Bangalore District Court
SPL.C/300/2014 on 28 April, 2015
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 28th DAY OF APRIL, 2015
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 300/2014
COMPLAINANT :
The State of Karnataka by HSR Layout
Police Station, Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED :
Yashwanth
S/o Lokesh
Aged 22 years, r/at
No.11, Srinivas Reddy Building,
Muneshwara Layout, Hosapalya,
Bengaluru.
[Rep.by learned Counsel Sri.K.B.K.Swamy.]
***
/2/ Spl.C.C.No.300/2014
JUDGMENT
H.S.R Layout Police, Bangalore City have charge sheeted the accused for the offences punishable under Sections 363, 354 and 376 of I.P.C.
2. The case of the prosecution in brief, is as under :
C.W.2, the prosecutrix was of 16 years in the year 2012. The accused was residing in the neighbouring house with his brother. In the month of December, accused had committed outraging the modesty of woman by touching the hands, putting the hands on her shoulder and molesting her chest. On 04/11/2012 in the afternoon in the absence of his family members, he had committed rape on C.W-2. On 26/02/2012 at 11.00am when C.W-2 was going to attend Hindi exam, she was kidnapped by the accused in a car and took her to Dhabha on Kanakpura road, he made her consume juice, consequently, she became unconscious, he had also committed rape on her. On coming to know of this /3/ Spl.C.C.No.300/2014 fact, C.W-1 Khasim had lodged a complaint on 27/03/2012. After registering the case, the statement of the C.W-2, prosecutrix, had been recorded. Accused was arrested. Both of them were sent to medical examination. Investigating Officer also recorded the other prosecution witnesses and drew necessary Mahazars. By completing the investigation, he submitted the charge sheet to this Court.
3. The chargesheet was submitted to VI ACMM Court, the same was committed to the Sessions Court as it is triable by Sessions Court. After registering the case in SC No.689/2012, it was entrusted to FTC-XVII. The learned Presiding Officer of FTC-XVII framed the charge for the offences punishable under Sections 354, 363 and 376 of I.P.C against accused. Accused has pleaded not guilty and claimed to be tried. After the evidence of P.W- 1, on point of jurisdiction, this case has been transferred to this Court.
/4/ Spl.C.C.No.300/2014
4. On prosecution side got examined as many as 4 witnesses as P.W.1 to P.W.-11 out of 15 charge sheet witnesses and got marked documents at Ex.P.1 to P.10, Ex.D.1 and Ex.D.2 on accused side marked, the details of which are given in the annexure of this Judgment. 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.
5. Heard the arguments on both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused in house bearing door No.10 belonging to C.W-1 Khasim situated in Chitabhavana road, Muneshwara Layout, Hosapalya, has outraged the /5/ Spl.C.C.No.300/2014 modesty of C.W-2, the prosecutrix by touching her and also by molestation punishable under Section 354 of I.P.C?
2) Whether the prosecution has proved beyond reasonable doubt that accused on 04/01/2012 in the afternoon had kidnapped C.W-2, prosecutrix without the permission of her lawful guardians punishable under Section 366 of I.P.C?
3) Whether the prosecution has proved beyond reasonable doubt that on 04/01/2012 in the afternoon, accused had committed rape on her in house No.10 belonging to ownership of Srinivas Reddy situated in Chitabhavana road, Muneshwara Layout and also committed rape on her on 26/02/2012 at 11.00am near Dhaba, Kanakapura road punishable under Section 376 of I.P.C ?
4) What order?
7. My findings on the above points are as under:-
/6/ Spl.C.C.No.300/2014 Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No.3 : In the Negative Point No.4 : As per final orders for the following:
REASONS
8. Point No.1:- According to the case of the prosecution that accused had outraged the modesty of P.W-2, the prosecutrix, on 04/01/2012 in the afternoon, he took her to his house and had forcible sexual intercourse with her, again he had kidnapped the prosecutrix on 26/02/2012 at 11.00am while she was going in Muneshwara layout to attend Hindi exam, he took her in a car to one Dhaba, Kanakpura road, he brought the juice, after drinking, she lost her conscious, on regaining her consciousness, felt pain in her genital area, her pant was untidy, her T.Shirt was torn, he dropped near her house. At the relevant point of time, she was of 15/16 years. Based on these allegations /7/ Spl.C.C.No.300/2014 made by the prosecution, there are 3 charges against the accused. One is kidnapping, another is outraging the modesty of P.W-2, thirdly commission of rape on 2 occasions.
9. In order to prove its case, the prosecution has got examined as many as 11 witnesses. P.W-1 Khasim is the father of prosecutrix. He is the complainant. P.W-2 is the prosecutrix. P.W-3 Gowramma @ Jameela is the mother of the prosecutrix. P.W-8 Meenakshi is the Co-
ordinator of Afsa Child Care, P.W-6 is Dr. Pinky Jain, P.W-11 Rekha Kumari is the authority who had issued the documents with respect to age of the prosecutrix. All these witnesses are material witnesses in the present case.
10. The Protection of Children from Sexual Offences Act, 2012 came into force on 14/11/2012. This has no application to the present case. In view of the legal position then prevailed, "if a person has sexual intercourse with a woman with or without her consent /8/ Spl.C.C.No.300/2014 when she is under 16 years of age is said to commit rape". In other words, if a victim girl is above 16 years and he has sexual intercourse with her free consent, does not constitute the offence punishable under Section 376 of I.P.C. Therefore, the age of the victim at the first instance shall have to be looked into whether she is below 16 years or above 16 years. It plays a vital role in the present case.
11. So far as the age of the victim is concerned, the prosecution has put forth the inconsistent evidence. Because according to complaint given by the P.W-1, father of the prosecutrix, she was of 15 years as on the date of the alleged incident, she was studying in SSLC. In the Charge Sheet mentioned the age of the prosecutrix is 16 years. On prosecution side produced true copy of hall ticket of SSLC at Ex.P.6. As per Ex.P.6, her date of birth is 23/07/1995. Ex.P.8 is the confirmation of date of birth issued by P.W-11 Rekha Kumari, Head Mistress of Macaulay English School in which the victim girl was /9/ Spl.C.C.No.300/2014 admittedly studying. It also speaks the same date of birth as mentioned in Ex.P.6. According to prosecution, rape was committed on 04/01/2012 and also on 26/02/2012. But when the offence of outraging modesty of woman took place is nowhere mentioned either in the complaint or in the statement of the prosecutrix, even not stated by the prosecutrix in her evidence. The complaint at Ex.P.1 and her statement stated to have been recorded by the P.W-11 as per Ex.P.5 read together, the allegation is made that accused committed said offence before the 04/01/2012, whether it may be in the month of January, 2012 or prior to that is not available on record. However, based on the allegations as stated in supra, the dates of this alleged incident and the date of birth as per Ex.P.6, the true copy of the hall ticket of SSLC examination, the confirmation letter at Ex.P.8 are taken into consideration, the victim girl was above 16 years as on the date of the alleged incident. She was of 16 years 5/6 months. The same is also corroborated by the medical evidence.
/ 10 / Spl.C.C.No.300/2014
12. Ex.P.3 is the medical report issued by P.W-6 Dr.Pinky Jain. According to prosecution, the investigating agency had sent prosecutrix for medical examination to ascertain her age and also to give opinion whether she is subjected to sexual intercourse. After subjecting her to several examinations, P.W-6, Doctor has opined that her age is from 16-17 years. That means she has already completed 16 years. Ex.P.3, the medical report speaks that as per :
1. X-ray shoulder joint, all the centers are fused (17- 18 years)
2. X-ray elbow joint- all the centers fused. (15-16 years)
3. X-ray wrist joint- all the centers recently fused (17-
18 years)
4. X-ray Pelvis- iliac crest not fused (18 years), upper end of femur fused (16-17 years), ischial tuberosity appeared not fused (16 years).
5. X-ray knee joint- Fused (17-18 years).
/ 11 / Spl.C.C.No.300/2014
13. In view of the aforesaid radiological findings, her age is certified that she is between 16-17 years. In view of educational records, she is above 16 years. From all these materials on record, she was not below16 years at the relevant time. Therefore, the age of the prosecutrix mentioned in the complaint as 15 years is not established by the prosecution. The prosecution has failed to establish that she is under the age of 16 years. As per the documents of the prosecution itself, she has completed 16 years as on the date of the alleged incident.
14. Now the next question arises whether accused had committed outraging modesty of woman, whether he had kidnapped, whether he had forcible sexual intercourse with her. As already mentioned in supra, that nowhere mentioned with respect to date of offence of outraging the modesty of P.W-2 and even the prosecution has not come up with a definite case with respect to place of occurrence of that offence. Ex.P.1 is the statement stated to have been given by the prosecutrix / 12 / Spl.C.C.No.300/2014 before PW-8, Co-ordinator and investigation agency. As per Ex.P.1, accused is alleged to have forced her to love him, though it was rejected by the prosecutrix, he used to forcibly touch her. As per Ex.P.5, the allegations on this aspect are in the absence of family members, he was calling her to come with him, she did not agree to the same, even otherwise he used to forcibly touch her hand, keep his hands on her. In the back drop of these allegations in the complaint and the statement of the prosecutrix, her oral evidence is looked into, for the first time she has put forth the place of occurrence, the accused was residing in Manju's house, which is abutting to her house, whenever she went to his house, he was touching her hand and also forced to love him, but she rejected. According to prosecution case, he came in contact with victim girl while she was going and coming from school. Admittedly he was in his brother's house bearing door No.11 in the same building of Srinivas Reddy where door No.10 of the victim girl is also situated. Both the houses are admittedly abutting to each other.
/ 13 / Spl.C.C.No.300/2014 Even as per the spot mahazar drawn by the Investigating Officer under Ex.P.2 also both are adjacent to each other, other residential houses are also there. Bearing in mind all the allegations made by the prosecutrix, if Ex.D.1 and Ex.D.2 are looked into, would reflect a true colour of sequence of event. Ex.D.1 and Ex.D.2 are undisputed documents. In the cross-examination of PW-2, Prosecutrix, these documents are confronted. There are 9 written pages in Ex.D.1, there are 5 sheets in Ex.D.2. They are split sheets. The sheets under Ex.D.1 are binding sheets in a Booklet. As Could be seen from the cross-examination of PW-2-prosecutrix, PW-3-mother of the prosecutrix, accused and the victim girl were loving, accused belongs to Hindu religion, prosecutrix belongs to Muslim religion, the father of the prosecutrix wants accused to convert the accused to Muslim religion, it was refused by the him, the love affair between themselves had been protested by the father of the victim girl on coming to know all these facts, hence a false case has been foisted by fixing the accused in the present crime.
/ 14 / Spl.C.C.No.300/2014
15. Ex.D.1 which has 9 pages (written pages) is looked into, the prosecutrix appears to be very much after the accused, she fell in love with the accused. There was close contact between themselves. She expressed her love in her own way and in different angles. In each page she went on expressing her love and affection towards the accused. The learned counsel for the defence has confronted her to the material portions of Ex.D.1 and very relevant letters under Ex.D.2. So far as concerned to Ex.D.1, the relevant portion of the cross-examination of prosecutrix is reproduced for better appreciation :
¤.r 1 gÀ 7£Éà ¥ÀÅlzÀ°è DgÉÆæ £À£Àß PÀ£À¹£À ºÀÄqÀÄUÀ J£ÀÄߪÀ §UÉÎ ªÀåPÀÛ¥r À ¹ CzÀgÀ°è EgÀĪÀAvÉ §gÉ¢zÉÃÝ £É C£ÀÄߪÀÅzÀÄ ¸Àj.
¤.r 1 gÀ 8£Éà ¥ÀÅlzÀ°è DgÉÆæ ªÀÄvÀÄÛ £Á£ÀÄ ¥ÀgÀ¸ÀàgÀ ¦æÃw¸ÀÄwÛzÃÉÝ ªÉ J£ÀÄߪÀÅzÀgÀ §UÉÎ CzÀgÀ°è EgÀĪÀAvÉ §gÉ¢zÉÝÃ£É C£ÀÄߪÀÅzÀÄ ¸Àj. ¤.r 1 gÀ°è 9£Éà ¥ÀÅlzÀ°è §gÉAiÀÄĪÁUÀ ¤ªÀÄä ¦æÃwAiÀÄ£ÀÄß ªÀåPÀÛ¥r À ¸À®Ä ¤ªÀÄä gÀPÀÛzÀ vÀÄtÄPÀÄUÀ¼ÀÄ CzÀgÀ ªÉÄÃ¯É ©¢ÝªÉ JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ CzÀÄ £À£Àß gÀPÀÛ ºËzÉÆà C®èªÉÇ £À£U À Éà UÉÆwÛ®è JAzÀÄ ºÉýgÀÄvÁÛg.É / 15 / Spl.C.C.No.300/2014
16. From Ex.D.1 and the admissions by the prosecutrix in her cross examination at page No.6, she was loving the accused, she had written as in Ex.D.1 expressing her love. She has written therein that accused is her dream boy. Ex.D.1 and the admissions given by the prosecutrix in her cross examination referring to Ex.D.1 itself positively establishes the version of the prosecutrix in her chief examinations and the allegations alleged to have been made by her in her 161 statement as per Ex.P.5 are not found to be true. The admitted documents and the admissions by the prosecutrix in her cross examination referring to Ex.D.1 demolishes her own allegations made against the accused.
17. Ex.D.2 runs in 5 separate sheets. The learned counsel for the accused made a suggestion the writings therein are of hers. She admitted the same. The relevant portion of the admission referring to Ex.,D.2 is "FUÀ ¸ÁQëzÁgÀ½UÉ ¥ÀævÉåÃPÀªÁVgÀĪÀ 5 ²ÃmïUÀ¼À£ÀÄß vÉÆÃj¹ EzÀgÀ°è EgÀĪÀ / 16 / Spl.C.C.No.300/2014 §gÀªÀtôUÉ ¤ªÀÄäzÃÉ JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀ¼ÀÄ ºËzÀÄ JAzÀÄ ºÉýgÀÄvÁÛ¼.É "
Ex.D.2 were written by the prosecutrix herself. She is confronted to first, third sheet under Ex.D.2. Material portions are as under :
¤.r. 2 gÀ ªÉÆzÀ®£Éà ¥ÀvÀæzÀ°è EgÀĪÀAvÉ £Á£ÀÄ DgÉÆæUÉ PÁgÀ£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ ¨Á JAzÀÄ PÀgÉ¢zÉÝÃ£É ºÁUÀÆ CzÀgÀ°è EgÀĪÀAvÉ PÉýgÀĪÀÅzÀÄ ¸ÀvÀå.
¤.r 2 gÀ 3£Éà ¥ÀvÀæz° À è £ÀªÀÄä vÀAzÉUÉ CqÀæ¸ï ªÀiÁr DvÀäºvÀ Éå ªÀiÁrPÉƼÀî¨ÃÉ PÀÄ JAzÀÄ J¤ß¸ÀÄvÀÛzÉ JAzÀÄ CzÀgÀ°è £Á£Éà §gÉ¢zÉÝÃ£É C£ÀÄߪÀÅzÀÄ ¸Àj.
18. In the first sheet of Ex.D.2, she requested the accused to come to her school backside near Omshakti temple in car. It does not bear the date. The third sheet of Ex.D.2 is addressed to her father, PW-1. The relevant lines therein are reproduced below :
In my life I was loved one boy, you also know that boy. His name is ?
/ 17 / Spl.C.C.No.300/2014 I was truly loved him. But he didn't love me. Its Ok. No problem. But I was loving him so much, I will live for him, I will die for him. From the aforesaid expression made by the victim under Ex.D.2 would indicate her love towards accused. In the first part of the aforesaid second sheet under Ex.D.2 mentioned " I don't want to live, I want to die, for whom I should live." She also addressed the accused as Kaddu. The same has also been suggested by the learned counsel for the defence, she admitted the same.
19. From the aforesaid Ex.D.1 and Ex.D.2 running in several pages are explicitly enough to show that prosecutrix was loving the accused, she herself also used to call the accused to come in car. It can safely be gathered from the cross-examination of prosecutrix and Ex.D.1 and Ex.D.2, there were close movements between both of them. Under the circumstances, the question of forcibly touching the prosecutrix is very difficult to believe that he had culpable intention of committing / 18 / Spl.C.C.No.300/2014 outraging modesty of woman. The essence of woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The consent of the woman is very relevant. But it depends on facts and circumstances of each case. From the aforesaid materials on record and the circumstances would clearly enlighten that there is absence of criminal force or assault by the accused intending to outrage or knowing it to be likely that he will thereby outraging her modesty. At the first instance, the prosecution has miserably failed to make out its case beyond reasonable doubt by not putting forth a clear picture with respect to location of the offence, the approximate period/time of the offence. There is absence of intention to dishonour the victim girl. The version of the prosecutrix does not inspire the confidence about her allegations made against the accused that he had committed outraging her modesty. The initial burden lies upon the prosecution to establish its case beyond reasonable doubt. But there is no clinching evidence to / 19 / Spl.C.C.No.300/2014 hold the guilt of the accused for the offence under Section 354 of IPC.
20. PW-1, father of the prosecutrix is the complainant. According to the prosecution case, he came to know about the contact between his daughter and the accused, from his friends i.e., PW-4 Rajashjekar CW-5 Narayanappa. As per the prosecution case, the prosecutrix herself discloses before the wife of the CW-5 Narayanappa. Rajashekar, Narayanappa and the complainant Khasim are admittedly friends. They are drivers by profession. Accused is also a driver by profession. On coming to know this fact, Narayanappa informed PW-4-Rajashekar, thereafter, he in turn intimated CW-1, the complainant. When he enquired the prosecutrix disclosed all these things including the commission of outraging modesty of woman by the accused. The complainant is a hear say witness. According to prosecution itself, there is no eye witness for the commission of this crime by the accused. There is / 20 / Spl.C.C.No.300/2014 sole witness i.e., the prosecutrix only. But whether her oral testimony is found reliable, whether it assumes credibility. But in view of the discussion made in supra, her evidence does not have any credence, it is not an unimpeachable evidence. When the evidence of the prosecutrix is found truthful, it does not look for corroboration. But when it does not inspire the confidence, the corroboration is required to find out the commission of the alleged offence by the accused. As already stated in supra, there is no eye witnesses, all are hearsay witnesses. In the back drop of Ex.D.1, 2 and the admissions given by the prosecutrix, the evidence of the complainant, PW-4 Rajashekar, PW-3 Gowramma, mother of the prosecutrix are of no much value. The Investigating Officer has reiterated the prosecution case. Even PW-8 Meenakshi, Co-ordinator of Afsa Child Line has stated that she had recorded the statement of the prosecutrix as per Ex.P.5. But the prosecution has miserably failed to establish its case beyond reasonable doubt. The attending circumstances / 21 / Spl.C.C.No.300/2014 mentioned in supra does not prove the commission of alleged offence under Section 354 of IPC by the accused. The prosecution has miserably failed to establish its case that he is guilty of the crime under Section 354 of IPC. The benefit of doubt should go the accused. Hence, I hold point No.1 in the Negative.
21. Point Nos.2 and 3 : Points Nos.2 & 3 are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
There are also other 2 charges against the accused that he had kidnapped the prosecutrix and he had committed rape on the prosecutrix on 2 occasions. According to prosecution, he had forcible sexual intercourse, he had committed rape on the prosecutrix on 04/01/2012 by taking away her to his house in the absence of his and also her family members. On the pretext of marriage he had committed rape on her. Again on 26/02/2012, he had picked up forcibly in a car and / 22 / Spl.C.C.No.300/2014 took her to Dhaba, Kanakpura, he gave cool drinks to her of which made her unconscious, committed rape on her.
22. As already discussed in supra, while discussing point No.1, the age of the victim was above 16 years at the relevant time. The complaint was lodged on 27/03/2012 by PW-1 father of the prosecutrix by making allegations of rape by accused and also kidnapping. On this aspect the evidence of PW-2 is very material in the present case, normally eye witnesses or direct evidence cannot be expected in sex offences, having regard to very nature of the offence. In the present case also there is no eye witnesses to the rape on 04/01/2012. Ofcourse, so far as the commission of rape on 26/02/2012 is concerned, though eye witnesses are not cited in the chargesheet, the attending circumstances create a doubt about the commission of rape on 26/02/2012. When there are allegations that he had committed rape on 2 occasions, they have to be discussed separately. If I take up commission of rape on 04/01/2012, there is only the / 23 / Spl.C.C.No.300/2014 statement of the prosecutrix as to forcible sexual intercourse by the accused in his house. PW-1, the complainant is hear say witness. According to prosecution, after he learnt from his friends, he enquired his daughter, then he came to know about the rape committed by the accused on 2 occasions as stated in supra, then only he had filed a complaint on 26/03/2012. Accused was also apprehended, both were subjected to medical examination on 28/03/2012. this is the theory of the prosecution.
23. Ex.P.1 is the complaint dated 27/03/2012 wherein the complainant alleged the commission of rape by the accused on 04/01/2012. But in his very chief examination itself, he has not supported the prosecution so far as commission of rape is concerned whether it is on 04/01/2012 or 26/02/2012, he has totally denied the rape by the accused on the prosecutrix. Ofcourse PW-3 Gowramma, mother of the prosecutrix has also not stated anything about the commission of rape on / 24 / Spl.C.C.No.300/2014 04/01/2012. She has stated that the victim girl disclosed before her about the rape on 26/02/2012. So far as concerned to rape alleged to have been committed on 04/01/2012 she has stated that "accused in the absence of family members called her, induced that he would marry her, demanded to have sexual intercourse, same was rejected by the prosecutrix." This portion of her evidence concerned to alleged rape on 04/01/2012 does not suggest the commission of aforesaid crime by the accused. The evidence of PW-1 and 3, the parents of the prosecutrix do not support the prosecution concerned to rape committed on 04/01/2012. However, is there any other materials to prove the commission of rape on 04/01/2012 is to be seen.
24. On going through the oral testimony of the prosecutrix, she has stated in her chief examination at para No.3 page No.2 "on 04/01/2012 there were none in her house, accused came to her house and took her / 25 / Spl.C.C.No.300/2014 to his house, there were also none in his house, he induced that he would marry her, offered to have sexual intercourse, she rejected the same, but he removed her clothes, he had forcible sexual intercourse, there was pain in her genitalia, there was profused bleeding, accused asked her to wipe out the same, not to disclose the incident to anybody, thereafter she came to her house."
25. So far as concerned to commission of rape on 04/01/2012, the prosecutrix has given the aforesaid statement before the Court. Ex.P.3 is the medical report relating to victim. PW-6 is the Doctor who had examined her on the request of Investigating agency on 28/03/2012. Ex.P.3 depicts that at that time the prosecutrix had given voluntary statement before the PW- 6 Doctor that in the month of December, 2011, 5 times she had sexual intercourse with her boy friend residing in the neighbouring house, she had given contradictory statement with respect to commission of rape on / 26 / Spl.C.C.No.300/2014 04/01/2012. According to her voluntary statement as per Ex.P.3, there was absence of force. She did not make any allegations against the accused that he had induced her or he had sexual intercourse against her will. Irrespective of it, she had not at all made allegations before the Doctor against the accused. That itself creates the doubt about the compulsion in having the sexual intercourse with the prosecutrix.
26. Ex.P.3 is the medical report issued by the PW-6 Dr.Pinky Jain by opining that hymen is ruptured, had multiple old tears, she was subjected to medical examination on 28/03/2012. The alleged rape was committed on 04/01/2012 and second time on 26/02/2012. After a long gap she was subjected to medical examination since there was delay in lodging the complaint. However, what is the medical evidence, whether it strengthens the prosecution case is to be seen. On going through the whole cross-examination of the prosecutrix, the suggestion on defence side so far as / 27 / Spl.C.C.No.300/2014 concerned to rape is accused has not committed rape. The rape consists of 2 parts, one is having sexual intercourse and another is against her will. The defence on otherside is there was love affair, the victim girl is in love with the accused, she had written so many letters to the accused as per Ex.D.2 and also as per Ex.D.1 in one booklet. I have already discussed at length in supra while discussing point No.1. Ex.D.1 and 2 would show that prosecutrix was in love with the accused, they had a close contact. At the first instance, whether they had sexual intercourse is the first and foremost point to be looked into. If so, whether it was with or without consent.
27. Ex.P.3 corroborates the prosecution that prosecutrix is used to sexual intercourse. Ofcourse according to prosecution on 04/01/2012, he had sexual intercourse with her against her will, second time on 26/02/2012. Though prosecutrix made a different version before the Doctor that she had sexual intercourse / 28 / Spl.C.C.No.300/2014 5 times in the month of December with the accused, the entire oral testimony of the prosecutrix including the cross-examination is read, would establish that there may be some contradictions with respect to period during which they had the sexual intercourse. But the fact remains that they had the sexual intercourse, same is forthcoming in the medical report at Ex.P.3. The cross-examination of PW-6 Doctor does not suggest any other reason for tear of hymen. It is the specific case of the prosecution that prosecutrix was subjected to sexual intercourse. The same is corroborated by the oral testimony of the prosecutrix and it is also strengthened by the medical evidence. In the absence of evidence that tear of hymen or rupture of hymen of the victim girl was caused by some other reason, the testimony of the prosecutrix that they had the sexual intercourse cannot be overlooked. Whether the sexual intercourse that they had, constitutes the offence of rape or not is a different aspect. As already mentioned in supra, the complainant has not / 29 / Spl.C.C.No.300/2014 supported the prosecution that accused had committed rape on victim girl. So also no supportive evidence finds place in the chief of PW-3, the mother of the prosecutrix. However, so far as physical relationship between the accused and the victim girl is concerned, the oral testimony of the prosecutrix is found reliable, it is also corroborated by the medical evidence. The evidence of PW-6 Doctor also corroborates the same. I do not find any other circumstances so as to disbelieve the version of the prosecutrix or to ignore the medical evidence at Ex.P.3 to hold that they had no physical relationship. Admittedly the victim and the prosecutrix are neighbours. As per Ex.D.1 and 2, there is love affair. Even as per the defence the love affair is not specifically denied. Clinching circumstantial evidence and ocular statement of victim made out the physical relationship between themselves.
28. Now the next question arises whether the accused had physical relationship with the prosecutrix / 30 / Spl.C.C.No.300/2014 with or without consent. According to prosecution, he had taken her to his house in the absence of their family members, under the pretext of marriage, he had forcible sexual intercourse with her against her will on 04/01/2012. I have already discussed in supra, there are contradictions with respect to period during which they had sexual intercourse, but there is enormous believable evidence there lies a physical relationship between themselves. Therefore, whether they had the physical relationship in the month of December or in the month of January, does not play a vital role in the present case. Because prosecutrix has completed her 16 years in the month of July, 2011 itself, at the relevant time she was above 16 years, therefore, what could be the legal position in the month of December or in the month of January does not vary. Therefore, whether it is in the month of December or in the month of January is immaterial due to that reason.
/ 31 / Spl.C.C.No.300/2014
29. If the point of consent is taken up for consideration, according to prosecution, it is rape. In order to constitute the rape, there should be absence of consent. Admittedly she was above 16 years as on that date. The age of consent is 16 years. In view of 6th description of Section 375 of IPC, "where a man has illicit intercourse with a woman above 16 years with her consent, it is not rape under law". Therefore, whether there was absence of consent or not is to be seen. It is not at all the case of the prosecution that she had raised alarm when he had forcible intercourse with her. Admittedly both the houses are abutting to each other and they are located in the residential area and there are residential houses adjacent to their houses. Even it is not the version of the prosecutrix that she had raised hue and cry at that time. On one breath she says because of friendship she went to his house on 04/01/2012 when he called her to his house. It is pertinent to note in view of her voluntary statement before the PW-6 Doctor, they had physical relationship 5 / 32 / Spl.C.C.No.300/2014 times in the month of December, 2011 itself. She had also alleged that he used to touch her and put his hands on her body. If there was no consent for all these things, she would not have gone with him though he called her to his house, very particularly in the absence of their family members. This attending circumstance would show that they had the sexual intercourse with consent.
30. The another circumstance is it is not at all the case of the prosecution that she was kept under any threat not to disclose to anybody. Even the parents also did not find any fear or tension on her face during the period before PW-1 lodged a complaint. Nowhere it is stated by any of the prosecution witnesses including the prosecutrix that she was kept under threat in any manner not to disclose the incident. Ofcourse on prosecution side made a suggestion in the cross of PW-1 because of family reputation, she did not disclose this fact to her parents. That has been extracted so far as concerned to delay caused in FIR. The prosecutrix has / 33 / Spl.C.C.No.300/2014 been subjected to extensive cross-examination by the learned counsel for the defence. Nowhere she has stated that accused gave a threat not to reveal the incident or kept her under inducement of anything. On going through Ex.D.1 and 2, the letters written by her through which she expressed her love and affection towards the accused also is sufficient to hold that there is absence of compulsion or force in developing their physical relationship. Merely because she has written love letters does not lead to draw an inference that they had the sexual intercourse with consent. Because of the clinching circumstances, discussed in supra, and the materials brought on record would show the sexual intercourse between themselves. Absence of any threat given to her, not to disclose this incident to her family members, not raising the alarm at the relevant time, no protest made by her are the clinching circumstances to demolish the case of the prosecution that he had sexual intercourse with the prosecutrix against her will. Even it is not at all the case that she remained in tense. That / 34 / Spl.C.C.No.300/2014 itself evidences that she was not in the trauma of sexual intercourse.
31. Another circumstance of which disbelieves the case of the prosecution is no injuries found on the body of the prosecutrix. Ex.P.3 does not speak any injuries. In the cross-examination of the prosecutrix there is one suggestion made by the learned counsel for the defence that :
¤ÃªÀÅ DgÉÆæAiÀÄ£ÀÄß vÀÄA¨Á ¦æÃw ªÀiÁqÀÄwÛgÀĪÀÅzÀjAzÀ DgÉÆæ »AzÀÄ zÀsªÀÄðPÉÌ ¸ÉÃjzÀªÀ£ÁVgÀĪÀÅzÀjAzÀ ¤ªÀÄä vÀAzÉ ¤ªÀÄä ªÀÄÆ®PÀ DgÉÆæAiÀÄ ªÀÄÆ®PÀ gÉÃ¥ï PÉÃ¸ï ªÀiÁr¹zÁÝgÉ JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ PÉ®ªÀÅ ¸ÉPÉAqïUÀ¼À ¸ÀªÀÄAiÀÄ vÉUÉzÀÄPÉÆArgÀÄvÁÛgÉ , F ¥Àæ±Éß CxÀð D¬ÄvÉÆà E®èªÉÇ JAzÀÄ £ÁåAiÀiÁ®AiÀÄ PÉýzÀÝPÉÌ CxÀð C¬ÄvÀÄ JAzÀÄ ºÉý ºËzÀÄ F jÃw PÉøÀÄ ºÁQ¹zÁÝgÉ JAzÀÄ ºÉýgÀÄvÁÛg.É The aforesaid version of the prosecutrix made before the Court on oath also discredits her oral testimony in the chief examination that accused had committed rape / 35 / Spl.C.C.No.300/2014 on her. In the back drop of the aforesaid discussion, if Ex.D.2, the 4th sheet is looked into, she made an allegation against her father that "her father had given the age as 15 years though her age is of 17 years, her father filed the rape against the accused, he also compelled her to say her age is 15 years, he had beaten her, her mother is telling that Kaddu will come on one day, you must go with Kaddu, her mummy is on her side". This letter is admitted by the prosecutrix that she has written this letter to the accused after he came outside obtaining the bail from the Court. Having regard to all these facts and circumstances, the version of the victim in her chief examination is not fit to be believed to hold the commission of rape by the accused on her. As already stated in supra, the age of the consent is 16 years in view of Section 375 of IPC. The learned Public Prosecutor and the defence counsel had much concentrated their arguments on the presumption under Section 114(A) of Indian Evidence Act. The learned Public Prosecutor strenuously argued / 36 / Spl.C.C.No.300/2014 in view of Section 114(A), the court shall presume that victim did not consent to have the sexual intercourse, hence it amounts to rape. The learned counsel for the defence argued that Section 114(a) has no retrospective effect.
32. I have gone through the Section 114(A) of Indian Evidence Act. The old section reads as under :
Presumption as to absence of consent in certain prosecutions for rape : In a prosecution for rape under clause (a) of clause (b) or clause
(c) or clause (d) or clause (e) or clause (g) of sub-
section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
/ 37 / Spl.C.C.No.300/2014
33. In view of the aforesaid section, the presumption shall be drawn when accused is prosecuted for the offence under Section 376(2) (a) or (b) or (c) or (d) or (e) or
(g). The present case has not been prosecuted for any of these offences. Accused is a boy friend of the prosecutrix. He had forcible sexual intercourse with her on 2 occasions. At present I am discussing about the commission of rape alleged to have been committed on 04/01/2012 only. Though there is believable evidence and the materials on record to show they had the physical relationship, there is absence of force, there are no materials to show he had sexual intercourse against her will. There is allegation made against the prosecution that there is repeated commission of rape on the prosecutrix. But Section 376(2) clause (n) on this aspect has been introduced by Criminal Amendment Act, 2013. The incident took place in the year 2012. Therefore, here also the prosecution does not get any benefit of the presumption available under Section 114(A) of Indian Evidence Act. In view of the aforesaid evidence / 38 / Spl.C.C.No.300/2014 and analysis of the materials on record, I find no substance in the statement of the prosecutrix to hold the guilt of the accused so far as concerned to 04/01/2012 incident. It does not constitute the commission of rape.
34. Now the next question arises whether the accused kidnapped the prosecutrix on 26/02/2012 and had sexual intercourse with her when she was under
intoxication. According to prosecution, on 26/02/2012 when she was going in Muneshwara layout at 11.00am to attend Hindi examination, she was forcibly taken away in car bearing No.KA-03-D-3869. As per the prosecution case, he took away the prosecutrix forcibly in the car to one Dhaba nearby Kanakpura, took her to inside the Dhaba, he gave cool drinks, after she drank the same, lost the conscious, but only she was feeling pain in her genitalia. On regaining her conscious, she found herself in the car, found her clothes untidy, he dropped her near her house. This is the story projected by the prosecution so far as concerned to commission of alleged rape on / 39 / Spl.C.C.No.300/2014 26/02/2012 and also kidnapping. So far as concerned to kidnapping according to prosecution, there are no eye witnesses. There is only witness i.e., the prosecutrix who has to speak about the act of the accused. Ofcourse, prosecutrix has stated in her chief examination that on 26/02/2012 at 11.00am near Muneshwara layout, she was forcibly taken away in the car to Dhaba, he brought cool drinks, she drank the same, consequently she lost conscious, she felt semi consciousness, she got pain in genitalia, she was in the car, her clothes became untidy, she felt again the accused committed rape on her.
35. As per the prosecution case, accused took her to inside the Dhaba and she drank cool drinks in the Dhaba. Whereas according to her oral testimony accused himself brought the cool drinks from Dhaba and made her drink in the car itself, committed rape in the car. As per Ex.P.1, the complaint, he took her to Dhaba and made her sit in the Dhaba, he brought cool drinks from outside, after drinking the same, she became / 40 / Spl.C.C.No.300/2014 unconscious, at 3 '0' clock she regained consciousness, she found herself in the car, found jeans pant was untidy, found her T.shirt torn. The statement of the prosecutrix is very much contradictory to the case of the prosecution. The clothes of the prosecutrix have not been seized by the investigating agency, there are no materials to show the tear of T.shirt. Admittedly the car alleged to have been used for kidnapping and commission of rape has not been recovered. That is admitted by the Investigating Officer PW-9 Srinivas Reddy. Even he has stated that he had not investigated about the owner of the car, name of the Dhaba, location of the Dhaba. At the time of recording the statement of the prosecutrix, not enquired about her torn clothes though it is mentioned in the complaint by the complainant. He has not enquired the surrounding people in location from where she had been allegedly kidnapped by the accused. Ofcourse, there is negligence on the part of the investigating agency. However, the initial burden lies upon the prosecution to establish its / 41 / Spl.C.C.No.300/2014 case beyond reasonable doubt. Non-seizure of car, non- seizure of mahazar with respect to kidnapping, rape allegedly committed on 26/02/2012, non-seizure of torn clothes is fatal to the case of the prosecution. According to prosecution, while she was going to attend Hindi examination on 26/02/2012 incident of kidnap took place. Admittedly whether she had Hindi examination on that date, whether she had left the house for Hindi examination is not at all investigated by the investigating agency. It is very fatal to the prosecution. Unless it is found out that she had the Hindi examination on that day, the implication of the accused for crime of the kidnapping on 26/02/2012 cannot be ruled out. The investigating agency has not at all collected the hall ticket, there is no iota of evidence to show that she had Hindi examination on 26/02/2012. This is also one of the circumstance to disbelieve the case of the prosecution that accused had kidnapped her while she was going to attend the examination. The another circumstance is there is no mahazar drawn. That is not the sole ground / 42 / Spl.C.C.No.300/2014 to throw the prosecution at threshold itself, but there are other circumstances to show improbabilities of commission of the offence of kidnap and rape by the accused.
36. The prosecutrix has been put to elaborate cross- examination by the learned counsel for the defence. She has clearly admitted while going from Muneshwara layout, HSR extension through Madiwala, found so many persons going on the road, admittedly HSR layout is prestigious and busy locality. For better appreciation, the relevant portion of her admission is reproduced :
ºÉZï.J¸ï.Cgï ¯ÉÃOmï ¨ÉAUÀ¼ÀÆj£À°è ¥Éæ¹ÖÃfAiÀÄ¸ï ªÀÄvÀÄÛ ©¹ ¯ÉÆPÁ°n C£ÀÄߪÀÅzÀÄ ¸Àj. ºÉZï.J¸ï.Dgï. ¯ÉÉÃOmï¤AzÀ AiÀiÁªÀÅzÉà §qÁªÀuÉ PÀqÉUÉ ºÉÆÃUÀĪÁUÀ ¹UÀß¯ï ¹UÀÄvÀÛªÉ C£ÀÄߪÀÅzÀÄ ¸Àj. PÁj£À°è C¥ÀºÀgÀt ªÀiÁrPÉÆAqÀÄ ºÉÆÃUÀĪÁUÀ ¹UÀß¯ï ¹PÁÌUÀ CAvÀºÀ ¸ÀªÀÄAiÀÄzÀ°è K£ÁzÀgÀÆ CPÀÌ-¥ÀPÀÌzÀªÀjUÉ £À£ÀߣÀÄß PÁ¥Ár JAzÀÄ PÀÆVPÉÆArgÁ JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ E®è JAzÀÄ ºÉýgÀÄvÁÛgÉ.
/ 43 / Spl.C.C.No.300/2014 The aforesaid portion of her evidence makes it very clear that she did not draw the attention of publics inspite of opportunity she had. They crossed number of signals. It is not the version of the prosecutrix that she had no scope to raise alarm. Despite the opportunity to the prosecutrix, she did not shout for help. That itself creates the doubt about kidnapping the prosecutrix on that day.
37. There are also other instances to ignore the case of the prosecution. According to prosecution, he had committed rape in Dhaba near Kanakpura on 26/02/2012. With respect to place of occurrence, there is contradictory evidence on prosecution side. On this point I have already discussed in supra, her 161 statement is very much contradictory to the contents of the complaint. It is also not supported by her oral testimony. Simply because she has stated that he had kidnapped her in a car and he made her to drink cool drinks, when she became unconsicious, he committed / 44 / Spl.C.C.No.300/2014 rape on her, the accused cannot be held guilty of the said offence of rape in the absence of believable, corroborative and cogent evidence. There is no enough circumstantial evidence of accused's guilt. On one breath she says the rape was committed in Dhaba, on other breath she says she was made to drink cool drinks in the car and committed rape in the car. This amounts major contradiction. If rape were to be committed inside the Dhaba, was not there any person in Dhaba, even it is taken he committed rape in car near Dhaba could it be imagined. The version of the prosecutrix does not carry of much value when it suffers from serious infirmities and major contradictions of which go to the root of the prosecution. There is nothing before the Court to corroborate the case of the prosecution. The version of the prosecutrix is found suffering from basic infirmity. Probabilities factor render it unworthy of credence. According to prosecution, she did not disclose this incident also before her parents or anybody. After the lapse of one month, her father had filed a complaint / 45 / Spl.C.C.No.300/2014 against the accused that he had committed rape on 2 occasions and also he had kidnapped. Ofcourse, the learned Public Prosecutor has extracted in the cross- examination of P.W-1 that police has recorded his further statement that because of the reputation, the delay was caused in lodging the complaint and since the elders did not finalise the matter, he had lodged a complaint on 30/03/2012. It is pertinent to note he did not give any explanation in the complaint itself about the delay caused in lodging the complaint. When there are serious allegations against the accused that he used to commit rape on her, he learnt the misbehaviour of the accused through his friends he would have assigned the reasons for delay in initiating the action. If 2nd incident were to be true, the prosecution could have put forth the believable, corroborative and cogent evidence. So far as concerned to commission of alleged rape on 26/02/2012, there is no supportive circumstantial evidence to trust the version of the victim. Her evidence does not inspire any confidence with respect to kidnapping by the accused and / 46 / Spl.C.C.No.300/2014 committing rape on her on 26/02/2012. Above all, 5th letter under Ex.D.2 would throw shadow upon the case of the prosecution. As discussed in supra, this letter was written by the prosecutrix to the accused by asking sorry for the act of his father. Admittedly this was written by her after the accused came outside from the jail on bail. The relevant words used by her in that letter under Ex.D.2 is reproduced :
"My Daddy only told that you must want tell that my age is 15 never mind. They beat for me and my daddy only tell and gave that you gave cool drink and you only took and went somewhere like that daddy tell and gave."
38. Though there are grammatical mistakes, if the aforesaid portion is read between the lines, it can easily be gathered that at the instance of her father, she is telling that accused had given cool drinks, he had taken away to somewhere. Apart from that, as mentioned in supra, in her cross-examination itself, the prosecutrix has categorically admitted that her father filed rape case / 47 / Spl.C.C.No.300/2014 since she is loving the accused who belongs to Hindu community. The cumulative effect and the attending circumstances, contradictory statement of the prosecutrix is looked into as a whole, there is absolutely no credible evidence to believe the story of the prosecution. The prosecution has utterly failed to prove its case by placing unimpeachable and untainted evidence. P.W-1 and 3, the parents of the prosecutrix are the hearsay witnesses. P.W-4 Rajashekar is also hearsay witness. The evidence of P.W-8 Meenakshi, Co- Ordinator, SJPU does not help the prosecution to demonstrate its case beyond shadow. P.W-9 is the Investigating Officer. P.W-10 is the PSI who registered the case based on the complaint given by the father of the prosecutrix. The evidence of this official witness is not enough to establish the case of the prosecution beyond reasonable doubt. The delay in lodging the complaint is also fatal to the case of the prosecution under the present circumstances of the case. In case of sexual offences, the delay does not play a vital role, but / 48 / Spl.C.C.No.300/2014 when there is contradictory evidence, inconsistency in the version of prosecutrix herself, in the absence of supportive circumstantial evidence, in the absence of any evidence with respect to fear of hurt or death if incident is disclosed to anybody, the accused cannot be linked to the alleged crime of kidnapping and rape alleged to have been committed on 26/02/2012.
39. The prosecution has miserably failed to establish the act of the accused, whether it may be in the month of December or in the month of January, does not constitute the commission of rape. So far as concerned to first alleged commission of rape, there is sufficient evidence to show it was peaceful one, that story of stiff resistance has been put up by the victim is false. The alleged intercourse was a peaceful affair. There is absence of compulsion, no evidence to show it was done against her will. Thus, the prosecution has failed to prove its case beyond reasonable doubt so far as / 49 / Spl.C.C.No.300/2014 concerned to the rape alleged to have been committed at the first instance.
40. So far as concerned to kidnapping and second alleged rape, there is no iota of believable and credible evidence. The following circumstances made the prosecution case doubtful :
1. Firstly there is no material before the Court that she had Hindi examination on that day.
2. Secondly there is no eye witness for kidnapping.
3. Thirdly there is no mahazar drawn in the alleged place of occurrence.
4. Fourthly vehicle used for commission of the alleged offence has not been seized. Even the owner of the said car is also not traced out, no enquiry has been conducted with respect to taking away the prosecutrix forcibly in a car.
5. Fifthly despite the prosecutrix had an opportunity to shout for help, she did not seek any help from the public or neighbours.
6. Sixthly contradictory statements of victim as to place of rape
7. Seventhly she was not seen in trauma of rape.
8. Eighthly nothing is there as to location of Dhaba.
9. Ninthly non-seizure of torn clothes, / 50 / Spl.C.C.No.300/2014
10. Lastly Ex.D.1 and 2 letters admittedly written by her that she was made to speak against him.
The prosecution has utterly failed to establish 2nd incident beyond reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold point Nos.2 and 3 in the Negative.
41. Point No.4: 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 Sections 354, 366 and 376 of I.P.C.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court on this the 28th day of April, 2015.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
***
/ 51 / Spl.C.C.No.300/2014
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION P.W.-1 Khasim P.W.-2 Aishu Begum P.W.-3 Gowramma P.W-4 Rajashekar P.W-5 Naveen Kumar P.W-6 Dr.Pinky Jain P.W-7 Dr.Wargis P.S P.W-8 Meenakshi P.W-9 Srinivas Reddy P.W-10 N.T.Laxman Gowda P.W-11 Rekha Kumar LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Complaint Ex.P.1(a) Signature of P.W-1 Ex.P.2 Mahazar Ex.P.2(a) Signature of P.W-2 Ex.P.2(b) Signature of P.W-5 Ex.P.3 Medical report Ex.P.3(a) Signature of P.W-6 Ex.P.4 Medical report of P.W-7 Ex.P.4(a) Signature of P.W-7 / 52 / Spl.C.C.No.300/2014 Ex.P.5 Statement of victim Ex.P.5(a) Signature of P.W-8 Ex.P.6 Xerox copy of Hall ticket Ex.P.6(a) Signature of P.W-9 Ex.P.7 F.I.R Ex.P.7(a)(b) Signature of P.W-10 Ex.P.8 School certificate Ex.P.8(a) Signature of P.W-11 Ex.P.9 & 10 FSL report LIST OF MATERIAL OBJECTS MARKED
-NIL-
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE Ex.D.1 Note book of P.W-2 Ex.D.2 Letters of P.W-2 LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
***