Karnataka High Court
State Of Karnataka vs Panjariyeravara Ravi on 7 August, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No. 1107 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 1107 OF 2016 (A)
BETWEEN:
STATE OF KARNATAKA
BY CIRCLE INSPECTOR OF POLICE,
GONIKOPPA CIRCLE,
KODAGU DISTRICT - 571 216
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BENGALURU - 560 001.
...APPELLANT
Digitally (BY SRI.VINAYAKA V.S., HCGP)
signed by
VALLI M
AND:
Location:
HIGH COURT
OF PANJARIYERAVARA RAVI
KARNATAKA S/O LATE CHOMA,
AGED ABOUT 25 YEARS,
COOLIE,
MARIYAMMA COLONY,
DHANUGALAL VILLAGE,
PONNAMPET TALUK,
KODAGU DISTRICT - 571 216
...RESPONDENT
(BY MRS.ARCHANA K.M., ADVOCATE
Appointed as AMICUS CURIAE V/O Dated 31.07.2023)
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CRL.A No. 1107 of 2016
THIS CRL.A. FILED U/S.378(1) AND (3) CR.P.C , PRAYING
TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGEMENT AND ORDER DATED 23.02.2016 IN
S.C.NO.37/2012 PASSED BY THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, AND C/C OF III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, KODAGU, MADIKERI, ACQUITTING THE
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION
376 OF IPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY Dr. H.B.PRABHAKARA SASTRY, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The present appellant as the State/complainant had initiated a criminal proceeding against the present respondent arraigning him as accused for the offence punishable under Section 376 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC') in the Court of I Additional District and Sessions Judge and Concurrent Charge of III Additional District and Sessions Judge, Kodagu, Madikeri, (hereinafter for brevity referred to as 'the Sessions Judge's Court'). After the trial, the accused was acquitted of the alleged offence. Seeking setting aside of the impugned judgment dated 23.02.2016, the State has preferred the present appeal -3- NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 under Sections 378(1) & (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.')
2. The summary of the case of the prosecution as could to be gathered from the charge sheet is that the alleged victim girl(PW.7), who is also the complainant in the said case, is stated to be aged thirteen years as on the date of alleged incident, which is alleged to have taken place on 21.01.2012, at about 11.00 p.m. PW.7 was stated to be living in Dhanugala village along with her senior maternal aunty and uncle since her childhood. She is said to have been studying in IX Standard in schooling in MCS School at Ponnappasanthe. Accused was said to be a known person to the family of the material aunty, uncle and also to the complainant (alleged victim) since several years. It is alleged that on the night at about 9.00 p.m., on the date 21.01.2012, the accused was said to have sent a message to the cell phone of her uncle Sri.Chandan (CW.2) in whose house she was residing, -4- NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 calling upon the complainant/victim to come near her uncle's shop on the night. Though the complainant is said to have sent a reply stating that she would not be able to come, however, it is said that she received one more similar message from him. As such, on the same night at about 11.00 O'clock, the complainant is said to have gone to the shop of her uncle (CW.2) which was said to be located at a distance of about 75 feet from their house. In the said spot, the accused was said to be waiting for the complainant to come. Immediately after the complainant went there, the accused is alleged to have kissed her and forcibly removed the dress worn by her so also of his pant and was said to have committed sexual intercourse with her against her consent and despite her resistance and thus, has committed an offence punishable under Section 376 of IPC. After registering the complaint in Gonikoppa Police Station in Crime No.17/2012, the Police conducted investigation and after completing investigation, filed charge-sheet against the accused for the alleged offence. -5-
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3. Since the accused pleaded not guilty, the trial was held wherein, in order to prove the alleged guilt against the accused, the prosecution got examined seventeen witnesses as PW.1 to PW.17 and got marked seventeen documents from Exs.P.1 to P.17 and material objects MO.1 to MO.8. Statement of accused under Section 313 of Cr.P.C. was recorded. From the accused side, neither any witness was examined nor any document was produced as exhibit.
4. After hearing both side, the learned Sessions Judge's Court, by its impugned judgment dated 23.02.2016, acquitted the accused of the offence charged against him.
5. The respondent/accused was initially being represented by his counsel. In view of the fact that in spite of granting sufficient opportunities, the learned counsel for the respondent/accused failed to appear and proceed further in the matter, this Court by its detailed order dated 31.07.2023 appointed the learned counsel -6- NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 Smt. Archana K.M., as an Amicus Curiae for the respondent.
6. The learned Amicus Curiae was provided with the complete set of paper books and the copies of required documents at her option.
7. The Sessions Judge's Court records were called for and the same are placed before this Court.
8. Heard the arguments from both side. Perused the material placed before this Court and also the Sessions Judge's Court records.
9. The points that arise for our consideration are;
i) Whether the prosecution has proved beyond reasonable doubt that on the date 21.01.2012, at 11.00 p.m., in front of the shop of CW.2 Chandan in Dhanugala Village within the limits of complainant Police Station, the accused committed rape on the complainant/girl and thereby, committed an offence punishable under Section 376 of IPC?
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ii) Whether the judgment under consideration warrants any interference at the hands of this Court?"
10. The learned High Court Government Pleader for the appellant, in his brief arguments, submitted that the evidence of none else than the complainant fully supports the case of prosecution. It has withstood a detailed cross- examination and inspire confidence to believe her testimony. In such a circumstance, no corroboration either in the form of oral evidence of other witnesses nor documentary is required. He also submitted that the reason for the complainant making use of the cell phone of her uncle and the said uncle PW.8 (CW.2) not making use of the said cell phone, whenever at home has been explained in the evidence of PW.7 and PW.8. He further submitted that even though the accused has taken a defence that the complainant at the instigation of her uncle filed a false case against him in connection with a money dispute, but the said defence has not been placed -8- NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 before the Court during recording of his statement under Section 313 Cr.P.C.
11. With the above submission, relying upon the judgment of the Hon'ble Apex Court in Phool Singh vs. State of Madhya Pradesh reported in (2022) 2 SCC 74, the learned High Court Government Pleader submitted that the impugned judgment which is a very brief judgment and bereft of analysis of the evidence led by the prosecution, deserves to be set aside and the accused deserves to be convicted for the alleged guilt.
12. Per contra, the learned Amicus Curiae, in her arguments submitted that except a self-serving evidence of PW.7 the complainant, there are no other supporting witnesses for prosecution to corroborate the evidence of PW.7. She submitted that even the medical evidence does not speak about the complainant being subjected to any recent sexual intercourse. Admittedly, the dress materials of both the accused and the complaint did not possess any evidence of the sexual act including the presence of -9- NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 semen. She further submitted that when the very case of the prosecution has commenced with the exchange of alleged messages between the accused and the victim girl, non-production of the Call Details Register extract in a manner know to law itself creates a doubt about exchange of alleged messages between the parties. She further submitted that the conduct of PW.7 is not believable since she has kept on changing her version about her age and occurrence of incident from the version of the prosecution. She also submitted that claiming herself to be a girl of minor in her age, going alone to the shop of her uncle being unaccompanied by any one in the night hours also creates doubt in the case of the prosecution.
13. The learned Amicus Curiae further submitted that the absence of injuries on the person of the complainant, absence of any resistance mark also strengthens the doubt in the case of the prosecution. She further submitted that even the prosecution witnesses also are not uniform in mentioning about the age of the victim girl, it varies from
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 the evidence of PW.7, PW.10 and PW.14 respectively. Thus, the entire case of prosecution being highly doubtful, the Trial Court has rightly acquitted the accused from the alleged offence.
14. Before proceeding further in analyzing the evidence led in the matter, it is to be borne in mind that it is an appeal against the judgment of an acquittal of the accused from the alleged offence punishable under Section 376 of IPC. Since as per criminal law, the accused are presumed to be innocent, until their guilt is proved and further the accused, in the instant case, has already been benefited by the impugned judgment of acquittal in his favour, this Court, as a Court of appeal upon the impugned judgment of acquittal, must be very careful and cautious in analysing and appreciating the evidence led in the matter. Our Hon'ble Apex Court, in its judgment in CHANDRAPPA AND OTHERS Vs. STATE OF KARNATAKA, reported in (2007) 4 SCC 415, while laying down the general principles regarding powers of the Appellate Court while dealing in
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 an appeal against an order of an acquittal, was pleased to observe at paragraph 42.(4) and paragraph 42.(5) as below:
"(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
In SUDERSHAN KUMAR Vs. STATE OF HIMACHAL PRADESH reported in (2014) 15 SCC 666, while referring to Chandrappa's case (supra) the Hon'ble Apex Court at para 31 of its Judgment was pleased to hold that a cardinal principal in criminal jurisprudence that
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 presumption of innocence of the accused is reinforced by an order of acquittal, the Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
In Jafarudheen Vs. State of Kerala reported in (2022) 8 SCC 440 at para 25 of the judgment, the Hon'ble Apex Court was pleased to observe as below:
"25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 The above principle laid down by it in its previous case were reaffirmed by the Hon'ble Apex Court in Ravi Sharma Vs. State (Government of NCT of Delhi) and another reported in (2022) 8 SCC 536.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
15. Among the seventeen witnesses examined by the prosecution, PW.1 (CW.10) - Sri K M Subbaiah, PW.2 (CW.12) - P K Vasu have stated about the Investigating Officer drawing a scene of offence panchanama as per Ex.P.1. However, PW.1 has called the said document as his statement which in fact is a scene of offence panchanama. Though, PW.2 supported the case of prosecution in his examination-in-chief, however, in his cross-examination, he has stated that he does not know as to what is written in the panchanama, at Ex.P.2. PW.3 (CW.15)- Mani, who according to the prosecution had
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 given his cell phone sim card to the accused for his use, has in his examination-in-chief stated that the accused has taken the sim card from him, the contact number of sim card he does not remember. However, this witness stated that he knows CW.2 Chandan, a resident of Dhanugala village, in whose house, the complainant resides. Since he did not support the case of the prosecution as was expected by him, the witness was permitted to be treated as hostile and the prosecution was permitted to cross- examine him. In his cross-examination, he denied that accused was his relative however, he stated that accused has collected his photograph and other details in order to obtain a sim card in his name (of this witness). Accordingly, the accused has obtained sim card making use of his documents. Apart from this, he expressed his total ignorance about the alleged incident. He even denied that he has given his statement before the Investigating Officer as per Ex.P.3. PW.4 (CW.9)-Gowramma, the mother of the complainant has stated that the complainant is his daughter who, from her childhood was left in the
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 house along with elder sister and brother-in-law in Dhanugala village, as such, the complainant has been growing-up in the house of her sister and brother-in-law and was going to school from their place only. About the alleged incident, the witness has stated that it was her brother-in-law who on the phone informed her on the very next day morning of the alleged incident that the accused after summoning her daughter (complainant) near the shop of her brother-in-law by sending a message has committed rape upon her. In that connection a Police complaint also has been made. Even in her cross- examination, she adhered to her original version. On the other hand, she stated that her daughter was minor in her age on the date of incident and the accused was a person known to their family.
16. PW.5 (CW.14)-Puttaswamy has stated in his evidence that the Police have seized the clothes said to have been worn by the accused and the complainant at the time of incident, in his presence, by drawing two
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 seizure panchanamas as per Exs.P.4 and P.5 respectively. He has identified the clothes belonging by the complainant from MO.1 to MO.5 and that of the accused from MO.6 to MO.8. Nothing in favour of the accused could be elicited in his cross-examination.
17. PW.6 (CW.22) - H N Ravi, Head Constable of the complainant Police station has stated that as per the direction given by the Investigating Officer in this matter, he searched for the accused and produced the accused before the Investigating Officer on 23.01.2012, at about 11.30 a.m. Thereafter, as per the direction of the Investigating Officer, he has taken the accused for his medical examination to the Hospital at Gonikoppa, in which regard, he has submitted his report as per Ex.P.6 before the Investigating Officer.
18. PW.7 (CW.1) is the complainant, who is the prosecutrix in this matter and the star witness for the prosecution. She, in her examination-in-chief, apart from explaining her relationship with PW.4, CW.2 and CW.5 as the mother, uncle and son of her uncle respectively, has stated that she has been going to high school in MCS school at Ponnappasanthe Village, which is
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 at a distance of about three kilometers from her house. Her date of birth is 05.10.1997. Since her childhood, she is being brought up by her senior uncle Chandan (CW.2) at Dhanugala Village, Virajpet Taluk. The accused is residing two houses away from their house in the village and that since her childhood accused is known to her. The accused was also attending the garden work of her uncle (CW.2) as a labour. She was residing in her uncle's house where, apart from her uncle, her aunty, her brother-in-law, her brother and sister-in-law were all residing.
19. About the incident, the witness stated that on the date of incident at about 9.00 p.m., the accused had sent a message to the cell phone of her uncle. She saw the said message which was addressed to her where in the accused had asked her to come near the shop, since he wanted to talk to her. She replied stating that she could not come. However, once again the accused sent a message stating that he would like to talk to her very urgency. Thinking that there must be some urgency as the accused was calling her, she left to the shop of her uncle at about 11.00
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 O'clock, by which time, all others in the house had already slept. The witness has stated that when she went near the shop, the accused who was waiting for her, held her hands and gave a kiss upon her cheeks. He hugged her, made her to lie down and removed his pants and so also the pant worn by her. He removed her inner garment and so also his inner garment and committed sexual intercourse with her. Though, she cried, accused proceeded with his act. The witness has stated that after the incident, she went to the house of her another aunty Smt. Boji (CW.7) which was very near to the place of the offence. From there, on the next date morning at about 8.00 a.m., she came back to her house where she was staying with her uncle and informed them about the incident that had taken place on the previous night to her aunty Smt. Subbamma, the wife of CW.3. She also revealed about the incident to her senior uncle, elder brother and sister-in-law. All of them talked about the further steps to be taken and on the same evening, they took her to complainant police station at about 7.30 p.m.,
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 where she lodged a complaint in her own handwriting before the Police. The witness has identified the said complaint at Ex.P.7 and her signature therein at Ex.P.7(a). She also stated that after receiving the complaint by the complaint, the Police took her to the Government Hospital at, Gonikoppa, where the Doctor medically examined her.
The witness has further stated that next day after the incident the police came to her place and drew a scene of offence panchanama upon the spot that was shown to them by her. The witness has identified the said scene of offence panchanama at Ex.P.1 and her signature at Ex.P.1(b). Stating that, when she had been taken to medical examination after the incident, she had given dress worn by her to the Police the witness has identified the dress materials which were chudidhar top, chudidhar pant, veil, green colour kacha and black colour bra from MO.1 to MO.5 and the seizure panchanama at Ex.P.4. She has stated that the Police have recorded her further statement giving the cell phone number of her uncle as 9680291943 she stated
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 that her uncle used to keep the said cell phone in the house itself and whenever she used to be at home, it was she who was receiving the calls and used to speak.
20. The witness was subjected to a detailed cross- examination from the accused side wherein several attempts were made to shaken her evidence given in examination-in- chief. In the said process, the witness has given more details about the incident but has not permitted the defence to shaken the evidence given by her in examination-in-chief.
21. PW.8 (CW.2) - Chandan, in his examination-in-chief' has stated that the complainant is the daughter of his wife's elder sister by name Gowramma and the complainant has been in their house from her childhood, as such, from her first standard schooling she has been attending to school being in his house only. The accused is his neighbour. In the year 2012, complainant was studying IX Standard in MCS school at Ponnappasanthe village. He further stated that he has got the cell phone (mobile) with him, but he cannot give the contact number of that phone. After returning from work, he used to keep the phone at home itself and
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 all calls or the messages coming to the said phone were being taken care of and attended to by complainant herself.
22. About the incident the witness has stated that on the date 21.01.2012, at about 9.15 p.m., himself his wife (CW.3), son, sister-in-law were sleeping whereas the complainant was watching television. Next day morning at about 8.00 O'clock, complainant returned from the house of Smt.Boji, who is the wife of his brother-in-law. After returning home, the complainant informed that the accused had called her on the previous night at about 11.00 p.m. over the phone. Accordingly, when she had been near his shop (of this witness), the accused who was present there, closed her mouth and committed rape upon her. After the incident, she went to Smt.Boji's house. Hearing the same from the complainant, later they took her to Ponnampet Police Station and got a complaint given by her with respect to the incident.
23. In his cross-examination, the witness has given more details about he not making use of the cell phone as he is not accustomed to the same and that the complainant herself was
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 attending the phone. He also gave the details as to what he and his family members did when complainant was not found on the next day morning in their house. He has stated that he went to the house of Smt.Boji and found the complainant there in the said house. He denied the suggestion that with respect to monetary transaction with the accused, who was working as a coolie in his garden, a false case has been lodged against the accused making use of the complainant.
24. PW.9 (CW.16) - Nanjundaswamy, the Panchayat Development Officer of Mayamudi Grama, has stated that at the request of Investigating Officer, he has issued a certificate as per Ex.P.8 certifying that the shop of PW.8 (CW.2) being in existence within the limits of their panchayat.
25. PW.10 (CW.17) - Radha, a Teacher at MCS High School, Ponnappasanthe has stated the complainant was a student in their high school, in which, during the academic year 2011-12, she was studying in IX Standard. Stating that as per the school records, the date
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 of birth of the complainant was 05.04.1998, the witness has stated that she had issued the Study Certificate to that effect as requested by the Investigating Officer, which this witness has identified at Ex.P.9.
26. PW.11 (CW.5) - P C Mani has stated that PW.8- Chandan is his father and the complainant is her cousin sister who has been studying in their house since her childhood and going to school from their house. He has stated that they own a provision store in Dhanugala village near Mariyamma Temple. Stating that the accused is a known person to him, the witness stated that the accused was attending to their garden work as a labour.
27. About the incident, the witness has stated that on the date of incident, accused sent a message to the cell phone of his father which was seen and attended to by the complainant. It was the complainant who was attending the mobile phone whenever his father used to be at home. She receiving the message to the said phone on the night of incident came to his knowledge only on the next day. The witness stated that on the next day in the morning noticing the absence of the complainant in their
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 house while they were searching, at about 7.00 O'clock she returned home, when enquired, she told that at the request of the accused, she had been there is near the shop (of this witness) where the accused who was present there, torn her clothes and committed sexual intercourse with her. After the incident, she went to the house of his aunty Smt. Boji. The witness stated that in that connection they have lodged a police complaint. Even in his cross- examination, he adhered to his original version. However, he stated that when the complainant returned to the home on the next day on morning, he did not notice any tearing of her clothes. He admitted the suggestion as true that the accused was visiting them since he was working under his father. Nothing could be elicited in favour of the accused in the cross-examination of this witness.
28. PW.12 (CW.19) - Dr. Suresh, the Medical Officer of Community Health Centre at Gonikoppa has stated that on the date 23.01.2012, at about 8.30 p.m., he examined the accused who was produced before him by the complainant
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 police with a request to conduct medical examination about his capacity to have sexual intercourse. After clinically and medically examining him, he ascertained and issued two medical certificates to the Police, in one stating that the accused was capable for sexual act and in another medical certificate stating that the accused was physically fit to undergo sexual activities. Those two medical certificates, the witness has identified at Ex.P.10 and Ex.P.11 respectively. This witness was not cross-examined from the accused side.
29. PW.13 (CW.20) Smt. Radha.S, the Scientific Officer at Regional Forensic Science Laboratory (RFSL), Mysuru, has stated that she has scientifically examined the articles sent by the complainant Police in this case and received in her office. There were twelve articles including the dress materials said to be of both the complainant and the accused and also vaginal swab and pubic hair. The witness has stated that the chemical examination conducted by FSL shown the absence of seminal stains in any of those articles. Accordingly, she has issued a report which this witness has
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 identified at Ex.P.12. This witness was not cross-examined from the accused side.
30. PW.14 (CW.18)- Dr. K E Lavanya, the then Medical Officer at Community Health Centre, Gonikoppa has stated that on 23.01.2012, at 1.30 a.m., she has medically, clinically examined the complainant produced before her by the complainant Police for her examination. She collected the history from the complainant, who stated to her that on the night of 21.01.2012, at about 11.00 p.m., she was subjected to rape. The witness stated that after examining the complainant, she has given her medical examination report, which she has identified at Ex.P.13. The witness further stated that thereafter the Investigating Officer had sought for some clarification about medically examining the girl and the observations made by this Doctor. As such, she had given her explanation which this witness has identified Ex.P.14. The witness has stated that she had noticed reddish colouring of the private part of the victim and also noticed that she was previously subjected to sexual act. It is these details and other details she has
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 mentioned in her report to the Police. The witness has also stated that if the victim comes with some delay for examination after attending nature's call and taking bath and also changing the clothes, the symptoms of sexual intercourse may vanish. In her cross-examination attempts were made to elicit favourable answers to the accused. However, the witness adhered to her original version. She categorically stated that if the victim is examined within 24 hours of the alleged act and the swab is collected, only then, the opinion regarding the occurrence of sexual intercourse can be given.
PW.15 (CW.23) Vanishree, the Woman Police Head Constable had stated about she at the instruction of her superior taking the victim girl to the Gonikoppa Government Hospital for her medical examination on the midnight of 22.01.2012, at about 1.30 hours and after getting the complainant medically examined, submitting her report before her superior.
31. PW.16 (CW.24) G.K. Subramanya, then Police Sub-Inspector of the complainant
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 Police Station has stated about he receiving the complaint as per Ex.P.7 said to have been given by the complainant on 22.01.2012 at about 8.30 p.m. and submitting a FIR to the Court as per Ex.P.15 and also sending the complainant for medical examination with the escort of woman police.
32. PW.17(CW.25) H.N.Shailendra is the Investigating Officer in this case. The witness has stated while working as the Circle Police Inspector in Gonikoppa circle, he took up further investigation in this matter on 23.01.2012. The witness has stated about during the investigation, he visiting the scene of offence as shown by the complainant and drawing the scene of panchanama as per Ex.P.1 and preparing rough sketch of spot as per Ex.P.16. He has also stated about he securing the presence of the accused through his staff and recording his voluntary statement as per Ex.P.17. He has also stated that he seized the clothes of both the accused and the victim by drawing seizure panchanama as per Exs.P.4 and P.5. He has identified those clothes from MO.1 to MO.8.
33. The witness has stated about he recording statements of several of the
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 witnesses and receiving the medical report of the accused form the Doctor who examined him and also of the victim from the Lady Doctor who examined her as per Ex.P.10, Ex.P.12, Ex.P.13 and Ex.P.14. He has also stated that he collected a certificate about the shop of CW.2 in his village and also collected the school certificate as per Ex.P.9 from the school authority where the complainant was studying.
34. The witness has also stated about he sending the seized cloth material and the articles given by the Doctor pertaining to the complainant to the chemical examination to the RFSL at Mysuru and receiving a report from the Forensic Science Laboratory. He also stated that during the investigation he collected the call list to know the details of exchange of the calls between the cell phone of CW.2, which the accused was said to be using at the relevant point of time and the cell phone said to have been used by the accused. Though an attempt was made to mark the said call list as an exhibit, however, accepting the objection raised by learned counsel from the accused side about the absence
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 of the necessary certificate, the learned Sessions Court Judge has denied the permission to mark the said document as an exhibit. The witness has further stated that after completing the investigation, he submitted the charge sheet against the accused. The denial suggestions made to him in the cross-examination were not admitted as true by this witness.
35. The above evidence lead by the parties would go to show that the main witness and the only witness upon whom the prosecution is relying upon is PW.7 who, according to the prosecution is the alleged victim girl in the incident. The other witnesses who speaks about the incident are PW.4-Gowramma, PW.8-Chandan and PW.11- Mani who admittedly are not only the relatives of PW.7, but they are hearsay witnesses whose evidence is based upon the information said to have been given to them by PW.7, the alleged victim girl. However, the commonness in the evidence of all these five witnesses is that the accused is a person from the same village i.e.
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 Dhanugala village where the complainant was residing in her uncle's house. It is also not in dispute that accused was known to the family of the complainant since he was some time working as a labour in the garden lands of PW.8 (CW.2)-Chandan. It is not just these five witness have stated about the same, but from the accused side suggestions were made to PW.8 and PW.11 to that effect. As such, it stands established that accused was not the stranger but a known person to the complainant as well to the family of the complainant. In fact, the evidence of PW.7 that she knows the accused since her childhood and the accused used to visit them has not been specifically denied from the accused side. As such, the accused is not a stranger either to the complainant or to the family and relatives of the complainant, but he is a very much known person.
36. The evidence of PW.4, the mother of the complainant, PW.8, the uncle of the complainant and PW.11, who is son of PW.8, to the effect that from her
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 childhood, the complainant was staying in the house of her uncle (PW.8-Chandan) and was going to school from the said house as such, she continued to stay in the very same house even on the date of the alleged incident also has not been specifically denied in the cross-examination of those witnesses. Therefore, it also stands established that the complainant was staying in her uncle's house at Dhanugala village and going to school from there.
37. The evidence of PW.4, PW.7 and PW.8 that as on the date of alleged incident, the complainant (PW.7) was studying in IX standard of schooling not only remained undenied from the accused side but also stands corroborated by the evidence of PW.10, the Teacher of MCS school, who has stated that during the year 2012, the complainant was studying in IX Standard in their school. As such, the said fact also stands established.
38. Regarding the age of the complaint, PW.4 at one place in his evidence has stated that her daughter who is the victim girl was aged 16 years. However, the said
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 complainant/victim girl as PW.7 has given her date of birth as 05.10.1997, whereas PW.10, the Teacher has stated that the records maintained by the school shows the date of birth of the girl as 05.04.1998. The Study Certificate issued by PW.10 at Ex.P.9 also shows that as per the school records, the date of birth of the girl is 05.04.1998. The medical evidence given by PW.14- Dr. Lavanya assesses the age of the girl as between 15 to 16 years.
It is in the light of the above, the learned Amicus Curiae, in her arguments, vehemently submitted that there is no certainty about the age of the girl. As such, the variations in the age of the girl introduce a serious doubt in the case of the prosecution.
39. No doubt there is some variation in giving the exact age of the girl as on the date of the alleged incident which is 21.01.2012. According to the girl, her date of birth is 05.10.1997, whereas according to PW.10 the Teacher, the school record shows her date of birth as 05.04.1998. Thus, there is a difference of six months between the age
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 as contended by the complainant to that of what the school record shows. Still the fact remains that even if higher age as shown in the school records is also taken into consideration, the age of the complainant girl remains to be thirteen years, seven months as on the date of the alleged incident. Thus, she was very much minor in her age as on the date of the alleged incident. The evidence that she was studying in IX Standard of schooling also shows that she was a girl of minor age. The said minor discrepancy in the reflection of the date of birth would not take away the case of prosecution. As such, the argument of the learned Amicus Curiae that the alleged discrepancy introduces a serious doubt in the case of the prosecution is not acceptable.
40. It is PW.7-complainant, who is the main witness and the only witness who has spoken about the alleged incident, as a victim of the incident. She has stated that it was in response to the messages sent to the cell phone of her uncle, she went to the shop run by her uncle in the
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 night at about 11.00 O'clock. Though, in the normal course a doubt would arise as to how come a message calling a girl to a different place would be sent to a cell phone of another person, but not to that of the alleged girl, still both the complainant as PW.7 and her uncle as PW.8 so also PW.11, the son of PW.8, have clarified the said doubt stating very clearly that even though the cell phone was standing in the name of PW.8-Chandan, however, it was mainly being operated and used by none else the complainant/victim girl. All these witnesses have uniformly stated that whenever PW.8 used to be at home, the cell phone was being attended to by none else than the complainant herself. Incidentally, the said PW.8 in his examination-in-chief itself in the opening statement has stated that he cannot give the contact number of his cell phone. Thus, he has expressed his inability to remember his cell phone contact number and to express it before others. This shows that he was not cell phone savvy and was not accustomed to the use of cell phone, however, he was possessing a cell phone. Therefore, the doubt expressed
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 by the learned Amicus Curiae as how come the victim girl would use the cell phone belonging to her uncle and message would come to that cell phone gets answered as above. Therefore, whenever PW.8 used to be at home, it was the complainant who was attending the cell phone. As such, the accused who was known to the family of the complainant and PW.8 and who incidentally was also a labour working under PW.8 had taken the liberty of sending messages to the cell phone belonging to PW.8, since the messages received would be attended to by none else than the complainant (PW.7) as such, as PW.7 herself has stated, which is corroborated by the evidence of PW.8 and 11, the message said to have been sent by the accused at about 9.00 p.m. on the night of 21.01.2012 was seen and responded by the complainant herself.
41. PW.7 has also stated that being not satisfied by her reply that she could not come at that time to the shop of her uncle, she received one more message from the accused showing some urgency to meet her on that night
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 itself. Thinking that there must be some urgency, she went to the shop, however, after other members in the house went to sleep. Since she responded to the first message received in the cell phone belonging to her uncle, the accused has proceeded to send the second message showing some urgency in the matter. According to PW.7, she left the home towards the shop.
The learned Amicus Curiae for the accused, in her arguments, vehemently submitted that generally Indian girls will not leave the house in the odd hours, that too, particularly, during the late night. However, the alleged conduct of this girl leaving the house at about 11.00 O'clock in the night creates a serious doubt about the alleged incident.
42. No doubt, the said general observation may not be brushed aside. However, in the present case, when the circumstances of the case on hand is analysed, it stood undisputed that accused knew the complainant from her childhood and they were neighbours. Further, accused was also working as a labour in the garden of PW.8 in
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 whose house complainant was residing. As such, accused was not a stranger and was very much known to the family of the complainant and her uncle since more than a decade. Furthermore, the place where they reside is a small village and undisputedly, the shop of PW.8 was hardly 75 to 100 feet away from the house where the complainant was residing with her uncle. As such, complainant (PW.7) going to the said shop which was the shop of her uncle only and that too was very near to their house, believing the urgency shown by the accused, who was known to their family since more than a decade, cannot be suspected or doubted. Therefore, the argument of the learned Amicus Curiae that the complainant responding to the said message and going away from the house in the odd hours is not only unnatural, but also creates a doubt about the conduct of the complainant is also not acceptable.
43. According to PW.7-complainant, when she went to the place, the accused was waiting for her and holding her
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 hands and hugging her, he gave her kisses on her cheeks and making her to lie down, he removed his pant so also that of the complainant and committed sexual intercourse upon her. PW.7 in her evidence has stated that she was not a consenting party to the same. She resisted the same and protested the act of the accused. She has given more details about her resistance to the act both in her examination-in-chief as well in the cross-examination. She also stated that she also cried and yelled, however, the accused committed the act of sexual intercourse. It is thereafter, she went to her another aunty-Smt.Boji (CW.7) whose house was quiet near to the place of incident. On her evidence, the witness was subjected to a very detailed cross-examination running into several pages, where the witness has given several minute details of the incident also. The summary of the same would go to show that at the time of the incident, she was not wearing any bangles. She struggled a lot to escape from the clutches
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 of the accused, however, she could not. She has also explained the postures of both herself and the accused in the process and how the accused had a firm grip of her disabling her from escaping from him. Though the details given by her in her evidence would not make her evidence suspectable or a created one, but shows that it has come in a natural course. What a helpless girl could do was done by PW.7 also. However, a minute reading of her evidence that she waited till 11.00 O'clock after receiving the second message of the accused in her house only to ensure that all other inmates of the house go to bed and then leaving the house and also the dress materials worn by her not torn and absence of any external injuries on her back, buttocks or other parts of the body as observed by PW.14, the Doctor, may lead to a suspicion that she might not have been resisted vigorously at the act of the accused or that she might be a bit inclined towards the accused. However, it cannot be forgotten of the fact that she was minor in age only of thirteen years and seven months as on the date of the incident. As such,
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 her willingness or consent would be of no legal consequence in the alleged act. Undisputedly, the accused was major as on the date of the incident, which is further corroborated by the medical evidence of PW.12 who has shown the age of the accused as 20-23 years in Ex.P.10 and has opined as 23 years in his opinion at Ex.P.11. Nowhere the accused has taken the plea including in his statement under Section 313 of Cr.P.C. that he was not of that age. He had already attained majority on the date of alleged incident. As such, the accused was major and the complainant was minor thus even her inclination if any towards the accused would also be of no legal consequence.
44. PW.7-complainant has also stated in her evidence that after the incident, she did not go to her house whereas she went to the house of her another aunty which was hardly 25 feet away from the place of incident. When questioned as to why she did not choose to go to her house, the witness has stated that had she been back to her house in the night, she would have been enquired
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 about her absence from the house and as such, scared by the same, she went to the house of her another aunty Smt. Boji (CW.7) and stayed there in that night. To another question, she also made it clear that even in front of her aunty Smt.Boji, she did not reveal about the incident, but only stated that since some guests had come to their house (of PW.8) and there was no space in that house, she had come to Smt. Boji's house to sleep on that night. PW.11-Mani, the son of PW.8 has also stated that on the night of the incident, some guests had come to their house. Therefore, PW.7, the victim girl says that like several other girls, she was scared of being cross- examined by the inmates of her house had she returned to the house on the same night and took a decision of going to the nearest house of her another aunty. The said statement of PW.7 has not been subjected to thorough cross-examination from the accused side to impart any suspicion in her alleged behaviour of visiting the house of her another aunty Smt.Boji on that night. Thus, PW.7 in her evidence has given a detailed and clear account of the
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 act of sexual intercourse committed by the accused upon her on the night of 21.01.2012, at about 11.00 p.m.
45. The learned High Court Government Pleader, in his arguments, relied upon Phool Singh's case (supra) and submitted that the sole evidence of the victim in a rape case can be relied upon to convict the accused. In the said case, the Hon'ble Apex Court has summarized the principles as to when the sole testimony of victim/prosecutrix be taken as a basis for conviction even in the absence of corroboration. The Hon'ble Apex Court relying upon its previous judgment in State of Punjab vs. Gurmit Singh and others reported in (1996)2 SCC 384 and analyzing the facts before it, has observed that the prosecutrix in the case before it had fully supported the case of prosecution and she had been consistent right from the very beginning, nothing had been specifically pointed out as to why the sole testimony of the prosecutrix should not be believed. The Court further observed that in the case before it, even after thorough cross-examination,
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 she has withstood by what she had stated and had fully supported the case of the prosecution. With this the Hon'ble Apex Court observed that they see no reason to doubt the credibility and/or the trustworthiness of the prosecutrix.
46. In Gurmit Singh's case (supra), the Hon'ble Apex Court was pleased to observe in paragraph 8 of its judgment as below:
" ..... ....The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act 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
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 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 at 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 over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons'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
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 tyranny making justice a casualty. Courts cannot cling 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."
47. In Motilal vs. State of Madhya Pradesh reported in (2008) 11 SCC 20, which was a case involving offence punishable under Sections 375, 376 and 450 of IPC, the question of conviction on the sole testimony of prosecutrix for the alleged offence was involved. The medical evidence was not helpful to the prosecution. The Hon'ble Apex Court in paragraph 12 of its judgment reiterated its observation made in its previous judgment in Om Prakash vs. State of UP reported in (2006) 9 SCC 787, wherein it was observed that it is a settled law that the victim of sexual assault is not treated as accomplice and as such her evidence does not require corroboration from any other evidence including the evidence of the Doctor. In a given case, even if the doctor who examined the victim does not find sign of rape, it is no ground to
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 disbelieve the sole testimony of prosecutrix. In a normal course, a victim of sexual assault does not like to disclose such offence even before her family members, much less before the public or before the Police. The Indian women has a tendency to conceal such offence because it involves her prestige as well as the prestige of her family.
48. In the instant case, PW.7 though was minor in her age appears to be of not of the mentality to make a false allegation against any one including the accused. The said witness in her cross-examination to a suggestion made to her from the accused side that she joined by her other inmates of the house have created a story against the accused has not only denied the said suggestion but reacted strongly stating that why should she spoil her life by making such a false allegation. Thus, she was aware that a girl would not put her chastity and her character to stake for no valid reason and thus, has shown that it is because of an act of sexual assault has taken place upon her, she lodged the complaint before the Police as per
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 Ex.P.7 As such, even though the evidence of PW.4, PW.8 and PW.11 corroborates her evidence, but they are all hearsay evidence still the evidence of PW.7, the victim girl itself is sufficient to hold that the alleged incident of rape upon PW.7 has taken place and the said act has been committed by none else than the accused and accused alone.
49. So far as the medical evidence with respect to the alleged incident is concerned, as already observed above, the accused who was major in his age at the time of incident was medically examined by PW.12 - Doctor and he has issued his medical opinion and certificate as per Exs.P.11 and P.12 stating that the accused was well-grown and nothing was found in him to hold him incompetent to involve in sexual intercourse. Thus, the capacity of the accused to have sexual intercourse is medically established.
50. PW.14, the lady Doctor who medically examined the victim girl though has stated that she did not notice any
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 external injuries upon the girl, however, has stated that the private organ of the girl was showing slightly reddish in colour and there was heavy discharge of white. She has opined that there was symptom of the girl undergoing sexual intercourse earlier. However, the Doctor has not specifically and categorically stated about the presence of any symptoms of recent sexual intercourse. The very same doctor in her evidence as PW.14 has stated that before coming to the medical examination, if the victim in a rape case attends to nature call, takes bath and changes the dress material worn by her at the time of the incident, the symptoms of sexual intercourse would not remain. She in her cross- examination has further stated that in case if the victim is brought within 24 hours of the sexual intercourse and swab is collected, only then, it can be stated about the occurrence of the sexual intercourse. Admittedly, in the instant case, the act of rape had taken place at 11.00 p.m. on 21.01.2012 whereas the victim was presented before the doctor for medical examination on 23.01.2012 at 00.13
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 hours. Thus, more than 48 hours have already been lapsed from the time of the incident till she was medically examined. In such a process, the absence of any semen in the vaginal swab as has come out in the FSL report at Ex.P.12 and the evidence of PW.13, the Scientific Officer of RFSL, Mysuru would not in any way favour the accused or create any doubt in the case of the prosecution. As such, the arguments of the learned Amicus Curiae that absence of semen in the vaginal swab and on other dress material creates a doubt that the case of prosecution is not acceptable.
51. The above analysis, more particularly, the clothes worn by the accused and the complainant at the time of the incident remaining intact without any damages or tearing in it and the absence of any external injuries on the person of the victim, on her back or buttocks may at the maximum lead to a suspicion that she might not have resisted or protested as contended by her in her evidence or she might be inclined towards the accused since he was
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 a known person. However, as already observed above undisputedly the victim was very much minor in her age as she was of hardly thirteen years, nine months and studying IX Standard of schooling. The accused was major in his age. As such, her alleged absence of resistance and resistance mark as expected by the learned Amicus Curiae, though is not present, still the circumstances of the case shows that the evidence of PW.7 is very much believable, suffers no infirmity in it and she has disclosed the facts as has been experienced by her without any exaggeration or embellishment. Therefore, the sole evidence of the victim girl warrants no corroboration about the commission of crime and inspires confidence in the Court to believe.
52. Regarding the spot of the alleged incident, according to the prosecution as well according to PW.4, PW.7, PW.8 and PW.11 coupled with PW.1 and PW.2, is the verandah of the shop of PW.8 (CW.2) Chandan. Except denying the same nothing could be elicited from the accused side. The scene of offence panchanama
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 at Ex.P.1 corroborates the evidence of these witnesses. According to Investigating Officer even the accused has also shown the very same place as the place of offence where the scene of offence panchanama as per Ex.P.2 was drawn. However, without even taking into consideration of the accused showing any place of offence or Ex.P.2, suffice to hold that the evidence of PW.7 primarily corroborated by the evidence of PW.8, PW.11 coupled with the evidence of the Investigating Officer PW.17 shows the place of incident is place of verandah outside the shop of CW.2 (PW.8-Chandan).
53. Even though, the learned Amicus Curiae has not canvassed particularly, however, when the prosecution case is perused, it can be seen that the alleged offence is said to have taken place at 11.00 O'clock in the night in front of the shop. There is no specific evidence about the presence of any light in the spot except the say of the Investing Officer PW.17, that there was light. She admitted that the presence of light is not mentioned in the scene of
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 offence panchanama. However, merely because the presence of source of light is not expressly mentioned in the scene of office panchanama, it cannot be taken that there was no light.
54. Secondly, PW.7 has stated that while going from home to the spot, she had carried the cell phone of her uncle with her. Even the evidence of PW.8 and PW.11 also corroborates the same. The victim girl (PW.7) has stated that since she had cell phone with her, in the light of the cell phone she has confirmed that the boy waiting for her was none else than the accused only.
55. Thirdly, and to the height of the above, it cannot be ignored of the fact that the accused and the family of the complainant, including the complainant were known to each other for decades. They are neighbours. The accused was also working as a labour under PW.8 and it tallies with the evidence of PW.7, the victim girl. PW.7 has stated that she has been seeing the accused since her childhood who is their neighbour. In such circumstance, for a decade old known person
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 whom they see day in and day out, no extra or external specific light focused upon him is required to identify him. As such, the identity of the culprit is the accused and the accused alone is further corroborated from the evidence of the prosecution, more particularly of PW.7.
56. A perusal of the record would go to show that the incident of the offence though has taken place at 11.00 p.m. on 21.01.2012, the complaint came to be lodged only on the next day evening at about 8.30 p.m. Thus, there is a delay of nearly eighteen hours in lodging the complaint. PW.7, the complainant has explained the events that took place after the incident. As observed above, after the incident, she went to the house of her aunty Smt. Boji (CW.7) and spent her night there. It was only on the next day morning at about 8.00 a.m., she returned back to her uncle's house and revealed about the incident in the house. The victim girl has also stated that after hearing from her, the inmates of the house, discussed as to whether a complaint is required to be given or not since
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 the life of her (PW.7) who was minor school going girl was involved. However, ultimately, they decided that a complaint is to be given, as such they went to the Police station on the next day evening and lodged a complaint. The said explanation of delay in lodging the complaint finds no reason to disbelieve it.
57. The Hon'ble Apex Court in Gurmit Singh's case (supra) has observed that reluctance of the prosecutrix or her family members must be taken into consideration while assessing the delay in filing the FIR in sexual offences.
58. Further, it cannot be expected that in a case like sexual assault and rape, the victim should first run to the Police Station from the place of offence, that too, particularly, in a case as the one on hand where the victim is a minor girl of only thirteen years old and residing in her uncle's house. As such she was not expected to rush to the Police Station in the midnight of the incident which Police Station was located more than 10 to 12 kilometers as has come in the
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 evidence of the Investigating Officer. Thus, the delay in the instant case in lodging the complaint cannot be considered as a delay going to the root of the case and affecting the case of the prosecution.
59. Lastly, the defence of the accused as could be gathered in the cross-examination of PW.7 and PW.8 and PW.11 is that the accused since was working as a labour under PW.8, the uncle of the victim girl, was entitled for some monetary benefit and in that regard, there was misunderstanding between PW.8 and the accused, as such, PW.8 making use of the complainant has lodged a false case against the accused. All the above said three witnesses to whom the suggestions were made in that regard from the accused side have categorically denied the said suggestion and stated the same as false.
60. As observed above, the complainant has even stated that a girl like her would not put her character in stake for those purposes. As such, the defence taken by the accused only as a mere suggestion made to disbelieve the
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 prosecution witnesses would not stand or would not succeed in destabilising the case of the prosecution. Thus, it is proved beyond reasonable doubt that the prosecution has established the alleged guilt against the accused and the accused committing rape upon PW.7, the minor victim girl. However, the Trial Court in one among its shortest judgment we have come across has completed the entire judgment hardly in ten pages, wherein the reasoning is confined to only one paragraph in paragraph 28 running into eleven lines. No exercise of appreciation of evidence has been made. On the contrary, directly stating that the absence of seminal stains on the articles sent to FSL and the victim girl going alone to the place of incident has created a serious doubt in the case of prosecution, has jumped to the conclusion of disbelieving the case of the prosecution and acquitting the accused.
61. We are not happy with the said quality of judgment and expect that the Sessions Courts are required to apply their mind and analyse both oral and
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 documentary evidence placed before them properly and proceed with a considered and reasoned judgment. Thus, the impugned judgment warrants interference at the hands of this Court and the impugned judgment deserves to be set aside. It is to be held that the prosecution has proved the guilt against the accused beyond reasonable doubt. Accordingly, we proceed to pass the following order;
Order
i) The present Criminal Appeal is allowed.
ii) The judgment of acquittal dated 23.02.2016 passed by the I Additional District and Sessions Judge and Concurrent Charge of III Additional District and Sessions Judge, Kodagu, Madikeri, in Sessions Case No.37/2012 acquitting the accused - Panjariyeravara Ravi, S/o late Choma, Mariyamma colony, Dhanugala Village, Ponnampet Taluk, Kodagu District, for the offence punishable under Section 376 of IPC stands set aside. The accused is held guilty of committing the offence punishable under Section 376 of IPC.
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 To hear on sentence, the matter is passed over.
SD/-
JUDGE SD/-
JUDGE HEARING ON SENTENCE Called again.
Heard learned counsel from both side on sentence. The learned Amicus Curiae submits that accused is also a youth of young age of hardly 20 to 23 years as on the date of the incident and now, he must have been a married person with his own family and other dependents upon him as such has a responsibility of taking care of his family. As such,
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 keeping in view his future and his family depending upon him, a lenient view be taken.
Per contra, the learned High Court Government Pleader, in his submission, submitted that the proven guilt against the accused is one of the heinous crime committed against a girl of a very tender age of thirteen years. Due to the incident, the victim girl must have suffered a greatest shock in her life, as such, the accused deserves the maximum punishment provided under law for the proven guilt.
It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt. It shall be neither exorbitant nor for the name sake. In the instant case, the accused was said to be a youth of aged 20 to 23 years, more importantly, a person known to the family of the victim. The victim girl was aged only thirteen years and she left the home and went to the accused, since the accused made use of his acquaintance with the girl and her family. The consequence was that
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 the girl was raped by the accused, which is a heinous and unforgettable incident in the life of the victim girl. However, at the same time, the mitigating fact that the accused is a youth and must have been having his own family with dependents also cannot be ignored. Accordingly, we are of the view that a reasonable punishment provided under law deserves to be ordered in this matter. Accordingly we proceed to pass the following:
Order on sentence.
i) The accused - Panjariyeravara Ravi, S/o late Choma, Mariyamma colony, Dhanugala Village, Ponnampet Taluk, Kodagu District, is sentenced to undergo rigorous imprisonment for period of seven years and to pay a fine of `.15,000/-, in default of payment of fine, to undergo rigorous imprisonment for three months, for the offence punishable under Section 376 of Indian Penal Code, 1860.
ii) The accused is entitled for the benefit of set off under Section 428 of Cr.P.C. for the period having undergone by him in judicial custody, if any, in the matter.
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iii) Out of the fine amount deposited, if any, by the accused, a sum of `.14,000/- be paid to PW.7, the victim girl, and the remaining sum of `.1,000/- be paid to the State. However, the same is without prejudice to her right to compensation.
iv) The District Legal Services Committee, Kodagu District, is directed to pay compensation under Victim Compensation Scheme under Section 357A of Code of Criminal Procedure, 1973, a sum of `.1,00,000/- to PW.7, the victim girl within the time stipulated therein.
v) The accused shall surrender before the Sessions Judge's Court and shall serve the sentence within a month from today.
vi) Accused is entitled for a free copy of this judgment.
vii) Registry to transmit a certified copy of this judgment to the concerned Sessions Judge's Court along with the Sessions Court's Records forthwith and also send
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NC: 2023:KHC:27768-DB CRL.A No. 1107 of 2016 another certified copy of this judgment to the District Legal Service Committee, Kodagu District, for their needful in this matter.
vii) The District Legal Services Committee, Kodagu District, to submit a compliance report of disbursement of compensation to the Sessions Judge's Court within the time given above.
The Court, while acknowledging the services rendered by the learned Amicus Curiae for the appellant - Smt. Archana K.M., recommends honorarium of a sum of not less than `6,000/- payable to her by the Registry.
SD/-
JUDGE SD/-
JUDGE MV List No.: 1 Sl No.: 11