Karnataka High Court
Dinesh Shenoy vs The State By Assistant on 29 April, 2015
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 29TH DAY OF APRIL 2015
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.164/2014
BETWEEN:
Dinesh Shenoy
(Dinesh Amin is shown as
Accused By the prosecution)
Aged about 30 years
S/o Ramesh S
R/at Chavandi Palke Mane
Paduperaru village
Sunkadakatte
Mangalore Taluk-575 001. .. APPELLANT
(By Sri. Karunakara P, Adv.)
AND:
The State by Assistant
Commissioner of Police
Panambur Sub Division
Mangalore, Rep. by State
Public Prosecutor
Attached to the
Office of Advocate General
High Court Bangalore-560 001. .. RESPONDENT
(By Sri. Chetan Desai, HCGP)
2
This criminal appeal is filed under Section 374(2) Cr.P.C
praying to set aside the Judgment of conviction and sentence
dated 03.12.2013 passed by the II Addl. Dist. And Sessions
(Spl.) Judge, D.K., Mangalore in Spl. Case No.47/2011
convicting the appellant/accused for the offence punishable
under Section 376 of IPC.
This appeal having been heard and reserved for orders,
coming on for pronouncement of judgment, this day, the
Court delivered the following:
JUDGMENT
This is the appeal preferred by appellant/accused No.2 being aggrieved by the judgment of conviction and sentence dated 03.12.2013/04.12.2013 passed by the II Addl. Dist. & Sessions (Spl.) judge DK Mangalore in S.C.No.47/2011.
2. Brief facts of the prosecution case as per the complaint Ex.P-9 lodged by Smt.Mohini, the mother of the victim girl, are that she is residing in the address mentioned in the complaint and leading the life by doing coolie work and she belongs to Scheduled caste community. Her husband expired about one year back. She is having two daughters. 3 Her second daughter Arpita is aged 12 years, studying in 7th standard in Higher Primary School at Siddarth Nagar. Every day, she used to go to school by bus. On 24.06.2011, in the morning, as usual, she went to school and in the evening, she was dull and weeping. When complainant enquired and insisted her as to what has happened, the victim girl told that at the time of going to school, Manoj Shetty/accused No.1 did not allow her to go to school and took her to his house in the autorikshaw. The friend of accused No.1 was also there and both of them insisted the daughter of complainant to be with them in the house of accused No.1. On that day, morning at 10.00 a.m., accused No.1 went in the autorikshaw stating that he will bring meals. At that time, friend of accused No.1 closed the door and he insisted and threatened her to remove her clothes. When daughter of complainant did not remove the clothes, the said person removed the skirt of the complainant's daughter and made her to lye on the ground and by removing the inner garment (nikker), the said person slept on her. Even 4 though the daughter of the complainant cried, the said person committed sexual intercourse on her. The victim girl was in the said house only and at the noon time, accused No.1/Manoj Shetty came and gave meals to the victim girl. Thereafter, both of them threatened the daughter of complainant that in case she informed the same to anybody, they will not leave her and commit her murder. In the evening, they brought the victim girl to her house. The same was informed by the victim girl to the complainant. As complainant is ignorant about the legal provision and as her daughter was threatened by the accused, she did not lodge the complaint. On 29.06.2011 Smt. Clara D.Madavath, the Head Mistress of the Siddarth Nagar Higher Primary School called the complainant to the school and informed her to lodge the complaint against the person, who committed rape on her daughter Arpita and accordingly, she is lodging the complaint and the legal action may be taken on the person, who committed the rape and also against Manoj Shetty in accordance with law.
5
3. On the basis of the said complaint, case was registered as per Ex.P-16 in Bajpe Police Station, Crime No.95/2011 against Manoj Shetty/accused No.1 and also one unknown person.
4. After conducting and completing the investigation, the Investigating Officer filed the charge sheet for the offence punishable under section 376, 506 of IPC and under Section 3(1)(xi) and Section 3(2)(v) of SC/ST PO Acts 1989.
5. During the course of the trial, prosecution examined in all 15 witnesses as PWs1 to 15 and got marked the documents Exs.P-1 to P-22 and defence examined DWs-1 to 3 and got marked the documents Exs.D-1 to D-6. Considering the materials placed on record during the course of trial, ultimately the Trial Court convicted the appellant/accused No.2 for the offence punishable under Section 376 of IPC and 6 sentenced him to undergo RI for a period of 7 years and to pay a fine of Rs.10,000/- and in default of payment of fine amount, he shall undergo SI for a period of six months.
6. Being aggrieved by the said judgment and order of conviction, the present appeal is preferred on the grounds as mentioned at Sl.Nos.4 to 27 of the appeal memorandum.
7. Heard the arguments of the learned counsel appearing for appellant/accused No.2 and also learned HCGP appearing for respondent State.
8. Learned counsel for the appellant submitted that name of appellant/ accused No.2 is not mentioned in the complaint. Test identification is not conducted. In the history about the incident, only the name of accused No.1/Manoj Shetty is mentioned before the Doctor and the name of the appellant/accused was not mentioned as one of the persons 7 committing rape on the victim girl. There is delay in lodging the complaint. Recovery mahazar witnesses have not supported the case of the prosecution. Identity of the appellant was in dispute. The appellant/accused was not present at the said place on the date of alleged incident. Regarding the plea of alibi, appellant has examined DW- 1/Shashikala and also produced the attendance register Ex.D-
1. Hence, he submitted that in spite of such materials placed before the Trial Court and though the prosecution failed to prove its case beyond all reasonable doubt as against appellant/accused No.2, even then, the Trial Court has wrongly read the evidence and wrongly convicted the appellant/accused No.2 for the offence under Section 376 of IPC. The learned counsel submitted that the judgment and order of conviction passed by the Trial Court is not in accordance with oral and documentary evidence placed on record. Hence, submitted that the appeal be allowed and the judgment and order of conviction be set-aside. 8
9. In support of his contention Learned counsel for the appellant has relied upon the following decisions filed along with memo dated 13.02.2015:
i. (1999) 8 SCC 428
ii. (2000) 1 SCC 247
iii. (2003) 11 SCC 488
10. Per contra, learned HCGP appearing for
respondent-State submitted that complainant is widow. She being a helpless woman, taking the help of Dalith Sangarsha Samithi people in lodging the complaint itself is not sufficient to reject the case of the prosecution. It is an undisputed fact that victim girl is 12 years old. In these type of cases, where the prestige and honour of the family is involved, normally, sometime will be taken by the family members to take a decision whether to lodge the complaint or not. Delay has been explained by the prosecution. Offence took place during 9 the broad day light and there was sufficient time for the victim girl to see and observe the facial and physical appearance of the accused persons. Therefore, question of conducting test identification parade will not arise. In the documents produced by the appellant/accused and in the evidence of DW-1, it is stated that the documents are not signed and attested by the company. The said company had no office at Bajpe Airport at the relevant time. He has also submitted that looking to the oral as well as documentary evidence produced in the case, the prosecution has proved its case beyond all reasonable doubt and the trial Court has rightly convicted the appellant/accused No.2. There is no merit in the appeal and same may be dismissed.
11. Let me refer to the relevant portion in the oral evidence of prosecution witnesses.
12. The victim girl has been examined as PW-1. She has deposed in her evidence, that during last year, she was 10 studying in 7th standard in a school at Siddarth Nagar, Bajpe. Everyday, she used to go to the school by bus. She used to go to bus stop and she was alighting at Bajpe bus stop and then going to school by walk. After attending the school, she was going back to Bajpe Bus stand and from there she used to go through bus to her house. She knows accused No.1/Manoj Shetty. The said Manoj Shetty is the friend of Prema, who is the sister of her mother. Prema and Manoj Shetty were staying in the same house. As herself and her mother went to their house, she knew him. On 24.06.2011 at 8.00 a.m., she was going to school. At 9.00 a.m., she boarded the bus nearby her house and alighted nearby Bajpe Bus stand. From there she was going to school. At that time, accused/Manoj Shetty met her while he was in his autorikshaw. He was an auto-driver. He came in his auto in Bajpe road. He told her that he will take her to school. So she sat in the said autorikshaw. He told her not to go to the school, they can go to his house and accordingly, took her to his house. Then, he asked her to 11 watch the TV. He latched the door from inside, then took her on his lap, removed her clothes and made her to lye on the mat. Then, he also removed his clothes, slept on her body, he used the condom and committed rape on her. Though she told not to do like that, but he told nothing will happen. When he committed rape on her, it was about 10.00 a.m. Thereafter also, she was in the house of Manoj Shetty. In the noon time, he phoned to Dinesh. Accordingly, Dinesh came to the said house. She identified the said Dinesh also. Then, accused No.1/Manoj Shetty told them to watch the TV, he will go and bring the lunch. After Manoj Shetty left the house, accused No.2/Dinesh latched the door from inside. He also removed her clothes and also removed his clothes, he also slept on her body and committed rape on her. Even though she told Dinesh not to do like that, he also told that nothing will happen and committed rape on her. Then in the mean time, Manoj Shetty brought the lunch. At that time, she told Manoj that accused No.2/Dinesh removed her clothes and 12 committed rape on her. Manoj Shetty told her not to have fear and not to inform the same to anybody. She was kept in the house of Manoj Shetty till the closure of school hours. Thereafter, Manoj Shetty brought her to her house in the autorikshaw. On that day, she had not been to the School. On 25th and 26th, there was holiday to the School, so she had not went to the School. The Head Mistress asked her as to why she was dull, then she told about all the things, which had happened. Then, PW.1 was asked to bring her mother to the School. Accordingly, on 28.06.2011, she took her mother to the school. Then, Head Mistress informed her mother to lodge the Police complaint. Accordingly, her mother lodged the complaint. Then, PW.1 victim was sent for medical examination. Thereafter, she was taken to the place, where the offence of rape was conducted. The Police have seen the said place and conducted mahazar as per Ex.P-1 and P-1(a) is her signature. PW.1 has further disposed that Ex.P-2 is the notice issued by the Police for conducting the mahazar, P-2(a) is her 13 signature. One year earlier to the said incident, accused No.1/Manoj Shetty took her from Bajpe Bus stand in the autorikshaw at about 9.00 a.m. when she was going to School, at that time also, Manoj Shetty committed rape on her in the same house and at that time Manoj Shetty gave her Rs.500/-. She identified the photographs in respect of the auto, in which Manoj Shetty took her to his house, they are marked as per Ex.P-3.
In the cross-examination by the advocate for accused No.1, PW-1 has deposed that Prema and accused No.1/Manoj Shetty married and they are having children. Manoj Shetty and Prema, after their marriage, started to live in a rented house at Kaikamba. She used to go to the said house at Kaikamba. About 1½ hours is required for her to go to Bajpe from her village, if she go by bus. She never went to the house of Manoj Shetty at Bajpe. Manoj Shetty never took her to his house at Bajpe. She knows Satish, Krishnappa and Venkappa. Those three persons brought her to the Court today. Her mother 14 also came along with them. Those three persons took herself and her mother to the Police Station. Those three persons belongs to Dalith Sangarsha Samithi. On the date of incident, she has not informed to her mother. In the house, where the incident took place on 24.06.2011, about one year back also, Manoj Shetty took her to the said house and committed rape on her. The said house is in Kaikamba. From Bajpe, one hour is required to go to Kaikamba. She has not informed before her mother about the rape committed by Manoj Shetty. When she used to go to the School by bus, other students will be present and they altogether were going to School. The School used to open at 10.00 a.m. On 24.06.2011 accused No.1/Manoj Shetty met her in the morning at 9.00 a.m. and took her in the autorikshaw, went to his house at Kaikamba and it was about 10.00 a.m. when they reached the house. The wife of accused No.1 used to go to work in the Gaerubeeja factory. The said Satish, Krishnappa and Venkappa prepared the complaint and gave it to her mother. When her mother 15 lodged the complaint, those three persons were in the Police Station. She gave her statement before the Police on 28th and at that time, her mother, Satish, Krishnappa and Venkappa were also present. She denied the suggestion that the relationship between Satish, Krishnappa and Venkappa was not in cordial terms. On 24.06.2011, when she alighted at Bajpe bus stand and proceeded little distance, Manoj Shetty came there in auto. At that time, nobody was present with her. After leaving her in the house, Manoj Shetty went stating that he will bring Biriyani, and he brought biriyani, after eating biriyani, he took her to her house. She has stated in her statement before the Police that after seeing that she was dull, her mother asked her as to what had happened. She told that Manoj Shetty and Dinesh committed forcible rape on her and they threatened her that in case she discloses the same before others, they will not spare her. On 27th i.e., 27.06.2011 she went to School. In connection with the case three times, she went to the Police Station. She has signed on Ex.P-1 at the 16 place of incident. She denied the suggestion that Police obtained her signature on the blank paper. She denied the suggestion that she signed Ex.P-1 in the Police Station. She put her signature on Ex.P-1 in the house at Kaikamba. When Manoj Shetty was taking her in the autoriksaw, she made hue and cry. But the people did not come to her rescue. She denied the suggestion that by staying in the house of Manoj Shetty and from there, she used to go to School. She denied the suggestion that no such incident took place as she deposed in her examination in chief. She denied the further suggestion that she is deposing falsely that on 24.06.2011 Manoj Shetty took her in the autorikshaw.
In the cross-examination by the advocate for accused No.2, PW-1 deposed and denied the suggestion that on that day in the Court, for the first time she is seeing the accused No.2/Dinesh. At the time of incident, she has seen Dinesh. When her mother went to the Police Station to lodge the complaint, she also accompanied her on 29.06.2011. Police 17 have told the name of Dinesh to her. She denied the suggestion that even on that day also, Police have shown her that he is Dinesh. She denied the suggestion that she is deposing falsely that Dinesh committed rape on her. She denied the further suggestion that Dinesh, who is before the Court is altogether different from another Dinesh. She denied the suggestion that she identified Dinesh as stated by the Police. She denied the further suggestion that accused No.2/Dinesh has not committed rape on her and she is deposing falsely. On 30.06.2011 in the noon time she was taken to Venlock Government hospital for examination. One lady constable went along with her to the hospital. Upto 3.00 o' clock, she was in the hospital. The lady Police enquired with her in the Police Station, so also another Police Constable. At that time Satish, Krishnappa and Venkappa were not inside the Police Station and they were outside. She denied the suggestion that at the instance of people of Dalitha Sangarsha Samithi she is giving false evidence. The house, where the 18 incident took place is having one room, it is a tiled roof house. The head mistress eqnuired her on 29.06.2011. On 28.06.2011 she had been to the School.
13. PW-2/Dr.Sundari senior Specialist, Lady Goshan Hospital Mangalore deposed in her evidence in the examination in chief that on 29.06.2011 at 10.00 p.m. she examined one Arpita, aged about 12 years, who was brought by WPC 780 Vinutha of Bajpe Police Station. She came with the history of sexual assault by friend of victim i.e., uncle Manoj Shetty on 24.06.2011 around 9.00 a.m. Victim is a minor girl aged about 12 years. Victim is alert, well oriented, no injuries, contusions seen over the face, neck, back, etc., LMP 16.06.2011 (Last menstrual period). Breast well developed, auxiliary hair present, no injuries, blood stains or seminal stains seen, abdomen normal, no injuries. Pelvic examination, no injuries, contusions seen, pubic hair present. No blood or seminal stains. External genital organ normal, survics and 19 vagina healthy, vagina admits two fingers easily. From the above examination, she is of the opinion that there is possibility of sexual intercourse, forensic lab report dated 23.07.2011 received, presence of seminal stains not detected in clinical specimen so she is of the final opinion that the evidence suggested that possibility of sexual intercourse. Vagina admits two fingers easily. Accordingly, she has issued wound certificate as per Ex.P-4 and her signature is P-4 (a &
b).
In the cross-examination by the advocate for accused No.1 P.W.2 has deposed that she examined Arpita, there are no new signs of sexual intercourse. She admitted as true that if a girl is subjected to habitual intercourse, then only vagina admits two fingers. She has not examined her clothes and the witness states that she had taken bath and washed the clothes. She denied the suggestion that she has issued Ex.P-4 certificate at the instance of Police. She admitted as true that if there is a 20 forcible sexual intercourse then only there will be injuries on vaginal.
14. PW-3/Dr.N.B.Ravindra has deposed in his evidence in the examination in chief that as per the request of Bajpe Police in Crime No.95/2011 he examined one Manoj Shetty. He was brought to the hospital with the history of rape on Arpita on 24.06.2011. On examination, he noticed that secondary sexual character were normal, no injuries on external genital. Samples of semen were collected and handed over to concerned Police There is nothing to suggest that Manoj Shetty cannot perform the act of sexual intercourse. He examined Manoj Shetty on 01.07.2011 at about 7.50 p.m and on the same day at about 8.00 p.m., he examined another person Dinesh, who was also brought with the same history of sexual assault on Arpita. On examination, he found no external injuries is present. Secondary sexual character were well developed and there is nothing to suggest that Dinesh 21 cannot perform the act of sexual intercourse. Blood grouping of Manoj Shetty was AB+ and Dinesh's was B+. He issued the certificate as per Ex.P-5 and P-5(a) is his signature.
In the cross-examination by the advocate for accused No.1, PW-3 deposed that he examined both persons clinically. He has not mentioned the same in his certificate Ex.P-5. He denied the suggestion that he has not examined said two persons and issued the certificate Ex.P-5 at the instance of Police.
15. PW-4/Clara D. Madavat, Head Mistress of the Siddarthanagar School has deposed in her evidence in the examination in chief that she is working as Head Mistress in Siddartha Nagar Higher primary school, Bajpe. PW-1/Arpita was studying in their school in 7th Standard. On 24.06.2011, Arpita had not come to the School. On 27.06.2011, she enquired PW.1 with her that why she had not come to the School on 24.06.2011. On 25.06.2011 there was meeting of 22 teachers and 26.06.2011 was a Sunday, hence, there was holiday for the School for two days. On 27.06.2011 when she enquired Arpita, she told that on 24.06.2011, as she missed the bus she did not come to the School. Then, she told her to bring the leave letter on the next day and asked her to go to the class. PW.4 has further deposed that looking to Arpita, her appearance was dull and she called her and enquired her. Then Arpita told that when she was coming to School, somebody took her to the house and confined her. She called her mother on the same day and asked her mother to enquire with PW.1 properly that something has happened to her. At that time, the mother told her that there is rape committed on her. Then, she told to the mother of Arpita to lodge the complaint before the Police. Police asked her to furnish the date of birth certificate of Arpita and the attendance register of the School. Accordingly, she supplied those documents. She has seen the letter, it is written by her as per Ex.P-6 and P-6 (a) is her signature. The date of birth certificate of Arpita supplied by 23 her is Ex.P-7 and P-7(a) is her signature and she has given the attendance register extract for the month of June, which is marked as per Ex.P-8 and P-8(a) is her signature. On 24.06.2011 she put absent for Arpita, said entry is marked as Ex.P-8(b).
In the cross-examination by the advocate for accused No.1, PW-4 has deposed that for each class, there will be separate teachers. When the students remained absent, she will enquire and class teacher also enquire and they will inform her. One Preeti M.N is the class teacher of Arpita. On 27.06.2011 the Class Teacher asked Arpita that why she had not come to the class. Police came to the School during investigation of the case, but they have not enquired Preeti M.N. It is further deposed that, in her statement before the Police, she has not stated about the fact that on 24.06.2011, somebody confined Arpita in the house. She has not stated in her statement before the Police that when she enquired with the mother of Arpita, she told her that rape has been committed on Arpita. On 24 27.06.2011, in the noon time, she enquired Arpita but she cannot say the exact time. On the same day evening, she called the mother of Arpita. She denied the suggestion that she has falsely deposing that she called the mother of Arpita to the School and denied the further suggestion that she created Exs.P-6, 7 and 8 only to help the Police.
In the cross-examination by the advocate for accused No.2, PW-4 deposed that concerned class teachers are looking after the welfare of students. The class teacher of Arpita reported to her on 27.06.2011 that on 24.06.2011 Arpita remained absent. She denied the suggestion that on 27.06.2011 Arpita had not come to the School. She has also deposed that the leave applications will be given to the class teachers but she further deposed that in their school there is a procedure to give the leave applications to herself. She denied the suggestion that whatever she has deposed in her examination in chief, she has not stated about the same in her statement before the Police. 25 She denied the further suggestion that on 27.06.2011 Arpita had not come to the School.
16. PW-5/Mohini has deposed in her evidence that PW-1/Arpita is her daughter. About two years back, her husband had expired. Her daughter is studying in 7th Standard at Bajpe Siddartha Nagar school. They belong to Godda caste, which comes under Scheduled Caste Category. She knows accused No.1/Manoj Shetty. Manoj Shetty and Prema are staying together in the rented house at Kolambe. As herself and her daughter used to visit their house, she knows them. She lodged the complaint before Bajpe Police as per Ex.P-9 and P-9(a) is her signature. About one year three months back, when Arpita came from School, she was dull. When she enquired, Arpita did not tell anything and went to take bath. At that time also, she asked her and Arpita did not say. When again she enquired her, Arpita told about accused Manoj Shetty taking her to his house and she narrated the incident in detail. 26 Thereafter, on 29.06.2011, the School teacher of Arpita asked her to come to the School and they asked as to what has happened to her daughter, as she was dull. Then, the teacher asked her to give the complaint. Then she told the same thing to people belonging to Dalitha Sangarsha Samithi. Then she lodged the complaint before the Police. Arpita also told before her that 1½ months earlier to 24.04.2015, accused Manoj Shetty took her in the autorikshaw to his house and committed rape. Accused Manoj Shetty and another accused both committed rape on Arpita.
In the cross examination by the advocate for accused No.1, PW-5 has deposed that Satish, Krishnappa and Venkappa are the members of Dalith Sangarsha Samithi. On the previous day, all three persons came to the Court along with her, and on that day, also, they came to the Court. They were with her when she lodged the complaint, whatever she has stated to them, they have mentioned in the complaint. But they prepared the complaint and she put her signature. On 27 29.06.2011, she went to the School and on the same day, she lodged the complaint before the Police. On 24.06.2011, she has not lodged the complaint. In her complaint, it is mentioned that on 29th evening, when Arpita went to take bath, she enquired her. In her complaint, she has mentioned that accused No.1/Manoj Shetty put his hand on the chest of Arpita, so also mentioned that Manoj Shetty removed the clothes of Arpita, then took her on his lap and then committed rape on her. She has also stated before the Police that even one month earlier to the incident, Manoj Shetty took Arpita with him and committed rape on her. Kolambe village is in Bajpe and Kaikamba is at other place. She does not know the distance between Kolambe and Kaikamaba. Her daughter alone is going to School and that no other children is going to school with her. Arpita told her that Manoj Shetty met her at Bajpe bus stand. She denied the suggestion that on 24.06.2011, Arpita has not stated about what she has deposed in her examination in chief. She denied the suggestion that her 28 daughter has not stated before her about Manoj Shetty taking her in the autorikshaw and committing the rape on her, so also taking her along with him about one month earlier to the incident and committing rape on her.s She denied the suggestion that at the instance of Satish, Krishnappa and Venkappa, she lodged the false complaint against accused and giving false evidence.
In the cross-examination by the advocate for accused No.2, PW-5 has deposed that even till the date of giving the evidence before the Court, she does not know who is the another accused and her daughter has not at all stated about him before her. Even her daughter is not knowing who is that another person. She admitted as true that her daughter gave the evidence as tutored by the Police.
17. PW-6/Rajesh Rai, Asst. Engineer, PWD Sub- Division, Mangalore has deposed in his evidence that on 02.07.2011, the Investigating Officer asked him to prepare the 29 sketch map in respect of the place of incident. On 20.08.2011, he visited the said place and as shown by Santosh P.C., he verified the place and prepared the sketch map as per Ex.P-10 and P-10(a) is his signature. He sent the sketch map to the Investigating Officer along with the covering letter Ex.P-11.
In the cross-examination by the advocate for accused No.1, PW-6 has deposed that he has not obtained any documents to know that the house belongs to whom. The said rented house was not having door number, but when he enquired, he was informed that said house belongs to one Vimala. He denied the suggestion that he had been to the said place and not prepared the sketch map as per Ex.P-10 at the said place.
18. PW-7/Dr.Geeta Lakshmi has deposed in her evidence in the examination in chief that on 16.07.2011, she received three sealed articles for chemical examination as requested by the Investigating Officer. The articles sent were 30 having the seal intact and it was corresponding to the seal sent. In the articles A-1, A-2 and D-2, there were no stains of seminal in the articles bearing No.M and D-1 seminal was decomposed. Accordingly, she submitted her report as per Ex.P-12 and P-12(a) is her signature. The sample seal is produced as per Ex.P-13 and P-13(a) is her signature.
19. PW-8/Ravi Chandra Naik, Tahalisdar, Mangalore has deposed in his evidence in the examination in chief that on 02.07.2011, the Asst. Police Deputy Commissioner, Panambur, gave a requisition to him to issue the caste certificate of Manoj Shetty and Dinesh Amen. He issued the said document, which is marked as per Ex.P-14 and P-14 (a) is his signature. Accordingly, Manoj Shetty belongs to Bunts caste and Dinesh Amen belongs to Billava caste. But they are not coming under SC/ST category. As he was not able to collect the opinion with regard to the caste of complainant and her daughter, the same has been mentioned in Ex.P-14. Later on 06.09.2007, he 31 has enquired in Bajpe Village and came to know that complainant and her daughter belong to Godda caste. Accordingly, he issued the report as per Ex.P-15 and P-15(a) is his signature. On 20th, he has not received any requisition letter but it is because of typing mistake he has mentioned as 20.07.2011 but in fact it is 02.07.2011. He issued Ex.P-14 on the basis of the Village Accountant and Revenue Inspector's report and he has not eqnuired about the caste of the accused and not obtained any documents from the School. He denied the suggestion that he has not at all visited the place and only on the basis of the report of his staff, he has issued Ex.P-14.
20. PW-9/ Vishwanath Yadav has deposed in his evidence in the examination in chief that on 29.06.2011 at 8.30 p.m., he received the FIR and complaint pertaining to their Police Station Crime No.95/2011 and submitted before the Court at 10.20 PM. FIR is Ex.P-16 and P-9 is complaint. 32
In the cross-examination by the advocate for accused No.1, PW-9 has deposed that the distance between Bajpe and Mangalore is 20-22 kilometres. On that day, he came to Mangalore through bus to submit the FIR. He admitted as true that if he travels by bus, about half an hour or 45 minutes is required to go to Mangalore from Bajpe.
21. PW-10/ Avanth Murdeshwar, PSI has deposed in his evidence in the examination in chief that on 29.06.2011 when he was SHO of the Police Station, complainant of the case came to the Police at 8.00 p.m. and submitted the written complaint. On the basis of said complaint, he registered the case in the Police Station in Crime No.95/2011. Then, submitted the FIR to the Court. Ex.P-9 is the comlpaint, and P-9(b) is his signature. Ex.P-16 is the FIR and P-16(a) is his signature. Then he handed over furtehr investigation to CW- 18, ACP, Panambur. He sent Arpita along with WPC 780 for medical examination. On the same day, during 12.30 mid 33 night, he apprehended Manoj Shetty in his rented house and produced before ACP, Panambur at 1'o Clock on the next day. As per the instructions of the Investigating Officer at 2.30 p.m. he apprehended another accused i.e., Dinesh and produced before the ACP, Panambur and submitted his report as per Ex.P-17.
In the cross-examination by the advocate for accused No.1, PW-10 has deposed that Mohini has not appeared before him nor lodged the complaint and denied the suggestion that he has not arrested accused Nos.1 and 2.
22. PW-11/Vimala, Social Worker, has deposed in her evidence in the examination in chief that her house is at Kolambe. She knows Manoj Shetty, who is staying in the rented room by the side of her house along with his wife Prema. Manoj Shetty is working as auto driver. She has not seen the another accused, who is present before the Court and she has also not seen Arpita in the rented room. She has not 34 seen both the accused along with Arpita. She did not come to know about accused committing rape on Arpita. She has not given the statement before the Police that she has seen the accused along with Arpita in the rented house. She put her signature on both Exs.P-1 and 2 in Bajpe Police Station but she does not know what is written in those documents. Police have not come nearby her house and nor conducted any investigation. She was treated as hostile and cross-examined by the PP. She denied the suggestions put to her and also stated that she has not given her statement as per Ex.P-18.
23. PW-12/Santosh Bangera has deposed in his evidence in the examination in chief that he knows Manoj Shetty. He has seen Ex.P-19 and it bears his signature as per P-19(a). He put his signature in Bajpe Police Station. He does not know the contents of Ex.P-19. In his presence, no autorikshaw has been seized. PW-12 has been treated as hostile and when cross-examined by the PP, he denied the 35 suggestion that accused No.1/Manoj Shetty produced one autorikshaw bearing No.KA-19-C-3625 before the Police in his presence. He has also denied the suggestion that to help the accused, he is giving false evidence.
24. PW-13/Rajendra has deposed in his evidence in the examination in chief that on the complaint Ex.P.1 and the spot mahazar Ex.P.2, he put signature as per Ex.P-1(c) and P-2(c) respectively. He signed on both the documents in Bajpe Police Station. He does not know the contents. Police have not at all called him to the house of Vimala at Koudur in Kolambe Village.
25. PW-13 has been treated as hostile and when cross- examined by the PP, nothing has been elicited from his mouth to believe that Exs.P-1 and 2 were conducted at the place in his presence.
36
26 PW-14/ Yogeesh Bangera has deposed in his evidence in the examination in chief that he knows Manoj Shetty. In his presence, Police have not seized any articles. P- 19(b) is his signature. He signed it in the Police Station. He does not know the contents of Ex.P-19. In his presence, Police have not seized any autorikshaw. Police have not called him nearby the compound of the house of Vimala. So this witness was also treated as hostile and when cross-examined, nothing has been elicited from his mouth that under Ex.P-19, autorikshaw was seized in his presence.
27. PW-15/M.Puttamadaiah, Asst. Police Commissioner has deposed in his evidence in the examination in chief that on 30.06.2011, he took further investigation of this case from PSI, Bajpe and verified the papers. He conducted the spot mahazar in the presence of panch witness Rajendra and Vimala. The spot has been shown by PW-1/Arpita and spot mahazar has been drawn as per Ex.P-1 and P-1(d) is his signature. He 37 issued notice to the panch witness as per Ex.P-2 and P-2(d) is his signature. Then he recorded the further statement of complainant Mohini, victim Arpita and Vimala. PW-10 stated before him as per Ex.P-18. On 01.07.2011 at 1.00 a.m., Bajpe Police, PSI, produced accused No.1 before him and on the same day at 2.30 p.m., accused No.2 was produced. He recorded the voluntary statement of them and sent them to medical examination to Venlock Hospital. The medical report is marked as per Ex.P-5. On 02.07.2011 he recorded the statement of Vinutha, Vishwanath and Satish. On the same day, he made request for the issue of caste certificate of PW-1 and accused and also requested the Engineer to prepare the sketch map of the place of occurrence. On the same day, he addressed a letter to the School, in which Arpita was studying, to issue the Date of Birth certificate, about her age as entered in the school records. On 06.07.2011, he sent seized articles to FSL for examination. On 18.07.2011 he recorded the statement of Smt.Clara D.Madavat and received the document 38 Ex.P-6. On 27.08.2011, he received the medical report in respect of Arpita as per Ex.P-4 and also received the sketch map from the Engineer as per Ex.P-10. On 06.09.2011, he received the document Exs.P-14 and P-15. On 10.09.2011, he seized the autorikshaw belonging to Manoj Shetty and prepared the seizure mahazar as per Ex.P-19.
In the cross-examination by the advocate for accused No.1, PW-15 has deposed that PW-1/Arpita has not stated before him that accused No.1 took her to his house at Kaikamba. In this case, the offences took place at Kolambe and not Kaikamba. He denied the suggestion that he has not prepared the spot mahazar and not issued the notice to the panch witnesses. He has denied the suggestion that he has not recorded the statement of witnesses nor seized any articles. He denied the suggestion that accused have not given voluntary statement before him. He denied the further suggestion that though there are no prima-facie material, he filed the charge 39 sheet against the accused at the instance of the members of Dalith Sangarsha Samithi In the cross-examination by the advocate for accused No.2, PW-15 has deposed that he has not conducted spot mahazar at Kaikamba. He admitted as true that for Ex.P-1, he has not secured the witness from that locality. He denied the suggestion that Ex.P-1 was prepared in the Police Station and denied the further suggestion that complainant has not given the further statement before him. No test idetnification parade was conducted to establish the identity of accused No.2. In the presence of Tahasildar, even in the Police Station also, there was no such parade was conducted. He denied the suggestion that accused No.2 has been unnecessarily involved in the case and false charge sheet has been filed against him.
28. I have perused the oral evidence of PW-15, DW-13, documents Exs.P-1 to P-22 and Exs.D-1 to D-6, judgment and order of conviction passed by the trial Court, which is 40 challenged in this appeal, the grounds urged in the appeal memorandum and also the decisions relied upon by the learned counsel for appellant/accused No.2, which are referred above.
29. The FIR in the case was registered as per Ex.P-16 on 29.06.2011 on the basis of the complaint/Ex.P-9. The complainant is none other than the mother of the victim girl Arpita.
30. Looking to the contents of the complaint, it shows that on 24.06.2011 when as usual the complainant was going to School and in the evening when she came to the house, she was weeping and she was dull. When the mother of the victim girl enquired her, she did not tell anything, at the first instance. Again when she enquired her, at that time, she disclosed that accused No.1/Manoj Shetty did not allow her to go to School and took her in his autorikshaw to his house and the friend of Manoj Shetty was also in the said house and both of them 41 insisted her to be in the house. At 10.00 a.m. Manoj Shetty went out of the house stating that he will bring the meals and friend of Manoj Shetty latched the door from inside and insisted the victim girl to remove her clothes. When she did not remove the clothes, he himself removed her skirt and made her to lye on in a supine position and then removed the nikker and then he slept on her. Even though she cried, he committed forcible sexual intercourse on her and in the noon time, Manoj Shetty came and gave the meals to her and both accused Nos.1 and 2 threatened her, if she disclosed the said fact to anybody, then they will not leave her and commit her murder. In the evening, she was brought back in the said autorikshaw to her house and as she was not having the legal knowledge and as there was a threat to her daughter, she has not lodged the complaint earlier. On 29.06.2011, the Head Mistress /Clara D.Madavath of Siddarthanagar Primary school called her to the School and told her to lodge the complaint against the persons, who committed rape on her daughter. 42 Hence, the last paragraph of the complaint shows that she has mentioned that on the person, who committed rape on her daughter, and also on Manoj Shetty, legal action may be taken.
31. Looking to the complaint averments, it shows that the victim girl was not at all knowing the name of accused- appellant and about the acquaintance of the person, who committed rape on her. So it was only referred in the complaint that a friend of Manoj Shetty committed rape on the victim girl.
32. Looking to the contents of the complaint, it shows that it is only one person i.e., the friend of Manoj Shetty/accused No.1 committed rape and not accused No.1/Manoj Shetty. Because there is no specific averment in the complaint that not only the friend of Manoj Shetty but even accused No.1/Manoj Shetty also committed rape on the victim girl.
43
33. Even perusing the FIR- Ex.P-16, it shows that at Sl.
No.1 in Col.No.7 regarding the details of Known/Suspected/Unknown accused with full particulars, name of Manoj Shetty is mentioned and in Sl.No.2 - another one unknown person is mentioned. So this shows that the person, who committed rape on the victim girl was not known to her and she was not having the acquaintance with the said person, otherwise, there was no reason for the victim girl to make such statement before her mother by referring as a friend of accused No.1 committed rape on her.
34. The oral evidence of the victim girl as well as her mother, who is the complainant, is important and about which I have already made reference above. The oral evidence of the victim girl, deposed before the Court shows that when she was boarding the bus at 9.00 a.m. nearby her house, she alighted at Bajpe bus stand and when she was going to the school, 44 accused No.1/Manoj Shetty met her along with the auto, who was the driver of the said auto, stating that he will leave her to the School, and took her in his autorikshaw. But thereafter telling that not to go to School and they can go to his house, Manoj Shetty took her to his house. Firstly, Manoj Shetty asked her to watch the TV, thereafter, he latched the door from inside and then took her on his lap and removed her clothes, then made her to lye on the mat. Then accused No.1 Manoj Shetty removed her clothes and slept on her body. Manoj Shetty used the condoms and committed rape on her. Though she told him not to do like that, for that, he said that nothing will happen. When Manoj Shetty committed rape on her, it was 10.00 a.m. and she was in his house. In the noon time, accused No.1 phoned to accused No.2 Dinesh and he came to the house of accused No.1. Accused No.1 told Dinesh to watch TV and he will bring lunch to them and stating that, he went away from the house. Dinesh locked the door from inside. P.W.1 has also deposed that even accused No.2- 45 Dinesh has also removed her clothes and committed rape on her. This part of the evidence of P.W.1 goes to show that both the accused committed rape on her one after the another. But this oral evidence of P.W.1 is against the contents of the complaint at Ex.P.9. I have already made reference that the allegation of rape is only against one person who was the friend of accused No.1 Manoj Shetty and so far as the Manoj Shetty is concerned, in the complaint, there is no allegation of rape against him.
35. Regarding the place of committing the rape is concerned, as per the prosecution, the document is Ex.P.1 spot mahazar. According to Ex.P.1, the spot is mentioned as Kolambe village Kaudur Pada, door No.200, 2nd tiled house belonging to one Smt. Vimala. Ex.P.1 spot mahazar goes to show that the incident of rape has been committed on the victim girl in the house bearing No.200 belonging to Smt. Vimala of Kolambe village Kaudur Pada. Looking to the 46 evidence of P.W.1 victim girl, she has also deposed in the cross examination that she showed the place of incident to police and she put her signature on Ex.P.1. She denied the suggestion that police obtained her signature on the blank paper and she does not know the contents of Ex.P.1. Even she has denied that she put her signature on Ex.P.1 in police station and she has further stated that she put her signature in the house at Kaikamba. So the evidence of P.W.1 itself goes to show that incident has not taken place at Kolambe village, Kaudur Pada. In the cross examination, she has deposed and admitted as true that Kolambe and Kaikamba are two different villages. She has further admitted that Kolambe is far away from Kaikamba.
36. P.W.15 is the investigating officer. In his cross examination, P.W.15 has deposed that P.W.1 Arpitha has not stated before him in her statement that accused No.1 took her to his house at Kaikamba. P.W.15 has further deposed that 47 the incident of this case has taken place at Kolambe and not at Kaikamba. Therefore, looking to the oral evidence of P.W.1, her oral evidence is against the contents of Ex.P.1 spot mahazar referring the place of incident. During the course of her evidence, P.W.1 has clearly stated that she put her signature in the house at Kaikamba. If that is taken to be true, it goes to show that the incident has taken place in the house at Kaikamba and not Kolambe, Kaudur pada. Even looking to the evidence of P.W.5, who is the mother of the victim girl, in her cross examination, she has also deposed that Kolambe village comes in Bajpe and Kaikamba is different place. So admittedly even according to the evidence of P.W.1- victim girl and P.W.5 mother of the victim girl, Kolambe village and Kaikamba are not one and the same village and they are two different villages.
37. With regard to delay in lodging the complaint is concerned, the incident said to have taken place on 24.6.2011. 48 The complaint was lodged on 29.6.2011. The evidence on the prosecution side goes to show that till 29.6.2011, P.W.5- mother of the victim girl did not know about the commission of rape on her daughter. On 29.6.2011, P.W.5 was asked to come to the school where the victim girl was studying and the teacher P.W.4 Mrs. Clara D. Madhavat told her to lodge the complaint on the persons who committed rape on the victim girl. The materials also go to show that on the very day evening, when she enquired her daughter-P.W.1 as to why she was dull and crying, P.W.1 told about the commission of rape on her by accused Nos.1 and 2. According to the averments of Ex.P.1 complaint, the reasons for not lodging the complaint immediately are that she is not having legal knowledge to lodge the complaint immediately and as the accused persons posed life threat to her daughter that in case she discloses the information to anybody, then they will commit her murder and not spare her. Even with regard to this aspect also, at one stretch, it goes to show that on 27th, when P.W.1 had been to 49 the school, P.W.4 asked her as to why she was dull and then P.W.1 told the happening of the incident on her and then the head mistress asked her to bring her mother and accordingly she brought her mother on 28th itself to the school. The head mistress informed her mother to lodge the complaint. Looking to the oral evidence of P.W.1, she has deposed before the court that on the date of incident, she has not informed her mother about the incident. It has also come in the evidence of P.W.1 during the course of cross examination that on 28th itself, she has given her statement before the police. So all these materials placed on record by the prosecution go to show that there is no satisfactory and proper evidence before the court exactly as to on what date, the complainant came to know about the happening of the incident and how she came to know about the happening, whether through the victim girl or through the head mistress of the school. If at all the statement of the victim girl is taken to be true that on 28th itself, she gave the statement before the 50 police i.e. one day earlier to lodging of the complaint and registering FIR, then her statement itself would have become the complaint.
38. Looking to the evidence of P.W.5 Mohini, the mother of the victim girl, in the cross examination of advocate for accused No.2 at para No.10, she has deposed that even till the date of 14.9.2012 i.e., giving the evidence before the trial court, she did not know who is the another person. Even her daughter has not informed anything about the same. This goes to show that in respect of accused No.2 Dinesh, the victim girl as well as the mother of the victim girl both were not at all knowing about him. If that is the evidence before the court and the identity was not known about accused No.2, who is the appellant herein, it was bounden duty of the prosecution to conduct test identification parade to know the identity of the said person. In this regard, the learned counsel appearing for the appellant accused No.2 has relied upon the decision of the 51 Hon'ble Supreme Court in case of RAJESH GOVIND JAGESHA Vs. STATE OF MAHARASHTRA reported in 1999(8) SCC 428 wherein Their Lordships have laid down principles as under:
" A. Evidence Act, 1872 - S. 9 - Test identification parade - Delay in holding - Has to be satisfactorily explained by the prosecution - Explanation of non-availability of a Magistrate in Bombay for over 5 weeks found unsatisfactory - TI Parade also not held property - Accused, held, entitled to benefit of doubt B. Evidence Act, 1872 - S.9 - TI Parade Infirmities in - Several accused persons including R tried for offence under S. 302 read with S. 34 IPC - R's name not mentioned in FIR - TI Parade held long after (in this case 24th day) the arrest of R - At the time of TI Parade R not having beard and long hair as mentioned in the description of unnamed persons in the FIR - Moreover, no person with beard and long hair was included in the TI Parade - In such circumstances, the TI Parade regarding R, held, 52 stood vitiated on account of not having been conducted properly and also on account of unexplained delay - Hence, R, held, entitled to benefit of doubt - Criminal Trial - Test identification parade - Non-inclusion of a person other than the accused, having resemblance with the persons mentioned in the FIR - Effect -
Penal Code, 1860, Ss. 302 and 34 - Benefit of doubt - Given, on account of defect in conducting TI Parade - Criminal Trial - Test identification Parade C. Evidence Act, 1872 - S. 9 - TI Parade Holding of, in cases where the accused is not known to the witnesses, held, is obligatory on the prosecution - TI Parade - Criminal Trial -
Identification Parade D. Evidence Act, 1872 - S. 9 TI Parade -
Whether was held properly - Onus of proof, held, lies on the prosecution to prove that it was so held and not on the accused to prove to the contrary - Criminal trial - Test identification parade 53 E. Evidence act, 1872 - S. 9 - TI Parade -
Evidentiary value - Held, can be used for
corroboration - Criminal Trial - Test
identification parade. "
39. I have also perused the decisions relied upon by the learned counsel appearing for the appellant in case of STATE OF H.P. Vs. LEKH RAJ AND ANOTHER reported in (2000)1 SCC 247 wherein Their Lordships of the Hon'ble Supreme Court have laid down the proposition as under:
" A. Criminal Trial - Identification - Test identification - Necessity of and exception - Explained -Where the accused (Respondent 2 herein) was neither a person already known to the prosecutrix nor was specifically named in the FIR nor was subjected to test identification, putting him on trial for offence under Ss. 376(2)
(g) and 323, held, was improper - Further held, identification of the accused for the first time at the trial is a weak evidence - Penal Code, 1860, Ss. 376(2)(g) and 323, held, was improper -54
Further evidence - Penal Code, 1860, Ss.
376(2)(g) and 323 - Identification, necessity of for person unknown to prosecutrix/complainant
- Evidence Act, 1872, S.9 - Importance of identification where offender unknown to prosecutrix/complainant B. Criminal Trial - Identification - Test identification - Evidentiary value - Held, is not a substantive evidence but holding of test identification is a safe rule of prudence and can be used for corroboration purposes C. Medical Jurisprudence - Rape - Proof
- Absence of dead or mobile spermatozoa in the vagina or in the cervix of the prosecutrix, held, not a conclusive proof of her not being subjected to forcible sexual intercourse - Penal Code, 1860, S,. 376 - Rape - Medical evidence D. Penal Code, 1860 - S. 376 - Rape -
Testimony of the victim - Evidentiary value - Corroboration if and when necessary - Explained
- In absence of any ulterior motive for falsely 55 implication the accused (Respondent 1 herein), the testimony of the victim of rape (prosecutrix), corroborated by medical evidence, held, reliable - That the prosecutrix was a widow aged 55 ;years having two grown-up children, was a circumstance to be taken note of - Criminal Trial
- Witnesses - Victim of rape - Testimony of prosecutrix Evidentiary value E. Criminal Trial - Appreciation of evidence - Contradictions, inconsistencies, exaggerations and embellishments - Discrepancy and contradiction - Distinguished - Whether a particular discrepancy is a minor one or one amounting to contradiction - Test to determine, stated - Minor discrepancy or variance in evidence, held, does not make the prosecution's case doubtful - It may rather lend credential to the deposition - Where the prosecutrix, subjected to rape, stated the place of occurrence to be 20 feet away from the road but the FIR lodged by an advocate, after hearing the narration of the prosecutrix (whom he had found then to be scared, nervous and hesitant) mentioned the road 56 as the place of occurrence, held, there was no major discrepancy amounting to contradiction under the circumstances of the case - More so when in her statement under S. 161 CrPC the prosecutrix had stated that the accused persons had taken her to a place 20 feet away from the road - Penal Code, 1860, S. 376 - Effect of minor discrepancy or variance in evidence -
Criminal Procedure Code, 1973, S. 161 -
Discrepancy or variance effect - Words and phrases - "discrepancy" and "contradiction" - Distinguished F. Criminal Trial - Appreciation of evidence - Generally - Duty of the court in appreciation of evidence, explained - Courts should adopt a rational approach - Hyper technicalities and figments of imagination should not prevent sifting and weighing of evidence. "
40. Looking to the principles enunciated in the said two decisions, it goes to show that as per the oral evidence of the victim girl, the mother of the victim girl and as per the 57 contents of the FIR, the person who is said to have committed rape is an unknown person. There was necessity for the investigating officer to arrange for conducting the test identification parade after the incident so as to identify the accused person. It is no doubt true that in the deposition, at one place, it has come that the victim girl has identified accused No.2 Dinesh in the court. But looking to the accused before court and deposition of P.W.1 that she knew him itself is not sufficient, if the other materials placed on record is to the effect that the victim girl was not knowing the person committed rape on her, so also the contents of the FIR go to show that the person who committed rape on her was unknown person and not known to her. In the wound certificate at Ex.P.4, it is mentioned that because of sexual assault by the friend of the victim's uncle (chikkappa) Manoj Shetty on 24.6.2011 around 9 a.m. 58
41. It is the defence of the accused person that no such incident has taken place, but at the instance of the members of the Dalitha Sangarsha Samithi, a false complaint has been filed against the appellant falsely implicating him in the said case. P.W.1 has deposed in her evidence in the cross examination that she knows Satish, Krishnananda and Venkappa. Those three persons brought her to the court on that day. Her mother also came along with them. Even she was taken to the police station along with her mother by those three persons. She admitted as true that those three persons belong to Dalitha Sangarsha Samithi. P.W.5-mother, in her cross examination, has deposed at para No.5 that Satish, Krishnananda and Venkappa are the members of the Dalitha Sangarsha Samithi. Those three persons came to the court on the previous day along with them. Even on that day also, they came to the court along with them. Even at the time when she lodged the complaint also, those three persons were with the complainant. She has deposed that whatever she has stated to the people of 59 the Dalitha Sangarsha Samithi, the same has been written in the complaint. She has further deposed that those people themselves prepared the complaint and she put her signature. She denied the suggestion that those three persons namely Satish, Krishnananda and Venkappa told accused No.1 Manoj Shetty not to follow and go behind Prema. She denied the further suggestion that those three persons were having enmity towards Manoj Shetty. Looking to these materials on record, it is not the case of the complainant that those three persons, who are the members of the Dalitha Sangharsha Samithi, are her relatives. It is no doubt true that the complainant being an illiterate lady, in that connection, if she had simply took the assistance of those three persons for preparing the complainant, it could have been appreciated, but the materials go to show that from the date of preparing and lodging the complaint, number of times those three persons accompanied the victim girl and the mother to the police station and even they accompanied the victim girl and mother of the victim girl 60 to the court also during the course of the trial on the aforesaid dates. This probablise the defence of the accused that those three persons who were the members of the Dalitha Sangharsha Samithi told accused No.1 Manoj Shetty not to follow and go behind Prema and in that connection, they were having enmity towards accused No.1 Manoj Shetty. Even looking to the evidence of P.W.5-mother of the victim girl, during her cross examination, she has admitted as true that her daughter gave evidence before court as tutored by the police. This goes to show that even the police were interested in the case and they tutored the victim girl to give evidence in a particular manner.
42. With regard to the medical evidence is concerned, I have perused the documents Ex.P.4 wound certificate in respect of the victim girl goes to show regarding history about the incident. In the wound certificate at Ex.P.4, it is mentioned that because of sexual assault by the friend of the victim's 61 uncle (Chikkappa) Manoj Shetty on 24.6.2011 around 9 a.m. Perusing the wound certificate of the victim girl, it is mentioned at column No.3, the minor girl aged about 12 years victim is alert, well oriented, gait normal, no injuries, contusions seen over the face, neck, back etc. No blood stains seen. In the Pelvic examination it is stated as under:
" No injuries, contusions seen, pubic hair present. No blood or seminal stains. External genital organs -normal. In Col. No.6: P/s - Cervix and vagina healthy. In Col.No.7: P/V - Vagina admits two fingers easliy. No tenderness. Age estimation: X-ray taken on 30.06.2011 at Venlock hospital X-ray No.14895 - between 15- 16 years of Radiology.
From the foregoing examination, she is of the opinion that there is possibility of sexual intercourse and final opinion will be given after the forensic report.
After the report, the final opinion is given as that from the foregoing examination following evidence is found to suggest that there is possibility of sexual intercourse."62
43. Even looking to this wound certificate Ex.P-4, no injuries were seen and no seminal stains were also seen. It is also the evidence of the doctor/PW-2, that on 29.06.2011 at 10.00 p.m. she examined one Arpita, who was aged 12 years, brought by WPC 780 of Bajpe Police Station with the history of sexual assault by a friend of victim's uncle Manoj Shetty on 24.06.2011, no blood or seminal stains present, external genital organ normal. When she examined Arpita, there were no new signs of sexual intercourse.
44. I have perused the document Ex.P-5, which is the opinion letter furnished by the CMO, Wenlock Hospital, Mangalore addressed to the Asst. Commissioner of Police, Panambur, Sub-Division, regarding accused No.2/Dinesh. It is mentioned at Sl.No.1, that there is nothing to suggest that above person cannot perform the act of sexual intercourse. At 63 Sl.No.2, no external injuries, at the time of examination on 01.07.2011 at 8.00 p.m.
45. I have also perused the document Ex.P.12, the FSL report, the articles sent are at Sl.Nos.1 to 5. It is mentioned in the opinion column that presence of seminal stains is not detected in articles A-1, A-2 and D-2.
46. Looking to all these materials so far as against accused No.2/Dinesh is concerned, there is no satisfactory and worth believable materials produced to prove that appellant accused No.2 committed forcible sexual intercourse on the victim girl. The materials on record both oral and documents, which has been discussed above will not inspire the confidence of this Court so as to come to the conclusion that accused No.2 committed rape on the victim girl. The prosecution has not established its case beyond all reasonable doubt. 64
47. Looking to the prosecution materials produced during the course of trial, reasonable doubt arises as to the case of prosecution about accused No.2/Dinesh committing rape on the victim girl. The Trial Court has not at all taken these aspects into consideration and wrongly read the evidence and wrongly convicted the appellant/accused NO.2 for the alleged offence. The judgment and order of conviction passed by the Trial Court is not in accordance with the oral and also the documentary evidence placed on record.
48. Hence, the appeal is allowed and the judgment and order of conviction and sentence dated 3.12.2013/4.12.2013 passed by the Trial Court as against the appellant/accused No.2 is hereby set-aside and the appellant/accused No.2 is acquitted of the charges leveled against him and he is ordered to be set at liberty forthwith, if he is not required in any other case.
Sd/-
JUDGE BSR/Cs/-