Karnataka High Court
State Of Karnataka vs Neelappa Lalappa Hosamani on 25 March, 2011
Bench: Subhash B Adi, N.Ananda
iN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 25T11 DAY OF MARCH 2011
PRESENT
THE HON'BLE MR. JUSTICE SUBHASH B. ADI
AND
THE HON'BLE MR. JUSTICE N. ANANDA
CRIMINAL APPEAL No.2198/2005
BETWEEN:
STATE OF KARNATAKA
BY SAUNDAITI POLICE APPELLANT
(BY SHRJ.V.M.BANAKAR. ADDL.. S.P.P.)
AND
NEELAPPA LALAPPA HOSAMANI
R/O PATTADAKAL ONI, SAUNDATTI,
DIST: BELGALIM. ... RESPONDENT
(BY SRI.JAGADISH PATIL)
This Criminal Appeal is filed under Section 378(1) and
(3) of the Code of Criminal Procedure, by the State P.R for the
State to grant leave to file an appeal against the Judg ment
dated 2772005 passed by the RO, FTCJ and Addl. SJ.,
Beigaurn in SCNo. 143/2001 acquitting the respondenU
accused for an offence punishable under Sectic.n 376 of
LRC.
This criminal appeal coming on for final hearing this
day, N.Ananda J., delivered the following:
JUDGMENT
The State has filed this appeal against judgment of acquittal of respondent (hereinafter referred to as accused> for an offence punishable under Section 376 of I.P.C.
2 The learned Trial Judge had framed following charge:
"That on 19.03.2001 at about 3.00 p.m.. in Vakkalutanaoni in Saundatti village, within Saundatti P.S. limits you have committed rape on Kumari Reshma Hatelsab Balagar against her will and consent by force and thereby committed an offence punishable under Section 376 of the I.RC. and within the cognizance of the court of Sessions."
3 During trial, the victim of rape (a girl aged about I I years> and her foster mother PW, I Smt,Husenbi Hatelsab Baligar, the elder sister of PW I nameh PW 2 Smt Biyamma Makbulsab Baligar, the neighbors of PW I namely PW.4 Gangappa Shiddappa Gadekar, PW.5 Mailareppa Nalappa Hosam mi and Medical Officer from General Hospital Saundat namel P 6 Di Snidr mapp C nnba ippa kol n ( Spec lis i Dis C lost ita Rd a viz ) PW7DrSubhash Neelakanth Halabhavi, the Investigating Officers namely PW8Vasudev, PW9Shrikant, PW. 1O SMNagaraj and PW. 1 1Girimalla were examined and exhibits as per ExP1 to P14 and MO's 1 and 2 were marked.
4. The learned Trial Judge on appreciation of evidence and on hearing the learned counsel for parties, has acquitted the accused by assigning the following reasons:
I The evidence of the victim (who was aged about 7 years at the time of incident> is not supported by medical evidence.
II The medical evidence given by PW's6 and 7 rules out the case of rape putforth by the prosecution.
III The evidence of PWs, 1 and 2 does not inspire confidence, IV There was inordinate delay in lodging the first infbrnation, V The n..aterial objects (cloth••es worn by the victim) did not bear an•.y incriminating vidence. 4 •1• 4- m a a 8
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In our considered opinion, the above observations were not only unwarranted but they are also against settled principles relating to appreciation of evidence in cases of rape, particularly rape on victims of tender age.
7. In brief, the case of prosecution is as follows:
The victim (PW.3) was aged about 7 years at the time of incident. PW. 1-Smt,Husenbi Hatelsab Baligar is her foster mother and PW.2-Smt.Biyamma Makbulsab Baligar is the elder sister of PW. 1. PW's.4 and 5 are the neighbours of PW. 1.
For the reasons not apparent on record, PW. 1 had left her husband and she was living in Saundatti. PW. 1 was selling bangles for which purpose she used to visit several villages.
She used to leave her house in the morning and return back in the afternoon or evening. During her absence, victim was staying in the house of accused or in the house of PW2.
8. On 19.03.2001, as usual, PW.i left her house to sell bangles. She had kept the lunch for PW.3 in tiffin career and left PW.3 in the house of accused and kept the tiffin carrier in the house of accused. When PW3 was playing in front of her house, the accused forcibly took her to his hause and fell her ( 6
-S. on the ground and committed rape on her. PW.3 had suffered bleeding injuries on her private pans. The accused had threatened PW.3 not to disclose the incident to anyone.
When PW.3 came out of the house of accused, PW. 1 was returning to her house. PW.3 narrated the entire incident to P1W. 1 who in turn narrated the same to PW.2. PW. 1 found bleeding from the private parts of PW.3. She took her to a Doctor by name Murali who informed PW. 1 that PW.3 was subjected to rape.
9. On the following day, i.e., on 20.03.2001, PW.1 took PW.3 to PW.6 - Dr.Sidramappa Chanabasappa RoUi who was the Medical Officer in General Hospital at Saundati. PW.6 instead of examining the victim in detail had asked P1W. 1 to bring requisition from the police. Therefore, P1W. 1 brought back PW.3. In the meanwhile, the accused was questioned by PW. 1 and others about the illegal act committed by him, but, the accused did not care for them. PW. 1 approached the jurisdictional police but the response of jurisdictional police was totally indifferent. The jurisdictional police wanted PW. 1 to treat the entire episode as closed by receiving a sum of 4 7 Rs.500/-. Therefore, PW. 1 approached the Superintendent of Police at Belgaum who gave instructions to the jurisdictional police. In that way, PW. 1 was able to lodge first information on 31.03.2001. On that day, PW.3 was examined by PW.7 -- Dr. Subhash Neelkanth Halabhavi in District Hospital at Belgaum. On examination, PW.7 did not notice the external injuries or signs of rape. PW.7 opined that PW.3 was not subjected to rape. The Investigating Officer inspected the place of occurrence and collected the clothes worn by the victim, which in fact had been washed by PW. 1. The Investigating Officer after completion of formalities filed charge sheet. In the discussion made supra, we have stated the reasons assigned by the learned trial judge for acquitting the accused.
10. We have heard Sri.V.M.Banakar, Addl. State Public Prosecutor for the State and Sri.Jagadish Patil, learned counsel for respondent-accused.
11. From the evidence of PW. 1, we find that she was staying at Saundati and sustaining by selling bangles in the iN.
S surrounding villages. She was residing near the house of accused. In fact, she was collecting water from the tap of house of accused by paying a sum of Rs. 10/- per month. PW. 1 was selling bangles in surrounding villages, she used to leave her house in the morning and return during afternoon or evening. During her absence, PW.3 was staying in the house of PW2 or in the house of accused.
12. PW. 1 has given consistent evidence about the incident of rape. PW. 1 has deposed; that on the date of incident, she left her house to sell bangles at 10.30 a.m. She had kept lunch for PW.3 in a tiffin carrier and had kept tiffin carrier in the house of accused. PW.3 was playing with her friends. PW.1 returned to her house at 4.00 p.m. PW.3 was sitting outside the house and she was weeping. When 1W. 1 enquired as to why she was weeping, PW.3 informed that the accused asked her to bring beetle leaves and offered some money. When PW.3 brought beetle leaves, the accused held her hand and gagged her and carried her into his house. The accused put a gunny bag on the floor and made her to lie on the gunny bag and put his penis on the private part of PW.3. 9 Thereafter, accused threatened PW.3 not to disclose the incident to anybody. PW. 1 took PW.3 to the house of PW2 and informed the incident to PW.2. Thereafter, PWs. 1 & 2 took PW.3 to the house of the accused and the matter was informed to the inmates of the house of accused but. they did not believe and told that PW.3 was uttering lie. PWs. 1 and 2 tojustifv the truth narrated by PW.3 showed to the inmates of the house of accused blood stained frock and undergarments of PW.3 and they requested them to advise the accused and convey a panchayat. Both the mother and aunt of accused did not agree for such suggestion. During that night, PW.3 was scared and was in frightened state. On the next day morning, PW. 1 told accused that she is taking PW.3 to a Doctor and she is going to lodge a complaint but, the accused did not care, Thereafter, PW. 1 took PW.3 to Government Hospital at Saundatti where PW3 was examined by PW.6- DrSiddaramappa Channabasappa Rolli, PW.6 on examination confirmed that PW,3 was subjected to rape and asked PW. i to file a complaint. Thereafter, she came to the police station and narrated evetything to the poii.ee. The 10 police recorded her statement and promised to take action against the accused but, they did not do so. She visited the police station almost for about 10 days. One Jamdar Saheb gave Rs.500/- to the hands of PW.3 and told PW. 1 that they would bring the accused to the police station and take action against him. Since the police did not take any action against the accused, PW. 1 with the help of one Basanna approached the Superintendent of Police at Belgaum. The Superintendent of Police enquired PW.3 and instructed the jurisdictional police to take action against the accused and asked PW. 1 to pproach the jurisdictional police. After receiving the first information from PW. 1, the police apprehended the accused and they also collected the clothes worn by the victim at the time of incident.
P1W. 1 has deposed that she had washed the clothes worn by the victim at the time of incident. By the time the clothes were given to police, they had been washed.
During cross-examination of PW. 1, apart from suggesting that there was a dispute between PW. 1 and the 77% c 'tt_ 4 $ Ii •6 accused regarding collection of water from the tap from the house of accused, nothing has been suggested to discard the evidence of PW. 1. During cross-examination, PW. 1 has admitted that she used to collect water from the tap of house of accused and she used to pay a sum of Rs. 10/- per month to collect water from the tap of the house of accused. There used to be irregular supply of water during the month of March and she had denied the suggestion that the family members of accused had told PW. 1 not to collect water from the tap of their house, therefore, there was ill will between PW. 1 and accused. PW. 1 had deposed that, her husband had visited her house about a month prior to the date of incident, she had not informed about the incident to her husband as he was not available at Belgaum.
PW. 1 had deposed that when the incident was narrated by PW.3, blood was not oozing and stains were at the stage of drying and private parts of PW.3 were swollen. She had denied the suggestion that she had given false evidence to implicate the accused to extract money from the accused.
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12
13. The evidence of PW.2 lends substantial
corroboration to the evidence of PW. 1. PW.2 has deposed; that on the date of incident, PW. 1 came and narrated the incident to PW.2. Then, PWs. 1 and 2 questioned the mother and brother of the accused about the incident however, both of them retorted by stating that PW.3 was uttering lie. On the following day, PW. 1 took the victim to hospital.
During cross-examination, she had deposed that house of PW. 1 is at a distance of 100 feet from her house. Whenever, PW. 1 used to go for selling bangles, PW.3 used to come to her house. Sometimes, PW.3 used to take food in the house of PW.3.
During cross-examination, it has been suggested to PW.2 that she has given false evidence at the instance of her sister (PW. 1), she had denied the suggestion that there was ill will between the accused and PW. 1 regarding collection of water from the tap of house of accused and for that reason she had given false evidence. She had denied the suggestion 1 li"--
I3 that PW, I in order to extract money from accused had filed a false complaint and PW,2 had given false evidence.
13. PW.3, the victim, was aged about 7 years at the time of incident and she was aged about 1 1 years when her evidence was recorded by the trial court. The learned trial judge after ensuring the competence of PW.3 to give evidence, permitted the public prosecutor to examine her.
PW.3 had deposed; that PWs. 1 and 3 were residing in their house at Saundatti, PW. 1 used to sell bangles. The house of accused-Neelappa, is situate by the side of house of PW. 1. Apart from the accused, his parents, his wife and children were residing in their house, The accused has three daughters and a son. Whenever, PW. 1 used to go out of her house for selling bangles, she used to keep the lunch box in the house of accused, PW,3 used to go to the house of accused to take lunch, At the t.ime of incident, PW 3 was not going to school, She used to stay in the house, Whenever, PW. I used to o out of the house, she used to play with her fri.ends 14 On the date of incident, during afternoon, when PW.3 was playing with her friends, the accused called her and asked her to bring beetle leaves and nuts. The accused pulled her hands and gagged her and carried her on his shoulder. The accused took her inside the room of his house and put a gunny bag on the floor. He made her to lie on the gunny bag. The accused removed her frock and pulled down the undergarments of PW3 and put his penis on the portion of her body from where she was urinating. At that time, PW3 shouted but, nobody was there in the house. She felt miserable pain (sankata). There was bleeding from her private part. She sustained injury on the part of the body from where she used to urinate. Thereafter, the accused threatened her not to inform the same to anyone, otherwise, he would kill her and throw her into a well. When she came out of the house of accused, she was weeping. Her mother PW. I was returning. When her mother questioned her as to why she was weeping, she narrated the entire incident to PW. I, At that time, the clothes worn by PW.3 were stained with blood, PW. I took her to DrMurali who exarined PW.3 15 and informed PW. 1 that PW3 had been subjected to rape. Thereafter, PW.1 took PW3 to the house of PW.2 and narrated the incident to PW.2. PW.3 had been taken to police station. The police enquired her and recorded her statement. She has identified her blood stained clothes and undergarment as MO's 1 and 2.
14. The learned counsel for accused had directed much of cross-examination of PW3 to demonstrate that PW3 had been tutored by PW's, 1 and 2 to give false evidence.
During cross-examination, PW3 has deposed; that her mother PW, 1 had asked PW.3 to tell before the court that what had been done to her by the accused.
During cross-examination, PW.3 had deposed that, on the date of incident, children of Neelappa (accused) had gone to school. The parents and wife of accused had gone to their lands. PW. 1 used to fetch water from the tap of the house of accused, PW,3 h••as denied that some galat.a had taken•• place between PW. 1 and accused regarding collection of water from the tap of the house of accused. During cross-çxamination, 16 PW3 had clarified that PW's. 1 and 2 never told her to give answers in a particular manner if she is questioned regarding water dispute. PW.3 had deposed that it was around 2 0' clock, when the accused carried her to his house. PW3 has deposed that, xhen she came out of the room of accused, the blood was dripping from her private part and bleeding stopped on the same day. PW.3 had deposed that, the Doctor told PW. 1 to file a complaint to the police and also told PW. 1 that rape was committed on PW.3. PW.3 had denied a suggestion that she had given false evidence at the instance of PW's,l and 2.
15. At the relevant time. PW.6-Dr.Siddaramappa Channabasappa Rolli was working as Senior Specialist and Medical Officer at General Hospital, Saundatti PW6 has deposed: that on 2O.O32OOi at about 11.00 a.m., the victim was brought b PW.1 with the history of rape on 19.03.2001 On examination, PW.6 found that thc gneral condition of PW.2 ictim was noima] and no external iniuries were found on the externdi genitalia, stains of semen or blood .4 C '7 were not found over the external genitalia or thighs. PW.6 advised PW. 1 to bring police requisition for further examination of the victim. Thereafter, PW. 1 did not turn up with the police requisition. On 31.03.2001, PW. 1 came along with the victim. Since case had been registered as medico legal case, PW.6 referred PW.3 to District Hospital at Belgaum.
PW.6 had deposed; that on 20.03.200 1, the victim was brought with history of rape and he tried to contact the police over phone but, since the telephone was not working, he could not contact the police to inform the case. PW.6 has deposed; he was very busy in attending other patients who were in need of immediate medical attention, he did not send any medico legal report to the police and advised PW. 1 to lodge a complaint with the police.
PW.6 has deposed that, on receipt of report from the District Hospital at Belgaum, he recorded his opinion as "on (0, 18 the basis of available records in MLC register, the opinion of Senior Specialist, Belgaum, no opinion can be given."
Thus, we find that the approach of PW.6 to a medico legal case was improper and unfair. PW.6 instead of reporting the case as medico legal case to the jurisdictional police, had directed PW. 1 get requisition from the police. From the evidence of PW.6, it is not clear as to whether victim had suffered injuries on her private parts, whether there was bleeding from her private parts. The fact remains that PW.6 had not discharged his duties as a Medical Officer and his approach to a medico legal case was most improper and irresponsible.
16. At the relevant period, PW.7-Dr.Subhash was working as a Senior Specialist at District Hospital at Belgaum. PW.7 had deposed; that on 31.03.2001 at 9.55 p.m., he received a requisition from PSI, Saundatti to examine the victim (PW.3) who is alleged to have been raped on 19.03.2001. On examination, he found that the condition of the victim (PW.3) was normal, external genitalia was normal )\.J /2 ii 19 and hymen was intact. On the basis of these observations, PW.6 had opined that he could not find any evidence of rape on the victim and had given certificate as per Ex.P8.
17. The evidence given by PW's.8 to 11 relates to the investigation of the case.
18. Before adverting to the appreciation of evidence of PW's 1 to 3, it is necessary for us to state that neither PW. 1 nor PW.2 had grudge against the accused to falsely implicate the accused in a case of rape. PW.3 was hardly aged about 5 years. The evidence given by PW.3 rules out the possibility of PW.3 being a tutored witness. Though it has been suggested to PW'sl and 2 that there was dispute between the accused and PW. 1 regarding collection of water, we do not fmd any substance in the suggestion. PW. 1 had admitted that, she was collecting water from the tap located in the house of accused on payment of Rs. 10/- per month. PW. 1 had admitted that there was scarcity of water during summer season and water supply was irregular. We are at loss to understand as to how this arrangement could be#eated as a jb. £L r* C) ) ) CL CL C) CD CD c,) -- C) V (CD < 2 CD < p) 1 .
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21
to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her, (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy, (10) The parents of an unmarried girl as also the husband and members of the husbands family of a married woman would also more often than not, A /1 22 want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her
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innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.
11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated.. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be be in physical assault cases, such evidence cannot very expected in sex offences, having regard to the ng nature of the offence, It would therefore be addi ing insult to injury to insist on corroboration draw in inspiration from the rules devised by the courts h has the Western World, Obeisance to whic of perhaps become a habit presumably on account the the colonial hangover. We are therefore of not opinion that if the evidence of the victim does suffer from any basic infirmity, and the orthy probabilities-factors does not render it unw n of credence, as a general rule, there is no reaso ical to insist on corroboration except from the med where, having regard to the evidence, can circumstances of the case, medical evidence the be expected to be forthcoming, subject to qualification: Corroboration may be following ned insisted upon when a woman having attai and majority is found in a compromising position an there is a likelihood of her having levelled such self accusation on account of the instinct of is preservation. Or when the probabilities-factor found to be out of tuneS"
24
20. In a decision reported in 2006 CRLL.J. 139 (in the eme case of State of Himachal Pradesh v. Asha Ram) the Supr Court has held:
'5. We record our displeasure and dismay, the way the High Court dealt casually with the offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on the minor girls. The High Court was swayed by sheer insensitivity totally oblivious of growing menace of sex violence against the minors much less by the father, The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance. It is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital 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;. It is (I g 25 also well settled principle of law that 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. The evidence of the prosecutrix is more reliable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case."
21. In a decision reported in (1998) 8 SCC 635 (in the case of Ranjit Hazarika v. State of Assam), the Supreme Court has held:
"17. non-rupture of hymen or absence of injury on victim's private parts does not belie her testimony. This Court further held that the opinion of doctor that no rape was committed cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. This Court held that the evidence of the prosecutrix was amply corroborated by her mother and father whom she immediately informed about the occurrence." (') (7 N. c4. - C".. 'bà(
--26
22. In the case on hand, we do not find any material to hold that either PW. 1 or PW.2 had reasons to foist a false case of rape against the accused, that too by projecting PW.3 who was hardly aged about 5 years as the victim of rape. It is hardly possible to hold that PW.3 herself had any grudge against the accused. PW.3 was aged about 5 years at the time of occurrence. Even she was not able to comprehend as to what had been done to her by the accused. The accused has come out with defence of false implication, it is for the accused to establish the reasons for false implication, mere unfounded suggestions will not help the accused. The accused has failed to place any material to substantiate the suggestions of false implication.
23. The reasons of malice or ill will suggested by the accused on account of the so called dispute that had arisen between PW. 1 and accused regarding collection of water by PW. 1 from the tap of the house of accused do not fall with the rhelm of comprehension. Therefore, we do not find any reasons to suspect the evidence of PW's 1 to 3.
%J. 27
24. It is true that medical records and medical evidence furnished by PW's 6 and 7 do not prove that PW.3 was subjected to rape or that the accused had committed rape on PW.3 but, that by itself is not sufficient to discard the evidence of PW.3 vide, (in the case of Ranjit Hazarika v. State of Assam reported in (1998) 8 5CC 635). The corroboration in the case of rape is only a rule of caution. The source of corroboration again depends on the facts and circumstances.
25. In a decision reported in AIR 1952 SC 54 (in the case of Rameshwar Sb Kaiyan Singh v. The State of Rajasthan), the Supreme Court has held:
"30. The next question is whether the mother can be regarded as an "independent" witness. So far as this case is concerned, I have not doubt on that score. It may be that all mothers may not be sufficiently independent to fulfil the requirements of the corroboration rule but there is no legal bar to exclude them from its operation merely on the ground of their relationship. Independent merely means independent of source which are likely to be tainted. In the absence of enmity against the accused there is no reason why she should 28 implicate him falsely. It is true the accused suggested that they were on bad terms but that has not been believed by anvone"
26. In the case on hand, we find that, soon after the incident, PW3 had narrated the incident to PW. 1 who in turn informed the incident to PW.2. In fact, PW'sl and 2 had informed the matter to the family members of accused hut their response was not only irresponsible but also aggressive. Further, when the accused was questioned by PW. 1, he did not show any remorse or repentance. Therefore, we do not find any reasons to suspect the evidence of PW.3 and evidence given by post occurrence witnesses PW'sl and 2. The learned Trial Judge ignoring the settled principles relating to appreciation of evidence in a case relating to rape of a girl of tender age has made certain unwarranted observations as if the learned Trial Judge was lying down law on the point.
27. The next point for determination is whether the acts committed by the accused would attract an offence
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29punishable under Sections 376 r/w 511 l.P.C. or Section 354 'P.C.
28. In the discussion made supra, we have held that there is lack of medical evidence. The medical evidence given by PW's.6 and 7 does not indicate injuries on the private parts of PW.3. PW's.6 and 7 have opined that PW.3 had not been subjected to rape.
29. This takes us to the next point whether the acts committed by the accused would attract an offence punishable under Section 376 r/w 511 I.RC.
30. In a decision reported in AIR 2004 SC 1497 (in the case of Anand Kumar and another v. State of Haryana), the Supreme Court while dealing with the cases of nature of evidence required to prove an offence punishable under Section 376 r/w 511 IP.C., and Section 354 I.P.C., has held:
11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance events, and notwithstanding any resistance on her part.
Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
12. Though the prosecutrix's version in Court was of rape, when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed, The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. The evidence of PW 11, the father who according to prosecution made departure from what he allegedly stated during investigation is to the effect that his wife PW9 told her that the prosecutrix was teased by the accused persons. Merely because he was termed as a hostile witness his entire evidence does not get effected. Significantly, the evidence of prosecutrix and the doctor does not specifically refer to pen•••etration, wi.iich is sine qua non for the offence of rape.. 1) 1 31
13. There is no material to show that the accused were determined to have sexual intercourse in all events, In the aforesaid background, the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511, LP.C. But the case is certainly one of indecent assault upon a woman, Essential ingredients of the offence punishable under Section 354, I,P,C. are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex, The culpable intention of the accused is the crux of the matter, The reaction of the woman is very relevant, but its absence is not always decisive, Modesty in this Section is an attribute associated with female human beings as a class, It is a virtue, which attaches to a female owing to her sex, The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outra.ge alone for its object. AS indicated above, the word 'modesty' is not defined in IPC. The Shorter Ox••ford••• Dictionary (Third
--
.
32a.
Edn.) defines the word 'modesty' in relation to woman as follows:
"Decorous in manner and conduct: not forward or lowe: Shame-fast: Scrupulously chast."
14. Modesty can be described as the quality of being modest; and in relation to woman, "womanly propriety of behaviour: scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Lloyd (1876) 7 C & P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her."
31. In the case on hand, we have found the oral evidence of PW.3 to be consistent and credible and it finds C.' L%-c4L, corroboration from the evidence of PW's. 1 and 2. Yet the fact remains, the oral evidence of PW.3 in the absence of medical evidence is hardly sufficient to hold that the accused had attempted to commit rape on PW.3. On consideration of facts and circumstances, improper investigation and non-- cooperative attitude of medical officers, we hold that the acts committed by the accused would squarely attract an offence under Section 354 LP.C. In view of the above, discussion, we are of the opinion that the impugned judgment cannot be sustained.
Regarding Sentence:
32. The learned Addi. S.P.P, would submit that the accused had committed rape on PW3. For want of medical evidence, benefit of doubt has been extended to the accused to hold him guilty of an offence under Section 354 I.P.C. Therefore, accused shall be sentenced to undergo maximum imprisonment provided under Section 354 l.P.C.
32. SrLJagadish Pat.il, learned counsel for accused would submit that the accused is an agriculturist. He has 3$ wife, 3 daughters and a son and parents to care for, He does not bear any criminal antecedents, The accused was under
detention for a period of 7 months. Therefore, the period of detention undergone during trial may be held as sufficient sentence.
33. On consideration of the aggravating circumstances and extenuating circumstances and also having regard to the circumstances under which the prosecution case has whittled down from an offence punishable under Section 376 I.P.C., to an offence punishable under Section 354 1.P.C., we deem it proper to sentence the accused for imprisonrrient for one year and pay fine of Rs.25,000/- with default sentence of 6 months. Out of the fine amount, a sum of Rs2O,OOO/- shall be paid as compensation to PW.3.
34. In the result, we pass the following:
ORDER
i) The appeal is accepted in part.
ii) The judgment of acquittal of accused for an offence punishable under Section 376 i,P,C. is confirmed. I 4'
iii) The accused is convicted for an offence punishable under Section 354 I.P.C.
iv) The accused is sentenced to undergo Simple Imprisonment for a period of one year and pay fme of Rs.25,000/- in default of payment of fine amount, he shall undergo simple imprisonment for a period of six months for an offence punishable under Section 354 I.P.C. Out of fine amount to be deposited by accused, a sum of Rs.20,000/- shall be paid as compensation to PW.3.
v) Office shall send back the records along with a copy of this judgment.
vi) The learned Sessions Judge on receipt of copy of this judgment and records shall secure the accused to implement the sentence.
vii) The period of detention undergone by the accused during trial is given set off as provided under Section 428 Cr.P.C.
JUDGE JUDGE Np