Karnataka High Court
Ningappa Chikkappa Gejjiyavar vs The State Of Karnataka on 5 April, 2024
-1-
NC: 2024:KHC-D:6267-DB
CRL.A No. 100447 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 5TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE E.S.INDIRESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 100447 OF 2022 (C)
BETWEEN:
NINGAPPA CHIKKAPPA GEJJIYAVAR
AGE: 45 YEARS, OCC: COOLIE,
R/O: BHARADI, TQ: HAVERI.
...APPELLANT
(BY SRI. DEEPA P. DODDATTI, AMICUS CURIE)
AND:
1. THE STATE OF KARNATAKA
THROUGH P.S.I. GUTTAL POLICE STATION,
R/BY THE STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
Digitally BENCH DHARWAD.
signed by
SAMREEN
AYUB
DESHNUR
Location:
2. HONNAVVA W/O. NINGAPPA GEJJIYAVAR
HIGH COURT
OF AGE: 35 YEARS, OCC: HOUSEHOLD,
KARNATAKA
R/O: BHARADI, TQ AND DIST: HAVERI-581110.
...RESPONDENTS
(BY SRI. M.B. GUNDAWADE, ADDL. SPP FOR R1;
NOTICE SERVED TO R2)
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2)
CRIMINAL PROCEDURE CODE, PRAYING THAT, THE JUDGMENT
OF CONVICTION RECORDED BY THE IST ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE AT
HAVERI IN SPL.S.C. 27/2014 VIDE ITS JUDGMENT DATED
12/01/2021 OF THE OFFENCES PUNISHABLE UNDER SECTION
-2-
NC: 2024:KHC-D:6267-DB
CRL.A No. 100447 of 2022
498(A), 506, 376(2) (F)(I) OF THE INDIAN PENAL CODE AND
UNDER SECTION 4, 7 AND SECTION 10 OF THE POCSO ACT BE
KINDLY SET ASIDE AND THE ACCUSED MAY KINDLY BE
ACQUITTED OF THE SAID OFFENCES IN THE INTERESTS OF
JUSTICE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
RAMACHANDRA D. HUDDAR, J., DELIVERED THE
FOLLOWING:
JUDGMENT
The appellant/accused has preferred this appeal being aggrieved and dissatisfied of judgment of his conviction and order of sentence passed in Spl. S.C. No.27/2014 by the I Additional District and Sessions Judge and Special Judge, Haveri (for short 'Trial Court') dated 12.01.2021 finding him guilty of committing offences under Sections 498A, 376, 376(2)(f)(i), 506, 201 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') and under Sections 4, 7 and 10 of the Protection of Children from Sexual Offenses Act, 2012 (for short 'POCSO Act'). In view of his conviction he is ordered to undergo sentence as under:
"ORDER The convict is sentenced to undergo Rigorous imprisonment for a period of two -3- NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 years and ordered to pay a fine amount of Rs.20,000/- for the offence punishable U/s.498-A of IPC. In default of payment of fine amount, convict is further ordered to undergo rigorous imprisonment for a period of six months.
The convict is sentenced to undergo Rigorous imprisonment for a period of six months and ordered to pay a fine amount of Rs.5,000/- for the offence punishable U/s.506 of IPC. In default of payment fo fine amount, convict is further ordered to undergo Rigorous imprisonment for a period of one month.
Further the convict is sentenced to undergo life imprisonment and ordered to pay a fine amount of Rs.1,00,000/- for the offence punishable U/s.376(2)(f)(i) of IPC and Sections 4 of POCSO Act. In default of payment of fine amount, convict is further ordered to undergo Rigorous imprisonment for a period.
The convict is sentenced to undergo Rigorous imprisonment for a period of three years and ordered to pay a fine amount of Rs.20,000/- for the offence punishable U/s.7 of POCSO Act. In default of payment of fine amount, convict is further order to undergo -4- NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 Rigorous imprisonment for a period of six months.
The convict is sentenced to undergo Rigorous imprisonment for a period of five years and ordered to pay a fine amount of Rs.20,000/- for the offence punishable U/s.10 of POCSO Act. In default of payment of fine amount, convict is further ordered to undergo Rigorous imprisonment for a period of one year.
All the sentences shall run
concurrently."
Brief and relevant facts as set out in the FIR are as under:
2. That one Smt. Honnavva W/o. Ningappa Gejji @ Gejjiyavar resident of the address so stated in the complaint being the wife of the accused submitted a complaint/statement to the P.S.I., Guttal Police Station, Haveri on 30.08.2014 at 5.30 p.m., stating that in her house herself, her husband i.e., accused, children by name Ranjitha i.e., victim girl aged 11 years, son by name Raju aged 07 years in all four persons were residing. She is coolie by profession. Her husband i.e., accused is an -5- NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 agriculturist. Her daughter-victim girl is studying at primary school in 6th Standard at Timmapura. She attends the school by travelling in a bus.
2.1. It is alleged in the complaint that, her husband i.e., accused used to consume liquor day and night and he has harassed her mentally and physically. On seeing her children she kept mum. The facts of ill-treatment and harassment done by accused were informed by her to her parents. They advised him.
2.2. It is further alleged that about 4-5 months prior to filing of this complaint, there was a religious function in their village on that day it was Tuesday. She went to the agriculture land by taking her cattle. In the house her daughter victim girl was there. She returned to the house in the evening. During night hours when she went to the kitchen for the purpose of preparation of rice, her husband i.e., accused by consuming liquor assaulted her and went away from the house. It is alleged that, at 12 mid night, he returned to the house and took sickle from the house itself and showed the same stating that if she open her -6- NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 mouth, she will be killed. By saying so he asked the victim girl to remove her inner garments and committed rape on her. The victim girl started weeping stating that she is suffering from burning sensation in her private part.
Because of reputation she kept mum. After that incident, he went away from the village for five days and returned thereafter.
2.3. It is specific allegation by the complainant, that on 29.08.2014 in the morning at about 9.00 a.m., he told that the victim girl i.e., his daughter is suffering from jaundice therefore, he wants to took her to Harihar for the purpose to provide medical treatment to her. He asked the complainant to go to agriculture land. At about 4.00 p.m. on that day one lady called her from Harihar and told that her daughter is not keeping well and asked her to come to Harihar hospital. Accordingly, herself and residents of her village by taking the vehicle went to Harihar hospital. There she noticed the presence of her daughter-victim girl and when herself and her villagers accompanied enquired with her daughter, she told that her father i.e., accused -7- NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 took her to a school compound and made her to remove her inner garments and committed rape on her. She bombarded. The persons who were available near the place, beat her father with their hands thereafter, the accused took her somewhere and again by saying her to remove her inner garment committed rape on her. At that time, the elder brother of the accused by name Mylareppa threatened the complainant not to file any complaint against her husband otherwise, she has to face the consequences. This fact was informed to the Women Helpline at Haveri. Accordingly, the police came to the hospital and took her statement as per Ex.P.1. It was registered in Crime No.129/2014 of Guttal Police Station for the offences under Sections 498A, 376, 376(2)(f)(i), 201, 506 read with Section 34 of IPC and Sections 4, 7 and 10 of POCSO Act and thus the criminal law was set in motion.
3. PW.19-S. Siddarameshwar, the then circle inspector of Haveri Rural Police Station on receipt of transfer of complaint to him took up the investigation. -8-
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 Visited the Haveri District Hospital along with the staff and at that time she was taking treatment at the said hospital in children ward. He enquired her and recorded her statement. On enquiry it was revealed that the accused has committed rape on the said victim girl. On 30.08.2014 itself the PSI, Guttal Police Station produced the accused before the Investigating Officer and he was sent to hospital for the purpose of medical examination. The doctor of the hospital was requested to keep a medical report of the victim girl. He arrested the accused and produced him before the Court. He went to the scene of offence and prepared spot panchanama, recorded the statements of the witnesses. After getting necessary documents and after completion of investigation, the Investigating Officer has filed the charge sheet against both the accused persons for the aforesaid offences. But the records reveal that accused No.2 has already undergone sentence. The facts of undergoing sentence is conceded by both the side. Now, accused No.1 has preferred this appeal.
-9-
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022
4. The records also reveal that once the Principal District and Sessions Judge and Special Judge, Haveri after trial has passed the judgment on 17.06.2017 finding both the accused guilty of the aforesaid offences. Being aggrieved by the same, the appeal was preferred before this Court. As the learned Principal District and Sessions Judge and Special Judge, Haveri, without hearing the arguments of the accused has passed the judgment, therefore, the said Criminal Appeal No.100312/2017 came to be allowed by this Court and matter was remanded to the Trial Court for giving full opportunity to both the side to advance their arguments and after hearing the arguments of both the side, the Trial Court was directed to pass a judgment in accordance with law.
5. On remand, the learned Special Court i.e., I Additional District and Sessions Judge and Special Judge, Haveri, by giving opportunity and having heard the arguments of both the sides i.e., prosecution as well as accused No.1 and passed the detail judgment on 12.01.2021 finding the accused No.1 guilty of the
- 10 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 aforesaid offences. Now as stated supra accused No.1 is before this Court challenging the said judgment of his conviction and order of sentence.
6. Before the learned Trial Court, prosecution in all examined twenty-one witnesses and got marked Ex.P.1 to P.43 with respective signatures thereon and M.O. Nos.1 to 15 and closed the prosecution evidence. No evidence is led on behalf of the defense. The defense of the accused No.1 was total denial. During the statement recorded under Section 313 of Cr.P.C., he has submitted that, as the complainant compelled him to enter her names in respect of the agriculture lands and as he refused a false complaint has been filed against him and he has been falsely implicated by the complaint.
7. It is submitted by learned counsel for the appellant/accused Amicus Curiae Smt. Deepa P. Doddatti, that it is a clear case of false implication of accused No.1. She submits that, as the complainant demanded to enter her name in the property by the accused, as there was a refusal on the part of the accused, the complainant
- 11 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 designed the complaint making false and frivolous allegations of rape on his own daughter. According to her submission, no father would take such step of raping his own daughter.
8. She further submits that, in view of the contradictions, omissions and discrepancies in the evidence brought on record by the prosecution, the whole version of the complaint cannot be accepted. She further submits that, about four months prior to the said complaint, according to the complaint allegations the incident of rape had taken place on the day when there was a religious festival in the village. The said incident was not informed to anybody. Thereafter, this incident was informed to the police on 30.08.2014. Why the complainant kept silent for all the four months and not filed any complaint is not explained either in the complaint or in her evidence.
9. She further submits that, only based upon the surmises and conjunctures and the say of the complainant, the prosecution story cannot be accepted as a truth. The
- 12 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 accused is innocent and has not committed any offences muchless alleged against him. She pointed out certain contradictions, omissions and discrepancies in the evidence led by the prosecution. She is firm in her submission that accused is falsely implicated in this case. She submits that with regard to ill-treatment harassment alleged against accused No.1, there is no proper evidence except the say of the complainant. If that is so, the accused No.1 cannot be convicted for the said harassment to a married woman. No case is made out to convict the accused for the offences under the IPC as well as POCSO.
10. She further submits that, in view of the grounds so urged in the appeal memo, and also the evidence brought on record by the prosecution which is full of contradictions and omissions, the benefit of doubt has to be extended to the accused. Hence, she prays to allow the appeal and acquit the accused No.1.
11. Refuting this submission, the learned Additional State Public Prosecution Shri. M. B. Gundawade submits that, accused No.1 has been convicted for serious
- 13 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 offences. There are two judgments i.e., before hearing the arguments one judgment passed wherein, on evaluation and appreciation of the evidence, the Trial Court has convicted the accused No.1. The appeal was preferred on the ground that, no opportunity was given to the accused No.1 to advance the arguments. Even after remand also the Special Court designated under the provisions of POCSO Act, has found the accused guilty of committing the offence. That means, according to his submission the Principal District and Sessions Judge, Haveri while dealing with the case on evaluation has found the accused guilty so also the Special Court. When there are two same judgments finding the accused No.1 guilty, this judgment of conviction and order of sentence cannot be interfered by this Court.
12. It is his further submission that, the evidence of the complainant is corroborative nature with that of the complainant allegations. According to him, there was threat not only by accused No.1 but also by his brother accused No.2, not to lodge any complaint. As the family
- 14 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 reputation was involved therefore, the complainant kept mum because of her family reputation. When there was a consisting act of the accused on consuming the liquor and harassing the complainant and family members so also committing rape on his own daughter, which was noticed not only by complainant but also the villagers at Harihar village. On seeing the illegal act of the accused No.1, it was public who beat him. It was public who helped the victim girl to take her to the hospital. It was informed to the Women Help Line at Haveri. On that information the police rushed to the spot and took the victim girl to the hospital. The doctor has opined that the victim girl was subjected to rape. Even the doctor evidence is quite acceptable in this case. There is no evidence placed on record by the accused to show that he is innocent.
13. According to his submission, in view of the corroborative consistence evidence spoken to by the complainant and the prosecutrix i.e., victim girl herself, is sufficient to connect the accused as he is the perpetrate of
- 15 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 the crime and being the father of the victim girl has committed heinous offences.
14. He submits that, though there are minor contradiction and omissions in the evidence of the prosecution witnesses they will not shake the basic case of the prosecution. Evidence of the prosecutrix is very sufficient to convict the accused. He relied upon the findings of the Trial Court on various points for consideration. Thus, it is his submission that there is no merit in this appeal and appeal has to be dismissed.
15. We have given our anxious consideration to the arguments of both the side. Meticulously perused the records.
16. In view of the rival submissions of both the side the following points arise for our consideration:
i) Whether the judgment of conviction and order of sentence passed by the Trial Court suffers from illegality, perversity and without proper appreciation of evidence by the Trial Court?
- 16 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022
ii) If so, whether the impugned judgment passed by the Trial Court require interference by this Court?
iii) What order?
Point Nos.1 and 2 are discussed together:
17. So far as the question with regard to the age of the victim girl is concerned, it is the consistent case of the prosecution that, the victim girl is born on 24.06.2003. To that effect, her school certificate is produced by the prosecution as per Ex.P.35. Even PW.1-mother has spoken about the age of the victim and has specifically stated that, when the alleged incident of sexual assault on the victim was committed she was studying in 6th standard at Timmapura Primary School. To know the said fact, the Investigation Officer has addressed a letter dated 02.09.2014 as per Ex.P.34. In reply to the said letter the Headmaster, Government Higher Primary School, Timmapura, Taluk and District Haveri has issued Ex.P.35 the study certificate. The doctor who examined the victim girl has noted the age of the victim girl as 11 years. The
- 17 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 said recital is found in examination report of the survivor marked at Ex.P.43. While marking these documents no objections were raised by the defense. Thus, defense admits that the victim girl was child as defined under the provisions of POCSO Act.
18. With regard to the alleged incident which has taken place in the house of the accused, prosecution has collected the property extracts and resident certificate of the complainant, accused and their family. It is the case of the prosecution that, the incident of sexual assault on the victim girl has taken place in the house owned by the complainant. To that effect documents are collected by the Investigating Officer marked at Ex.P.27 to P.30 being the residential certificate and tax assessment extracts as per Ex.P.31 and P.32. So also prepared the sketch as per Ex.P.33. As per the case of the prosecution, in the room shown as a spot in Ex.P.33 stated as god's room the so called sexual assault has been committed by the accused. While marking these documents also, no objections were raised by the defense.
- 18 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022
19. PW.1 the complainant- mother of the victim girl has reiterated the contents of the complaint in her evidence on oath. She categorically speaks in her evidence that, prior to the incident herself, her husband and two children used to reside in the house. According to her evidence, accused No.1 by consuming alcohol used to ill- treat her as well as her children. She further states that, accused No.1 used to pour the kerosene whenever they sleep in the house and used to give a threat that, he will set fire them.
19.1. It is her further evidence that, about one year four months prior to giving of her evidence i.e., on Monday herself and her children were sleeping. Accused No.1 came to the house at 11.00 p.m. At that time, complainant was sleeping in the drawing room of her house. After coming to the house accused No.1 took victim girl to the god's room. He undressed the victim girl. Complainant requested not to do anything to her daughter and he is committing mistake by doing so. But, by holding a sickle in his hand he gave a threat stating that, if she come to
- 19 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 rescue the victim girl or called any third person, he is going to kill her by using the said sickle. He also gave threat not to disclose the said fact to any others. Because of fear she stood as it is. Thereafter, her daughter told her that accused No.1 committed rape on her. Her daughter also told that, accused No.1 also removed her dress and made her to sleep in supine position. He slept on her and by applying the coconut oil to his private part as well as her private part committed rape on her. By using her courage she brought her daughter outside and noticed that, the victim girl was suffering from pain in the abdomen as well as in her private parts and chest. Victim girl was weeping. She was scared.
19.2. It is her further evidence that, she informed the said fact to the brother of accused No.1 i.e., accused No.2 and other brothers. She further deposed that, after this incident accused No.2 got removed accused No.1 from the village. She further states that, she was not knowing whereabouts of her husband for five-six days. Even accused No.2 dragged out the complainant and her
- 20 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 children out of the house. After six days her husband came to the house by breaking the lock and key, he entered the house. Though complainant requested accused No.2 to take action against accused No.2 but he did not care. He compelled accused No.1 to say before the complainant that, he will not repeat similar mistake in future. The complainant could not get assistance from anybody. For four months thereafter, accused No.1 stayed with complainant and her children. It is the specific allegation of the complainant that, it was told by accused No.1 that victim girl is suffering from jaundice therefore he wanted to provide medicine to her. By saying so, he took the victim girl to Harihar and asked the complainant to go with cattle to the landed property.
19.3. It is her further evidence that, when she returned to the house at 4.00 p.m., she received a telephone call from Harihar and the caller enquired about her name, her husband's name so also her daughter's name. It was told to her that, her daughter is in trouble and the complainant was asked to come to Harihar.
- 21 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 Accordingly, complainant along with four persons went to Haveri Hospital as told by the telephone caller. There she noticed the presence of her husband and daughter. Her daughter was not keeping well and she was weeping. She noticed swelling on her private part. When she enquired her daughter, it was told by her daughter that, accused took her near the water tank at Harihar to a place where trees were grown, by undressing her, had a forcible sexual intercourse with her and also told that, her father slept on her. Even he outraged her modesty by squeezing her breast. She also noticed small injuries on her cheek and neck so also to her elbow and legs. It was told that, the public gathered there beat her husband-accused No.1. Thereafter, she brought her daughter to the house to her village. Having scared about the incident she was in the house. Accused No.1 by holding the sickle in his hand used to threaten the complainant and his daughter. By that time, the police came to the house in a jeep from Haveri and took the complainant, her daughter, accused No.1 to the police station. There she informed about the
- 22 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 incident which was reduced into writing. It is the complaint marked at Ex.P.1. Even she states that, she was taken to the Court for giving her statement before the Court as per Ex.P.2.
20. This PW.1 has been directed with searching and intensive cross examination by accused Nos.1 and 2. But throughout the cross examination, she has maintained consistently about the harassment and ill-treatment to her by accused No.1 as well as commission of sexual assault on the person of her daughter. No doubt there are some contradictions brought in the cross examination with regard to the relationship but, this PW.1 has withstood the test of cross examination. She is consistent about the injuries sustained by the victim girl on her private part.
21. PW.2-Saroja W/o. Yallappa Devihosur was working as Outreach Worker in District Child Protection Cell. According to her, the said cell gives protection to the girls who are aged between 0-18 years. It is her evidence that, on 31.08.2014 as per the direction of her superior officers that one 11 years old girl was subjected to sexual
- 23 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 assault and taking treatment at Haveri Hospital, she went to Haveri Hospital and noticed the presence of victim girl and her mother. When she enquired about the incident, the victim girl as well as her mother narrated about the sexual assault on the person of victim girl by her own father. Throughout her evidence she narrated about what she has heard from the victim girl and her mother. She too has been directed with severe cross examination but, she has withstood the test of cross examination. Nothing worth is elicited from her mouth to disbelieve her evidence given in examination in chief.
22. Likewise, PW.3-Smt. Drakshayani Kurabar is the Head Constable at Haveri Town Police Station who assisted the Investigating Officer in conducting the investigation, visited the hospital and came to know about the so called sexual assault on the person of the victim girl. She is consistent throughout her evidence about getting information about the said alleged sexual assault on the person of the victim girl. That means, her evidence
- 24 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 is corroborative in nature with that of the evidence of PWs.1 and 2.
23. PW.4 is none else than the victim girl. As she was aged 13 years when she gave evidence before the Trial Court, to test the competency of the victim girl certain questions were directed to this victim girl by the Trial Court. The victim girl has answered all the questions. Because of the answers given by the victim girl, the Trial Court having satisfied have certified that, the child-victim girl is competent to give evidence. Thus, by following all the procedure this PW.4-victim girl was examined by the Trial Court.
24. PW.4 is consistent throughout her evidence about the sexual assault committed by her father on her. She states that, about one year back prior to giving of her evidence when there was Jatra in their village, she was in the house with her mother. Her father came in the night hours by consuming alcohol. He brought a sickle kept inside the house showed the same to PW.1 his wife and victim girl. He gave a threat stating that whatever he
- 25 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 does should not be informed to anybody otherwise he will kill them. Because of showing sickle herself and her mother were scared. Accused No.1 took her to the god's room, undressed her, made her to sleep on the floor, slept on her and committed sexual assault on her by inserting his private part into the private part of the victim girl. Thus, raped her. She started crying. When her mother came there he showed sickle to her. He brought coconut oil and pasted the same on her private part and again committed rape on her. Her mother rescued herself and went away. She has sustained so much pain. In the morning hours her mother came back, accused No.2 told not to file any complaint. Even he told that, both complainant and her daughter are telling lie and asked them to put their hands in the boiling oil. She has sustained pain throughout the body as well as her private parts. Because of threat they did not file any complaint. For four five days, her father was not in the village and thereafter, he came to the house.
- 26 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 23.1. She further deposed that, accused No.1 her father took her to Harihar to provide medicine to her as she was suffering from jaundice. According to her evidence, first he took her to a tea shop and made her to eat beaten rice. He went to answer the nature's call. Within 10-15 minutes he returned by consuming alcohol. Spoke to her by sitting her side. She smelled alcohol from him. Thereafter, he took her near the school compound and asked her to sit on the Katta and removed her undergarment. She was scared and started weeping. Because of that, her hand touched to the wall. On seeing the victim girl, persons who were sitting there reading news paper enquired them. Accused No.1 told that, she was not taking tablets and medicine. The said people went away. Thereafter, accused No.1 took near a water tank by the side of the river. Made her to sleep on the ground, removed her undergarment and slept on her by removing his undergarment.
23.2. It is her further evidence that, whatever he has done in his house, similar sexual assault was committed
- 27 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 on her. She bombarded. Near the said place there were houses. On hearing the sound, the neighbors came and enquired. It was told by him that, victim girl is his daughter. The people so gathered there beat him. One aunt came there, gave water to the victim girl and consoled her. The said aunt asked the name of victim girl, her mother's name etc. The victim girl told the mobile number of her mother. The said aunt called the mother of the victim girl and asked her to come to the hospital. Accordingly, her mother came to the hospital with her villagers. Even accused No.1 was also brought to the hospital. Even accused No.2 also came to the hospital. Threat was given to them not to file any complaint otherwise they have to face the consequences. Because of that all of them returned to the village. On the following day police came and took her to the hospital. She was examined in the hospital. Her clothes were seized by the police. Her father was sent to jail. Thereafter, the police came to her house and her villagers by name Siddappa, Ramappa were there. She showed the place of offence
- 28 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 where sexual assault on her by accused No.1, so also sickle. Police seized them under panchanama and took photographs as per Ex.P.4, P.5 so also Ex.P.6 to P.8. Even she showed the place at Harihar where accused No.1 has committed sexual assault on her. The police took photographs as per Ex.P.9 to P.14. She was also taken to the Court where her statement was recorded by the Court as per Ex.P.15. She identified the material objects seized in her presence which are marked as M.O. Nos.1 to 9 so described in the property file.
25. This PW.4 being the victim girl is directed with severe cross examination. But, she is consistent in her evidence about the sexual assault by the accused No.1 on her. She being a child of 12 years at the time of incident has clearly narrated in line with the contents of her statement before the police as well as before the Court recorded under Section 164 of Cr.P.C. Certain minor contradictions are brought on record in the cross examination, but throughout the cross examination, she has maintained that, it was accused No.1-her own father
- 29 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 committed rape on her. She has denied all the suggestions directed to her.
26. On reading the evidence of this PW.4 she being the victim girl being the prosecutrix consistently has spoken about the offence being committed by accused No.1 on her. Her evidence is corroborative in nature with that of the evidence of PW.1 who was an eyewitness to the earlier incident of sexual assault by accused No.1 in whose presence this accused No.1 committed sexual assault on his own daughter.
27. The evidence of PW.15 and 16 being the witnesses examined by the prosecution go to establish that, on hearing the crying sound of a baby, these PW.15 and 16 went near the public water tank in Harihar village in the month of August-2014 at 4.00 p.m. They noticed the presence of accused No.1, victim girl and other people. Accused No.1 was beat by the peoples who gathered there. They came to know that, this accused No.1 committed rape on the said victim girl. PW.15 informed the police through telephone. Police came and took the
- 30 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 victim girl and accused No.1. In the evidence of PW.15 he states that, police came to the spot and conducted panchanama and seized M.O. Nos.2 and 3. He identified the accused No.1.
28. Likewise, PW.13-Dilshadabanu wife of PW.12 has deposed in her evidence that, on that day herself and her family members in between 3.00 p.m. and 4.00 p.m., were sitting in their waranda by talking with each other. At that time, she heard the crying sound of a baby near the water tank. They rushed to the said spot. They noticed the presence of victim girl and accused No.1. They noticed that, accused No.1 and victim girl were sleeping and his lungi was open. Having scared, the said baby was crying. It was PW.13 who called the victim girl and consoled her. The said victim girl was crying calling 'Amma Amma'. The said victim girl was not wearing the undergarment. On enquiry the said victim girl told that, her father by removing his undergarment committed rape on her. Even she told that, near the High School field also the same sexual assault was committed on her by her
- 31 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 father. PW.13 was scared and enquired the name of the victim girl. The people gathered there beat the accused No.1. It was told by the victim girl that, in order to provide a medicine for jaundice her father has brought her to Harihar village and committed this sexual assault on her.
29. Thus, the evidence of PW.12 and 13, if perused it shows that, they are the immediate witnesses who went to the place at Harihar near the water tank where the said incident has taken place. According to the evidence of these witnesses, police came and conducted the panchanama and prepared the sketch and panchanamas are marked at Ex.P.36 and P.37 respectively. Though intensive cross examination is directed to these two witnesses, but nothing worth is elicited from their mouth so as to disbelieve their evidence stated in examination-in- chief. Thus, these PWs.12 and 13 are the witnesses who went to the place near the water tank where the sexual assault was committed by accused No.1 in the manner stated in the complaint.
- 32 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022
30. PW.5-N. Anupama was the Judicial Magistrate First Class at Haveri at the relevant time who recorded the statement of the victim girl as required under Section 164 of Cr.P.C. Whatever victim girl has stated in her evidence is spoken by this PW.5 the Magistrate. This PW.5 was also directed with severe cross examination but nothing worth is elicited so as to disbelieve about recording of statement of victim girl as required under Section 164 of Cr.P.C.
31. PW.6-Shobha Harogoppa was the Constable of Haveri Rural Police Station at the relevant time. As per her evidence, on 30.08.2014 her superior officers deputed her for the purpose of taking care of victim girl admitted at Special Ward for Women in District Hospital, Haveri. Accordingly, she was taking care of victim girl. It is her evidence that, on 04.09.2014 she accompanied the Investigating Officer along with victim girl to the house of the victim where she showed the god's room as the scene of offence where her father alleged to have committed sexual assault on her. It is her evidence that, at that time, there were two panchas. Even victim girl showed
- 33 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 the sickle used by the accused No.1 for threatening them. She identified the photographs snapped as per ExP.4 and P.5 when the panchanama was conducted. She also identified the sketch and the photographs as per Ex.P.9 to P.14. It is her further evidence that, even the victim girl took them to Harihar to the place where her father provided a medicine for jaundice disease, so also to the hotel where she consumed beaten rice. According to her, she also took the victim girl to the Court for recording her statement. She identifies M.O. No.1 sickle. She has been thoroughly cross examined by accused Nos.1 and 2. But throughout the cross examination she has maintained that, she was very much present along with victim all along in the hospital as well as at the time of preparing the panchanama and snapping of the photographs. Her presence all along with the victim girl is not denied in proper manner by the defense. Nothing worth is elicited from her mouth to disbelieve her evidence given in examination-in-chief.
- 34 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022
32. PW.7-Siddappa Gudagur being the resident of village of the victim girl and complainant speaks that, when photographs at Ex.P.4 and P.5 were taken he was very much present. It was victim girl showed the scene of offence. Police prepared the panchanama and sketch as per Ex.P.18 and P.19 and he put the signature as pancha. So far as preparation of the panchanama as per Ex.P.20 he denies and deposed ignorance. Therefore, he was partly declared as a hostile witness. Except the denial in the cross examination nothing is brought on record in the cross examination by the defense. Thereby defense admits the presence of this pancha at the time of preparing the panchanama stated supra.
33. PW.8-Ramappa Lingadahalli was very much present when the panchanama was prepared as per Ex.P.19 but deposes ignorance about the contents of the same. He has been declared as hostile witness. He has not been directed to any cross examination by the defense. From the evidence of PW.8 it is very much clear
- 35 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 that, he was present when the panchanama and sketch were prepared as per Ex.P.18 and P.19.
34. PW.9-Guddappa Malappanavar is the brother of complainant and mother-in-law of victim girl. He came to know about sexual assault from complainant by the accused No.1. According to his evidence, on information from his sister he informed the said fact to accused No.2. he states that accused No.2 supported accused No.1 and compelled to put the hands of complainant and victim girl in the boiling oil and put one rupee coin in the same stating that, if really there was a sexual assault on the victim girl, they will not suffer any pain. It was he who requested accused No.2 to advice accused No.1.
33.1. It is his further evidence that accused No.2 sent away complainant and her daughter. With regard to the role of accused No.2 he has spoken in his evidence. It is his further evidence that, victim girl was studying at Timmapura school and it was accused No.1 who took her to Harihar on the guise of providing medicine and there he committed sexual assault on her. This witness has been
- 36 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 cross examined by the accused but, he is consistent in his evidence about commission of the sexual assault on the person of the victim girl.
35. PW.10-Raghavendraro S/o. Tekojirao is the medical shop owner. According to his evidence about two years back prior to giving of his evidence accused No.1 came to his shop and purchased medicine for curing jaundice disease. According to him, police enquired him about purchase of medicine by accused No.1 in his statement.
36. On perusal of the cross examination directed to him except denial nothing is brought on record. Thereby the defense impliedly admits that, accused No.1 had purchased medicine for jaundice from the shop of PW.10 on that particular day on which day said offence has taken place.
37. PW.11-K. Shrinivas is the Teacher. According to him, on 04.09.2014 the Haveri Rural Police came to compound of his school and there police conducted the panchanama in his presence and drew the sketch as per
- 37 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 Ex.P.21 and P.22 respectively. With regard to drawing of the panchanama and preparation of the sketch, except the denial no effective cross examination is directed to this witness. Therefore, the presence of this PW.11 when panchanama was conducted as per Ex.P.21 and sketch at Ex.P.22 is prepared is proved by the prosecution.
38. PW.14-Dr.Mallappa Haydal, medically examined accused No.1 to know about his physical and mental capacity to have sexual intercourse. On examination, he has issued the reports and identified them as per Ex.P.23 and P.25. According to his opinion, there is nothing to suggest that accused No.1 is incapable of performing sexual intercourse. This opinion of the doctor is not denied by accused No.1.
39. PW.15-L. M. Baramannanavar is the Headmaster of Higher Primary School, Timmapura has issued Ex.P.35 the particulars regarding the birth of victim girl as 24.06.2003. There is no cross examination directed by accused to this witness. Thus, contents of Ex.P.35 are admitted by defense.
- 38 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022
40. PW.16-Raghavendra S/o. Basappa is a witness to the panchanama as per Ex.P.36 and sketch as per Ex.P.37. It is his evidence that, he was very much present when the said panchanama was prepared by the police and at that time the victim girl and her mother were present. He has been directed with severe cross examination but, the presence of PW.16 when the said panchanama was prepared is not denied properly by the defense.
41. PW.17-Peerappa Lamani is the Head Constable who carried FIR to the Jurisdictional Magistrate. With regard to reaching of the FIR to the Jurisdictional Magistrate, there is no denial of this fact.
42. PW.18-Anilkumar the Police Constable of Harihar Rural Police Station has deposed that, on 29.08.2014 in the evening hours he received the information that, near the water tank quarrel is taking place. On receipt of such telephonic information, the SHO directed him to go near the water tank. Accordingly, he went and noticed the presence of 15-20 persons and also
- 39 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 a girl aged 10-11 years and a man who is the father of the victim girl. According to his evidence, the victim girl gave the mobile telephone number of her mother and he informed the mother of the victim girl to come to Harihar Government Hospital. According to his evidence, within 10-15 minutes of he receiving information he went near the said water tank. He has denied all the suggestions directed to him. That means, his evidence is to the effect that, immediately after getting telephonic information with regard to the 'galata' near the water tank, as directed by the SHO he went to the said place. This fact is proved from the evidence of his PW.18.
43. PW.19-S. Siddarameshwar was the Investigating Officer and he has spoken with regard to conducting of investigation so also PW.20-M. I. Goudappagoudra received the information regarding the sexual assault on the person of the victim girl and received the complaint as per Ex.P.1. The evidence of these two witnesses established about setting criminal law in motion and conducting of investigation. Though these two
- 40 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 witnesses are directed with severe cross examination but they have spoken consistently about their role in the investigation.
44. Important witness is PW.21-Dr. Netravati, M.O., who has medically examined the victim girl at 4.15 p.m., on 30.08.2014. She states that, she examined the victim girl who was brought by the police with a history of sexual assault who was aged 11 years. On enquiry, the victim girl has narrated about the incident that has taken place with her by her own father. When she examined her, she found strain-ness in the victim girl and was suffering from fever. She was anemic and she was not healthy. She noticed swelling in her hands and legs and was under the depression. She was suffering from stomach ache. She medically examined her private part. She noticed tearing of hymen and her general medical condition was not good. According to her evidence, on medical examination she noticed the following:
- 41 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 "i) on local genital examination of the victim there were signs of recent sexual intercourse present.
ii) The individual is used to an act like that of sexual intercourse.
iii) She noticed the tenderness in the vulval reason and perineal reason with torn hymenal tissue."
45. This doctor is directed with intensive cross examination. She is consistent that, to that effect she has issued Ex.P.42 and P.45 the medical report. On reading these Ex.P.41 and P.42 it is stated at Sl.No.8 - Genitals as under:
"b) Vulva : congested, tenderness
c) Hymen : Torn at 4 and 7 o'clock position
d) Vagina : congested
f) Perineum : Tenderness"
44.1. Her final opinion was pending due to want of report from Forensic Science Lab, Davangere.
46. Thus, on cumulative reading of the entire evidence placed on record by the prosecution, from the
- 42 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 evidence of PW.1 the complainant and the mother of the victim girl it is very much clear that, the victim girl was subjected to sexual assault by her own father. Even the evidence of PWs.12 and 13 corroborates the evidence of PWs.1 and 2 in material particulars.
47. When a person is charged for the offences punishable under the POCSO Act or for rape punishable in the IPC, the law is that the age of the victim is significant and essential ingredients to prove such charge and the gravity of the offence gets changed when the child is below 18 years, 12 years and more than 18 years. Section 2(d) of the POCSO Act defines the "child" which means any person below the age of 18 years.
48. On perusal of the evidence brought on record by the prosecution it is very much clear that, the victim girl was 11 years when the said incident has taken place. To that effect the school records are produced by the prosecution which were collected by the Investigating Officer.
- 43 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022
49. In the case of Alamelu and Another Vs. State represented by Inspector of Police1, which is in respect of admissibility of school records of a person, the Hon'ble Apex Court has held that the transfer certificate which is issued by the Government School and it has duly sign by the Headmaster would be admissible in evidence under Section 35 of the Indian Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of any material on the basis of which the age was recorded. The Hon'ble Apex Court has held that, the date of birth mentioned in the transfer certificate would have no evidentiary value unless a person who made the entry or who gave the date of birth is examined.
50. In this case, the School Headmaster has come before the Trial Court and deposed with regard to issuing Ex.P.35 showing her date of birth as 24.06.2003. There is no effective cross examination directed to him. Therefore, 1 2011 (2) SCC 385
- 44 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 age of the victim as 11 years on the date of incident is proved by the prosecution. The age of the victim is not denied by the defense. Even there is no claim by the accused that, the victim girl was not a juvenile at the time of incident. However, the evidence of the Headmaster and the evidence of doctors proved that, the sexual assault was committed on the victim girl as defined under the provisions of POCSO Act.
51. Now, the next question for consideration is whether the appellant/accused had committed rape on minor victim?
52. Victim-PW.4 aged 11 years on the date of incident has been examined before the Trial Court wherein she has clearly stated about her education and with regard to the incident threat by the accused No.1 her own father by showing sickle. So also she has stated that, on the day of 'Jatra' in their village accused No.1 came to the house in a drunken condition at 11.00 p.m., took the victim to the god's room, made her to undressed, he also undressed, removed the undergarments committed rape
- 45 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 on her. Even in a cross examination she has clearly stated that, how the sexual act was committed by accused No.1 on her. She further states that, thereafter he took her to Harihar on the guise of providing medicine to her for jaundice and initially took her to a hotel thereafter, to a school compound and tried to sexually assault her. He also took her near the public water tank and made her sleep on the ground, removed her undergarment, so also his and committed sexual assault on her. This evidence of PW.4 is corroborated by the evidence of PW.12-G. Rahaman and his wife PW.13 - Dilshadabanu who rescued the victim from the hands of accused No.1 and consoled her. PW.13 provided water to the victim girl, took the telephone number of her mother and called her. Thus, evidence of these witnesses clinchingly establish that, the victim was subjected to sexual assault.
53. PW.21-Dr. Netravati Sirsikar by examining the victim opined about sexual assault on her and she opined that hymen was found torn (ruptured). The only defense
- 46 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 of accused No.1 is that of only denial. Even the FSL report supports the case of the prosecution.
54. Before addressing the issues, we consider it to appropriate to revisit the law laid down by the Hon'ble Apex Court regarding the weight to be attached to the evidence of the victim in matters involving sexual offences where the prosecution's case hinges on the victim's evidence in the present case.
55. Law is well settled that, generally speaking, oral testimony may be classified into three categories, they are
1) wholly reliable, 2) wholly unreliable, 3) neither wholly reliable nor wholly unreliable. The first two categories of cases may not pose serious difficulty for the Court in arriving its conclusions. However, in the third category of cases, the Court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct on circumstantial, as the requirement of the role of prudence.
- 47 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022
56. In the case of Ganesan Vs. State2, the Hon'ble Apex Court observed and held that "there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In the aforesaid case, the Supreme Court had an occasion to consider the series of judgments on conviction on the sole evidence of the prosecutrix. In paragraphs No.10.1 to 10.3, it was observed and held as under:
"10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191], it is observed in paras 9 to 14 as under: (SCC pp. 195-98) "9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust 2 (2020) 10 SCC 573
- 48 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) '16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars.
She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is
- 49 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.'
10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion.
- 50 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12) '12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.'
- 51 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022
11. In State of Punjab v. Gurmeet Singh [State of Punjab v. Gurmeet Singh, (1996) 2 SCC 384], this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity.
Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.
Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) '8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three
- 52 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case....
Seeking corroboration of her statement before relying upon the same, as a rule, in
- 53 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 such cases amounts to adding insult to injury....
Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.
...
***
21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while
- 54 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 dealing with cases involving sexual molestations.'
12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86], this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622], this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been
- 55 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, AIR 1952 SC 54].
14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
57. In this case PW.4 is the sterling witness and she has spoken about the sexual assault by her own father on her. Her evidence is of very high quality and callable. Her version is unassailable. She is consistent in her evidence in her statement right from the starting point till the end, namely, at the time when the victim makes initial statement and ultimately before the Court. Her evidence is natural and consistent with the case of the prosecution qua the accused. Her evidence is not consisting of any prevarication. She was in a position to withstand the cross
- 56 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 examination so directed to her though so many tremendous questions were put to her. Therefore, under no circumstances it can be stated that her evidence give room for any doubt as to the factum of the occurrence, the person involved, as well as the sequence of it. Her version have co-relation with each and every one of other supporting material such as evidence of her mother, evidence of the neighbors at Harihar i.e., PWs.12 and 13, recovery of weapon used by the accused no.1 to threaten both complaint and victim, the manner of offence committed, the scientific evidence and the expert opinion. Her version consistently matched with the version of every other witness. Thus, this victim as a witness can be termed as "sterling witness" and her version can be accepted by the Court without any corroboration and based on which the guilty can be punished. That means, her version on the course factrum of the crime has remained intact while all other attending materials, namely oral, documentary and material objects match the version of the victim in material particulars which help the Court to
- 57 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 rely upon the evidence of a victim for holding the offender guilty of the charge alleged.
58. It is laid down by the Hon'ble Apex Court that in a matters related to sexual offences that, it is generally deems essential to hold the victim, the conviction cannot be sustained if the prosecutrix evidence is found unreliable and insufficient due to identified flaws and lacunas. But, in this case as held by the Hon'ble Apex Court in various judgments, the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of prudence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case.[1) Vishnu Vs. State of Maharashtra3, 2) State of Rajasthan Vs. N. K.4]
59. We are concious of the fact that while evaluating evidence of the case of the present nature, the Courts shoulder a great responsibility while trying a 3 (2006) 1 SCC 283 4 (2000) 5 SCC 30
- 58 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 accused on the charges of rape that to victim is a child. The Supreme Court in the matter of State of Uttar Pradesh Vs. Sonu Kushwaha5 has held a under:
"12. The POCSO Act was enacted to provide more stringent punishments for the offences of child abuse of various kinds and that is why minimum punishments have been prescribed in Sections 4, 6, 8 and 10 of the POCSO Act for various categories of sexual assaults on children. Hence, Section 6, on its plain language, leaves no discretion to the Court and there is no option but to impose the minimum sentence as done by the Trial Court. When a penal provision uses the phraseology "shall not be less than....", the Courts cannot do offence to the Section and impose a lesser sentence. The Courts are powerless to do that unless there is a specific statutory provision enabling the Court to impose a lesser sentence. However, we find no such provision in the POCSO Act. Therefore, notwithstanding the fact that the respondent may have moved ahead in life after undergoing the sentence as modified by the High Court, there is no question of showing any leniency to him. Apart from the 5 (2023) 7 SCC 475
- 59 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 fact that the law provides for a minimum sentence, the crime committed by the respondent is very gruesome which calls for very stringent punishment. The impact of the obnoxious act on the mind of the victim/child will be lifelong. The impact is bound to adversely affect the healthy growth of the victim. There is no dispute that the age of the victim was less than twelve years at the time of the incident. Therefore, we have no option but to set aside the impugned judgment of the High Court and restore the judgment of the Trial Court."
60. It is also settled law that, the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case the doctor who has examined the victim has noticed tearing of hymen and also symptoms of sexual intercourse. Therefore, the evidence of a doctor is corroborative in nature with that of the evidence of victim girl i.e., PW.4 and her mother - PW.1 the complainant. In normal course a victim of sexual assault does not like to
- 60 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 disclose such offence even before her family members muchless before public or before the police. But in this case in the presence of PW. 1 the sexual assault was committed by her husband on his own daughter and PWs.12 and 13 got the information with whom the victim girl disclosed the sexual assault on her by accused No.1 her father. She was the child of just 11 years of age having no worldly knowledge. The Indian woman has tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members has courage to go before the police station as in this case and lodge the complaint. Even in the instant case, accused No.2 the brother of the accused No.1 gave a threat to the complainant not to lodge a complaint, but when the said sexual assault on the victim girl was known to the Child Welfare Committee of Haveri, it was informed to the police and police came to be village of victim and took the complainant and the victim girl to the hospital. When the said incident has taken place at Harihar, even this accused
- 61 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 No.2 tried to hush up the incident by bringing back them to the village. In the instant case, the suggestion given on behalf of the defense that the complainant has falsely implicated accused no.1 on the ground that he has not parted his name in respect of the properties. But this defense does not appeal to reasoning. There is no apparent reason for a complainant his own wife to falsely implicate her own husband accused no.1 after skipping her own prestige and honour.
61. Off late, crime against woman in general and rape in particular is on increase. It is an irony that, while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the quad of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A
- 62 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 murderer destroys physical body of the victim, a rapist disgrade the very soul of the helpless female. Therefore, it is said that the Court, therefore, shoulders a great responsibility while trying an accused on such charges. The Court must deal such cases with utmost sensitivity. The Court should amine the border probabilities in case and not swayed away by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not fatal in nature, to throughout and otherwise reliable prosecution case. It is held by the Apex Court in catana of judgments that "if the evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars".
62. Reverting to the instant case, both PWs.1 and 4 as well as PWs.12 and 13 consistently described the incident that on the date of incident, this appellant/accused no.1 on the guise of providing medicine for jaundice took the victim to Harihar, near by a school compound made her to undress, undergarment try to
- 63 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 commit sexual assault and as people were there, he took her near the public water tank in a deserted area, made her to sleep on the ground, removed her undergarment, so also removed his undergarment and committed sexual assault on her and it was a forcible sexual intercourse. Thus, the statements of these witnesses including the evidence of prosecutrix has been consistent from beginning to the end (except inconsistencies), from the initial statement to the oral testimony without crating any doubt qua the prosecution's case. Thus, in the case in hand, there is no doubt that being in a position of authority as a father and trust, the accused misused his position as father and sexually exploited his own daughter aged 11 years and raped her. The oral evidence of PWs.1, 4, 12 and 13 on the culpability of the convict got credence from the medical unerringly pointing to his guilt. On appreciating the evidence on record and coming to the conclusion that the guilt of the appellant/accused under the provisions of POCSO Act has been conclusively proved as held by the Trial Court.
- 64 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022
63. Considering the evidence of the victim, who had to bear the brunt of the depravity, POCSO Act is a special Act where the legislature has made stringent provisions to protect the interest of victims who are minors. The oral testimony of the witnesses as stated above on the culpability of the convict got credence from the medical evidence and other evidence unerringly pointing to his guilt.
64. Considering the aforesaid facts and circumstances of the case, particularly the evidence of the victim-PW.4, statement of the mother-PW.1 and corroborative evidence of PWs.12 and 13 who immediately noticed the sexual assault on the person of the victim by the accused, the evidence of doctor and report so submitted, it is quite clear that by giving threat the accused has committed sexual intercourse and due to fear initially PW.1 and PW.4 have not disclosed to the others except accused No.2. But accused No.2 tried to hush up the incident. Thus, the conviction and sentence as awarded by the Trial Court is to be upheld.
- 65 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022
65. We do not find any factual or legal error committed by the Trial Court in finding the accused guilty. Therefore, the impugned judgment of conviction and order of sentence passed by the Trial Court do no warrant any interference by this Court. Accordingly, the aforesaid points are answered against the appellant/accused and in favour of the prosecution.
66. Resultantly, we pass the following:
ORDER
i) Appeal filed by the appellant/accused under Section 374(2) of Cr.P.C. is hereby dismissed.
ii) The impugned judgment dated 12.01.2021 passed in Special S.C. No.27/2014 by the I Additional District and Sessions Judge and Special Judge, Haveri, is hereby affirmed.
iii) Since the appellant/accused is stated to be in jail since from the date of arrest, he is directed to serve all the
- 66 -
NC: 2024:KHC-D:6267-DB CRL.A No. 100447 of 2022 sentence as awarded to him by the Trial Court.
iv) We place on record the appreciation to the Amicus Curiae for rendering proper assistance for disposal of this appeal.
v) Fee of Amicus Curiae is quantified at Rs.15,000/- payable by the State Government, and the Registry shall make necessary arrangement to make payment to Amicus Curiae, digitally.
vi) Send back the Trial Court records along with copy of the judgment forthwith for necessary information and compliance.
Sd/-
JUDGE Sd/-
JUDGE SMM/LIST NO.: 1 SL NO.: 20