegation that prosecutrix under threat accompanied appellant on a bicycle to another village where she was raped by appellant and then brought back home-Non- performance of tests for proving age of prosecutrix prescribed by the doctor, held is a serious flaw in prosecution version-In such circumstances, held, a close and careful examination of age of prosecutrix is imperative, which if not proved, accused is entitled to benefit of doubt, as in present-case-Criminal Trial-Age- Need for accuracy in ascertainment of-Held, in a criminal trial conviction cannot be based on an approximate age which is not supported by any record."
"Criminal Trial-Age-Determination of- Requirement of proper tests and credible evidence-Non compliance and unsatisfactory compliance with-Effect-In allegation of rape of minor, prosecution not conducting examinations by dental surgeon or radiologist of prosecutrix in 58 Spl.CC.No.274/2014 spite of being referred to far such examination by doctor-School leaving certificate produced showing attendance of only 100 days, prosecutrix being admitted and leaving school in mid-session-Said certificate being obtained after commission of offence and arrest of appellant and prosecution failing to produce any admission form of the school-Effect-Although it is not a rule that all these tests must be performed in all cases, but in instant case, in absence of primary evidence, these tests held, were necessary-Said school leaving certificate with 100 days' attendance, on facts, held, is not reliable- Evidence Act, 1872-S.45-Age-Determinaton of".
"Allowing the appeal of the accused, the Supreme Court Held:
The short question in this appeal was as to whether the prosecutrix was a minor. It is clearly borne out from the evidence on record that the appellant belonged to the same caste and gotra of the prosecutrix and was a frequent visitor to the house of the prosecutrix. There was a love affair between them and the court also observed 59 Spl.CC.No.274/2014 that she did not ever resist her being repeatedly deflowered by the appellant".
"Pw.1 who had clinically examined the prosecutrix, found that her secondary sex characters were well developed. Pw.1, after clinical examination of the prosecutrix, categorically observed that possibility cannot be ruled out that the prosecutrix was habitual to sex. In her report, Pw.1 also stated that keeping in view the clinical examination, the possibility of rape cannot be ruled out. Pw.2 made medico- legal examination of the appellant and found he had the ability to perform sexual intercourse. I this background, close and careful determination of the age of the prosecutrix is imperative"
.
"In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date. Pw.8, the father of the prosecutrix also could not give the correct date of birth of the prosecutrix. Pw.8 stated that he was giving an approximate date without any basis or record".60 Spl.CC.No.274/2014
"The failure of getting the prosecutrix examined from the dental surgeon or the radiologist despite the fact that she was referred to them by Pw.1 is a serious flaw in the prosecution version. It is not a rule that all these tests must be performed in all cases, but in the instant case, in the absence of primary evidence, reports of the dental surgeon and the radiologist would have helped in arriving at the conclusion regarding the age of the prosecutrix".
"The prosecution also failed to produce any admission form of the school which would have been primary evidence regarding the age of the prosecutrix. The school leaving certificate produced by the prosecution was also procured six days after the incident and three days after the arrest of the appellant. As per that certificate also, she joined the school in the middle of the sessions and left the school in the middle of the session. The attendance in the school of 100 days is also not reliable. The prosecutrix was admitted in the school by A, her brother. A was not examined. The alleged school leaving certificate on the basis of which the age was entered in the school was not produced".61 Spl.CC.No.274/2014
"On consideration of the totality of the facts and circumstances of this case, it would be unsafe to convict the appellant when there are so many infirmities, holes and lacunae in the prosecution version. The appellant is clearly entitled to the benefit of doubt and consequently the appeal filed by the appellant deserves to be allowed. The appellant is directed to be released forthwith, if not required in any case."
As per this citation, the Court cannot base its conviction on approximate data. Further with respect to this incident the document and evidence is on hand. With respect to ossification test, when there is material document on record, there was no reason to rely on this. Further the person who entered the date of birth of the victim is examined before the Court which is nothing but corroboration. Hence this citation is not applicable.
9. (2011) 2 SCC (Cri) 385-between Alamelu & Another Vs. State, wherein it is held that the sole evidence of prosecutrix is not sustainable and this citation is also relied 62 Spl.CC.No.274/2014 upon with respect to the age of the prosecutrix.
In the present case on hand, it is not a case wherein the court has to come to the conclusion regarding sole testimony of the prosecutrix. In this case, the accused initially tortured the victim in the village, and thereafter she was shifted to Bangalore, wherein also he did not leave her. All these circumstances show that there is abduction, but it is not a case of marriage. Abduction is for sexual intercourse. Hence, in my opinion this citation is not applicable.
80. From over all materials available on record, the prosecution established that the accused had abducted and committed rape on the victim who was a minor running 15 years of age at the time of the incident. The complaint and the mahazar are proved by placing evidence on record. The age of the victim is also proved. Acquaintance of the victim and the accused is proved. Drawing of mahazar at Chittor is also proved. Viewing 63 Spl.CC.No.274/2014 from all angles, the prosecution has proved beyond reasonable doubt that the accused had committed aforesaid offences. Hence, I answer point No.1 and 2 in the Affirmative.
81. Point No.3:- In view of my foregoing reasons, I proceed to pass the following:
ORDER Under Section 235(2) of Cr.P.C., the accused is found guilty of the offences punishable under Section 366 and 376 of I.P.C.
To hear regarding the sentence.
(Dictated to the Judgment Writer, transcribed and typed by her and also computerized to my dictation by her. It is then corrected and pronounced by me in the open Court on this the 6th Day of December 2016.) (B.S.REKHA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.64 Spl.CC.No.274/2014
ORDER ON SENTENCE The accused present.
Heard the learned Public Prosecutor. The learned Public Prosecutor submitted that as the offence is proved prays to impose fine and maximum sentence in the interest of justice.
Heard the counsel appearing for the accused. He submitted that the accused is the only person to look after his parents as another son had left the house and looking to his age and the circumstances the Court has to take lenient view.
However, the punishment prescribed for offence under Section 376 of IPC in case if the girl is below 16 years of age is ten years with fine. The Court has to impose S.I., for ten years with fine of Rs.5,000/-, for Section 366 of IPC the accused shall under go S.I., for one year.
Thus in my opinion, the Court has to impose sentence of ten years with fine of Rs.5,000/- in default to under go S.I. for three months for Section 376 of IPC 65 Spl.CC.No.274/2014 and one year for Section 366 of IPC. The sentences shall run concurrently. Hence, I proceed to pass the sentence as under:
ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted for the offences punishable;
a) for Section 376 of I.P.C he is sentenced to undergo Simple Imprisonment for a term of 10 years and shall also be liable to fine of Rs.5,000/-, in case of default to pay the fine amount, he shall undergo Simple Imprisonment for a period of three months.
b) for Section 366 of I.P.C he is sentenced to undergo Simple Imprisonment for a term of one year.
The J.C. period of accused from 11- 10-2010 to 05-03-2011 (in all 24 days and 4 months) be set off as laid down under Section 428 of Cr.P.C.66 Spl.CC.No.274/2014
After deposit of fine amount, Rs,4,000/- is ordered to be paid to P.W-3, the prosecutrix as compensation after appeal period is over and the remaining amount will be considered as fine to the State.
The sentences shall run concurrently.
Issue copy of judgment free of cost to the accused forthwith.
As the victim requires compensation and the accused is not in a position to give compensation, this judgment is to be sent to Karnataka State Legal Service Authority to award compensation under Section 357-A of Cr.P.C.
(Computerized to my dictation by the Judgment Writer. It is then corrected and pronounced by me in the open court on this the 6th Day of December 2016.) (B.S.REKHA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
67 Spl.CC.No.274/2014ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW 1 Dr.Dilip Kumar Cw.12 02-08-2012 PW 2 Anjanappa @ Anje Cw.1 02-08-2012 Gowda PW 3 Ambika Cw.2 02-08-2012 PW 4 Anasuyamma Cw.6 10-12-2012 PW 5 Shankar Cw.9 12-03-2013 PW 6 R.Nagaraj Cw.14 23-01-2014 PW 7 Hemachandra Cw.7 17-02-2014 PW 8 K.M.Jayaram Cw.17 18-03-2014 PW 9 N.J.Bette Gowda Cw.18 25-07-2014 PW 10 N.H.Ramachandraiah Cw.10 26-11-2014 PW 11 Dr.Jayanthi Raju Cw.15 04-01-2015 PW 12 V.Sriram Gowda Addl. 04-01-2016 Witn-1 PW 13 M.R.Harish Cw.19 16-03-2016 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Medical Examination Pw.1 02-08-2012 report of the accused Ex.P 1a Signature of Pw.1 Pw.1 02-08-2012 Ex.P 2 Complaint Pw.2 02-08-2012 Ex.P 2a Signature of Pw.2 Pw.2 02-08-2012 Ex.P 2b Signature of Pw.9 Pw.9 25-07-2014 Ex.P 3 Spot Mahazar Pw.5 12-03-2013 Ex.P 3a Signature of Pw.5 Pw.5 12-03-2013 68 Spl.CC.No.274/2014 Ex.P 3b Signature of Pw.7 Pw.7 17-02-2014 Ex.P 3c Signature of Pw.8 Pw.8 18-03-2014 Ex.P 4 Report of Pw.6 Pw.6 23-01-2014 Ex.P 4a Signature of Pw.13 Pw.13 16-03-2016 Ex.P 5 Report of Pw.8 Pw.8 18-03-2014 Ex.P 5a Signature of Pw.8 Pw.8 18-03-2014 Ex.P 5b Signature of Pw.10 Pw.10 26-11-2014 Ex.P 6 Requisition Pw.8 18-03-2014 Ex.P 6a Signature of Pw.8 Pw.8 18-03-2014 Ex.P 7 FIR Pw.9 25-07-2014 Ex.P 7a Signature of Pw.9 Pw.9 25-07-2014 Ex.P 7b Signature of Pw.10 Pw.10 26-11-2014 Ex.P 8 Mahazar Pw.9 25-07-2014 Ex.P 8a Signature of Pw.9 Pw.9 25-07-2014 Ex.P 9 M.L.C. register Pw.10 06-08-2016 extract Ex.P 9a Signature of Pw.10 Pw.10 06-08-2016 Ex.P 9b Signature of Pw.11 Pw.11 04-01-2016 Ex.P 10 Age certificate Pw.10 06-08-2016 Ex.P 10a Signature of Adl. Addl. 04-01-2016 Witness-1 Witn-
1 Ex.P 11 Statement of victim Pw.13 16-03-2016 Ex.P 11a Signature of Pw.13 Pw.13 16-03-2016 Ex.P 12 Requisition Pw.13 16-03-2016 Ex.P 12 Signature of Pw.13 Pw.13 16-03-2016 Ex.P 13 Report of Pw.13 16-03-2016 W.P.C.7423 Ex.P 13a Signature of Pw.13 Pw.13 16-03-2016 Ex.P 14 Voluntary statement Pw.13 16-03-2016 of the accused 69 Spl.CC.No.274/2014 Ex.P 14a Signature of Pw.13 Pw.13 16-03-2016 LIST OF MATERIAL OBJECTS MARKED -NIL- LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE Ex.D1 9-photographs Pw.2 02-08-2012
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
70 Spl.CC.No.274/201471 Spl.CC.No.274/2014 72 Spl.CC.No.274/2014