Karnataka High Court
Mohamed Naveed Ahmed S/O Mohamed Nazeer ... vs State Of Karnataka By Kalasipalya ... on 20 February, 2014
Equivalent citations: 2014 (3) AKR 425
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.2669/2006
BETWEEN:
MOHAMED NAVEED AHMED
S/O MOHAMED NAZEER AHMED
AGED ABOUT 27 YEARS
R/O NO.21, 3RD CROSS, PATNOOLPET
KALASIPALYA, BANGALORE. ... APPELLANT
(BY SRI HASHMATH PASHA, ADV.)
AND:
STATE OF KARNATAKA
BY KALASIPALYA POLICE STATION
BANGALORE
REP. BY LEARNED SPP ... RESPONDENT
(BY SRI B VISWESWARAIAH, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 07.11.2006, PASSED BY THE
PRESIDING OFFICER, CITY FAST TRACK (SESSIONS) JUDGE,
BANGALORE CITY (F.T.C.NO.VI), IN S.C.NO.364/2004,
CONVICTING THE APPELLANT-ACCUSED FOR OFFENCES
PUNISHABLE UNDER SECTIONS 376 AND 506-B IPC & ETC.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant (accused) was tried for offences punishable under Sections 376 and 506-B IPC. The learned Sessions Judge has convicted and sentenced the accused for offences punishable under Sections 376 and 506-B IPC. Therefore, he is before this court.
2. I have heard Sri.Hashmath Pasha, learned counsel for accused and learned Government Advocate for the State.
3. Before adverting to appreciation of evidence and submissions made at the Bar, it is necessary to state certain facts which are not in dispute.
PW.1 is the victim girl. PW.4-Noor Taj is the mother of PW.1 and PW.6-Nazeer Ahamed is the father of PW.1.
During the year 2003, the father of victim girl namely PW.6-Nazeer Ahamed was working as an Assistant Executive Engineer in BEL at Bangalore. His wife, PW.4-Noor Taj, was working as a teacher in Government Primary School in Motinagar, Bangalore. They have two daughters. The victim 3 is the youngest of their daughters. During the year 2003, PW.1 was studying in Ist year P.U.C. in Vani Vilas College. They were residing in Kalasipalya at Bangalore. The accused was also a resident of Kalasipalya. The accused was visiting the house of PW's.4 and 6.
4. It is the case of prosecution, about six months prior to 10.10.2003, accused had committed rape on the victim when she was alone staying in the house. He had also threatened her life. The accused has frequently committed rape on the victim by holding out threats. The victim conceived and revealed to her parents that she was carrying four months pregnancy. The police had taken the victim to PW.3-Dr.Jayamma. On examination of victim, PW.3 confirmed that victim had got induced abortion when she was carrying five months pregnancy. PW's.4 and 6 had taken the victim to a private Nursing Home and got her pregnancy terminated. On 10.10.2003, victim lodged the first information as per Ex.P1.
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5. The learned Sessions Judge has placed reliance on the evidence of PW.1 (victim) and her parents, to arrive at a conclusion that accused had committed rape on the victim and he had also threatened the life of victim.
6. PW.1 (victim) has deposed; that her father was working as an Assistant Executive Engineer in BEL and he used to leave the house at 7.00 a.m., in the morning and return back in the evening; her mother was working as a Teacher; she used to leave the house at 8.00 a.m., in the morning and return back in the evening; she used to attend the school and return back to her house; the accused was residing in the same locality; he was her neighbor; the accused was following the victim; he was telling her that he had fallen in love with her; the parents of victim were not able to bear the nuisance of accused; therefore, they took transfer certificate from Bishop Cotton School and admitted her in Vani Vilas School about six months prior to 10.10.2003; when the victim was alone staying in the house, accused entered the house and committed rape on her; later, he threatened that victim should marry him; he also 5 threatened the lives of parents of victim; thereafter, accused was trying to contact the victim over phone; the victim was afraid of revealing the incident to her parents; the victim had conceived and she was carrying four months pregnancy; the matter was revealed to her parents; thereafter, she lodged the first information as per Ex.P1 on 10.10.2003.
During cross-examination, PW.1 has denied the suggestion that accused had not used force on her. She has denied the suggestion that accused had not threatened her life. She has denied the suggestion that accused had not committed rape on her.
7. As per evidence of PW.1 and first information lodged by her, the accused committed rape on her in her house about six moths prior to 10.10.2003 when she was alone in her house. PW.1 has deposed that accused continued to commit rape on her whenever she used to be alone in her house and every time he used to threaten her life. PW.1 concealed these incidents till she became aware that she was carrying pregnancy of four months.
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As per evidence of PW.1, the incident of rape for the first time took place six months prior to 10.10.2003 in her house. The accused had threatened her life and committed rape on her. PW.1 has deposed that accused committed rape on her by repeating threats to her life. PW.1 had concealed this information for over a period of four months.
8. The evidence of PW.1 that accused had committed rape on her six months prior to 10.10.2003 and he used to commit rape on her whenever she was found alone in her house by repeating threats to her life does not inspire confidence. PW.1 was sufficiently educated and she was studying in First Year PUC in Vani Vilas College. Her parents were also educated. She had no difficulty to inform the matter to her parents.
9. PW.4-Noor Taj is the mother of victim. PW.4 has deposed; that during the year 2003, victim was studying in First Year PUC in Vani Vilas College; the victim was aged about 16 years; the accused was her neighbor; during the year 2003, accused had kidnapped the victim and had kept 7 her with him for about 2 or 3 days; PW.4 and her husband being afraid of reputation did not lodge the complaint; the accused contacted the parents of PW's.4 and 6 and threatened that victim should be given in marriage to him or else he would kill the victim; about 3 or 4 persons from the side of victim had visited their house and took PW.6 (husband of PW.4); about 40 -50 persons had gathered and forced PW.6 to give his daughter in marriage with accused; PW's.4 and 6 visited the house of accused and enquired about him; thereafter, they lodged the first information; after 8 days, victim returned back and informed her parents that accused had committed rape on her; the victim had informed her mother that accused had committed rape on her when she was alone in her house.
10. At this juncture, it is necessary to recall the evidence of PW.1 (victim). PW.1 has not deposed that accused had kidnapped her and committed rape on her. She has not deposed that accused had threatened her parents to give PW.1 in marriage to him. PW.1 has not deposed that persons from the side of accused had threatened her father 8 to give victim in marriage to accused. She has not deposed that accused had wrongfully confined her for about 8 days. She has not deposed as to how she escaped from the clutches of the accused. Thus, the evidence of PW.1 and her mother cannot be reconciled. They are mutually contradictory.
11. The evidence of PW.5-Khaleel is hearsay in nature.
12. PW.6-Nazeer Ahamed is the father of victim. PW.6 has deposed; that in the year 2003, the victim was studying in First Year PUC in Vani Vilas College; she was aged about 16 years; the accused committed rape on the victim when she was alone in the house; the accused was frequently visiting the house of PW's.4 and 6; PW.6 has warned the accused not to visit his house; the accused became wild and smashed the show-case of the house of PW.6; PW.4 (wife of PW.6) prostated before the accused and requested him not to commit such violent acts and not bring disrepute to their family; 15 days after the incident, accused kidnapped the victim; thereafter, 40 persons of the locality came to PW.6 and took him to Patnoolpet; the accused and 9 others scolded and sent him back; they also threatened that they would kidnap the second daughter of PW.6; after 3 days, he brought the victim (PW.1) from the police station; after returning from police station, the victim informed her father (PW.6) that accused has committed rape on the victim at knife point; PW's.4 and 6 came to know that victim had conceived and carrying four months pregnancy; therefore, they lodged the first information.
13. The evidence of PW.6 that accused used to visit their house and he had also committed violent acts and his wife prostated before the accused and beseeched him not to bring disrepute to their family is conspicuously absent in the evidence of PW.4. It is not the evidence of PW.4 that accused had committed the acts in the house of PW4 before he kidnapped the victim.
14. At this juncture, it is necessary to state that PW.6 was working as Assistant Executive Engineer in BEL. He was not an helpless person. If the accused had committed the act of rape in the house of PW's.4 and 6, it looks highly 10 improbable that PW.6 instead of taking action against the accused would prostate before him and beseech him. The evidence of PW.6 that accused had kidnapped his daughter and she returned after three days and that accused had committed rape on her is not consistent with evidence of victim.
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15. The evidence of PW.6 that they lodged the first information only after coming to know that victim had conceived and she was carrying pregnancy does not inspire confidence. Thus, on reappreciation of evidence of PW's.1, 4 and 6, we find that the victim had sex with the accused.
16. In order to determine whether it was consensual sex and the victim was a consenting party, her age would be decisive. As per the evidence of victim and her parents, accused had committed rape on victim six months prior to 10.10.2003. The parents of victim have deposed that in the year 2003, victim was aged about 16 years. In the first information which was lodged on 10.10.2003, the age of victim is shown as 17 years. The prosecution for the reasons not apparent on record has not produced documentary 11 evidence in proof of age of the victim. Even in the evidence of victim and her parents, they have deposed that in the year 2003, victim was studying in Pre Universtiy in Vani Vilas College. She had passed SSLC examination. There were school records to prove the date of birth of victim. The investigation officer has not bothered to collect the primary evidence relating to date of birth of victim. During investigation, the victim was not subjected to ossification test for determination of her age.
17. The learned trial judge relying on the judgment of Supreme Court reported in 2006 (1) APEX 41 has held that evidence of parents can be relied upon in proof of the age of victim.
18. When the court finds that victim was a consenting party, her age would be decisive on the guilt of accused. The parents of victim are educated and they were occupying responsible official positions. There was no difficulty for the prosecution to secure the birth certificate of victim. There was no difficulty for the investigation officer to secure the school records of victim including school admission register 12 extract. The investigation officer had no difficulty to secure SSLC examination marks card of victim. Above all, the parents of victim had no difficulty to give date of birth of the victim. Even as per the evidence of PW.4 (mother of victim) and PW.6 (father of victim), in the year 2004, victim was aged about 16 years. The incident of rape is alleged to have taken place on 10.04.2003. Therefore, it can safely be inferred that prosecution has failed to prove that victim was under 16 years of age. The conduct of victim at the time of incident and her silence throughout would belie the evidence of victim that accused had committee rape on her by threatening her life every now and then. The evidence of parents of victim that accused had kidnapped the victim and committed rape on her is conspicuously absent in the evidence of victim. The parents of victim had set the criminal law into motion when they came to know that victim had conceived and she was carrying four months pregnancy.
19. PW.3-Dr.Jayamma to whom the police had taken the victim for examination on 10.10.2003 has deposed that victim gave the history of having had relationship with one 13 Naveed since June'2003 and having gone with him for few days about 15 days back. The history given by victim before PW.3 would belie the version of victim that accused committed rape on her by threatening her life. Therefore, I am of the considered opinion that prosecution has failed to prove that accused had committed rape on he victim by threatening her life. The prosecution has failed to prove that victim was les than 16 years of age as on the date of alleged incident.
20. The learned Sessions Judge without noticing these material discrepancies in the evidence adduced by prosecution and without considering essential ingredients of an offence punishable under Section 376 IPC has convicted the accused. Therefore, the impugned judgment cannot be sustained.
21. In the result, I pass the following:
ORDER The appeal is accepted. The impugned judgment is set aside. The accused is acquitted of offences punishable under Sections 376 and 506-B IPC. The bail bond executed by 14 accused stands cancelled. If the accused has deposited the fine amount in terms of the impugned judgment, same shall be refunded to him.
Sd/-
Np/- JUDGE