Bangalore District Court
Unknown vs Rajesh Son Of Diddashetty on 12 April, 2016
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 12TH DAY OF APRIL 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 13/2015
COMPLAINANT :
The State of Karnataka by
Rajagopalanagara Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
Rajesh son of Diddashetty,
aged about 22 years,
resident of No.159, 4th cross,
Near SBM school,
Chowdeshwari Nagar, Laggere,
Bengaluru City 560 058.
Native place: Chikkabegur
village, Kulagana Post,
Harave Hobli, Chamarajanagara
Taluk and District.
[Represented by learned counsel
Sri K.S. Praveen Kumar]
***
2 Spl.CC.No. 13/2015
JUDGMENT
Rajagopalanagara Police, Bangalore City have charge sheeted the accused for the offences punishable under Section 366A and 376 of I.P.C.
2. The case of the prosecution, in brief, is as under :
CW2-the prosecutrix was of 16 years in the year 2012. She was doing tailoring training in BBMP Tailoring Centre. The accused who is the resident of the same locality used to follow her. On 25.7.2012 at about 12.00 noon while she was going to tailoring class accused forcibly took away the prosecutrix in Autorikshaw to Majestic bus stop on the pretext of marriage. He took away her in bus to Mysore, where he took rented house and kept her in hootagalli and also committed rape on her by promising to marry. He had sex repeatedly with her on the pretext of marriage till 6.8.2012. In the meanwhile on 31.7.2012 CW1-Mohammed Shafi, 3 Spl.CC.No. 13/2015 father of the prosecutrix had lodged a complaint against the accused that he had kidnapped the prosecutrix. Rajagopalanagara Police have traced the accused with victim girl in Mysore Bus Stop on 6.8.2012. They were brought to Bangalore. Both of them were subjected to medical examination.
Investigating Officer drew necessary mahazars. He had recorded voluntary statement of the accused, statement of the prosecutrix and also other prosecutrix witnesses. After collecting necessary documents by completing the investigation he submitted charge sheet to the Court for the aforesaid offences.
3. The charge sheet was submitted to VII ACMM Court and learned Magistrate after taking cognizance, committed this case to the Court of Sessions for trial. After committal this case was made over to FTC-XIV. Thereafter it was transferred to XXXV Addl. City Civil and Sessions Court. Then Presiding Officer of XXXV Addl. City Civil and 4 Spl.CC.No. 13/2015 Sessions Court had framed charge against the accused for offence punishable u/s. 366A and 376 of IPC and read over to the accused. Accused has pleaded not guilty and claimed to be tried. Hence, posted for evidence on prosecution side. At that stage case was transferred to this court on the point of jurisdiction. After hearing on both the sides charge under the head for offence under Section 366A of IPC has been altered for offence under Section 366 of IPC. The accused pleaded not guilty and claimed to be tried. Hence posted for evidence.
4. On prosecution side got examined as many as 11 witnesses as P.W.1 to P.W.11 out of 21 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P14 and MO1 to 5 the details of which are given in the annexure of this Judgment. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the 5 Spl.CC.No. 13/2015 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 had kidnapped CW2 minor daughter of CW1 Mohammed Shafi on 25.07.2012 at 12.00 noon while she was going nearby SBM school for BBMP tailoring classes, with intent to marry against her will or seduce her to illicit intercourse punishable under Section 366 of I.P.C ?
2) Whether the prosecution has proved beyond reasonable doubt 6 Spl.CC.No. 13/2015 that accused had committed rape on her in the house taken on rent from CW12-Radha by the accused in Hootagalli, Mysore, during the period from 25.7.2012 to 6.8.2012 against her will punishable under Section 376 of I.P.C.?
3) What order?
7. My findings on the above points are as under:-
Point No.1) : In the negative
Point No.2) : In the negative
Point No.3) : As per final orders for the
following
REASONS
8. Point No.1:- The accused is alleged to have had kidnapped PW1 prosecutrix minor daughter of PW2 Mohammed Shafi on 25.7.2012 at 12.00 noon near SBM school while she was going to BBMP tailoring class with intent to marry her against her will or to seduce her to illicit intercourse. 7 Spl.CC.No. 13/2015 The incident took place prior to commencement of Protection of Children from Sexual Offences Act, 2012. Hence the said Act does not apply to the present case. However, when it is the specific case of the prosecution that PW1 prosecutrix was minor as on the date of the alleged incident, at the first instance age of the prosecutrix shall have to be looked into.
9. The prosecutrix was of 16 years, PW2 Mohammed Shafi had lodged complaint as per Ex.P1 mentioning that her age was 16 years as on that date. Accordingly PW1 and 2 have stated so. The prosecutrix was also subjected to Radiographic test by dentist, based on that he had given radiographic findings that the age of the prosecutrix was from 15 to 17 years during that time. Accordingly he had issued report assessing her age as per Ex.P4. PW5 Dr. Vijayalakshmi has referred to contents of Ex.P4. In the cross examination led by the learned counsel for the defence she has clearly admitted that age 8 Spl.CC.No. 13/2015 assessed by her is not an exact age of prosecutrix, it was assessed approximately, there may be variance of one or two years in the age. According to medical evidence also there is no conclusive proof that prosecutrix was under 18 years. Above all as per Ex.P12 the school certificate issued by the school authority her date of birth is 26.2.1994. That is the date of birth given at the entry level to the school first attended. She studied in that school from 1st standard to 8th standard. Merely because PW1 and 2 have stated that prosecutrix was of 16 years as on the date of alleged incident, the contradictory version of PW1 and 2 cannot be based to hold that she was under 18 years. Ex.P12 is the document of the prosecution. Investigating Officer had colleted the said certificate from the school. In view of section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2015 the age of the child / juvenile should be determined by matriculation or equivalent certificate or date of birth certificate from school first 9 Spl.CC.No. 13/2015 attended or birth certificate by Corporation / Municipal Authority / Panchayath and in the absence of such document, medical opinion can be sought for. On this point I have relied upon 2013 (14) SCC 637 (Mahadevu Vs State of Maharashtra and another) wherein Hon'ble Apex court has held:-
"A. Penal Code, 1860 - Ss. 376 and 363 - Kidnapping and rape - Age of prosecutrix / victim - Determination of - Yardstick for - Certificates of age from schools or local Authorities Vis-à- vis medical evidence - Held, statutory provision in Juvenile Justice (Care and Protection of Children) Rules, 2007, R. 12(3) is also applicable to determine age of young prosecutrix / victim -
Hence, it should be determined by matriculation or equivalent certificates or date of birth certificate from school first attended or birth certificate by Corporation / Municipal Authority or Panchayath and only in absence of such documents medical 10 Spl.CC.No. 13/2015 opinion can be sought for - Therefore, reliance placed upon school certificates to arrive at age of prosecutrix to be below 18 years was perfectly justified."
The aforesaid ruling applies to the present case. The present case and also the aforesaid case are identical. The prosecution has produced the date of birth certificate at Ex.P12 issued by the school first attended. Even in view of medical evidence as already discussed in supra, her age was assessed from 15 to 17 years and also it is admitted by PW5 there may be variance of one year or two years. The benefit of the same also shall be given to the accused. In view of certificate at Ex.P12 the age of the prosecutrix is proved by the prosecution beyond reasonable doubt that she was above 18 years. Because as per Ex.P12 her date of birth is 26.2.1994. The incident took place on 25.7.2005. If it is calculated the prosecutrix has already attained 11 Spl.CC.No. 13/2015 the age of majority, she was of 18 years 5 months at the relevant point of time.
10. Now the next question arises whether the prosecution has proved the offence of kidnapping by the accused and the accused had intention of marrying her against her will or seduce her to illicit intercourse. The charge under the first head against the accused is offence of kidnapping punishable under Section 366 of IPC. Section 366 provides:-
"Kidnapping, abducting or inducing woman to compel her marriage, etc.--
Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine"12 Spl.CC.No. 13/2015
11. The aforesaid provision consists of two parts; one is offence of kidnapping and another is intention to compel her to marry against her will or to seduce her to illicit intercourse. In the present case according to prosecution accused was following the prosecutrix while she was going to BBMP tailoring training classes. He was also laughing at her, the prosecutrix also responded to the accused. On coming to know this fact the family members of prosecutrix warned the accused not to repeat. However on 25.7.2012 at 12.00 noon while she was going to BBMP tailoring classes, near SBM school she was forcibly taken away by the accused in Auto to Majestic, thereafter from Majestic to Mysore in a bus and he kept her in a rented house taken from CW12 Radha in Hootagalli, Mysore. He had sex with her till 6.8.2012, repeatedly, on the pretext of marrying her. When both of them were in the Mysore Bus stop to go to Mysore Palace, Rajagopalanagra Police had traced them and brought 13 Spl.CC.No. 13/2015 them to Bangalore. Both of them were subjected to medical examination. The prosecutrix had given statement before Investigating Officer that accused had forcibly taken her and had physical relationship with her forcibly by promising to marry her. As per the medical evidence hymen of the prosecutrix is found not intact. Hence section 376 has also been invoked along with Section 366A of IPC in the charge sheet. This is the case of the prosecution.
12. There are two charges against the accused. One is for offence under Section 366 of IPC and another for offence of rape under Section 376 of IPC. Both are interconnected to each other. As per the conclusive proof fond on record she was of 18 years 5 months at the relevant point of time. Now the question arises whether she left the house on her own will or she had been taken forcibly is point for consideration.
14 Spl.CC.No. 13/2015
13. According to prosecution she was dragged by the accused into autorikshaw and took to Majestic Bus Stop thereafter in bus to Mysore. It is pertinent to note even for a while case of the prosecution is believed that accused had forcibly taken her in autorikshaw, it is not the case of the prosecution that at any point of time the prosecutrix had raised alarm while going in auto to Majestic or while travelling in bus to Mysore. Even it is not the case of the prosecution that they stayed in a rented house in Hootagally one or two days only, but they stayed there till 6.8.2012. The house taken on rent by the accused was having Zinc sheet roofing. It has single portion measuring 12 x 20 Ft. CW12 Radha is the owner of the said house. According to the case of the prosecution both of them were traced in Mysore Bus Stop when they were going to Mysore Palace. Then also she had an opportunity to draw the attention of the public to rescue her from the hands of the accused. The case of the prosecution 15 Spl.CC.No. 13/2015 itself would indicate the prosecutrix had sufficient opportunity to seek help from the public at any point of time, but nowhere she made an attempt either to escape from him or to raise alarm seeking the help of others. That itself makes it very clear that prosecutrix joined the accused on her own free will even if it is taken for a while that she had gone with the accused.
14. On going through the whole evidence of the prosecutrix PW1, her version is found unreliable. Of course she has stated in the chief examination that accused followed her and dragged her into the autorikshaw forcibly, took her by stating that he would marry her. But as already discussed in supra she did not make any attempt to escape from the accused till 6.8.2012 though there was sufficient opportunity for her to seek the help of others. If she were to be forcibly taken she would have protested and raised alarm. But from 25.7.2012 at 12.00 noon till 6.8.2012 she kept quiet, calmly stayed with 16 Spl.CC.No. 13/2015 him. Of course in page 2 of her chief examination she has stated that accused had given threat to her unless she agreed to marry him he would take away life of her father. It is pertinent to note it is not at all the case of the prosecution. Hence such version of victim girl is of no significance.
15. The evidence of PW1 prosecutrix suffers from material contradictions. According to prosecution prior to the incident when the accused followed her, laughed at her, she also responded to the accused. The accused asked her to come with him as he wanted to speak to her, after taking her in auto to majestic he persuaded her to join him as he loved her very much and wanted to marry her. Whereas PW1 in his chief examination itself has stated "that she does not know the accused earlier to the incident, on the date of the incident he abruptly came and dragged her into the autorikshaw" of which is very much inconsistent with that of the case of the prosecution. Another contradictory 17 Spl.CC.No. 13/2015 version found in her chief examination is "when they were staying in Mysore the police came to know about their stay, then accused intended to change the house, he brought her to another village then the police apprehended them. She does not know the name of the said village". In the cross examination led on defence side in para 5 she has given another version "that they stayed in the house at Hootagalli for 14 days. She did not come outside. The accused wanted to shift the house to next building for which both of them were going by walk". Thus from stage to stage she goes on changing colour of her versions. In para 6 she has stated that her date of birth is 1995 and not 1994, of which is not at all supported by any other piece of evidence. The discrepancy in her oral testimony does not inspire confidence. On careful scrutiny of the evidence I find it difficult to accept the version of the prosecution as it is not unreproachable. There is requirement for search of such direct or circumstantial evidence which would 18 Spl.CC.No. 13/2015 lend assurance to her testimony. The contradictory testimony of the prosecutrix leaves a mark of doubt to treat it as so natural and truthful.
16. Even as per the prosecution accused had persuaded her that he would marry her, on the pretext of marriage he took her. She was not under the age of 18 years as per the date of birth in Ex.P12 she was major at the relevant point of time. Therefore, say of the prosecutrix in her chief examination that accused had forcibly taken her with intent to marry her against her will is very difficult to be believed. Her version is not supported by her father and mother i.e., PW2 and 3.
17. PW2 Mohammed Shafi is father as well as the complainant. As per prosecution he had lodged the complaint as per Ex.P1 on 31.7.2012. According to prosecution, he had lodged the complaint by making direct allegations against the accused that he had kidnapped his daughter and sought to initite 19 Spl.CC.No. 13/2015 the action against him. But he has not at all supported the prosecution. In the chief examination itself he has stated that he does not know the accused. He has supported to the extent that PW2 was missing and he had gone to the police station for lodging the complaint. But in further he does not make any allegation against the accused. His chief examination does not incriminate the accused. He has given a different statement which is alien to the case of the prosecution. According to his chief examination the police had taken the husband of Lakshmi who is the friend of the prosecutrix and took him to Mysore and traced the prosecutrix. Even in the cross examination led by the learned Public Prosecutor, nothing more is forthcoming in his evidence to connect the accused with alleged crime. Of course he is subjected to cross examination on accused side, he has denied the suggestions made on defence side that accused and victim girl were loving each other, they had decided to marry, he 20 Spl.CC.No. 13/2015 made an attempt to perform her marriage with one of his relative. The evidence of PW2 does not establish the offence under Section 366 of IPC.
18. PW3 is the mother of prosecutrix. In the chief examination she has stated that the complaint was lodged against the accused. Except this she has not at all stated anything favourable to prosecution. This single version of PW3 does not connect the accused with alleged crime of kidnapping. In the chief examination itself she has stated that the prosecutrix did not say anything before her. In the cross examination on defence side the same suggestions were made as in cross of PW2, she has also denied the same. According to the defence "both of them were loving each other, they had decided to marry, the family members of the prosecutrix gave a threat of ªÀÄAiÀiÁðzÁ ºÀvÉå, even otherwise they continued their contact. Hence in order to fix the accused into criminal case a false 21 Spl.CC.No. 13/2015 case has been foisted". PW2 and 3 have denied these suggestions made on defence side. However their evidence do not support the prosecution in any way in order to convict the accused either for offence of 366 or 376 of IPC.
19. According to prosecution PW4 Fareedunnisa aunt of the prosecutrix is an eye witness to the incident of offence under Section 366 of IPC. As per prosecution PW4 who was in the classroom in the second floor at the time of the incident had seen the accused and the victim girl. They were talking each other. The accused by holding the hand of the victim girl boarded the auto and went off. By taking permission of the Head Mistress she informed PW3.
20. The version of PW4 that she had seen accused talking with victim girl, from second floor of the building is very difficult to be believed. As per the prosecution she was a teacher in that school. 22 Spl.CC.No. 13/2015 She was taking classes at that time, she had seen from that distance. It appears to be far away from the truth. As per prosecution the spot mahazar was drawn on the spot shown by complainant. Ex.P3 the spot mahazar is stated to have been drawn by the IO on spot as shown by PW2 complainant. It is pertinent to note PW2 complaint is not an eye witness. As per the prosecution PW4 is an eye witness. She was not at all present on the spot at the time of mahazar. Even it is not the case of the prosecution that she had shown either to PW1 or PW2, the spot of kidnapping. That itself also suspects the case of the prosecution. The attending circumstances itself would show that oral testimony of PW4 is found unreliable.
21. It is pertinent to note the complaint was lodged on 31.7.2012. The incident is alleged to have been taken place on 25.7.2012. After a lapse of six days the complaint was lodged by PW2. Ex.P1 does not speak out the reason for delay in reporting the 23 Spl.CC.No. 13/2015 missing of the prosecutrix. Even PW2 the complainant has not whispered anything on this aspect. CW20 who received the complaint from PW1 is dropped as dead. PW10 is subjected to cross examination on defence side on the point of delay in lodging the complaint. But nothing is forthcoming in his evidence also about the reason for delay in lodging the complaint. As per Ex.P1 itself they made direct allegation against the accused that he is a person who had kidnapped the prosecutrix. As per prosecution PW4 aunt of prosecutrix herself had seen accused taking away the victim girl, she immediately informed the family members of the prosecutrix. But why it was not reported to the Police till 31.7.2012 is not explained. Therefore that itself doubts the case of the prosecution that accused had kidnapped the prosecutrix, even for a while it is taken that she joined the accused, it is only on her own free will, not forcibly taken away. There is nothing brought on record to show that she 24 Spl.CC.No. 13/2015 had been forcibly taken away by the accused or she had neither been persuaded nor induced. The oral testimony of prosecutrix does not inspire any confidence to believe her version and to convict the accused. No explanation is offered for delay of which itself doubts the case of the prosecution. Non- offering the explanation for delay is fatal to the case of the prosecution. In this regard the learned counsel for the accused has referred to 2015 Crl.L.J. 1967=2015(2) Crimes 84 SC (Md. Ali alias Guddu V/s. State of UP) wherein Hon'ble Apex Court held:-
"Kidnapping and rape - Proof - FIR lodged by mother after 11 days from date of missing of prosecutrix - No explanation has been offered for such delay - Recovery of prosecutrix from particular house by brother and his friends also creates a cloud of suspicion - Testimony of prosecutrix that she was taken from one place to the other and remained at various houses for almost two months - Only 25 Spl.CC.No. 13/2015 explanation given by her is that she was threatened - No statement by prosecutrix in her testimony that she was confined to one place - Medical evidence showing that there are no injuries on private parts - Testimony of prosecutrix not inspiring confidence - Conviction of accused persons, not proper."
22. In the aforesaid case there was 11 days delay in reporting the missing of prosecutrix and no explanation was offered for delay. Only explanation given by her is he was threatened but no statement by prosecutrix in her testimony that she was confined to one place. The testimony of prosecutrix not inspiring confidence and conviction of accused is not proper. In the present case also I do find the same. No explanation has been offered for delay of 6 days in reporting the missing of prosecutrix though the kidnapping was stated to have been seen by PW4, she immediately informed the family members of the prosecutrix. According to the prosecution she 26 Spl.CC.No. 13/2015 was taken by him to Mysore and stayed more than 10 days and they were moving around in Mysore. This is not the version of the prosecutrix that she was confined to the rented house taken by the accused from CW12. Therefore, the delay in reporting the missing of the prosecutrix is fatal to the prosecution in the present case and also the testimony of the prosecution is found unreliable. It is doubtful that PW4 is probable witness. Under the circumstance it is not safe to believe the case of the prosecution that she had been kidnapped by the accused by promising her to marry.
23. Taking or enticing away is the essential ingredient of offence of kidnapping. But on going through the evidence of the material witnesses examined on prosecution side, there is absence of inducement or persuasion on the part of the accused.
27 Spl.CC.No. 13/2015
24. The learned counsel for the accused has placed reliance on (2013)3 SCC 791 (Rajesh Patel V/s. State of Jharkhand) wherein Hon'ble Apex Court has held:-
"Delay in filing FIR not properly
explained -prosecution case not
consistent - case if one of consensual sex - Benefit of doubt extended and conviction reversed -Criminal Procedure Code 1973 - S.154 - Delay in lodging / filing FIR - Not properly explained."
In the present case also there are charges not only under Section 366 IPC but also under Section 376 IPC. So far as charge for offence of rape, I will discuss little later. On the point of delay in lodging the complaint the aforesaid ruling cited on accused side also applies to the present case.
25. In the case on hand though the prosecutrix was stated to have been missing from 28 Spl.CC.No. 13/2015 home from 25.7.2012 the complaint was lodged on 31.7.2012 only. The prosecutrix has supporting male persons i.e., her father, her brother and also cousin brothers. Even otherwise there was delay in lodging the missing report with police by father of the prosecutrix. No explanation has been offered. Undue delay without any cause would be fatal to the case of the prosecution. It is not the case that prosecutrix suffered from mental trauma or due to other social concerns the delay was caused. Therefore the delay in lodging the missing report itself suspects the prosecution case that accused had kidnapped prosecutrix with intent to marry her against her will.
26. PW6-Nayeem sheriff is the cousin brother of the prosecutrix. PW7 Mohammed Noorulla Sheriff is own brother of the prosecutrix. They are circumstantial witnesses. According to the prosecution when they learnt that accused was following prosecutrix while she was going to tailoring 29 Spl.CC.No. 13/2015 training centre, they advised him not to do so, after tracing the accused, prosecutrix revealed the inducement made by accused and also the rape committed by him on her. Though PW6 and 7 have stated in their evidence that they had advised the accused and the prosecutrix revealed before them after her return that accused had taken away forcibly and committed rape on her, their evidence cannot be based to hold the guilt of the accused. They are hearsay witnesses. The evidence of prosecutrix is found unreliable. The complainant and the mother of the prosecutrix have not supported the prosecution case. Though according to prosecution there is an eye witness i.e., PW4, her testimony cannot be relied upon for the reasons there is inordinate delay in reporting the missing complaint and also her evidence is not corroborated by any other evidence. She is also not probable witness. Above all the prosecutrix was not under 18 years. Non raising alarm by the prosecutrix though 30 Spl.CC.No. 13/2015 she had sufficient opportunity from stage to stage till 6.8.2012 she did not make any efforts either to escape from him or to seek the help from others or even intimate neighbours. The prosecutrix was not a kid, she is capable of understanding the pros and cons of leaving the house and joining the accused. She was above 18 years at that time. To constitute offence under Section 366 IPC it is necessary to show that accused induced a woman or compel by force to go from any place and that such inducement was by such deceitful means, but there is nothing found in evidence on this aspect in view of my discussion made in supra. On this point I have relied upon 2015 (3) Crimes 474 (Karnt.) (Bharathraj Gumppe V/s. State of Karnataka by Ullala Police) wherein it is held:-
Indian Penal Code, 1860 -
Sections 366/34 - Criminal Procedure Code, 1973 - Section 482 -
Kidnapping - Common intention - To Constitute offence under Section 366 31 Spl.CC.No. 13/2015 of IPC, it is necessary to show that accused induced woman or compelled by force to go from any place and that such inducement was by deceitful means-There is no bar in law for inter- caste or inter community or inter-
religious marriage - No offence was committed by petitioner and his friends who have been named in impugned FIR - Unless complaint contains allegation that abduction was for purposes mentioned under Section 366 IPC, a case for offence under Section 366 IPC cannot be registered - No offence was committed by any of accused and whole criminal case is an abuse of process of Court as well as of administrative machinery.- If parents of boy or girl do not approve of such inter-caste or inter-religious marriage maximum they can do is that they can cut off social relations with son or daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass person who undergoes such inter caste of 32 Spl.CC.No. 13/2015 inter-religious marriage - FIR quashed. (Paras 11,12,14,17 to 19) The aforesaid case is identical to the present case. In the foresaid case the parents opposed the inter-religious marriage of prosecutrix with the accused. Hon'ble High Court of Karnataka held that if the parents of boy or girl had been aggrieved by such inter caste or inter-religious marriage, maximum they can do is they can cut off social relationship with them, they cannot give threat or commit or instigate acts of violence and harass the person who undergoes such inter-caste or inter- religious marriage. The FIR quashed in that case. In the present case as already mentioned in supra, the parents of the prosecutrix have not supported. In other words they have not spelt even a single word incriminating the accused either for charge under Section 366 or for charge under Section 376 of IPC. The evidence of prosecutrix is found unreliable and does not inspire confidence. Otherwise she would 33 Spl.CC.No. 13/2015 have made efforts to escape or she would have sought help from others. The prosecution has miserably failed to establish the charge under Section 366 of IPC. The benefit of doubt should to go to the accused. Hence I hold point No.1 in the negative.
27. Point No.2: Another charge against the accused is for offence of rape. According to prosecution after kidnapping the prosecutrix she was kept in a rented house taken from CW12-Radha till 6.8.2012, during that period he had sex with her on the pretext of marrying her and also it was against her will. It is pertinent to note while discussing point No.1 I have discussed in detail regarding no efforts were put by the prosecutrix or even she had never raised voice against the accused while she was travelling in bus or while she was staying in that small sheet house which was a residential area or even while they were in Mysore bus stop to go to Mysore Palace. The case of the 34 Spl.CC.No. 13/2015 prosecution itself establishes that there is absence of compulsion, absence of inducement. Admittedly that was a residential area. The rented house wherein they stayed measures 12 x 20 Ft. consisting of single portion only. CW12 is the owner of the house. CW13 is the neighbor. Non examination of CW12 and 13 is fatal to the case of the prosecution. Apart from that the conduct of the prosecutrix herself would indicate that there was no force in the act of the accused. She was not under 18 years. In view of Section 375 IPC Sixthly, the age of consent for sex is 16 years. As per Ex.P12 she was of 18 years 5 months as on that date. At the cost of repetition I make it very clear that it is not the case of the prosecution that accused had given threat in any manner to the victim girl. Therefore though prosecutrix has stated in her oral evidence, that he had caused threat to finish off her father, hence she kept quiet, is of no significance.
35 Spl.CC.No. 13/2015
28. Above all in view of medical evidence there were no external injuries anywhere on body, there were no external injuries even on the genital. PW11 Dr. Veena had examined her and issued medical report as per Ex.P9 dated:9.8.2012 as stated supra and hymen was not intact. Ex.P9 does not speak out that prosecutrix was used to sexual intercourse. Firstly the prosecutrix was above 18 years, the age of consent in view of the position of law then prevailed is 16 years, there were no external injuries anywhere either on the body or on her genitalia. Even she did not disclose the act of the accused before anybody, any where till 6.8.2012 though she had sufficient opportunity either to escape or to reveal the incident or to complain against the accused. Under these circumstances the version of the prosecutrix that accused had committed rape on her does not inspire confidence to connect the accused with charge of rape. Fourthly there is no definite opinion given by doctors that she was used 36 Spl.CC.No. 13/2015 for sexual intercourse. There is only written that, hymen is found not intact. Ex.P9 does not contain the opinion of the doctors. Simply because there is mentioned that 'hymen not intact', the inference cannot safely be drawn that it was the damage caused due to sexual intercourse. When there is no definite opinion by doctors as to use of prosecutrix for sexual intercourse, accused cannot be convicted for offence off rape. On this point I have relied upon decision reported in Criminal Rulings 2013 Cr.R. 481 (Kant.) (State by Hosakote Police V/s. Ravi.N.) wherein the Hon'ble High Court of Karnataka has held that:-
"Penal Code, 1860 - Section 376 - Criminal Procedure Code, 1973 - Section 378 - Rape - Acquittal -
Birth Certificate of victim not
produced before court - In view of
school documents age of victim
cannot be less than 16 years -
Evidence of witnesses do not
corroborate with each other -
37 Spl.CC.No. 13/2015
Prosecution has failed to bring home guilt of accused - Opinion of Doctor is that sexual intercourse might have taken place, but there is no conclusive proof - Recent forceful intercourse not borne by medical evidence - There is nothing to show that rape was committed on victim and that she was minor at that time
- Appeal dismissed"
29. In the aforesaid case according to opinion of the doctors sexual intercourse might have taken place. Hence Hon'ble High Court of Karnataka has held that there is no conclusive proof and there is nothing to show that rape was committed on victim and that she was minor at that time. That is also almost identical to present case wherein I find that there is no opinion given by the doctors that prosecutrix was used for sexual intercourse. In Ex.P9 mentioned 'hymen not intact' but the opinion as to why hymen was not intact not given by the doctors. The allegation of rape must be corroborated 38 Spl.CC.No. 13/2015 by the medical evidence. The aforesaid ruling applies to the present case. In view of the above ruling the accused cannot be convicted for the offence of rape. It is rightly argued by the learned counsel for the accused that report of FSL would not help the prosecution to connect the accused with the alleged offence and the prosecution has not brought on record any material to connect the accused with seminal stain found on the clothes of the victim. On this point he has placed reliance on the decision reported in Criminal Rulings 2013 Cr.R. 222(Kant.) (State of Karnataka V/s. Krishna alias Krishmamurrthy) wherein it is held:-
"Penal Code, 1860 - Section 376 - Criminal Procedure Code, 1973 - Section 378 - Rape - Acquittal - Prosecution case not corroborated by medical evidence - Report of Forensic Science Laboratory would not help prosecution to connect accused with alleged offence -
Prosecution has not brought on
39 Spl.CC.No. 13/2015
record any material to connect
accused with seminal stains found on clothes of victim - View taken by Trial Judge is plausible and deserves no interference - Appeal dismissed."
In the present case also the FSL report would not help the prosecution. There is negative report. No seminal stains are detected, no spermatozoa detected.
30. Even for a while it s taken that accused had sex with the victim girl but it is a consensual act only, not by force. She was major as on that date. It is not the case that she shouted at the time of commission of offence by the accused. The medical evidence and FSL reports are not supporting the allegation of rape. Hence he can't be convicted for offence of rape. On this point the learned counsel for the accused has relied on 2013 AIR SCW 1284 (State of Rajasthan V/s. Babu Meena) wherein Hon'ble Apex Court held:-
40 Spl.CC.No. 13/2015
"(A) Penal Code (45 of 1860), S.376 -
Rape - Evidence of prosecutrix -
Contradictory as to time of offence - Plea that she shouted not supported by landlord of place of offence -
Medical and FSL report also not supporting allegation of rape -
Acquittal of accused proper - Not liable to be interfered in appeal against acquittal - Refusal to grant leave to appeal justified."
The above decision also applies to the present case.
31. Another ruling cited by the learned counsel for the defence is reported in 2013 Cr.R. 613 (Kant.) (State of Karnataka V/s. Suresh) wherein Hon'ble High Court of Karnataka held:-
"Penal Code, 1860 - Sections 376 and 506 - Rape and criminal intimidation - Acquittal - Evidence of victim not inspiring confidence -
It is very difficult to believe 41 Spl.CC.No. 13/2015 testimony of victim that accused committed rape in a dilapidated room which had no door and located very close by to police station - Even assuming that she was minor, there is no clinching evidence to show that she had been subjected to forcible sexual intercourse by accused - Evidence of medical officer goes to show that victim is used to an act of sexual intercourse, that by itself would not go to show that accused has committed any intercourse on victim against her will and consent - Appeal dismissed."
The aforesaid case is also identical to the present case. In the present case the prosecutrix is not minor, she has already attained majority, there is no clinching evidence to show that she had been subjected to forcible sexual intercourse by accused. Even the medical evidence goes to show that there is no opinion given by the doctors that victim girl is used to act of sexual intercourse. Even the evidence 42 Spl.CC.No. 13/2015 of victim girl does not inspire confidence to believe her version. I have already discussed in supra about the location of the house and the type of the house. Viewed from any angle the prosecution has miserably failed to establish rape. There is no strong piece of evidence to bring home the guilt of the accused for charge of rape. The prosecution has miserably failed to put fourth convincing, sufficient and reliable evidence to convict him for offence of rape. The prosecution has failed to prove beyond reasonable doubt. The benefit of doubt should go to the accused. Hence I hold point No.2 in the negative.
32. Point No.3: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offence punishable under Section 366 and 376 of I.P.C.43 Spl.CC.No. 13/2015
MO1 to 5 being worthless are ordered to be destroyed after appeal period is over.
(Dictated to the Judgment Writer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 12th day of April, 2016.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW 1 Prosecutrix PW 2 Mohammed Shafi PW 3 Syeedunnisa PW 4 Faridunnisa PW 5 Dr. Vijayalakshmi PW 6 Nayeem Sheriff PW 7 Mohammed Noorulla Sheriff PW 8 Haq Namaz PW 9 Dr. K.B. Dilip Kumar PW 10 B. Vjayakujmar PW 11 Dr. Veena 44 Spl.CC.No. 13/2015 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Complaint Ex.P 1(a) Signature of PW2 Ex.P 2 Statement of PW2 Ex.P 3 Spot Mahazar Ex.P 3(a) Signature of PW 2 Ex.P 3(b) Signature of PW 6 Ex.P 4 Medical report of age of victim Ex.P 4(a) Signature of PW 5 Ex.P 4(b) Signature of PW 10 Ex.P 5 Panchanama Ex.P 5(a) Signature of PW8 Ex.P 5(b) Signature of PW 10 Ex.P 5(c) Mallikarjuna Signature Ex.P 5(d) Madegowda signature Ex.P 5(e) Accused signature Ex.P 5(f) Signature of victim Ex.P 6 Medical certificate of accused Ex.P 6(a) Signature of PW 9 Ex.P 6(b) Signature of PW 10 Ex.P 7 Report of PC 2087 Ex.P 7(a) Signature of PW 10 Ex.P 8 Accused statement Ex.P 8(a) Marked portion in red Ex.P 9 Medical report of victim Ex.P 9(a) Signature of PW 10 Ex.P 9(b) Signature of PW 11 Ex.P 10 Report of WPC 8314 45 Spl.CC.No. 13/2015 Ex.P 10(a) Signature of PW10 Ex.P 11 FSL acknowledgement Ex.P 11(a) Signature of PW 10 Ex.P 12 School certificate of victim Ex.P 12(a) Signature of PW 10 Ex.P 13 FIR Ex.P 14 FSL report LIST OF MATERIAL OBJECTS MARKED MO1 : Pubic hair MO2 : Vaginal Smear MO3 : Cervical Swab MO4 : Cervical smear MO5 : Vaginal Swab LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
***