Karnataka High Court
Mr.Anwar Pasha @ Sabayi vs State Of Karnataka on 1 March, 2014
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 01ST DAY OF MARCH 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.778/2009
BETWEEN:
MR.ANWAR PASHA @ SABAYI
S/O LATE MIYA SAB, AGE: 63 YEARS,
R/O NO.25, SLUM QUARTERS
BEHIND UDAYAGIRI POLICE STATION
SHANTHINAGAR, MYSORE. ... APPELLANT
(BY SRI K V NARASIMHAN, ADV.)
AND:
STATE OF KARNATAKA
BY SUB-INSPECTOR OF POLICE
MAHILA POLICE STATION
MYSORE. ... RESPONDENT
(BY SRI B VISWESWARAIAH, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374 (2) CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 19/20.03.2009, PASSED IN
S.C.NO.293/2007, BY THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, MYSORE, CONVICTING THE APPELLANT/
ACCUSED FOR AN OFFENCE PUNISHABLE UNDER SECTION
376 IPC & ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
The appellant (accused) was tried and convicted for an offence punishable under Section 376 IPC. Therefore, he is before this court.
2. I have heard Sri.K.V.Narasimhan, learned counsel for accused and learned Government Advocate for the State.
3. The accused was charged for an offence punishable under Section 376 IPC, on the allegations that on 03.07.2007 at about 4.00 p.m., when the victim (PW.1) had gone near the house of accused (her neighbor) to get the key of her house, the accused induced and took her inside the house, laid her on a cot and committed rape on her, thereby committed an offence punishable under Section 376 IPC.
4. The prosecution has mainly relied on evidence of victim (PW.1).
5. Sri.K.V.Narasimhan, learned counsel for accused has referred to discrepancies found in the evidence of mother of victim. The learned counsel for accused has taken me 3 through evidence of accused (DW.1) and two defence witnesses to contend that there was enmity between PW.3- Ambika (the aunt of victim) and accused in relation to certain monitory transactions and PW.3 had made use of PW.1 to foist a false case against the accused. The learned counsel would submit there is no positive medical evidence.
6. The law is fairly well settled that the evidence of victim of rape receives prime consideration unless it is shown that her evidence is tainted and she had strong reasons to implicate the accused.
7. In a decision reported in 2007 Crl. L.J. 4704 (in the case of Radhu Vs. State of Madhya Pradesh), the Supreme Court has held:-
"5. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on 4 oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a 'rape', if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend 5 ultimately on the facts and circumstances of each case."
8. In the case on hand, I have gone through the evidence of victim. She was aged about 11 years at the time of incident. It is proved from the evidence of PW.8 and the school admission certificate (marked as Ex.P8) that victim was born on 13.05.1996. The offence is alleged to have committed on 03.07.2007. The evidence of PW.8 and contents of school admission certificate have not been disputed by the accused. Thus, the victim was aged about 11 years at the time of incident.
9. As could be seen from the evidence of victim and her mother, they were living in Slum Quarters near Udayagiri Police Station, Mysore City; her father was working as a coolie; her mother was working as a maid servant; the victim was going to school; the accused was running a grossery shop near the house of victim; the father of victim used leave the house at about 7.00 or 8.00 a.m., in the morning and return back at about 7.00 or 8.00 p.m., in the 6 night; her mother used to leave home at about 6.30 or 7.00 a.m., in the morning and return back around 6.00 or 7.00 p.m., in the night after working as maid servant in other houses; the victim used to leave the house to go to her school and return back at 4.00 p.m.; she used to give the key of her house to her neighbour; on the particular day, there was a quarrel between the father of victim and the neighbor therefore, victim had given the key of her house to the accused who was running a grossery shop in the front portion of his house.
On the date of incident, the victim after completing the school, came back and approached the accused to return key of her house; accused took her inside his house and made her to lie on the cot, undressed her and also removed his clothes and committed rape on her; victim raised hue and cry; on hearing the same, PW.3 came and scolded the accused and also victim for entering the house of accused; on the same day, the first information was lodged at 9.00 p.m.; the victim was subjected to medical examination. 7
10. PW.2-Shekar is the father of victim and he has given evidence of what he had learnt from victim after he returned home at about 10.00 p.m., on the date of incident. PW.2 has deposed by the time he returned home, victim and her mother (PW.4) had gone to police station.
11. PW.3-Ambika is the senior aunt of victim. PW.3 has supported the version given by victim in examination-in- chief. For the reasons not apparent on record her cross- examination was deferred and she was cross-examined by the learned counsel for accused after 11 days from the date of examination-in-chief.
During cross-examination by the learned counsel for accused she has feigned ignorance about the incident of rape. In a way, she has given go-bye to her version given in the examination-in-chief. After cross-examination by the learned counsel for accused, she was declared as hostile witness and she was cross-examined by the learned public prosecutor. Therefore, importance cannot be given to evidence of PW.3 to discredit the evidence of victim. 8
12. PW.4-Indira is the mother of victim. She was a post-occurrence witness. She has narrated what she had learnt from the victim and also she has taken the victim to police station.
PW.4 was examined in chief on 09.09.2008. At the request of learned counsel for accused, the cross- examination was deferred and PW.4 was cross-examined on 20.09.2008.
During cross-examination by learned counsel for accused, PW.4 has given a version to dilute the effect of her evidence in the examination-in-chief. Therefore, she was declared as hostile witness. During cross-examination by the learned Public Prosecutor she has denied the suggestion that she was won over by the accused.
13. At this juncture, it is relevant to state that evidence of PW.1 that her mother (PW.4) had accompanied her to police station and later to hospital has not been controverted. If PW.1 was not the victim of rape, there was 9 no need for PW.4 to take her (PW.1) to police station and later to the hospital. It is obvious that PW's.3 and 4 were won over by the accused and they have deviated their evidence during cross-examination by the learned counsel for accused. It is not unusual to find such instances. These facts cannot be taken into consideration to discredit the evidence of victim.
14. Sri.K.V.Narasimhan, learned counsel for accused taking me through the medical evidence given by PW.6- Dr.R.C.Pramila and the contents of wound certificate (marked as Ex.P3 & Ex.P4) would submit that there were no injuries on the private parts of the victim, PW.6 has clearly opined that an act similar to that of sexual intercourse had not taken place on the victim.
15. The learned counsel for accused referring to evidence of PW's.3 and 4 and also defence evidence given by accused and other witnesses would submit that there was dispute between PW.3 and accused in relation to certain monitory transaction, therefore, PW.3 had set up PW.1 to 10 foist a case of rape against the accused, which I am not persuaded to accept for the following reasons:
PW.1 was hardly aged about 11 years; her mother was working as maid servant; her father was a coolie; they were residing in slum area; they belong to Scheduled Tribe. In the circumstances, it looks highly improbable that PW.1 had foisted a false case of rape against the accused aged about 57 years, who was almost like her grand father. Regarding absence of medical evidence, it is necessary to state that the victim was hardly aged about 11 years; her physical limitations did not permit either penetration or completed act of rape. Therefore, we cannot expect positive medical evidence in proof of completed act of rape.
16. In the aforestated judgment, the Supreme Court has held that: a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated. 11
17. In the case on hand, the victim was hardly aged about 11 years. The accused was aged about 57 years. He was just like the grand father of victim. The accused by exploiting the innocence of victim had taken her to his house and committed rape on her. As already stated, having regard to physical limitations of the victim, it was not possible for the prosecution to adduce medical evidence in proof of completed act of rape.
18. The law is fairly well settled, when the children of tender age are victims of rape, the medical evidence that may be adduced by the prosecution would depend upon facts and circumstances of the case. It is not necessary for the prosecution to prove that there was penetration. Obviously, physical limitations of the victim do not permit such acts.
19. Sri.K.V.Narasimhan, learned counsel for accused taking me through evidence of the mother of victim would submit that, as per case putforth by the prosecution, incident of rape had taken place in the house of accused. As per the spot inspection report prepared by the 12 investigation officer, the incident of rape had taken place in the house of victim. It appears, the mother of victim had taken the investigation officer to their house and showed the place of incident. Therefore, much importance cannot be attached to such discrepancy. As already stated, the mother of victim (PW.4) and the aunt of victim (PW.3) have crossed the floor after they gave their evidence in examination-in- chief and they have leaned in favour of the accused. The evidence of victim that accused took her inside the house and committed rape on her in the house does not suffer from any discrepancy.
20. The learned trial judge on proper appreciation of evidence has held the accused guilty of an offence punishable under Section 376 IPC.
21. The accused was aged about 57 years at the time of incident. He had committed rape on the victim aged about 11 years, who was just like his grand daughter. There are no mitigating circumstances to reduce the sentence. 13
22. In the result, I pass the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Np/-