Karnataka High Court
Shyam vs State Of Karnataka on 23 January, 2015
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY 2015
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.219/2012
BETWEEN:
Shyam
S/o K Chandran
Aged about 34 years
R/at No.2/7, No. 405
Pariyambattur
Chennai. .. APPELLANT
(By Sri. M Sharass Chandra, Adv.)
AND:
State of Karnataka
Rep. by Basavanagudi
Police Station
Bangalore.
Rep. by State Public
Prosecutor
High Court Complex
Bangalore. .. RESPONDENT
(By Sri. K R Keshava Murthy, SPP)
This Criminal Appeal is filed under Section 374(2)
Cr.P.C praying to set aside the Judgment and order of
Conviction and sentence dated: 28.01.2012 passed by the
XLV - Addl. City Civil and sessions Judge, Bangalore in
S.C.No.886/2009 - convicting the appellant/accused for the
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offences punishable under section 366(a), 363, 376 and 343
of IPC and the appellant/accused is sentenced to undergo
R.I. for a period of 3 (Three) years and to pay a fine of
Rs.2,000/- (Rupees Two Thousand Only). In default of
payment of fine, the accused shall further undergo R.I. for a
period of 06(Six) months, for the offences punishable under
Section 366(A) of IPC.
This appeal coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
This appeal is the appeal preferred by the appellant accused under Section 374(2) of Cr.P.C., being aggrieved by the judgment and order of conviction dated 28.1.2012 passed by the XLV Additional City Civil and Sessions Judge (CCH-46) Bengaluru in S.C. No.886/2009.
2. The case of the prosecution is that P.W.1 Smt. Jayammal lodged a complaint on 16.5.2009 before the Basavanagudi police station, Bengaluru alleging that the accused had kidnapped and raped her minor daughter Shalini. The complaint is marked as Ex.P.2. In the complaint, it is stated that on 7.5.2009, the complainant lodged the complaint for missing of her daughter, who was aged 15 years and later on, she came to know that her 3 daughter was kidnapped by the accused Shyam from Bengaluru (who is a resident of Chennai). With the assistance of Basavanagudi police personnel, Bengaluru along with Tamil Nadu police, the daughter of the complainant and the accused were traced at Andra Pradesh on 14.5.2009 midnight. The daughter of the complainant was raped during this period and both of them were brought to Bengaluru on 16.5.2009. Therefore, the complainant requested the police to take action against the accused and hand over her minor daughter to her custody. On the basis of the said complaint, case was registered as per Ex.P.14- FIR. After completion of investigation, police filed charge sheet against the appellant-accused for the offences punishable under Sections 366(A) and 376 of IPC. The trial court has, after conducting the trial of the case and considering the materials placed on record, ultimately, convicted the appellant-accused for the offences punishable under Sections 366(A), 363, 376 and 343 of IPC.
3. The appellant-accused has preferred the present appeal challenging the legality and correctness of the 4 judgment and order of the trial court impugned herein on the grounds urged at paragraph Nos.6 to 21 as mentioned in the appeal memorandum.
4. Heard the arguments of the learned counsel appearing for the appellant-accused and learned SPP appearing for respondent - State.
5. Learned counsel appearing for the appellant, during the course of the arguments, submitted that firstly, the prosecution had not placed satisfactory materials to show the correct date of birth of the victim girl-P.W.2 and the document Ex.P.11 issued from the school authorities regarding the date of birth of the victim girl is not at all having evidentiary value and this aspect has been ignored by the trial court. In this regard, the learned Counsel has also relied upon the judgment reported in 2011(1) AICLR 533 (Alamelu and Another Vs. State represented by Inspector of Police) And drew the attention of this Court to paragraph 38 and made submission that Ex.P.11 cannot be considered as the proper and authenticated document regarding proof of 5 the age of the victim girl. The learned Counsel submitted that the medical certificate issued by the Doctor marked at Ex.P.10 would show that, while furnishing the history, the victim girl herself has stated that she knew the accused since two years and she went to Chennai to meet him and from there, they went to Tirupathi, where the accused had forceful sexual intercourse with her. He submitted that looking to the oral evidence of prosecution witnesses and more particularly, the evidence of P.W.1-the mother of the victim girl and P.W.2-the victim girl, it clearly shows that it is the victim girl, who herself went to the accused and the accused never kidnapped her. This aspect of the matter has been completely ignored by the trial court and it has wrongly convicted the accused even for the alleged offence of kidnap. He has also submitted that with regard to the forcible sexual intercourse by the accused against P.W.2-the victim girl, there is no acceptable and cogent material placed by the prosecution. The prosecution has not proved the offence of rape beyond all reasonable doubts and hence the judgment and order of conviction passed by the trial court is illegal, perverse and not in accordance with oral and documentary 6 evidence produced in the case. He further submitted that since from 5½ years, the accused is in custody and hence, the appeal may be allowed and the impugned judgment and order convicting the accused may be set aside.
6. Per contra, learned SPP, during the course of the arguments, submitted that regarding the age proof of the victim girl, the prosecution had produced the documents at Exs.P.3 and P.11 and when such materials were available, there was no need for ossification test. He further submitted that as on the date of the alleged incident, the victim was a minor girl and the materials would show that the accused person, who was known to the family of the complainant and her daughter, enticed the victim girl and took her without the consent of the lawful guardian. The learned SPP further submitted that the alleged offence under Section 366A of IPC is not attracted in this case and Section 363 is attracted. Referring to the oral evidence of P.W.1-the mother of the victim girl, who is the complainant and P.W.2-victim girl, the learned SPP submitted that their evidence clearly established the case of kidnap and also the rape committed on victim 7 girl. Referring to the medical certificate of the victim girl marked at Ex.P.10, the learned SPP submitted that hymen was shown torn at 5.00 and 7.00 O'clock position, and there is old tear. In Sl. No.3 of the opinion column of the said medical certificate-Ex.P.10, it is mentioned that the individual is used to an act like that of sexual intercourse. The opinion of the Doctor clearly supports the case of the prosecution that the victim girl has been used for sexual intercourse. Hence, the learned SPP submitted that the trial court has properly appreciated oral and documentary evidence and has rightly convicted the accused person. Therefore, except modifying so far as the offence under Section 366A of IPC, the rest of the judgment of the trial court may be confirmed by dismissing the appeal.
7. I have perused the oral evidence of P.Ws.1 to 16, the documents Exs.P.1 to P.16(a) and the material objects M.Os.1 to 7.
8. Since the case of the prosecution is for the alleged offence under Section 366A and 376 of IPC, let me consider 8 the materials placed by the prosecution with regard to the proof of age of the victim as on the date of the alleged incident i.e., 21.4.2009, wherein it is alleged that the victim had been kidnapped by the appellant accused from the house of the her uncle at Bengaluru. The prosecution has produced the oral evidence of P.Ws.1 and 2. P.W.1- Smt. Jayammal, who is the mother of victim girl, in her evidence dated 9.6.2010 before the court, has deposed that her daughter was studying in SSLC during the previous year. The date of birth of her daughter Shalini is 19.11.1993. During the course of cross examination, P.W.1 has deposed that her daughter Shalini born in Deepthi Nursing Home at Bengaluru on 19.11.1993. She admitted as true that immediately after the birth of the child in Deepthi Nursing Home, birth certificate was sent to the corporation. She admitted that she has obtained birth certificate of her daughter from the corporation. She has further deposed that she has not produced the said birth certificate before the court. Her daughter was firstly admitted to Jubilee school in Krishnarajapuram. The school authorities, while admitting her daughter to the school, obtained her birth 9 certificate. She denied the suggestion that as her daughter was not feeling well, she admitted her daughter to the school lately. She does not remember when her daughter was admitted to Jubilee school. But approximately, it may be in June 1997. She has further deposed that she admitted her daughter to St. Mary School in Mysuru on 1.6.1999.
9. P.W.2 is the victim girl Shalini. Her evidence was recorded on 9.6.2010. While furnishing her name and the other details, she stated her age as 17 years. In her examination in chief, P.W.2 has deposed that her date of birth is 19.11.1993 and that previous year to the date of deposition, she was studying in SSLC. In the cross examination, she has deposed that from her birth, she was staying with her mother at Mysuru. She has further deposed that she studied upto 8th standard in CKS school and for 9th standard, she was admitted to St. Mary School. She denied the suggestion that she born on 19.11.1990. Her place of birth is Bengaluru. She has further stated that she is aged 18 years, she has studied Diploma in O.T. and 10 she knows Science properly. She admitted as true that she is working in the operation theatre.
10. The prosecution has further produced the documentary evidence Ex.P.3-SSLC Admission ticket and Ex.P.11-cetrifiate of ST. Mary School. With regard to the age factor of the victim girl, there is also evidence of the Doctor, who has been examined as P.W.12. In his evidence in the examination in chief, P.W.12 has deposed that on 16.5.2009, as per the request of the police inspector, Basavanagudi police station, he examined the victim Shalini for estimation of age and the evidence of signs of recent sexual intercourse. After she was brought by WBC 2382 and after obtaining her consent, her examination was conducted by him. On 18.5.2009, the victim was subjected to x-ray examination for determination of age. The x-ray findings were mentioned by him in detail in his findings. He was of the opinion that physical, dental and radiological examination of Shalini would show that she was aged about 16-18 years. Therefore, looking to the materials placed on record, 11 regarding proof of age of the victim girl P.W.2, the materials placed by the prosecution is not consistent.
11. Looking to the very deposition of P.W.2 given on oath, she has stated that, for about continuous period of 18 years, she was staying with her mother at Mysuru. Even subsequently, when her evidence was recorded before the trial court on 9.6.2010, she has deposed her age as 17 years. Though P.W.1-mother of the victim had admitted in her evidence that when P.W.2 born in Deepthi Nursing Home, immediately, her date of birth was reported to the corporation authorities and obtained the birth certificate of P.W.2 from the corporation authorities, but she had not produced the same before the court. In view of this evidence of P.W.1 and non production of the birth certificate before the court, an adverse inference has to be drawn as to the case of the prosecution that on the alleged date of incident, P.W.2 was minor. Looking to the medical evidence and opinion of the doctor, who examined the victim radiologically to ascertain her age, it was stated that P.W.2 was aged 16-18 years.
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12. In Alamelu's case referred supra, the victim therein was examined medically and the doctor gave the report stating that the victim was aged between 17- 19 years. Their Lordships of the Hon'ble Supreme Court in para No.41 of the judgment held that regarding the medical opinion to ascertain the age, there would be margin of error in age, which has been judicially recognized by the Apex Court. If all these aspects were taken into consideration and in view of the inconsistent materials on record, it cannot be said that Exs.P.3 and P.11 are the authenticated documents and the prosecution has proved the age of the victim girl that she was minor on the date of the incident.
13. With regard to the knowledge of the alleged incident dated 21.4.2009 as to when it actually came to the knowledge of the complainant and other family members and when the complaint was lodged before the police, let me consider the complaints lodged by the complainant. Ex.P.13 is the complaint dated 7.5.2009 given by P.W.1 Jayammal addressing to the Sub Inspector of Police, 13 Basavanangudi police station, wherein it was stated that her daughter B. Shalini, aged 16 years was studying in 10th standard and she was missing since 21.4.2009. It was further stated that so far, she had not turned up and a request was made to the police to arrange to rescue her daughter at the earliest. It was further alleged in the complaint that from the day her daughter was missing, the complainant was searching for her in her relatives' house, friends' house and the other places and they could not trace out her daughter. Subsequently, i.e. on 16.5.2009, another complaint was lodged as per Ex.P.2 wherein P.W.1- complainant mentioned the subject as kidnapping and raping of her minor daughter. In the said complaint, it was mentioned that later on, she came to know that her daughter was kidnapped by the accused-Shyam from Bengaluru and with the assistance of the Basavanagudi police along with Tamil Nadu police, the accused and victim were traced at Andra Pradesh on 14.5.2009 midnight. The victim was raped during the said period. These two complaints i.e., Ex.P.13-complaint for missing of daughter of the complainant and the subsequent complaint as per Ex.P.2 14 would prima facie go to show that on the date of lodging the complaint dated 7.5.2009 for missing of her daughter, the complainant was not knowing that it was the appellant accused who kidnapped her daughter. Even according to second complaint under Ex.P.2, till 14.5.2009, when the appellant accused and the victim girl were brought by the police, the complainant did not know that it was the accused who committed the alleged offences.
14. Let me refer to the oral evidence of the parties in this regard. In the examination in chief, P.W.1-complainant has deposed that on 21.4.2009, her sister phoned to her informing that P.W.2, the daughter of the complainant, was not seen in the house since 11.00 a.m. on that day and she might have gone somewhere and asked the complainant to come to Bengaluru. Immediately, the complainant came to Bengaluru from Mysuru. When her daughter was not seen, thinking that in the SSLC exam, she might have obtained less marks and she might have gone somewhere, the complainant did not lodge the complaint. It is further deposed by P.W.1 that she searched for her daughter and as 15 she was not traced, on 7.5.2009, she lodged the complaint informing that her daughter was missing. Police were searching to trace her daughter and on 14.5.2009, there was some clue about her daughter. On 16.5.2009, the police went to Chennai and brought her daughter and the accused. Then on 16.5.2009, again she lodged another complaint as per Ex.P.2. In the cross examination, P.W.1 has deposed that on 21.4.2009, after receiving the message that her daughter was missing from the house, immediately she came to Bengaluru at about 9.00 p.m. and after coming to her brother's house, she enquired about her daughter. On the same day night at 11.00 p.m., her daughter phoned to her from Chennai informing that she has gone to Chennai along with Shyam. P.W.1 has further deposed that about these facts, she had not mentioned in her missing complaint as also in the subsequent complaint thinking that the incident will come to the knowledge of all the family members. P.W.1 has further deposed that on 22.4.2009 i.e. on the next day of the alleged incident, one Joswan, the uncle of the appellant-accused, phoned to her and informed that the accused and her daughter came to Chennai and 16 they could arrange for their marriage. P.W.1, in turn, asked Joswan to bring her daughter back as her daughter has not yet completed 16 years of age.
15. P.W.2-Shalini, the victim girl, during the course of the cross examination, has deposed and admitted as true that on 21.4.2009, she phoned to her aunt Pushpa and informed her that she has gone along with Shyam, whom she was loving. She has further deposed and admitted as true that on 21.4.2009, the fact that she was with the accused-Shyam, was known to her mother and other family members.
16. P.W.3-Pushpa, in the examination in chief, has deposed that on 21.4.2009 at 11.00 a.m., Shalini was not in her house. They searched here and there and she was not traced. She further deposed that during night at 10.00 p.m., Shalini phoned to her house informing that Shyam took her with him and informing so, she disconnected the phone. 17
17. P.W.8, Anthony Balraj, who is the father of the victim girl, has deposed in his evidence in the exanimation in chief that, on 21.4.2009, his daughter was not seen in the house and on the same day at 11.00 p.m., there was phone call from accused Shyam to their house and the accused spoke to Jagjeevan, the husband of Pushpa. It is further deposed that on the same day during night, when he went to house, his wife-P.W.1 informed him that accused Shyam took their daughter to Tamil Nadu.
18. P.W.10-Sujay, who is the cousin of the victim Shalini, in his evidence has deposed that, on 21.4.2009, in the morning, he had been to the college and thereafter, on the same day, Shalini left the house and he did not know as to where she had gone. On the same day night, Shyam phoned to his house informing that he has taken Shalini and he will bring her back to their house.
19. Therefore, the above evidence would make it clear that on the very date of the alleged incident, it was very much within the knowledge of P.W.1-complainant and all the 18 family members, both at Mysuru and at Bengaluru, that the victim girl was with the accused at Chennai. In spite of that, in the first complaint dated 7.5.2009, there was no whisper that it was the accused who kidnapped the victim girl so also till filing of the second complaint on 16.5.2009, they had not even whispered that the victim was with the accused Shyam at Chennai.
20. In the evidence of P.W.1, she has admitted that she was having the knowledge that her daughter was with accused at Chennai. She has offered explanation that she could not mention this fact in the complaint because she was having apprehension that the alleged incident will come to the notice of other members of the family. The materials go to show that on 21.4.2009 itself, the message was very much within the knowledge of the complainant and all the family members of the complainant. Therefore, the said explanation cannot be accepted.
21. The allegation of P.W.1-complainant is that it is the appellant-accused, who kidnapped her daughter-P.W.2, 19 because she came to know about the same two days earlier to the filing of the complaint dated 16.5.2009, when the police brought the accused and P.W.2-the victim girl to Bengaluru from Tamil Nadu. In this regard, it is the defence of the accused that he had not kidnapped the victim girl and it was that she herself left the house and went to him to Chennai. Perusing the evidence of P.W.1, in the examination in chief, she has deposed that she was residing at Vidyaranyapuram, Mysuru and they were going to Shylon Pentecostal Mission Church. Along with her, her daughter was also going to the church. P.W.1 has deposed that she knew the accused before the court, who was working as father in the said church. They got acquaintance with the accused while they were going for prayer in the church. After the prayer, the accused used to talk to them and once in a month, he used to go to her house and offering prayer for them. As her daughter was studying in SSLC, she told the accused to offer prayer for the same. It is further deposed that the accused was enquiring about her daughter. P.W.1 and her husband would not be in the house. Their daughter was coming from the school early. P.W.1 has also 20 deposed that her daughter P.W.2 informed her that the accused was telling that he loves P.W.2 and he was insisting her to marry him. After coming to know about the same, they stopped going to the church. The previous year, P.W.2- victim girl wrote the SSLC examination, result was not declared and hence, thinking that it was not proper to keep P.W.2 in Mysuru, in the month of April 2009, they brought and left her in the house of brother of P.W.1 at Bengaluru. In the said house, her brother, brother's wife, mother of P.W.1 and the children of her brother were residing. In the evidence, P.W.1 has also deposed that on 21.4.2009, her sister phoned informing that P.W.2 was not seen in the house since 11.00 a.m. and asked her to immediately come to Bengaluru and accordingly, she came to Bengaluru. When her daughter was not there, thinking that she might have obtained less marks in SSLC exam and that she has gone somewhere, without filing the complaint, they searched for P.W.2 and as she was not traced, on 7.5.2009, P.W.1 lodged the complaint stating that her daughter was missing. The police came and conducted mahazar-Ex.P.1 nearby the house of her brother. On 16.5.2009, the police went to 21 Chennai and brought their daughter along with the accused. On enquiry, her daughter told that the accused had forcefully took her to Chennai and kept there for some days. Thereafter, he took her to Solurpet at Andhra, where he committed rape on her. P.W.1 has further deposed that on 16.5.2009, she lodged another complaint to the police as per Ex.P.2. During cross examination, P.W.1 has deposed that herself and her daughter were going to the church and nobody introduced the accused to them. As the accused was the father in the church, they got acquaintance with him. In the beginning, the accused used to come to their house once in a month and was offering the prayer. Her daughter Shalini was one of the most believable disciples to the accused. P.W.1 denied the suggestion that the accused was talking freely with her daughter whenever he used to come to their house. She has also denied the suggestion that they were thinking to have the relationship with the accused Shyam. P.W.1 has deposed that in the photographs shown to her, out of the two women, one was her daughter Shalini and another was sister of the accused. In the second photograph shown to her, she had seen having one child 22 with her and the accused was also seen in the said photograph. In another photograph, herself, her daughter, the accused Shyam, sister of the accused and the child of the sister of the accused and another sister of the accused were seen. In another photograph, which was taken nearby Mysuru palace, the accused, herself and her daughter were seen. She denied the suggestion that the accused was loving her daughter and whenever she was not in the house, he was calling her daughter to talk to him. She has also denied the suggestion that they were thinking to give her daughter in marriage to her brother's son-Sujay.
22. P.W.2-Shalini, the victim girl, in her evidence, has deposed that the accused used to come to her house and to the school to talk to her and he was having desire to marry her and for that reason, he was asking her that they could go here and there. But she was opposing the same. After coming to know that she was in Bengaluru, accused was calling over phone to the house of her maternal uncle. But she used to disconnect the same. On 21.4.2009, the accused informed her that he wanted to talk to her and 23 asked her to come out and thinking that he was a pastor, known to her, she came out of the house. At that time, the accused forcibly took her into the auto and went towards the Majestic bus stand and from there, he forcibly took her into the bus and went to Chennai. In the cross examination, P.W.2 has deposed that on that day, nearby the apartment gate of her maternal uncle, herself and the accused were talking. Many people were moving on the road. She had admitted the suggestion as true that if she were screamed or cried for help, it would be heard by everybody. She has further deposed that along with Shyam, two other persons holding knife in their hand also came and told her that she should go with Shyam. They threatened her that if she asked help from anybody, they will finish off her. She has further deposed that she was taken to the bus stand. From there, the accused took her in one tempo traveler, then she was taken to Chennai. She has also deposed that she does not remember that whether she stated before the doctor at KIMS hospital that she had been to see the accused. She has further deposed as true that on 21.4.2009, she phoned to her aunt Pushpa informing that she went along with 24 Shyam with whom she was having love affairs. She volunteered and deposed in the manner the accused insisted her to do so. She has also admitted that on 21.4.2009 itself, her mother and all the family members were knowing that she was with the accused Shyam.
23. I have perused Ex.P.10-medical certificate issued by the KIMS Hospital. It is in respect of examination of P.W.2-the victim girl. Perusing the history furnished, it is mentioned by the doctor as under:
"She knew the accused since two years.
She went to Chennai to meet the accused
Shyam in Chennai. From there, they went to
Tirupathi, where he had forceful sexual
intercourse with her."
24. Perusal of the oral evidence of Dr.Anand, who has been examined as P.W.12, he has deposed that on 16.5.2009, as per the request of the police inspector, Basavanagudi police, he examined the victim Shalini B for estimation of age and the evidence of signs of recent sexual intercourse after she was brought by WPC 2382. After obtaining her consent, her examination was conducted by 25 him. He has further deposed that according to the history given by the victim, she knows the accused since two years. She went to Chennai to meet the accused and from there, they went to Tirupathi, where they had forceful sexual intercourse.
25. In view of the above, it is crystal clear that no consistent and worth believable materials have been placed by the prosecution to prove that the accused had kidnapped the victim girl on 21.4.2009 from the house of her maternal uncle at Bengaluru. Looking to the oral evidence of P.Ws.1 and 2, it is no doubt true that they had stated that the accused came to the house of maternal uncle of the victim girl at Bengaluru in auto rickshaw and forcibly took her in the said auto rickshaw. But perusing the other material, i.e., Ex.P.10-medical report, wherein the history furnished by the victim girl herself recorded by the doctor-P.W.12 shows that herself went to Chennai to see the accused since she knew him from past two years. The Doctor has, in his oral evidence on oath, also deposed before the Court that P.W.2 Shalini gave such history before him when she was brought 26 for examination. Perusing the oral evidence of P.W.2, she has not denied that she gave such statement, but she shown her ignorance in telling whether she has given such statement or not. Not only that, the attending circumstance is also material to appreciate the charge of the prosecution about kidnapping. P.W.2 has stated that when the accused called her out of the house, she came to the apartment gate of her maternal uncle and for about 20 minutes, the accused and herself were talking each other at the same place. It is also an admitted fact, according to her, that many people were moving on the road where they were talking and if she were screamed, it would be heard by such persons. Her evidence further shows that though she has deposed that she was taken towards bus stand and taken to Chennai in the tempo traveler, but her own evidence in the cross examination goes to show that she was taken in a KSRTC bus and she had not protested for the same. The conduct of the family members, particularly, the conduct of the parents is also most material in this connection. Though all the family members were knowing that on 21.4.2009 itself, P.W.2 was with the accused Shyam at Chennai, even then, they had not made 27 any attempt immediately to go to Chennai to bring her back. With regard to the statement that P.Ws.1 and 2 were seen with accused and his other family members in the photographs, P.Ws.1 and 2 have admitted that their family and family of the accused were having close contact between them. The family members of accused used to come to the house of P.W.1, and P.W.1 and her daughter used to go to the house of accused at Chennai also. Therefore, this probablise the defence of the accused that it is P.W.2 victim girl herself went to Chennai and he had not kidnapped her. Looking to the materials on record, the prosecution has not established that there was either kidnapping of the victim girl without the consent of the lawful guardians or there was enticing by the accused.
26. Regarding the case of the prosecution that the accused committed rape on the victim girl, P.W.2 has deposed in her evidence that, on 21.4.2009, the accused forcibly took her in a bus to the house of his uncle at Chennai, where he committed rape on her for which there was no consent of her. On the next day, the accused took 28 her to Solurpet to the house of the persons whom he was knowing. They stayed there for 20 days. During the said period, the accused committed rape on her. In the cross examination, she has deposed that in Solurpet, herself, the accused-Shyam, his sister and children of sister of the accused and his two friends were staying in the same house. In that house, there was only one room. She did not know the time at which the accused committed rape on her at Solurpet. She has further deposed that even she could not say on which day, the accused committed rape on her.
27. Perused the document at Ex.P.10-medical examination report, wherein while furnishing the history, P.W.2 has stated before the doctor that she herself went to Chennai to see the accused and from there, the accused and herself went to Tirupati, where the accused had forceful sexual intercourse with her. Regarding local general examination in Ex.P.10, it is mentioned at column Nos.3, 4 and 6 as intact. Against column No.5, it is mentioned as normal/intact. So far as hymen is concerned, it is mentioned as torn at 5 O' clock and 7 O' clock position, old 29 tears. Regarding opinion at Sl. No.2, it is opined by the doctor that on local genital examination, the evidence of signs of recent sexual intercourse is absent. However, at Sl. No.3 it is opined that the individual is used to an act like that of sexual intercourse. The prosecution has also produced Ex.P.16-FSL report. The material objects at Sl. Nos.1 to 7 shown in Ex.P.16 were sent for examination and report. FSL gave opinion that presence of seminal stain was not detected in item Nos.1 to 7. Therefore, even with regard to the place of committing the offence, in the evidence of P.W.2, at one breadth, she has deposed that she was raped at Solurpet in Andhra Pradesh and at another breadth, she has stated, as per Ex.P.10 history of the case, that she was taken to Tirupathi, where the accused committed forcible sexual intercourse on her. Perusal of the materials on record as also looking to the attending circumstances and the prosecution evidence placed on record, they show that the allegation that the accused had committed forcible sexual intercourse on P.W.2-the victim is not established with cogent and satisfactory materials.30
28. Looking to the statement of the accused under Section 313 of Cr.P.C., his answer to question No.64 was that, earlier he was working as father in a church at Hyderabad and thereafter, he was transferred to the church at Mysuru. In the said church, he got acquaintance with P.W.2 Shalini. He was also going to the house of Shalini and she used to come to the church. Then both of them decided to marry. He sent his sisters and his father to the house of Shalini to have talks about the marriage and the mother of Shalini also consented for the marriage of accused with Shalni and told that they will fix the date of the marriage and thereafter, they went to Chennai. He has further stated that he did not know as to what has happened in the house of Shalini, and Shalini came to Chennai in search of him. Then, he informed the same to the house of Shalini. He told her to go back to her house but, she refused stating that she will stay with him. Then he phoned to her father, who went to the house of the accused at Chennai and spoke to the family members of the accused and stayed there. Shalini told her father that she will not come along with him and the father of the victim went from the house of the accused stating that 31 he will make preparation for the marriage of the accused with Shalini. Thereafter, police came and brought himself and Shalini to Bengaluru and filed the case.
29. I have further perused the cross examination of the prosecution witnesses which probablises the defence of the accused. All the above important aspects have not been properly appreciated by the trial court. The trial court has, by making erroneous observation of the materials placed on record, wrongly convicted the accused. The judgment and order of conviction passed by the trial court is not in accordance with oral and documentary evidence produced in the case. There are valid and justifiable grounds to interfere with the judgment and order of the trial court.
30. Consequently, the appeal is allowed and the judgment and order dated 28.1.2012 passed by the XLV Additional City Civil and Sessions Judge, Bengaluru in S.C No.886/2009 is hereby set aside.32
The appellant-accused is acquitted of the offences charged against him and he is set at liberty forthwith, if he is not required in any other cases.
Intimate the concerned court accordingly.
Sd/-
JUDGE Cs/-