Karnataka High Court
State Of Karnataka By Cpi vs Durgappa S/O Shivanna Kivadi on 31 January, 2007
Equivalent citations: 2007 (3) AIR KAR R 481
Bench: Manjula Chellur, N. Ananda
JUDGMENT
1. The case of the prosecution as brought on record through the witnesses before trial Court in brief is as under:
The respondent/accused by name Durgappa of Gajaldinni village, Deodurga taluk, Raichur District, was tried for offences punishable under sections 376 and 323 IPC. Consequently, he was acquitted of the charges by the trial Court. Aggrieved by the same the State has come up in this appeal questioning the Judgment of acquittal of the respondent / accused.
The complainant victim in this case is from Gajaldinni village and her husband is Mr. Shivanna P.W.2. Accused is also from the same village. Victim and accused knew each other. The families of both the victim and the accused have landed property at Gajaldinni village situate within the vicinity of each other.
On 1.2.1999 victim was working alone in her lands as it was post harvest season and her husband had gone to Jalahalli shandy for purchasing provisions. At about 4 p.m. while she was picking groundnuts, the accused said to have approached her from behind and suddenly caught hold of her hands asking her to go with him. He also pulled her when she tried to wriggle out of his grip. He further said to have forcibly taken her to the adjoining field of jowar crop and felled her to the ground. Thereafter the accused, inspite of the resistance by the victim, after slapping her and gagging her mouth with cloth, committed rape on her. When the accused was about to run away from the spot, victim tried to atop him by catching hold of his dhoti. At that time point of time due to her hue and cry her husband came to the spot and on seeing him, accuaed said to have sped away from the spot. On account of physical pain and shock, she was not in a position to walk, therefore, her husband went back to the village and brought a bullock cart accompanied by C.W.5 Ramanagouda. On reaching the village, they tried to bring the incident to the notice of the elders of the accused, but the response from accused was much more insulting than the commission of rape.
Therefore, P.Ws. 1 & 2 along with P.W.5 and others went to Jalahalli P.S. by about 11.45 p.m. and lodged the complaint as per Ex.P-1. On the basis of the complaint of the victim, Cr. No. 11/99 came to be registered. P.W.7 P.S.I. of the Jalahalli police station after registering the case sends FIR through P.W.6 constable and the FIR reached the Magistrate by 4 a.m. (early hours of the next day), on 2.2.1999.
Meanwhile, the victim was sent by the Jalahalli police to P.W.3 Dr. Mulla Basheer Ahmed who was the casualty Medical Officer from the Primary Health Centre of Jalahalli at about 12.30 a.m. (mid night i.e. intervening night of 1st and 2nd February). After examining the victim who was sent for examination with the history of assault and rape, he found external injuries. She was sent for further medical examination to a female doctor. On 2.2.1999 at about 12.30 p.m., the victim was examined by P.W.4 Dr. Shashikala at District hospital, Raichur. After examining her, she found certain external injuries and one Smt. Dr. Shivagangamma a gynecologist assisted P.W.4 Dr. Shashikala to examine P.W.1 because P.W.4 was a pediatrician by profession. She furnishes her opinion as per Ex. P-6 In the MLC register. The case sheet is at Ex. P-7. The final report of the lady doctor after perusal of FSL report is at Ex. P-8. During the course of investigation, the police inspector arrested the accused on 2.2.1999 and he was also sent to P.W.3 the Medical Officer at Primary Health Centre for examination at about 12.30 p.m. He furnished his opinion after the report of FSL as per Ex. P-3. FSL report is at Exhibits P-2. During the course of investigation, the investigating agency recorded the statements of husband of the victim and other villagers. P.W. 5 is the distant relative of the husband of the victim who supported the case of the prosecution before the trial Court and he was present in the company of the victim and her husband throughout. P.W.9 Basaanna is a panch witness to the spot mahazar at Ex. P-10 but has turned hostile.
2. The above material was brought on record through 9 witnesses before the trial Court and through those witnesses Exs. P-1 to P-10 were marked apart from material objects M.Os. 1 to 5. No evidence was let in on behalf of the defence. The learned trial Judge mainly accepting the defence raised by the accused rejected the case of the prosecution and held that the prosecution failed to establish the charges levelled against the respondent accused.
3. We have heard Sri. Nawaz learned Government advocate representing the State and Sri. Dinesh Kumar K. Rao and Sri. R.B. Deshpande learned counsel for the accused/respondent, we have gone through the entire evidence oral and documentary relied upon by the prosecution very carefully.
4. According to the learned Government advocate presence of injuries on the person of the victim sine quo non is not at all a criteria to decide whether there was offence of rape against the victim. He further brought to the notice of the Court that the opinion of the doctor at Ex. P-3 with reference to accused that there was no evidence of commission of rape by examining him, was uncalled for. He further submits that the Court has to take into consideration several factors while dealing with a crime of this nature. The victim being a married woman would think twice before complaining against accused because of social stigma to her. Therefore, unless and until the defence is able to establish any ulterior motive for the victim to implicate the respondent falsely, the Courts must be slow in accepting such defence. According to him, if the evidence of the victim is trustworthy, the medical evidence is immaterial.
5. Per Contra, the learned counsel for the respondent accused submits that ill-will between P.W.5 and the accused due to involvement of the P.W.5 in a murder case where accused said to have given evidence against P.W.5 is the main reason to implicate the accused in this case. According to him, P.W.5 has persuaded complainant and her husband to foist a false case to appease his revenge against the accused. He also relies upon the medical opinion of P.Ws. 3 & 4 to persuade us to confirm the judgment of the trial court that no such crime of rape occurred as alleged by the prosecution and seeks for dismissal of the appeal.
6. With the above arguments and the material we proceed to see "whether the Judgment of acquittal calls for interference at our hands?"
7. The law concerning the powers of appellate Court is explicit. Once the trial Court holds the accused respondent not guilty, unless the appellate Court finds compelling and reasonable grounds to reverse the judgment of acquittal, appellate Court should be slow in interfering with the judgment of acquittal passed by the lower Court.
8. With the above principles at the back of our mind, we have gone through the Judgment of the trial Court to know what were the justifiable reasons to acquit the respondent of the charges levelled against him.
9. P.W.1 is the victim / complainant on whom the respondent said to have committed the crime of rape. In her deposition before the Court, she reiterates the contents of complaint more or less as stated in Ex.P-1 except with one or two exaggerations or omissions. So far as her husband being absent in the village which necessitated her to work alone in the land, there is no discrepancy. The season for picking groundnuts after the harvest is also uncontroverted. Groundnut crop in. the land of P.W.2, husband of the victim is also not in dispute. Accused also eking out his living by doing cooli work is not in dispute. In other words, accused and the victim knew each other as they come from the same village. Apparently, accused was aware that victim was married to P.W.2 and had 3 children as well.
10. According to the complainant, at about 4 p.m. she was picking groundnuts in her land when accused came from her behind and caught hold of her. In the neighbouring lands, standing crop of dal and jowar was to a height of 5' to 5-1/2'. Accused was seen moving in the land of one Durgappa at a distance of 150' from the spot where she was working before approaching her. He invited her to accompany him. Having understood his intention she seems to have abused him. However, he caught hold of her hands and dragged her to the land of jowar crop belonging to Ramannagouda. She tied a cloth around her waist to drop the groundnuts picked by her. Accused felled her to the ground, gagged her mouth with the cloth tied around her waist and committed forcible sexual intercourse with her.
11. During the struggle, the bangles on both her hands had broken and she sustained injuries on her wrists. She had injuries on her back as well. On account of sexual assault she had bleeding from her private part. After committing rape on her, the accused tried to run away but she held him by his dhoti. At that point of time, her husband Shivanna returned from shandy. According to her, accused and her husband grappled with each other and with the intervention of the brother of the accused, accused was taken away from the spot. As she was not in a position to walk her husband went to the village and brought the bullock cart accompanied by C.W.5 Ramannagouda cousin brother of her husband. They went back to the village and 3 or 4 hours later, they reached Jalahalli P.S. where she narrated orally the entire incident which was reduced to writing as per Ex. P-1 and she affixed her LTM. She also refers to the police sending her to Primary Health Centre at Jalahalli and District hospital, Raichur, on the next morning for further examination by a lady doctor. According to the victim she was in the hospital for six days. Clothes worn by her were seized by the police for investigation and she identifies them as M.Os. 1 & 2. M.O. 3 is identified as the cloth used by the accused for gagging her mouth at the time of the crime.
12. By way of corroboration to her evidence, P.W.2 her husband is examined. His evidence also establishes the fact that accused and P.W.2 are from the same village and they knew each other. They are aware of the situation of the lands. P.W. 2 says, on the date of the unfortunate incident, he had gone to Jalahalli shandy and returned at about 3.00 p.m. He got down from the bus at Karadagudda. From there he walked to his land. When he was passing through his land, he saw the accused trying to run away while his wife was holding the dhoti of the accused preventing him from running away from the spot. His wife disclosed that accused committed rape on her. He went to assault the accused, but accused held a stone and tried to assault him, hence he. retreated and the accused sped away. He corroborates the evidence of P.W.1 his wife that he went and brought the bullock cart and took her in the bullock cart to the village. When they reached their village he tried to contact the brothers of accused to question the act of the accused. Unfortunately, the response from the brother of the accused by name Yallappa was that P.W.2 could keep his wife if he wants, otherwise he could send her to the house of the accused. Hence, he decided to approach the police to lodge a complaint against the accused. Along with him, P.W.5 Siddappa and his wife, (victim) also went in the bullock cart. By the time they reached the police station it was 11 p.m. The oral complaint was reduced to writing and his wife affixed her LTM. He also corroborates her evidence so far as visits of the victim to Jalahalli hospital and also to District hospital on the next day. Victim was admitted to the hospital and was discharged after one week.
13. Prosecution examined P.W.5 Siddappa to corroborate the evidence of P.Ws. 1 & 2. This P.W.5 comes into picture after the completion of the crime. This witness had gone to Raichur and returns to Ganjaladinni at about 8.30 p.m. At that time, P.W.2 and C.W.5 Ramanagouda informed the commission of the crime by the accused on the victim. After the incident P.W.2 sent word for the brothers of the accused. Unfortunately, brother of the accused by name Yallappa told P.W.2 that P.W.2 could keep his wife if he wants or he could send her to them. Therefore, they decided to lodge a complaint and reached the police station in a bullock cart by about 11.30 p.m. in the night. According to him, P.W.1 alone was inside the police station narrating the incident when they were waiting outside the station. He also corroborates the evidence of P.Ws. 1 & 2 that the victim was sent to Primary Health Centre at Jalahalli and later to District hospital, Raichur, where she was treated as in-patient. He returned to his village only after admitting the victim to the hospital.
14. The evidence of these three witnesses would go to show that P.Ws. 2 & 5 are distantly related to each other. In a situation of this kind, it would be either friends or kith and kin who would morally support the victim and her family members. Therefore, nothing is strange or peculiar in P.W.5 accompanying the victim and her husband to the police station and thereafter to the hospital. P.W.2 is none other than the husband of the victim who stood by victim inspite of the onslaught she faced at the hands of the accused. As a matter of fact, some effort on the part of P.Ws.2 and 5 to convene a panchayath could be gathered from the evidence. However, on account of the non-co-operative attitude of the brother of the accused no such talks were held before lodging the complaint. On the other hand, neither accused nor his brothers tried to respond either to P.W.2 or to P.W.5. Therefore, when the response was very poor from the family of the accused, they decided to approach the police to set law into motion. The incident occurred at about 4.00 p.m. but by the time P.W.2 brought the bullock cart from the village and shifted the victim to the village it was after sunset. The efforts to bring the accused and his brothers to the panchayath must have taken some time. In all probability, till P.W.5 Siddappa arrived at 8.30 p.m., no decision seems to have been made to inform the police. Only after the arrival of P.W.5, when his efforts to bring the accused, before the victim and her husband failed, they decided to lodge the complaint. The distance between their village and Jalahalli police station is about 15 kms. They travelled in a bullock cart. Therefore, the delay in lodging the complaint at about 11.45 i.e. the oral narration of incident by the victim which was reduced to writing is properly explained. Having regard to the material placed before the Court, we are of the opinion, there is no delay in lodging the complaint and the law was set into motion as quickly as possible by the victim's party.
15. The cross-examination of P.Ws. 1, 2 & 5 was mainly with regard to the relationship between P.Ws. 2 & 5 apart from denying the occurrence of the crime. So far as the occurrence of the incident both victim and her husband were put to lengthy cross-examination in order to show that near the spot of the alleged incident, the main pathway leading to the village runs where several people keep moving and a hotel is also situated on the outskirts of the village where all the time villagers are present. They also suggest, as it was the post harvest season, many people would be working in the neighbouring lands, therefore, hue and cry of the victim could easily attract the passers by. All these suggestions were answered. On the other hand, we could gather from the narration of the details in the cross-examination that there was standing crop in the neighbouring lands of victim. People from the hotel would not be able to hear the cries. It may be a fact villagers do visit this hotel but at the relevant point of time, there might not be customers in the coffee hotel. The incident happened at about 4 O' clock and this is not the time for the villagers to leave their land to have a cup of coffee. Moreover, the entire incident must have been over within a span of 10 - 15 minutes and there is nothing on record to indicate that during this 10 - 15 Minutes, there were many villagers passing through the pathway. Therefore, none of this material would assist the defence to come to conclusion that there were several persons in and around the place of incident who could have rushed to the spot on hearing the screams or cries of the victim.
16. From the cross-examination of P.W.s. 2 & 5, the main attempt by the defence seems to be that a false case is foisted at the instance of P.W.5 with the assistance of P.W.2 and P.W.1. P.Ws. 2 &. 5 are not closely related though they are distantly related. According to the defence, P.W.5 was involved in a murder case where the accused gave evidence against him. Therefore, P.W.5 was waiting for an opportunity to take, revenge against the accused. Hence he used P.W.1 and her husband to wreck vengeance. Unfortunately, there is nothing on record to indicate as to what was the nature of evidence given by accused against, P.W.5. We do not even know whether on such evidence, P.W.5 was convicted. There is nothing on record suggesting that P.W.1 was very faithful and loyal cousin of P.W.5 to help him to accomplish his desire to take revenge against the accused. Unfortunately to P.W.1 the victim nothing was suggested in this regard. It is not even suggested to her that at the instance of P.W.5 Siddappa she was deposing falsely against the accused. On the other hand, it was suggested to P.W.2 that he even went to the extent of assaulting P.W.1 to give evidence against the accused in a false case. Therefore, the defence theory that in order to wreck vengeance P.W.5 used P.Ws. 1 & 2 as pawns in his game cannot be accepted at all.
17. P.W.1 is a married woman living with her, husband having three children, without any antecedents of any nature coming in the way of her reputation. That being the situation, in view of the inherent inhibition on the part of any woman, that too for an Indian woman coming from rural area it would be impossible to think that victim would invite social stigma in this manner. P.W.1 victim is not a close kith and kin of P.W.5. P.W.5 could have used his own kith and kin in. a better way to foist a false case of this nature against the accused and not through P.W.1. The defence is not able to point out that P.Ws. 1 & 2 have obliged faithfully P.W.5 to create this false cage against the accused. On the other hand, apart from this defence theory of P.W. 5' s fabulous brain behind the entire case, no enmity or ill-will as such is forthcoming between P.W.2 and the accused. Under the present situation, unless the trial Court was justified in discarding the evidence of the victim, prosecutrix, we would not be able to affirm the judgment of acquittal. With this we shall proceed to see the other evidence brought on record by the prosecution.
18. Coming to the evidence of two doctors, we will first examine the evidence of PW.3 supporting the prosecution version that on the date of incident itself the prosecutrix was sent for medical assessment at PHC, Jalahalli. PW3 doctor found, tenderness in the left upper limb with inability to lift left upper limb and also contusion over left scapular region. Relevant entries are at Exhibit P.4 - xerox copy of the MLC Register. The relevant entry is at Exhibit P.5. On the next morning she was sent to Senior Specialist at District Hospital, Raichur. One Dr. Shashikala treated the victim with the assiatance of Gynecologist Shivanagamma. This doctor on examination found the following injuries:
1. Left shoulder contusion present.
Tenderness present. Painful movement present, with inability to lift the left shoulder. She suspected dislocation of the left shoulder.
2. Abrasion over left wrist on dorsal aspect and swelling over the dorsum of the palm;
3. Swelling in the left thigh region with tenderness and pain while walking;
4. Tenderness in the left scapular region.
On local examination of the victim she did not find any injuries over the perineum. No stains over the hair and matting.
19. Per Vaginal examination they found hymen was not intact. Uterus anteverted, normal size and mobile. Cervicities present. Slight white discharge present,
20.. As the patient went with the history of rape specimen like vaginal smears, pubic hair and clothes worn by the victim were collected for chemical analysis. MLC Register with the above details was marked as Exhibit P.6. The contents of thise documents produced before the Court further revealed husband accompanied the victim. Her last menstrual cycle was 8 days prior to the medical examination. The last delivery was about 1 years prior to the medical examination.
21. The patient was further referred to orthopedic surgeon. After X-Ray of the shoulder they found dislocation or fracture of the shoulder. She waited for the FSL report and then gave the final report as per Exhibit P.8. According to the Lady Medical Officer there was no evidence of recent intercourse. The crosa examination of these two doctors would further confirm the fact that the external injuries noticed by the doctor PW.4 were less than 24 hours old. PW.3 did not do any local examination having regard to the nature of offence committed on the victim. Therefore, she was referred to the Lady Medical Officer. According to him, the injuries like contusion on the left scapular region and the tenderness of the left upper limb could happen due to a fall.
22. We have perused the contents of Exhibit P.7-case sheet and as per this document the victim (prosecutrix) got discharged from the hospital on 7.2.1999. In other words, from 2.2.999 to 7.2.1999 she was in the hospital. During her stay she was treated for swelling of the left thigh region, tenderness and pain while walking. They ruled out possibility of fracture or dislocation of the shoulder in view of the complaint of pain and also inability to lift her upper limb. After investigation she was discharged on 7.2.1999. There was no recent sexual intercourse according to the local examination of the victim by the lady doctor on 2.2.1999 at about 12.30 p.m. The incident occurred at 4 p.m. on the previous day. Almost 20 hours later she was examined by the Lady Medical Officer. The victim lady is a married woman and had borne 3 children by that time. Definitely the local examination would not reveal any internal injuries to establish that said lady was subjected to sexual intercourse. It would be definitely not possible for any medical officer to opine whether there was recent sexual intercourse, especially, if the victim was examined 20 hours after the incident. At the most a medical expert would be able to opine whether the victim was subjected to forceful sexual intercourse. Unfortunately, neither in the examination-in-chief nor cross-examination of medical experts, further details could be brought on record to show within what time such signs of violence could possibly be traced. There is no material to show that the victim did not wash her private part subsequent to the incident till she was examined by the Lady Medical Officer on 2.2.1999. The very medical examination of accused on 2.2.19.99 almost 20 hours after the occurrence is also of not much help to the case of the prosecution. Apparently, nothing came to light in support of the case of the prosecution from the Medical Expert's evidence i.e. PW.3. On the other hand, unfortunately, this Medical Officer from the Primary Health Center certifies by examination of the respondent-accused that he did not find any evidence of rape committed by the accused. By examining the accused definitely no Medical Officer would be able to say whether there wag committal of rape or an attempt to commit rape by accused. At the most he could say whether the person examined had recent sexual intercourse or not. in view of the duration between the time of incident and the medical examination, possibility of any traces of such act on the person of the accused is also remote.
23. In the case of State of Maharashtra v. Chandraprakash Kewalchand Jain , a situation arose before the Appex Court whether the absence of spermatozoa in the material objects sent for chemical analysis would be fatal to the case of the prosecution. In the said decision it is observed at paragraphs 16, 17, 22 & 25 as follows:
16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The evidence Act no where says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may land assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted.
The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary, With respect/ the law is not correctly stated. If we say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence/ unless there are special circumstances which call for greater caution/ in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, If it persists, that the testimony of a woman who la a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice in a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not: be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the social norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not strike her reputation by levelling a false charge concerning her chastity."
22. Before we proceed to deal with these discrepancies we think it is necessary to clear the ground on the question whether the prosecutrix had a sufficiently strong motive to falsely involve the respondent and that too a police officer. It is possible that she may have felt annoyed at being dragged out of the hotel room at dead of night after they had satisfied Police Sub- Inspector Qureishi that they were legally wedded only a few hours back. PW.1 may also have felt offended at being wrongly booked under Section 110/117, Bombay Police Act. The question is whether on account of this annoyance both PW 1 Mohamad Shafi and PW.2 Shamimbanu would be prepared to stake the reputation of the latter? As pointed out earlier ordinarily an Indian woman would be moat reluctant to level false accusation of rape involving her own reputation unless she has a very strong bias or reason to do so. In the present case although the couple had reason to be annoyed with the conduct of the respondent, the reason was not strong enough for Mohmad Shafi to involve his wife and soil her reputation nor for Shamimbanu to do so. An Indian woman attaches maximum importance to her chastity and would not easily be a party to any move which would jeopardise her reputation and lower her in the esteem of others. There are, therefore, no such strong circumstances which would make the court view her evidence with suspicion."
25. It is true that the prosecutrix had deposed that on both the accusations she was completely denuded before the respondent raped her. On the first occasion he had removed her 'kurta' before she was laid on the cot. Her 'salwar' was removed while she was lying on the cot. Therefore, the 'salwar' may be lying on the cot itself when the act was committed. It is, therefore, not at all surprising to find semen stains on the 'salwar'. She was wearing the same clothes when she was ravished the second time. On the second occasion he first threw her on the cot and then undressed her. Therefore, both the 'kurta' and the 'salwar' may be lying on the cot at the time of sexual intercourse. Besides she had worn the same clothes without washing herself immediately after the act on each occasion. It is, therefore, quite possible that her clothes were stained with semen. It must also be remembered that this is not a case where the prosecuting agency can be charged of having concocted evidence since the respondent is a member of their own force. If at all the investigating agency would try to help the respondent. There is, therefore, nothing surprising that both these garments bore semen stains. Besides, there was no time or occasion to manipulate semen staing on her clothes and that too of the respondent's group. Her clothes were sent along with the other articles attached from room No. 36 for chemical analysis under the requisition Ex.67. The report of the Assistant Chemical Analyser, Ex.69 shows that her clothes were stained with human blood and semen. The semen found on one of her garments and on the bed-sheet attached from the room was of group A which is the group of the respondent, vide Ex.70. Of course the other articles, viz., the mattress and the underwear of the respondent bore no stains. On the contrary the find of semen lends corroboration, if corroboration is at all needed to the version of the prosecutrix. The possibility of the semen stains being of Mohmad Shafi is ruled out as his group was found to be 'B' and not 'A'. In the circumstances the absence of semen or spermatozoa in the vaginal smear and slides, vide report Ex.71, cannot cast doubts on the creditworthiness of the prosecutrix. The evidence of PW 3 Dr. Vijaya Lele shows that she had taken the vaginal smear and the slides on August 23, 1981 at about 1.30 p.m. i.e., almost after 24 hours. The witness says that spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 and 12 hours but in dead form. Shamimbanu may have washed herself by then. Therefore absence of spermatozoa cannot discredit her evidence.
24. In the case of Ranjit Hazarika v. STATE of ASSAM , the Apex Court held, the mere fact of absence of injury on the private part of the prosecutrix does not belie the statement of prosecutrix. In the said decision it is observed:
5. ... The mere fact that no injury was found on the private parts of the prosecutrix or her hymen was found to be intact does not belie the statement of the prosecutrix as she nowhere stated that she bled per vagina as a result of the penetration of the penis in her vagina. She was subjected to sexual intercourse in a standing posture and that itself indicates the absence of any injury on her private parts. To constitute the offence of rape, penetration, however slight, is sufficient. The prosecutrix deposed about the performance of sexual intercourse by the appellant and her statement has remained unchallenged in the cross- examination. Neither the non-rupture of the hymen nor the absence of injuries on her private pats, therefore, belies the testimony of the prosecutrix particularly when we find that in the cross-examination of the prosecutrix, nothing has been brought out to doubt her veracity or to suggest as to why she would falsely implicate the appellant and put her own reputation at stake. The opinion of the doctor that no rape appeared to have been committed was based only on the absence of rupture of the hymen and injuries on the private parts of the prosecutrix. This opinion cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Besides, the opinion of the doctor appears to be based on "no reasons.
25. The opinion of the doctor that no rape appear to have been committed was based, only because of the absence of injuries on the private part of the prosecutrix. Therefore, such opinion cannot over throw the otherwise cogent and trustworthy evidence of the prosecutrix. It is also observed that the spermatozoa would possibly be present if victim was examined within 12 hours after the intercourse. Thereafter, they may be found within 48 hours, but in the dead form. If the prosecutrix washes herself by then, nothing is traceable. In the present case, the vaginal swab or collection of the material from the person of the accused did not evidence presence of the spermatozoa. This was one of the main reason for the learned Trial Judge to disbelieve the prosecutrix version regarding sexual assault on her. In other words, the presence of injuries or presence of spermatozoa would only be used as corroborative piece of evidence and cannot be a substantive piece of evidence. In a case where the prosecutrix did not support the case of the prosecution regarding the sexual assault but the medical evidence establishes the presence of spermatozoa or injuries on the victim, even in that situation it cannot be substantive piece of evidence. If evidence of the prosecutrix is cogent and trustworthy, irrespective of absence of injuries on the private parts of the prosecutrix, her testimony will alone be sufficient to establish the guilt of the accused.
26. Here we have to take into consideration whether there exists any particular or specific reason for the prosecutrix and her husband to cast such indignation upon themselves by publicly announcing sexual assault made on victim. To accept the defence theory about the instigation of PW.5 to lodge a false complaint against the respondent, the defence has not placed any other material pointing out specific design or motive either for PW.1 or her husband to plot this crime against the accused.
27. We find that the external injuries on the victim as per the medical expert with reference to the contents of documents brought on record would reveal the exact places of injuries found on the body of the victim. According to the prosecutrix, she fell on the ground and she was assaulted by the accused. She complains of forcible sexual intercourse. She also comes out with a statement that her two wrists were injured when she was caught by the hands with force by the accused as she was struggling to wriggle out of the clutches of the accused. We find injuries on the wrists, scapular region (back) and also on the thigh region. She was complaining pain and discomfort even to walk therefore she was in the hospital. Tenderness and swelling was found on the thigh of the victim and also on left shoulder joint (inability to lift). They even suspected dislocation of the left shoulder joint. Ml the external injuries were within 24 hours from the time of examination. This would, take us back approximately to the time of occurrence of the offence.
28. When the appellate court deals with an appeal where the acquittal of the accused la questioned, definitely the court also should see whether two reasonable, different views are possible from the same set of facts.
29. The learned trial Judge has given several reasons to disbelieve the prosecution theory. The first and the foremost error committed by the trial court was without bringing on record the contradiction or omission in the evidence of PW.1 Prosecutrix, he compared the contents of Exhibit PW.1 with the evidence of Prosecutrix and thereby comes to the conclusion that she tried to exaggerate the version or improve the version and omitted certain facts. He places much reliance on the opinion of the doctors PWs.3, 4 and their medical reports as per Exhibits-4, 5, 6, 7 and 8. Ultimately, according to the learned trial Judge, absence of injuries and the opinion of the doctor that there was no evidence of recent sexual intercourse would defy the case of the prosecution. This seems to be totally on the wrong notions ignoring the law laid down by the Apex Court, time and again, for almost a decade on this aspect. In other words, the trustworthy evidence of the victim was totally ignored by giving importance to the corroboration of evidence otherwise nonsubstantis piece of evidence. Unfortunately, he did not even say why and for what reason he would prefer the evidence of medical experts to the evidence of PW.1. He did not even think of the possibility of absence of such injuries on the private part of the victim having regard to the fact that she was a married woman and that she was examined 20 hours after the occurrence of rape. He made much ado about the evidence of accused against PW.5 in some other criminal case for an offence under Section 302 IPC.
30. The Apex Court in the case of State of Punjab v. Gurmit Singh and Ors. , has held as follows:
The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to 'be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot oling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.
Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. A rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychology as well as physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to through out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.
The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, foe allowed to through out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook.
The prosecutrix was a village girl. She was a student of X class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony.
The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car she was threatened by the accused to keep quite and not to raise any alarm, otherwise she would be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the bus adda is a travesty of justice. The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who ware threatening her and preventing her from raising any alarm. Again, the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. The trial court fell in error for discrediting the testimony of the prosecutrix on that account.
A girl, in a tradition-bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down upon by the society. Her not informing the teachers or her friends at the examination center under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and. others overpowered by a feeling of shame and her natural inclination would be avoid talking about it to any one, lest the family name and honour is brought into controversy. Therefore her informing her mother only on return to the parental house and no one else at the examination center prior thereto is in accord with the natural human conduct of a female.
31. As already stated above, we do not even have the material to justify the defence theory that because of the evidence of accused herein, PW.5 was awarded with any punishment or what was the relevant or substantial piece of evidence accused gave against PW.5. It would be impossible to accept the defence theory that in order to save the face of PW.5 or to satisfy his ego or desire to take revenge against the accused, PW.2 went to the extent of assaulting his wife PW. 1 to depose against accused at the cost of her chastity and reputation. Fortunately, PW.1 was not even examined on these lines. Therefore, the defence theory in all probability was thought of only from the stage of cross examination of PW.2. The evidence of PW.2 has to be considered as corroborative piece of evidence as his arrival to the spot is immediately after the commission of the crime when accused was trying to run away from the spot and the victim was holding on to his dhothi preventing him from running away. The victim comes out in her evidence for how long she was holding on to the dhothi of the accused, for how long the entire incident must have taken place. In her ignorance without having any sense of time, she kept on saying one hour or more in her language (Kannada), The cross-examination in this respect, would only establish she was not having any sense of time and she did not know the actual meaning of "Ondu Tasu" (one hour). Apparently the learned trial Judge places reliance on this innocent or ignorant answer of the victim, disbelieves her evidence ignoring all other circumstances. The reasoning given by the learned trial Judge regarding the delay in sending FIR, absence of injuries on private part of the victim and the situation of the place nearer to the pathway and the hotel would only go to show he never considered the material placed before him with judicious mind. His reasoning is far away from the reality and also probability. It is not possible to come to the conclusion, under the given circumstances, that a false case came to be foisted against the respondent accused. On the other hand, the clinching, convincing, cogent, and trustworthy evidence of the prosecutrix (victim) corroborated by the evidence of her husband PW.2 and other material would only suggest such offence had taken place as put forward by the prosecution. We are persuaded to hold that the judgment of the trial court is based on perverse reasoning. In view of the above discussion and reasoning, we are of the opinion that the judgment of the trial court in acquitting the accused in respect of the charges Under Section 376 & 323 deserves to be reversed.
We hold the accused guilty of the offence punishable Under Section 376 IPC.
Accordingly, the appeal is allowed setting aside the judgment of acquittal passed against respondent-accused in S.C.NO. 63/99 dated 7.2.2000 passed by the II Addl. Sessions Judge, Raichur. The accused is held guilty of an offence punishable Under Section 376 IPC.
Heard regarding sentence. We do not find any adequate reasons to award leaser sentence than the minimum sentence prescribed for the offence of rape under Indian Penal Code. The very nature of crime, it is not a crime against the victim but it is a crime against the very womanhood. There are no justifiable reasons to impose less than the minimum sentence prescribed under law. We impose minimum sentence of 7 years of imprisonment and also a fine of Rs. 5000/-, in default to undergo another six months S.I. Period of custody, if any, undergone by the accused during the period of trial shall be given set off Under Section 428 Cr.P.C. The trial Court shall proceed accordingly to implement the sentence.