Bangalore District Court
SPL.C/208/2014 on 28 January, 2016
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 28th DAY OF JANUARY 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 208 / 2014
COMPLAINANT :
The State of Karnataka by
Subramanyanagara Police
Station, Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED :
Hanumantharaju
son of Nagaraju, 23 years,
Doddakarenahalli,
Yentiganahalli hobli,
Nelamangala Taluk.
[Represented by learned counsel
Sri Rajesh A. Advocate]
***
/2/ Spl.C.C.No. 208/2014
JUDGMENT
Subramanya Nagara Police, Bangalore City have charge sheeted the accused for the offences punishable under Section 366-A and 376 of I.P.C.
2. The case of the prosecution, in brief, is as under :
CW3-prosecutrix was minor daughter of CW1- Munibyregowda. She was studying in 10th standard in the year 2010. The accused had kidnapped her on 29.12.2010 at about 12.00 noon from Railway Parallel Road of Malleshwaram Railway Station, Bangalore, with intent to seduce her to illicit intercourse, wrongfully confined her in his house at Doddakarenahalli, Yentiganahalli hobli, Nelamangala Taluk, till 8.1.2011, during which period he had forcible sexual intercourse with her against her will. In the meanwhile CW1- Munibyregowda, father of the prosecutrix had lodged a complaint on 2.1.2011. Subramanya Nagara /3/ Spl.C.C.No. 208/2014 Police have traced the accused and the victim in the house of accused at Doddakarenahalli, brought them to Subramanya Nagara Police Station. IO had recorded the statement of prosecutrix, voluntary statement of the accused. He drew necessary mahazar. Both of them were sent to hospital for medical examination. He had also recorded the statement of other prosecution witnesses. By completing the investigation he submitted the charge sheet to the Court for aforesaid offences.
3. The charge sheet was submitted to VII ACMM Court and learned Magistrate after taking cognizance, committed this case to the Court of Sessions for trial. After committal this case was entrusted to City Civil and Sessions Court. Thereafter it was transferred to LIV Addl. City Civil and Sessions Court (CCH-55), subsequently again it was transferred from that Court to this court on the point of jurisdiction and registered in Spl.C.C. The learned Presiding Officer of CCH-1 after following the /4/ Spl.C.C.No. 208/2014 procedure laid down under Law had framed charge against the accused for the offences punishable under sections 366-A and 376 of IPC, read over to the accused. Accused has pleaded not guilty and claimed to be tried. Hence, posted for evidence on prosecution side. At later stage, when the case was posted for judgment on hearing both sides, charge under first head for offence under section 366-A of IPC has been altered for offence under section 366 of IPC and a separate charge under first head has been framed in separate sheet and read over the same to the accused. He pleaded not guilty.
4. On prosecution side got examined as many as 14 witnesses as P.W.1 to P.W.-14 out of 17 charge sheet witnesses and got marked documents at Ex.P.1 to Ex.P13 and MO1 to 11, the details of which are given in the annexure of this Judgment. After examination of PW1 to 3 it was transferred to LIV Addl. City Civil and Sessions Court. After examination of PW6 it was transferred to this court.
/5/ Spl.C.C.No. 208/2014 PW7 to 14 were examined before this Court. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
4. Heard the arguments on both sides. Perused and posted for Judgment.
5. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused had kidnapped CW3 Jyothi, minor daughter of CW1 and 2 on 29.12.2010 at 12.00 noon from Malleshwaram Railway Station Parallel Road, with intent to force her or seduce her to illicit /6/ Spl.C.C.No. 208/2014 intercourse punishable under Section 366 of I.P.C ?
2) Whether the prosecution has proved beyond reasonable doubt that accused had committed rape on CW3-Jyothi during the period from 29.12.2010 to 8.1.2011 in his house at Doddakarenahalli, Yentiganahalli hobli, Nelamangala Taluk punishable under section 376 of IPC?
3) What order?
6. My findings on the above points are as under:-
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : As per final orders for the
following:
REASONS
7. Point No.1:- The prosecution has made serious allegations against the accused that he had kidnapped PW1-Jyothi, the prosecutrix on 29.12.2010 at 12.00 noon from Malleshwaram /7/ Spl.C.C.No. 208/2014 Railway Parallel Road, with intent to force her or seduce her to illicit intercourse. According to prosecution PW1 was of 15 years as on the date of alleged incident. The incident occurred prior to commencement of Protection of Children from Sexual Offences Act, 2012. Hence it has no application to the present case. However, the age of the prosecutrix is first and foremost point to be determined before touching the point of kidnapping and commission of rape.
8. According to prosecution PW1, the prosecutrix, was aged about 15 years at the relevant point of time. She was studying in 10th standard. In order to prove this, the prosecution has got examined PW14-Smt. Sujatha-Principal of the school in which she was studying at that time and PW13- M.R. Suresh-PSI. In view of oral testimony of PW2- father of prosecutrix, PW13 and 14 she was under
16 years at that time. PW14 was then Principal in MLA High School, Malleshwaram, Bangalore. She /8/ Spl.C.C.No. 208/2014 had issued certificate as per Ex.P14 mentioning that date of birth of the prosecutrix is 28.2.1996. The date of incident is 29.12.2010. If that date of birth is taken as per prosecution, PW1 was of 14 years 10 months. PW1 has stated in the cross-examination at page No.22 she was admitted to 1st standard in the year 2001. She was doing 2nd year PUC at the time of recording of evidence. The evidence of prosecutrix commenced on 12.7.2013, cross examination was concluded on 31.1.2014. In the evidence recorded on 31.1.2014 she has stated she wrote II year PUC examination in the month of March 2014. Prior to that she attended supplementary for SSLC in the month of June 2013. One month thereafter her SSLC results were declared but she did not write I year PUC examination and she is writing II Year PUC directly as she is doing correspondence Course in PUC in Government Pre-University College, Malleshwaram. It is her oral testimony that she was admitted to 1st standard in the year 2001. According /9/ Spl.C.C.No. 208/2014 to her she had not failed in any of the classes in any standard till SSLC. If that is taken as on the date of alleged incident she was of 14 years 10 months. On defence side hotly contested on this point. The learned counsel for the accused has vehemently argued that Ex.P14 is only a school certificate not a birth certificate, as per oral evidence of PW14, based on the admission register mentioning the date of birth Ex.P14 certificate had been issued by her. It is further argued by him, Ex.P14 is not based on the birth certificate. The entry in the admission register was made in that high school based on the transfer certificate as per oral evidence of PW14 Principal. In the absence of authenticated documents, the case of the prosecution cannot be based to hold that she was under 16 years/18 years. The school register is not of much evidentiary value in the absence of materials on which the age was recorded at the time of admission to 1st standard. It is also further argued by him that there is no medical evidence with / 10 / Spl.C.C.No. 208/2014 respect to assessment of her age. In the absence of reliable evidence and in the absence of authenticated documents her age cannot be held to be under 16 or 18 years.
9. It is rightly argued by the learned counsel for the accused that though the author of Ex.P14 has been examined on prosecution side as PW14, as per her evidence the entry in the admission register is based on transfer certificate, in other words not on the basis of birth certificate. The initial burden lies upon the prosecution to establish the correct age of the prosecutrix. There is no medical evidence as to assessment of her age as on the date of alleged incident. The birth certificate is not produced on prosecution side. Under the circumstance the entry made in the admission register based on the T.C. is not sufficient to prove the age of the prosecutrix. The age of prosecutrix in the school register which is not based on birth certificate is of not much evidentiary value to prove her age under 16 years, in the / 11 / Spl.C.C.No. 208/2014 absence of the birth certificate or any authenticated document equivalent to that. The school in which she studied is not a government school. In the present case, there are two allegations. One is offence of kidnapping and another is rape. Therefore, the age of the victim is very material in the present case.
10. PW1 has stated in her cross examination that she was taking part in sports events, even going outside Bangalore also for sports events. The boys and girls used to take part in such sports events, she was knowing how to carry herself, behave and protect herself while she was taking part in sports and other events. She admits in page 8 that she was considered as an intelligent girl with reference to her studies and other extra curricular activities. She was studying in one of the reputed college in Bangalore. She was a sports girl and as per her ocular statement she is in a position to understand the things happened whether it is good or bad event.
/ 12 / Spl.C.C.No. 208/2014 Under the circumstances withholding of the
authenticated document leads to adverse inference against prosecution. Even if it is taken as she was under 18 years, there is no conclusive proof to show that her age was under 16 years as on that date. Hence her age cannot be determined as under 16 years.
11. Now the question arises whether the offence of kidnapping occurred on 29.12.2010 as alleged by the prosecution.
12. The charge against the accused is under section 366 of IPC which provides that whoever kidnaps or abducts any woman with intent that she may be compelled to marry against her will, or in order that she may be forced or seduced to illicit intercourse is said to commit offence under this section which consists of two parts, one is kidnapping or abducting any woman, another is intent to compel her to marry against her will or / 13 / Spl.C.C.No. 208/2014 intent to force or seduce her to illicit intercourse. In the present case according to prosecution, she was forced or seduced to illicit intercourse, with that intention he had kidnapped the victim girl. The accused is alleged to have kidnapped victim girl from Malleshwaram Railway Station, R.P. Road, after she got down from the train. As per prosecution, on 29.12.2010 she along with her mother CW2 Manjula had gone to Byranayakanahalli, village of maternal grand mother of PW1 as she had Christmas vacation from 24.12.2010 to 1.1.2011. Hence on 29.12.2010 both of them had been to the said village by train at 8.00 a.m. Thereafter, on the same day they returned to Bangalore by train, at 12.30 p.m. They got down from the train with their luggages. CW2 was coming little ahead, PW1 was behind her on R.P. Road. She found disappearance of the prosecutrix. She informed her husband PW2 Munibyregowda. PW2 had lodged the complaint on 2.1.2011, he did not trace out PW1 inspite of search in relatives house.
/ 14 / Spl.C.C.No. 208/2014 On being registered the case by Subramanyanagara Police, the accused with intent to have sexual intercourse with her against her will, had kidnapped by closing her mouth while she was going on R.P. Road behind her mother. He took her in Autorikshaw to Yeshwanthapura bus stand from where he took her in a bus to his native place Doddakarenahalli, Yentiganahalli hobli, Nelamangala Taluk. His parents were at home. She was confined in a room till 8.1.2011. During night she was being taken to outside for nature call. During the said period accused had forcible sexual intercourse with her, though she had no such intention and against her will he committed rape on her. PW10 Linganna, then H.C. and others were appointed to trace the accused and victim. They got the information through informants, traced the accused and victim in the house of accused at Doddakarenahalli on 8.1.2011 at 12.00 noon and they were brought and produced before PW13 M.R. / 15 / Spl.C.C.No. 208/2014 Suresh, then PSI, who was IO in the present case. Ex.P10 is the report to that effect. PW1 had disclosed that accused had forcibly taken her and confined her in a room in his house and he had sex with her against her will. It disreputed her family and also affected her status. Accused had given the voluntary statement. Based on that, spot mahazar as per Ex.P2 was drawn in the house of accused shown by him that it was the place where he committed rape. After subjecting both of them to medical examination, found that prosecutrix was used to act of sexual intercourse. This is the case of the prosecution.
13. According to prosecution, accused had forcibly taken her while PW1 was coming behind her mother CW2 on R.P. Road after they got down from Malleshwaram Railway Station. On going through the oral evidence of PW1 and also PW2, it is a busy area, there is movement of persons coming and going to Railway Station. According to occular / 16 / Spl.C.C.No. 208/2014 statement of PW1 there was movement of people on road at that time, but not heavy. Her mother was going ahead. As per prosecution accused had closed her mouth with his one hand and he dragged her with another hand to autorikshaw. The learned counsel for the defence has subjected her to cross examination lengthily wherein he made number of suggestions even with respect to whether she had raised alarm while accused was dragging into autorikshaw to Yeshwanthpur bus stand and even while travelling in bus to his village. As per her admission nowhere she sought help from others. She volunteers that accused had shown the knife, in fear she did not seek any help. It is pertinent to note in view of the admissions there was movement of people on the R.P. Road, she was taken in autorikshaw to Yeshwanthpur bus stand, thereafter travelled in the bus. There was ample opportunity for her either to shout or to disclose the kidnapping by the accused. According to her there were also co-
/ 17 / Spl.C.C.No. 208/2014 passengers in the bus. But non-raising her voice against the accused from the place of R.P. Road till
they reached the house of the accused itself shows that it was not against her will. There is no evidence of CW2-mother of the prosecutrix with respect to both of them were coming from Malleshwaram Railway Station and on R.P. Road she disappeared. It is very difficult to believe the case of the prosecution that accused took away her who was stated to be coming behind her mother and where there was movement of the people at that time. Even during journey, she did not make any attempt to escape or reveal anything to publics though there was sufficient opportunity to do so.
14. There is also another thing of which makes the prosecution case doubtful. As per prosecution there are eye witnesses who had seen staying of PW1 in the house of accused. They are independent witnesses. They are the people in the locality. PW6 Siddaraju is the resident of the said / 18 / Spl.C.C.No. 208/2014 village. According to prosecution "When he had been to the house of the accused he enquired about PW1, inmates of the house did not give any particulars. But on 18.1.2011 the Police came from Bangalore and took accused and PW1. Then he came to know that it was a kidnapping case and also he committed rape on her." In the very chief examination itself he has not supported the case of the prosecution. Nothing contrary has been extracted in the cross examination. He has denied all the suggestions made by the learned public prosecutor that he had seen PW1 in the house of accused and also the Police took them to Bangalore and he had given the statement as per Ex.P3 to that effect. His evidence does not help the prosecution.
15. PW11 Nanjegowda is another independent witness. According to prosecution he had seen the accused keeping PW1 in his house for one week, on 18.1.2011 the police traced and took both of them to Bangalore. PW11 is an independent witness. He is / 19 / Spl.C.C.No. 208/2014 the resident of the same village. He is a tailor by profession and he is the neighbour of the house of the accused. He is the material witness in the present case. But nothing is found in his evidence to link the accused with alleged crime and his evidence does not suggest stay of PW1 in the house of accused.
16. PW3 Balakrishna, PW4 Manjunatha, PW5 Chandrashekar are Panchas in whose presence Ex.P2 mahazar was stated to have been drawn in the house of accused. At that time the complainant and also accused were present on the spot. On going through the oral evidence of PW3 to 5 they have turned hostile, even in the cross examination also not stated anything of which favours the prosecution. PW13-PSI partly investigated the present case. When he had gone to the college of PW1 came to know that she used to have talks with accused by name Hanumantharaju, thereafter they got the address of the accused and traced accused / 20 / Spl.C.C.No. 208/2014 and victim in his house on 8.1.2011 and produced before him at 1.30 p.m. With this background the oral testimony of PW1 and 2 is read it gives a different picture from the case of the prosecution. According to prosecution accused and victim were traced on 18.1.2011. As per the statement of the independent eye witnesses stated to have been given before the IO, police traced on 8.1.2011. In view of the occular statement of PW1 and 2 the police traced them on 7.1.2011. As stated in her cross examination at page No.21 that police came to the house of the accused in the midnight of 7.1.2011 with her parents. PW1 has given contradictory statement. PW2 Munibyregowda is another witness who has completely deviated from the case of the prosecution. He has stated in his evidence at page 3 that on 7.1.2011 in the evening he was called by the police in the police station where he found accused in the P.S. On being interrogated he disclosed that victim is in his house at Doddakarenahalli, then / 21 / Spl.C.C.No. 208/2014 immediately himself, Police and accused went to his house, he had shown his house and they found the concealment of PW1 under the Cot. She was brought to Bangalore. As already discussed in supra as per prosecution on 8.1.2011 the police traced the victim and accused in his house and brought them to the Police station. Only for the purpose of mahazar they had gone to Doddakarenahalli on 9.1.2011. But the evidence of PW2 is very much inconsistent with that of the case of the prosecution. According to him accused at the first instance had been apprehended, thereafter based on his statement traced the victim. The contradictory statement of PW2 goes to very root of the case of the prosecution. Because though there are independent witnesses, they are not supporting the prosecution case, even the spot panchas have not at all supported the case of the prosecution. Though admittedly there was ample opportunity to raise her voice against the accused PW1 did not seek any help from the public. There is no recovery of / 22 / Spl.C.C.No. 208/2014 knife from the accused. Evidence of PW1 and 2 are contradictory to prosecution case. All these aspects throw suspicion upon the case of the prosecution. The contradictory statement of PW2 is very difficult to be based to believe the case of the prosecution. The statement of PW1 before the court is found unreliable. As per her admission itself in page 13 there was heavy traffic and movement of people and vehicles on the road on the day. Under such circumstances whether accused had kidnapped her by closing her mouth with one hand and dragged her with another hand to autorikshaw is hazardous to be believed. She herself has admitted that she did not tell the autorikshaw driver while proceeding towards Yeshwanthpur Bus stand about accused taking her forcibly. As per her version the accused was holding her very tightly and forcibly. In page 12 made one suggestion to the effect "if somebody pulls her by holding her hand on the road she knows that she should scream. Then she said, since the accused / 23 / Spl.C.C.No. 208/2014 had closed her mouth she was unable to scream as he was holding her tightly and forcefully. But at the very same time she did not tell anything to autorikshaw driver while proceeding to Yeshwanthapura bus stand that accused was taking her forcibly. Even her silence in the Yeshwanthapura bus stand and also maintenance of silence in the bus while travelling from Yeshwanthaura to Nelamangala suspects the very case of the prosecution that accused had carried away on that day and at that time. At the first instance there is no satisfactory and reliable evidence to prove the force in taking victim girl and against her will. Secondly there is no strong piece of evidence to believe the case of the prosecution that the kidnapping occurred on that day as alleged by the prosecution.
17. Of course PW1 has been examined and she has stated against the accused as mentioned in supra. But her evidence is found unreliable. Her / 24 / Spl.C.C.No. 208/2014 evidence assumes more importance. As per her evidence she had no contact with the accused. As per IO PW13 she used to have talks with the accused, accused is not a stranger to PW1. It is also forthcoming in the evidence of PW1 and 2 that one Mamatha resident of the same village of the accused is none other than the maternal aunt of PW1. She also admitted that her aunt's house was nearby the house of accused. Of course she has stated that subsequently her house was shifted. But it is also forthcoming in her evidence that the said house is nearby the house of the accused. It is the case of the prosecution that she was kept for a week in the house of the accused. It is a village. As per the prosecution, the accused used to take her outside the house for nature call during night hours. This aspect itself suspects the case of the prosecution that accused is a stranger to her, she was taken away by the accused against her will. As per Ex.P2 the spot mahazar it is a small house wherein one / 25 / Spl.C.C.No. 208/2014 verandah, hall, kitchen and a single room. As per the defence there is no door to the said room. Of course PW1 has denied the same. But Ex.P2 does not enlighten on this aspect. It speaks that there is a room attached to hall. As per the evidence of PW2, PW1 was concealed under the cot. It is not at all the statement of PW1. It is also not the case of the prosecution that the inmates of the house of accused have abetted him or actively participated in commission of offence by the accused. They are not at all accused in the present case. As per the evidence of PW1 when accused took her to his house there were parents of accused at home. When they reached the house it was night. They did not give her food, but they allowed her in a room. What was the reaction of the parents about the act of the accused during the period of this one week is nowhere found on record. In the absence of reliable evidence of prosecutrix, trust worthy oral testimony of PW2 and in the absence of support by / 26 / Spl.C.C.No. 208/2014 independent witnesses the prosecution has failed to prove offence of kidnap by the accused.
18. PW9 Dr. Parvathi Bai had subjected PW1 to medical examination. She was brought on 8.1.2011 at 5.30 p.m. with an history of rape, on being enquired PW1 revealed that she had gone with her boy friend one Raju on 29.12.2010 at 12.00 p.m., from Bayalunayakanahalli to Tyamagondalli. This is entirely different from the case of the prosecution. On going through the evidence of PW1 there are material contradictions found of which itself destroy the case of the prosecution. There is also inconsistent evidence of PW2. The evidence of PW9 gives another picture of which is completely different from the case of the prosecution and also from the statement of PW1 and 2 before the court. From stage to stage the contradictory evidence finds place of which itself suspects the case of the prosecution that there was occurrence of kidnapping.
/ 27 / Spl.C.C.No. 208/2014
19. As already discussed supra, at the first style itself the prosecution has failed to prove her age under 16 years as on that date. Secondly there are no materials on record to believe the case of the prosecution that accused had carried away against her will, or even there is no strong piece of evidence to hold the guilt of the offence against the accused for the offence punishable under section 366 of IPC. There is no satisfactory and reliable evidence. The prosecution has miserably failed to establish its case beyond reasonable doubt. The benefit of doubt shall go to the accused. Hence I hold point No.1 in the negative.
20. Point No.2:- There is another charge against the accused for the offence of rape. According to prosecution accused had sex with prosecutrix by force during the period of her confinement in his house from 29.12.2010 to 8.1.2011. I have already discussed about the topography of the house of the accused as / 28 / Spl.C.C.No. 208/2014 mentioned in Ex.P2. It is not the case of the prosecution that there were nobody at home other than the accused and the victim during that period. In order to prove this aspect the prosecution has got examined PW9 Dr. Parvathi Bai and PW7 Dr. K.R. Rekha. As already discussed in supra PW1 the prosecutrix has stated that he had forcible sexual intercourse with her during that period and it was against her will. Though she was subjected to cross examination extensively on defence side, it is not her say that she shouted, even at any point of time during that period sought help from anybody. At the first style the prosecution has failed to establish the offence of kidnapping. Even it is taken that she was in the house of accused during that period, there are no materials on record to constitute the offence of rape. Firstly there is no conclusive proof to show her age under 16 years. In view of Section 375 Sixthly of IPC the age of consent was 16 years. It is not case of the prosecution that no inmates of the house of the / 29 / Spl.C.C.No. 208/2014 accused are involved in the commission of the offence or there were none at home during that period. If really the occurrence had taken place as stated by PW1 during the period of one week, she would have attracted others from her cries. Admittedly it is a village and number of residential houses are adjacent to the house of the accused. The evidence of PW1 that he had sex with her by force is found unnatural. Above all, case of the prosecution that there was commission of rape is not fully supported by medical evidence.
21. As per persecution PW9 Dr. Parvathi Bai, who had subjected her to medical examination, found no external injuries, hymen not intact, admits two fingers, collected her dress, pubic hair, vaginal swab and nail clippings and sent to FSL. In the cross examination she has stated that victim has revealed before her that there was a rape on her. Further PW9 admits that it is not at all mentioned in Ex.P6(a) the relevant page of OPD register. She is / 30 / Spl.C.C.No. 208/2014 subjected to cross examination on defence side on the aspect of the causes for tear of hymen. She admits that hymen could be torn due to several reasons, she cannot say that tear of hymen in the present case is due to sexual intercourse. She has also admitted that she has not mentioned whether tear of hymen is recent one or old. When there is tear of hymen due to any reasons other than the sexual intercourse also admits two fingers and merely because there is a tear of hymen and admissibility of two fingers she cannot say that sexual intercourse occurred. Ex.P5 is the report issued by PW9 Parvathi Bai, wherein opined that no signs of forced intercourse at the time of examination, deferred the final opinion for want of FSL. Ex.P5 does not help the prosecution that there was forcible sexual intercourse. Even as per Ex.P5 final opinion was pending. When PW9 has gone to the extent of admitting that there are no signs of sexual intercourse as seen from MO1 to 4 and 9 to / 31 / Spl.C.C.No. 208/2014 11 i.e., clothes of the victim and other articles collected from the victim and also accused from FSL. Under the circumstance it is not safe to hold the guilt of the accused. FSL report at Ex.P8 is not favourable to prosecution. As per Ex.P8 presence of Seminal stain was not detected in item No.1 to 5, 7 to 10 and presence of spermatozoa was not detected in article No.6.
22. PW7 Dr. K.R. Rekha is also another Medical Officer working in K.C. General Hospital. She is not gynecologist, but PW9 is the gynecologist. As per prosecution she had examined the accused and opined that there is nothing to suggest that he is incapable of having sexual intercourse. She collected nail clippings, pubic hairs, undergarments, seminal fluids from the accused and sent to FSL. She found no signs of forcible sexual intercourse. She is subjected to cross examination by referring to entries made in Ex.P7.
/ 32 / Spl.C.C.No. 208/2014
23. Ex.P5 and Ex.P7 are issued by PW7. Ex.P5 is the wound certificate, Ex.P7 is the opinion given by PW7, I have already discussed above the entries in Ex.P5 while discussing the evidence of PW9. Ex.P7 would speak that there is opinion of gynecologist "that on the basis of clinical findings intercourse might have occurred." Based on this opinion from the gynecologist PW7 has opined in Ex.7 that on the basis of FSL report and gynecologist's opinion intercourse might have occurred. In the cross examination PW7 has specifically stated that she opined only based on the findings given by the gynecologist. As per Ex.P7 the occurrence of sexual intercourse is doubtful. Same also finds place in the evidence of PW9. As per Ex.P5 there are no signs of forceful intercourse. In view of detailed examination by PW9, the occurrence of rape itself is doubtful. There is no supportive medical evidence to bring home the guilt of the / 33 / Spl.C.C.No. 208/2014 accused. Under these circumstances it's not safe to convict the accused for offence of rape.
24. The learned counsel for the accused has referred me to number of rulings;
2013 Cr. R.613 (Kant.), Karnataka High Court (Dharwad Bench) (State of Karnataka V/s. Suresh) wherein it is held:-
"Penal Code, 1860 - Sections 376 and 506 - Rape and criminal intimidation - Acquittal - Evidence of victim not inspiring confidence - It is very difficult to believe testimony of victim that accused committed rape in a dilapidated room which had no door and located very close by to police station - Even assuming that she was minor, there is no clinching evidence to show that she had been subjected to forcible sexual intercourse by accused - Evidence of medical officer goes to show that victim is used to an act of sexual intercourse that by itself would not go to show that accused has committed any intercourse / 34 / Spl.C.C.No. 208/2014 on victim against her will and consent - Appeal dismissed."
In the aforesaid ruling specifically observed that allegation of rape must be supported by credible evidence of victim. I have already discussed in supra that there is no consistent and cogent and trustworthy evidence of PW1 of which inspires confidence to bring home the guilt of the accused for alleged offence of rape.
Another ruling cited on accused side is; 2013 Cr.R.697(Kant.) Karnataka High Court (Chandra alias Baddichandra and others V/s. State by Tavarekere Police) wherein it is held :-
Penal Code, 1860 - Sections 376(2)(g), 395, 448, 427, 342 read with 149 - Gang rape and dacoity - Conviction
- There is absolutely no evidence of presence of any seminal stains on clothes of victim - clothes worn by victim ought to have stained with seminal stains since clothes were seized immediately after incident and sent for chemical / 35 / Spl.C.C.No. 208/2014 examination by FSL - Absence of seminal stains and spermatozoa in clothes worn by victims clear indication that incident has not happened as stated by victim - Inordinate delay in lodging complaint not explained - there is absolutely no evidence to show that she has been subjected to sexual intercourse on the night of incident - There is even no evidence to show that there was attempt to commit rape on her - Conviction and sentence set aside - Appeal allowed." In the present case also FSL report is not favourable to prosecution. Though PW2 has stated that he was asked by the police to search his daughter for two days he lodged a complaint on 2.1.2011, same is mentioned in Ex.P1 complaint. But that is not only the sole ground to doubt the case of the prosecution. There is no medical evidence to prove the clear case of sexual intercourse. It is specifically mentioned in the aforesaid second ruling; allegation of rape must be supported by chemical report.
/ 36 / Spl.C.C.No. 208/2014 2013 Cr.R.481(Kant) Karnataka High Court (State by Hosakote Police V/s. Ravi) wherein it is held:-
"Penal Code, 1860 - Section 376 -
Criminal Procedure Code, 1973 - Section 378 - Rape - Acquittal - Birth certificate of victim not produced before court - In view of school documents age of victim cannot be less than 16 years - Evidence of witnesses do not corroborate with each other - Prosecution has failed to bring home guilt of accused - Opinion of Doctor is that sexual intercourse might have taken place, but there is no conclusive proof - recent forceful intercourse not borne by medical evidence - There is nothing to show that rape was committed on victim and that she was minor at that time - Appeal dismissed.
In the present case also similar situation finds place as already discussed in supra. In the case on hand also there is no conclusive proof that she was under the age of 16 years as on that date. There is also specifically mentioned in the aforesaid ruling / 37 / Spl.C.C.No. 208/2014 that allegation of rape must be corroborated by medical evidence.
2013 Crl.R.222(Kant.) Karnataka High Court (State of Karnataka V/s. Krishna alias Krishnamurthy) wherein it is held:-
"Penal Code, 1860 - Section 376 -
Criminal Procedure Code, 1973 - Section 378 - Rape - Acquittal - Prosecution case not corroborated by medical evidence - Report of Forensic Science Laboratory would not help prosecution to connect accused with alleged offence -
Prosecution has not brought on record any materials to connect accused with seminal stains found on clothes of victim
- View taken by Trial judge is plausible and deserves to interference - Appeal dismissed."
This also applies to the present case, where I find similar circumstance. In the present case also the prosecution case is not corroborated by medical evidence, report of the FSL would not help the / 38 / Spl.C.C.No. 208/2014 prosecution to connect the accused with offence of rape.
Another ruling referred on accused side is; (2013)3 Supreme Court Cases 791 (Rajesh Patel V/s. State of Jharkhand) wherein Hon'ble Apex Court held:-
"Penal Code, 1860 - S. 376 - Rape -
Appreciation of evidence -
contradictions, inconsistencies,
exaggerations or embellishments -
testimony of prosecutrix unnatural and improbable - Delay in filing FIR not properly explained - Prosecution case not consistent - Case if one of consensual sex
- Benefit of doubt extended and conviction reversed - Criminal Procedure Code, 1973 - S. 154 - Delay in lodging / filing FIR - not properly explained."
In the present case also I find similar case that accused allegedly committed rape on her but she did not raise any alarm. She stayed with him in that house for a period of one week. She came / 39 / Spl.C.C.No. 208/2014 outside when she was being taken for nature call at night hours only, in the village where adjacent houses or residential houses, admittedly her aunt's house also is nearby the house of the accused. Therefore, the testimony of the prosecutrix in the present case also is found unnatural and improbable, which does not inspire confidence to hold that there is a rape committed by the accused. The ingredients of section 375 are not proved. Hence he cannot be held guilty of the offence of rape.
2014 Crl.L.J. 4795 (Chattisgarh High Court) Dilsay V/s Sate of M.P.), wherein it is held:-
"Penal Code (45 of 1860), S. 376 - Rape - Proof - Accused allegedly forcibly took prosecutrix to agricultural field in presence of her parents and sister and committed rape on her - Prosecutrix at one place stated that accused after forcibly taking her away at agricultural field threw her on field and committed rape on her. However, at another place / 40 / Spl.C.C.No. 208/2014 prosecutrix has stated that she did not object to said act of accused - As per medical evidence no external or internal injury was found on body of prosecutrix - No definite opinion expressed by doctor regarding recent sexual intercourse - As per ossification test, radiological age of prosecutrix was 14 - 16 years on date of incident - In case of age determination through ossification test there may be variation of two years on either side - age of prosecutrix comes to about 18 - Held prosecution not able to prove involvement of accused in commission of offence beyond shadow of reasonable doubt - conviction of accused under S. 376(1) set aside."
In the present case there is no ossification test with respect to her age. There is no conclusive proof to say that she was under 16 years. There is no supportive medical evidence, favourable FSL report. The prosecution is not able to prove the charge of rape against the accused.
/ 41 / Spl.C.C.No. 208/2014 2013 AIR SCW 1284 (State of Rajasthan V/s. Babu Meena) wherein the Apex Court held:-
(A) Penal Code (45 of 1860) S. 376 - Rape
- Evidence of prosecutrix - Contradictory as to time of offence - Plea that she shouted not supported by landlord of place of offence - Medical and FSL report also not supporting allegation of rape -
Acquittal of accused proper - Not liable to be interfered in appeal against acquittal - Refusal to grant leave to appeal justified.
(B) Evidence Act (1 of 1872) S. 134, 3 - Solitary witness - Evidence of if wholly reliable - Sufficient to base conviction
- Principle applies with grater vigour in case of offence committed in seclusion."
In the present case also similar facts are found. There is contradictory evidence of prosecutrix with respect to their tracing, medical and FSL report also not supporting allegation of rape in the present case.
/ 42 / Spl.C.C.No. 208/2014 The Independent witnesses are not supporting. Based on solitary witness whose evidence is not the liable and does not inspire confidence it is not safe to convict the accused for offence of rape.
2011 Cr.R.124 (Kant) Karnataka High Court (State of Karnataka V/s. Nasarulla alias Babu) wherein it is held:-
"Prosecution story not consistent with medical evidence - Victim was only 10 years of age and she was raped five times by accused - If really such an incident had occurred, it would have resulted in some injury on her private part - No injury on her private part and there was no evidence of any sexual act - Evidence of PWs suffering from glaring discrepancies ad inconsistencies - Sessions Judge rightly acquitted accused persons - Appeal dismissed.
C. Penal Code 1860 - Section 376 - Rape
- On local examination external genitalia was found normal - Hymen was intact - No injuries, no bleeding, no swelling or / 43 / Spl.C.C.No. 208/2014 tenderness were present - No tear in genital are and no discharge - Medical evidence did not indicate any act of rape
- Judgment of acquittal upheld."
In the above ruling it is held that negative medical evidence has great bearing in sexual offences.
25. The facts and attending circumstances itself doubt the case of the prosecution that there is offence of rape committed by the accused. Aforesaid rulings apply to the present case wherein also find almost similar facts and circumstances of the case. The prosecution in the present case has also miserably failed to establish the offence of rape. There are no believable and cogent evidence to convict the accused for offence of rape in view of discussion made supra. The prosecution has miserably failed to establish its case beyond reasonable doubt. The accused is entitled for benefit of doubt. Hence, I hold point No.2 in the Negative.
/ 44 / Spl.C.C.No. 208/2014
26. Point No.3: In view of my above
discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offence punishable under Section 366 and 376 of I.P.C.
The properties at MO1 to 11 are ordered to be destroyed as worthless after appeal period is over.
(Dictated to the Judgment Writer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 28th day of January, 2016.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION P.W.-1 Kum Jyothi P.W.-2 Munibyregowda P.W.-3 Balakrishna / 45 / Spl.C.C.No. 208/2014 P.W.-4 Manjunatha P.W.-5 Chandrashekar P.W.-6 Siddaraju P.W.-7 Dr. K.R. Rekha P.W.-8 Radha, Scientific Officer, FSL P.W.-9 Dr. Parvathi Bai P.W-10 Linganna P.W-11 Nanjegowda P.W-12 Sridhar S. P.W-13 Suresh M.R. P.W-14 Sumithra LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Complaint Ex.P1(a) Photo of PW1 Ex.P 1(c) Signature of PW13 Ex.P 1(b) Signature of PW2 Ex.P 2 Spot Mahazar Ex.P 2(a) Signature of PW2 Ex.P 2(b) Signature of PW3 Ex.P 2(c) Signature of PW4 Ex.P 2(d) Signature of PW5 Ex.P 2(e) Signature of PW13 Ex.P 3 Statement of PW6 Ex.P 4 OPD book of accused Ex.P 5 Wound certificate of accused Ex.P 5(a) Signature of PW7 Ex.P 5(b) Signature of PW13 Ex.P 6 OPD book of victim / 46 / Spl.C.C.No. 208/2014 Ex.P 6(a) Page No.4 to 11 Ex.P 6(b) Signature of PW9 Ex.P 7 Opinion of PW7 Ex.P 7(a) Signature of PW7 Ex.P 7(b) Signature of PW13 Ex.P 8 FSL report Ex.P 8(a) Signature of PW8 Ex.P 9 Sample seal Ex.P 9(a) Signature of PW8 Ex.P 10 Statement of PW10 Ex.P 10(a) Signature of PW10 Ex.P 11 Statement of PW11 Ex.P 12 FIR Ex.P 12(a) Signature of PW13 Ex.P 13 Report Ex.P 13(a) Signature of PW13 LIST OF MATERIAL OBJECTS MARKED MO1 Chudidar top MO2 Chudidar Pant MO3 Underwear MO4 Bra MO5 Nail clippings MO6 Pubic hair MO7 Under garments MO8 Seminal fluid MO9 Pubic hairs MO10 Vaginal Swab MO11 Nail clippings / 47 / Spl.C.C.No. 208/2014 LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE NIL LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore *** / 48 / Spl.C.C.No. 208/2014 28.01.2016 State by PP Accused on bail - RA Judgment Judgment pronounced in the open court, operative portion of which reads as under:-
Acting under Section 235(1) of Cr.P.C., accused is hereby acquitted for the offence punishable under Section 366 and 376 of I.P.C.
The properties at MO1 to 11 are ordered to be destroyed as worthless.
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.