Karnataka High Court
State Of Karnataka vs S R Mahesh on 8 September, 2020
Bench: B.Veerappa, K.Natarajan
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.524 of 2014
c/w
CRIMINAL APPEAL No.194 of 2014
In CRL.A.No.524/2014
BETWEEN
STATE OF KARNATAKA
BY KUDUR POLICE,
RAMANAGARA DISTRICT - 561 101.
...APPELLANT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
AND
S.R. MAHESH,
S/O. LATE RANGASWAMAIAH,
AGED ABOUT 31 YEARS,
RESIDENT OF SANKIGHATTA,
THIPPASANDRA HOBLI,
MAGADI TALUK - 562 120.
...RESPONDENT
(BY SRI S.G.RAJENDRA REDDY, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) AND (3) OF THE CODE OF CRIMINAL PROCEDURE
PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 13/19.02.2014
PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS
2
JUDGE, AND C/C OF III ADDITIONAL DISTRICT AND SESSIONS
JUDGE/SPECIAL JUDGE, RAMANAGARA IN S.C.No.2/2011-
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 376 IPC.
In CRL.A.No.194/2014
BETWEEN
S.R. MAHESH
AGED ABOUT 32 YEARS,
S/O LATE RANGASWAMAIAH,
R/O. SANKIGHATTA VILLAGE,
THIPPASANDRA HOBLI,
MAGADI TALUK,
RAMANAGARA DISTRICT - 562 120.
...APPELLANT
(BY SRI S.G.RAJENDRA REDDY, ADVOCATE)
AND
STATE OF KARNATAKA
BY KUDUR POLICE STATION,
MAGADI TALUK,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO
SET ASIDE THE ORDER DATED 13/19.02.2014 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, AND C/C OF III
ADDITIONAL DISTRICT AND SESSIONS JUDGE/SPECIAL JUDGE,
RAMANAGARA IN S.C.No.2/2011-CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION
366(A) OF IPC AND THE APPELLANT/ACCUSED IS SENTENCED
TO UNDERGO SIMPLE IMPRISONMENT FOR 2 YEARS AND TO
PAY FINE OF 2000-00 AND IN DEFAULT OF PAYMENT OF FINE
TO UNDERGO SIMPLE IMPRISONMENT FOR ONE MONTH FOR
THE OFFENCE PUNISHABLE UNDER SECTION 366(A) OF IPC.
3
THESE CRIMINAL APPEALS COMING ON FOR HEARING
THIS DAY, NATARAJAN, J., DELIVERED THE FOLLOWING:
JUDGMENT
Since Criminal Appeal No.194/2014 filed by the accused pertaining to Single Bench and the Criminal Appeal No.524/2014 filed by the State pertaining to the Division Bench arise out of the same judgment of the trial Court in S.C. No.2/2011, they are taken up together for disposal.
2. Criminal Appeal No.524/2014 is filed by the State against the judgment of acquittal dated 13.2.2014 passed by the III Additional District & Sessions Judge, Ramanagara District (hereinafter referred to as 'Trial Court') in S.C. No.2/2011 acquitting the accused for the offence punishable under Section 376 of the Indian Penal Code (hereinafter referred to as 'IPC' for the sake of brevity).
Criminal Appeal No.194/2014 is filed by the appellant - accused against the judgment of conviction and sentence dated 13/19.2.2014 passed by the same 4 Court in the same case for having convicted the accused for the offence punishable under Section 366A of IPC and sentenced him to undergo simple imprisonment for two years and to pay fine of Rs.2,000/-, in default of payment of fine, he shall further undergo simple imprisonment for a period of one month.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the prosecution is that PW.4 - Nagaraj, the father of the victim filed a missing complaint before the respondent - Police as per Ex.P.2 alleging that his minor daughter, aged about 14 years, as usual went to the special class on 08.10.2009 in the morning, but did not return and has been found missing and not able to trace her from the said day. Hence, he filed a complaint on 14.10.2009 suspecting that the accused might have abducted his daughter. Based upon his complaint, the Police registered a case in Crime No.283/2009 for the offence punishable under Section 366A of IPC. During 5 investigation, the Police traced the victim - PW.9 and the accused on 23.10.2009 and subjected both of them to medical examination. Thereafter, the accused was produced before the Magistrate and he was remanded to judicial custody. After recording the statement of the victim, it was revealed that the accused forcibly abducted the victim by gagging her mouth and took her to the house of PW.1 at Vijayanagar, Bengaluru and by the next day, he took her to B.R.Hills by tying her hands and gagging her mouth married her in the Temple and later brought her back to the house of PW.1 and committed forcible intercourse with her. Based on the statement of the victim girl and after collecting the material, the Investigating Officer concluded the investigation and filed the charge sheet against the accused for the offences punishable under Sections 366A and 376 of IPC. After committal of the case by the Magistrate, the Trial Court framed the charges against the accused for the offences punishable under Sections 366A and 376 of IPC. The accused pleaded not guilty and claimed to be tried.
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5. In order to prove the charges, the prosecution in all examined 12 witnesses as per PWs.1 to PW.12, got marked 12 documents as per Exs.P.1 to P.12 and 10 material objects as MOs.1 to 10. After the conclusion of the prosecution evidence, the statement under Section 313 of Cr.P.C. has been recorded. The incriminating evidence appeared against the accused were read over to the accused. The case of the accused was one of total denial, but not chosen to lead any defence evidence.
6. After hearing the arguments of the respective parties, the Trial Court passed the judgment by acquitting the accused for the offence punishable under Section 376 of IPC, but found him guilty and convicted him for the offence punishable under Section 366A of IPC and sentenced him as stated supra which is challenged by both the State and the accused.
7. We have heard Sri Vijayakumar Majage, learned Additional State Public Prosecutor appearing for the State 7 and Sri S.G. Rajendra Reddy, learned counsel appearing for the accused.
8. Before adverting to the arguments advanced by the learned Additional State Public Prosecutor as well as learned counsel for the accused, it is necessary to have a cursory look at the evidence lead by the prosecution before the Trial Court, which is as under:
PW.1 is one Mahesh B.M., who is the friend of the accused. As per the prosecution case, the accused and the victim said to have stayed in his house from 09.10.2009 to 23.10.2009, but this witness has turned hostile and not supported the prosecution case. He has also denied the statement made before the Police as per Ex.P.1. The prosecution is not able to elicit any evidence from his mouth. Therefore, his evidence is not useful to the prosecution case.
PW.2-Lingadevaru is the Police Constable who carried the material objects to the Forensic Science Laboratory (FSL). He is only a formal official witness. 8
PW.3-Ramakrishna H.C., is also the Police Constable who carried the material objects from the hospital and produced the same before the Investigating Officer and gave his statement. He is also the formal witness to the prosecution case.
PW.4-Nagaraj is the father of the victim girl Nagarathna and the informant. He has given evidence in support of his statement made before the Police as per his complaint and statement. He has narrated about missing of his daughter from 08.10.2009 and filing of the complaint before the Police as per Ex.P.2 and on tracing of his daughter by the Police, he came to know that his daughter has been abducted and raped by the accused. In the cross-examination, he has denied the suggestion regarding false implication of the accused in this case and also denied that the accused and victim were in love with each other.
PW.5-Ramesh.G is the panch witness to the spot panchanama and place of occurrence and place of marriage as per Exs.P.3 to P.5. This witness turned 9 hostile and not supported the prosecution case except admitting his signatures on Exs.P.3 to P.5. His evidence was also of not useful to the prosecution case.
PW.6-Dr.K.R.Pushpalatha is the doctor who examined the victim girl. She has given evidence before the Court that on 23.10.2009, the victim who was a minor girl aged about 16 years was brought by the woman Police Constable Geetha. As per the request, she examined the victim and stated that the victim was unfit for intercourse and found that her hymen was ruptured also two fingers were admitted into the vagina and no injuries were found on her private parts and body. According to her opinion, the victim was subjected to intercourse. She has collected the vaginal swab and cervical smear and sent it to FSL through the Police and gave her medical opinion as per Ex.P.6.
PW.7-Suresh B is the Head Master of the Government School who gave the certificate regarding the date of birth of the victim based upon the school record. As per his evidence, the date of birth of the victim is 10 10.07.1995 and he has given Ex.P.7, the certificate and he has identified the same. There is no much cross- examination by the accused except the suggestion that he is not a competent authority to issue the Date of Birth Certificate.
PW.8-V.S.Sabareesh is the PSI who registered the case after receipt of the complaint from PW.1 as well as the Investigating Officer who conducted part of the investigation.
PW.9 is the victim girl. She has given evidence against the accused and narrated the incident regarding the accused abducting her and taking her to the house of PW.1-Mahesh and staying with the accused in the night. On the next day, the accused took her to B.R.Hills by tying her hands and by gagging her mouth, forcibly married her in the presence of a priest in the Temple. Thereafter he brought her back and stayed in the house of the PW.1 and forcibly had intercourse with her. She denied the suggestion of the defence, the love affair and false implication at the instance of her father. 11
PW.10-Somanna is the Musician, who used to play Drum in the B.R.Hills temple where the accused and the victim said to have married in the presence of a priest. This witness has turned hostile and not supported the case. He is also a panch witness to Ex.P.4, but he has denied the statement made before the Police and also denied the marriage of the accused and the victim.
PW.11-Dr.Veeresh is the doctor who examined the accused and gave certificate that the accused is capable of having sexual intercourse. He has given the medical examination report as per Ex.P.11. He has collected the clothe of the accused and sent to the FSL through Police and he has identified the same as MO.10.
PW.12-M.B.Ramachandrappa is the Circle Inspector of Police who conducted the further investigation and filed the charge sheet against the accused after obtaining the FSL Report as per Ex.P.12.
9. We have carefully analyzed the evidence of the prosecution witnesses. The entire case revolves upon the 12 evidence of PW.9-prosecutrix and the medical witness PW.6, the doctor who examined the victim which we have to re-appreciate meticulously while considering the findings of the Trial Court. Before that we would like to refer to the submissions made by the learned counsel on both sides in this regard.
10. Sri Vijayakumar Majage, learned Additional State Public Prosecutor has strenuously argued that the findings of the Trial Court in the impugned judgment regarding acquittal of the accused under Section 376 of IPC is against the evidence on record and the evidence adduced by PW.9, the victim as well as the medical evidence of PW.6-Dr.Pushpalatha. He further contended that even though the prosecution is able to prove that the accused abducted the victim girl and forcibly had intercourse with her after marrying her and even if the ingredients under Section 366A are not attracted, but the ingredients under Section 366 of IPC would be attracted as per the evidence of the prosecution. Even if there is any error or omission 13 in framing of charges by the Trial Court, that can be cured as per the provisions of Section 464 of Cr.P.C. and on the ground of an error or omission or irregularity in the framing of charge, the sentence cannot be set aside. Further, the learned Additional State Public Prosecutor has contended that even though PW.9 has categorically stated that the accused abducted her and detained her in the house of PW.1 i.e. his friend's house, later the accused took her to B.R.Hills and married her by tying Thali and thereafter, she was taken back to the house of PW.1 where she was made to stay and had intercourse with her against her consent or will, but the Trial Court has disbelieved her evidence and acquitted the accused, which is erroneous. Therefore, the findings require to be interfered and the accused is required to be convicted for the offences under Sections 366 and 376 of IPC and prayed for dismissing the appeal filed by the accused and allowing the appeal filed by the State.
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11. Per contra, Sri S.R.Rajendra Reddy, learned counsel for the accused contended that first of all, the judgment of the Trial Court is not sustainable in law in respect of convicting the accused for the offence under Section 366A of IPC. Absolutely there are no ingredients to attract the provisions of Section 366A of IPC. A mere reading of the provisions of Section 366A of IPC makes it clear that whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person, but here in this case, there is no another person other than the accused in order to attract the ingredients of Section 366A of IPC. Therefore, the judgment of conviction under Section 366A is not sustainable and even there are no ingredients made out to attract Section 366 of IPC. Once charges under Section 366A of IPC is not proved, the question of convicting the accused under Section 366 of IPC does not arise without ingredients. Hence, prayed for acquitting the 15 accused for the offence punishable under Section 366A of IPC.
12. Further, the learned counsel contended that the evidence of PW.6, the doctor who examined the prosecution witness has stated that PW.9, the victim is not fit for intercourse and she has given certificate as per Ex.P.6. But the witness has deposed in the evidence that in her opinion there was intercourse on the victim. Such being the case, her evidence before the Court is an improvement without any basis and hence the intercourse on the victim cannot be acceptable. He further contended that the evidence of the victim is also not acceptable as per her own evidence that she went along with the accused and stayed in the house of PW.1 and on the next day morning, both of them went in a Tempo Traveler to B.R.Hills and her hands and mouth were gagged by the accused and in presence of a priest, the accused tied Thali. There are CC TV cameras fixed in the B.R.Hills Temple premises. The footages of CC TV cameras were not 16 secured by the Investigating Officer. Such being the case, the evidence of the victim is not believable that the accused gagged her mouth and tied her hands and married her forcibly. The priest was also not examined by the prosecution. Even otherwise, after the marriage, she came back to the house of PW.1 and stayed there up to 23.10.2009 nearly for 15 days, she has not raised any alarm and made any protest or tried to make call to the Police or to her parents or tried to intimate the neighbours and tried to escape in order to show that she was not willing to go and stay with the accused, which clearly goes to show that there was love affair between the accused and the victim. She eloped with the accused and because of the inter-caste of the parties, the father of the victim filed a false case against the accused by suppressing the love affair. He also contended that after the alleged incident, the victim got married to some other person and because of the influence of the father, she has given false evidence against the accused and throughout the evidence of the victim, there is no consistency and truthfullness in 17 her evidence to believe the evidence of the victim that she was abducted by the accused and forcibly committed rape on her. The prosecution has failed to prove the charges leveled against the accused. Therefore, the appeal filed by the State requires to be dismissed and the accused is entitled for acquittal under Section 366A of IPC.
13. Upon hearing the arguments and on careful perusal of the evidence of the prosecution on record, the point that arises for our consideration is as follows:
" Whether the judgment and findings of the Trial Court convicting the accused for the offence under Section 366A of IPC and acquitting him for the charges under Section 376 of IPC call for interference of this Court to the facts and circumstances of the case?"
The prosecution relied upon the evidence of the prosecutrix-PW.9 and the Doctor-PW.6, who conducted the medical examination of PW.9. The victim has given evidence that the accused asked her to come along with him on 08.10.2009 when she went to special class. The 18 wife of the friend of the accused also came in a car, abducted by gagging her mouth and they went to Vijayanagar in Bengaluru, stayed in the house of PW.1, who is a friend of the accused and there also they gagged her mouth and tied her hands. By next day, they went to B.R.Hills at 7.00 a.m. and the accused tied Thali on her neck. She also stated that the accused forcibly took her and married her. Subsequently, she was taken back to the house of PW.1 and during the night, the accused had intercourse with her by force. In the cross-examination, this witness stated that the accused not allowed her to telephone to her father, as the mobile phone was taken by the accused. However, she has admitted that she had mobile phone with her. She further says that she did not know the name of the place where the marriage took place and there is no other person present in the temple except the priest and denies the suggestion of the counsel for the accused that she was not subjected to kidnap or rape by the accused.
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14. It is well settled by the Hon'ble Supreme Court that especially in the case of rape, the Court should not insist for any corroboration, if the evidence of prosecutrix is truthful and reliable. However, in this case, it is necessary to consider the evidence of the medical witness as her evidence is not reliable. PW.6-Dr. K.R.Pushpalatha who examined the victim on 23.10.1995 has issued opinion as per Ex.P.6, wherein she has mentioned as follows:
"1) She aged about 16 years, not fit for sexual intercourse.
2) On Examination - old hymen tear or admits two fingers.
3) No external injury
4) Vaginal swab, Cervical smear collected and
has send to FSL.
5) Her dress collected and send to FSL."
The opinion given by PW.6 in her medical report as per Ex.P.6 is that the victim is aged about 16 years and she is not fit for sexual intercourse, but this witness has deposed in the evidence given before the Court on oath that the victim was unfit for sexual intercourse. However, at the end, she has stated that according to her opinion, there was intercourse on the victim. This opinion is not 20 supported by the medical examination report issued by her as per Ex.P.6. Therefore, the improvement made by the doctor in the evidence before the Court cannot be acceptable. The evidence of the doctor is inconsistent and contradictory to the medical report. Therefore, the evidence of PW.6 is not corroborated with her opinion in respect of the offence of rape committed on the victim.
Apart from that the FSL Report regarding the forensic examination of the clothes of the victim and the accused, the vaginal smear does not reveal any semen stains. That apart, no injuries were found on the body or private parts of the victim. The hymen rapture is also an older one which shows that there is no recent intercourse, tear of hymen, may be for other reasons. Therefore, the evidence of PW.6 is not reliable and acceptable one. The only evidence left with the prosecution is the evidence of PW.9. On a careful reading of the entire evidence on record, it goes to show that the victim and the accused are from different castes, fell in love with each other and thereafter, both of them eloped and stayed together in the house of 21 PW.1. The victim stayed with the accused for 15 days without resistance or raising any alarm or tried to make any phone calls or even tried to draw the attention of the neighbours of PW.1, even though the house of PW.1 was situated at Vijayanagar in Bengaluru City. Even though she admitted that she had cell phone, she has stated that her mouth was gagged with cloth. Her evidence cannot be acceptable for the reason that the accused cannot keep the victim by gagging her mouth without giving food or allowing to take bath or sleep. Therefore, the veracity of her evidence that her mouth was gagged and the accused committed rape on her forcibly is not believable.
15. The evidence of PW.11, the doctor who examined the accused though not examined the victim, but has given a general medical opinion stating that the hymen rupture may be due to various reasons like cycling and as per the evidence of PW.6, the hymen rupture was an old one. The prosecution has not tried to elicit any evidence to show how old the age of the rupture of the hymen was, but the 22 fact remains that it is not a recent rupture. That apart, there were no injuries found on the private parts or body of the victim in order to show that the victim had resisted while committing rape on her forcibly. The medical evidence, the Forensic Science Laboratory Report and evidence of PW.1 clearly show that there is no injury on the private part or body of victim, there is no semen stains on the clothes of the accused and victim and the rupture of hymen may be due to some other reasons. The victim not raising any alarm or an attempt to escape from the custody of the accused goes to show that the evidence of the victim is not reliable and repose any confidence to believe or is acceptable in respect of rape committed on her to attract Section 376 of IPC.
16. Now coming to the arguments addressed by the learned Additional State Public Prosecutor in respect of framing of charges under Section 366A of IPC whether the ingredients are made out by the prosecution, it is worth to 23 mention the provisions of Section 366A of IPC, which is as under:
"366A. Procuration of minor girl.--Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."
17. A bare reading of Section 366A of IPC shows that the victim was not forced or seduced to illicit intercourse with another person. Here in this case, there is no such ingredient made out by the prosecution to show that the accused forced the victim or seduced to illicit intercourse with another person. In this regard, we rely upon the judgment of the Hon'ble Supreme Court in the case of Sat Parkash vs. State of Haryana and another reported in (2015) 16 SCC 475, on the following paragraphs:
"3. In view of the clear and unequivocal statement made by the deceased Sushila to the effect that she had left her residence by 24 her own free will, it was not possible to record the guilt of the appellant under Section 363 of the Penal Code. This, on account of the acknowledgment that no other evidence had been produced by the prosecution to demonstrate that Sat Parkash had enticed the deceased Sushila to accompany him. The only evidence available is that Sushila was found in the residence of the appellant - Sat Parkash. Based on the above factual position, it was presumed that the appellant had kidnapped the deceased. We are of the view that the above presumption is wholly misconceived and untenable.
4. The charges depicted in the charge sheet, extracted hereinabove, then takes us to Section 366 of the Penal Code. The dying declaration of Sushila indicates that she had committed suicide rather then having married the appellant - Sat Parkash by disregarding the wishes of the family. There is therefore substantial material on the record of this case to establish that the deceased Sushila had not been persuaded or compelled to marry the appellant - Sat Parkash before she committed suicide. In fact, the culpability of the appellant 25 under Section 366 of the Penal Code has been considered by us at our own, even though there was no express charge against the appellant under the above provision. We are satisfied that even on the basis of the allegations levelled against the appellant, based on the evidence produced before the trial Court, it would not have been possible to convict the appellant even under Section 366 of the Penal Code.
5. The charge with reference to Section 366A of the Penal Code needs a closer examination. Section 366-A of the Penal Code is extracted hereunder:
"366A Procuration of minor girl -
Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to 26 ten years, and shall also be liable to fine."
A perusal of the aforesaid section reveals that the inducing of the minor to constitute an offence under Section 366A, should have been with reference to an intent to force or seduce her"... to illicit intercourse with another person...". In fact, there is no mention of any other person in the sequence of allegations levelled against the appellant.
6. In the above view of the matter we are satisfied that the charge under Section 366-A IPC was also not sustainable against the appellant. For the reasons recorded hereinabove, we are of the view that the impugned order passed by the High Court convicting the appellant under Section 366- of the Penal Code is also liable to the set aside. The same is accordingly hereby set aside.
7. The question which arises hereinafter is, whether rape was committed by the appellant on the deceased Sushila. A mere act of sexual intercourse would have established rape at the hands of the appellant against Sushila, on 27 account of the fact that she was a minor on the date of incident (on 7.6.1992), on account of the fact that her date of birth was admittedly 5.11.1976. The High Court arrived at the finding, that there was no material on the record of this case on the basis of which it could be concluded that sexual intercourse was committed on the deceased Sushila. Thus viewed, we are satisfied that the charge of Section 376 of the Penal Code would not have survived against the appellant and that he was rightly acquitted thereof.
8. In view of the conclusion recorded hereinabove, the conviction of the appellant - Sat Parkash on the charges framed by the Additional Sessions Judge, Sonepat on
18.10.1993 is clearly not sustainable. The conviction of the appellant upheld by the impugned order passed by the High Court is liable to be set aside and is accordingly set aside."
18. The Hon'ble Supreme Court in another case in Parminder Kaur alias P.P. Kaur alias Soni vs. State of Punjab reported in (2020) SCC Online SC 605, while 28 considering the provisions of Section 366A and 376 of IPC, acquitted the accused. The relevant paragraphs are extracted as under;
"ANALYSIS I. Sweeping generalisations and superficial analysis
10. Having heard learned counsel for the parties at considerable length through video conferencing, we find from the impugned orders that the Courts below failed in making the desired attempt to delve deep into the factual matrix of this case. Many aspects, as discussed hereunder, have completely been ignored or only dealt with hastily. Further, the reasoning is generic and is premised upon generalisations which may not be necessarily true always. It is indisputable that parents would not ordinarily endanger the reputation of their minor daughter merely to falsely implicate their opponents, but such clichés ought not to be the sole basis of dismissing reasonable doubts created and/or defences set out by the accused.29
11. Similarly, the five-day delay in registration of the FIR, in the facts and circumstances of this case, gains importance as the father of the victim is an eye-witness to a part of the occurrence. It is difficult to appreciate that a father would await a second incident to happen before moving the law into motion. Sweeping assumptions concerning delays in registration of FIRs for sexual offences, send a problematic signal to society and create opportunities for abuse by miscreants. Instead, the facts of each individual case and the behaviour of the parties involved ought to be analysed by courts before reaching a conclusion on the reason and effect of delay in registration of FIR. In the facts of the present case, neither is Section 366A by itself a sexual offence in the strict sense nor do the inactions of the prosecutrix or her father inspire confidence on genuineness of the prosecution story. No steps were taken to avail of medical examination of the victim, nor was the Panchayat or any social forum approached for any form of redress till the occurrence of the second alleged incident.
12. Further, it is beyond comprehension that the prosecutrix's father and his two male 30 associates failed to stop the tenant boy who was allegedly about to commit a sexual offence with the minor victim and neither did they later make any attempt to even register a complaint against him. Strangely, the prosecution has acquiesced to such disappearance of the boy from the scene. Still further, the father of the prosecutrix merely registered his protest to the appellant on the scene, instead of reacting instinctively and approaching police authorities when faced with possible trafficking of his daughter. This conduct of belatedly proceeding against only the prosecutrix creates a lurking suspicion against the prosecution case and it may not be totally improbable to infer that it was a malicious attempt at the behest of Bhola Singh to falsely implicate a weak rape victim and stifle her ability to seek justice.
19. Learned counsel for the accused relied upon the judgment of the Hon'ble Supreme Court in the case of Kuldeep K. Mahato vs. State of Bihar reported in 1998 CRI. L. J. 4033, on the following paragraphs;
"10. Coming to the conviction under Section 363, I.P.C., in our opinion, having regard to 31 the age of the prosecutrix on the date of occurrence being below 18 years as deposed to by Dr. Maya Shankar Thakur-(P.W.2), it will have to be held that the prosecutrix was a minor on the date of occurrence. If this be so, we will have to examine whether Kiran Kumari (P.W.1) was taken away from the lawful guardianship. Kiran Kumari (P.W.1) has stated that the appellant had forced her to sit in the tempo and thereafter at the point of dagger made her to keep quiet. She was very much scared and lost senses for some time. In the meantime, tempo reached Ramgarh. On this issue, the defence of the appellant is that she herself came and sat in the tempo and but the fact remains that the appellant carried her to Ramgarh out of the lawful guardianship. There is no serious dispute that the prosecutrix was taken tempo to Ramgarh by the appellant. If this be so, then offence of kidnapping under Section 363 is clearly made out against the appellant for which he has been rightly convicted for the said offence. There is no error in the judgments of the courts below in convicting the appellant under Section 363, I.P.C.32
11. Then coming to the conviction of the appellant under Section 376, I.P.C., although both the Courts below have held after accepting the evidence of prosecutrix being truthful held that the appellant has forcibly committed the rape, we are of the opinion that the said finding is unsustainable. The prosecutrix had sufficient opportunity not only to run away from the house at Ramgarh but she could have also taken the help of neighbours from the said village. The medical evidence of Dr. Maya Shankar Thakur (P.W.2) also indicates that there were no injuries on the person of the prosecutrix including her private part. Her entire conduct clearly shows that she was a consenting party to the sexual intercourse and if this be so, the conviction of the appellant under Section 376, I.P.C., cannot be sustained. There is one more additional factor which we must mention that it is not the case of the prosecutrix that she was put in physical restraint in the house at Ramgarh, with the result her movements were restricted. This circumstance also goes to negative the case of forcible intercourse with the prosecutrix by the appellant."33
20. The principle laid down by the Hon'ble Supreme Court in the case of Shyam and another vs. State of Maharashtra reported in AIR 1995 SC 2169 clearly goes to show that the offence of abduction cannot be acceptable and also the offence of rape is not acceptable to prove the charges beyond all reasonable doubt. That apart, as per the evidence of prosecutrix, she herself married to one Sathish subsequent to the incident and thereafter she was living away from Sathish and is now living with another person by marrying him.
21. On a careful perusal of the evidence, once the prosecution failed to prove the ingredients of Section 366A of IPC, unless there is injustice caused to the party, the Court cannot set aside the sentence and remit the matter back for framing of charges. No doubt, the learned Additional State Public Prosecutor was right in contending that the sentence cannot be reversed only on the basis of error or omission in framing of charges as per the provisions of Section 464 of Cr.P.C., but in view of the 34 judgment of the Hon'ble Supreme Court in the case of Sat Prakash (supra), the arguments raised by the learned State Public Prosecutor cannot be acceptable to hold that the accused is guilty for the offence under Section 366 of IPC, in view of failure to prove the charges against the accused. That apart, a bare reading of Section 366 of IPC defines that there should be an intention or compulsion by the accused against the will of a woman whereas in Section 366A of IPC, the word 'will' is not mentioned, but shown as 'minor'. Normally, the consent is immaterial when the prosecutrix is a minor below the age of 18 years. However, looking to the entire circumstance of the case, the evidence of the prosecutrix is not reliable in order to accept that she was abducted, in view of the inconsistency in the evidence made by her before the Court and staying with the accused for almost 15 days without any agitation and in view of the opinion of PW.6 in Ex.P.6 that she was unfit for intercourse. Based upon the evidence on record, the Trial Court acquitted the accused for the offence under Section 376 of IPC, however, committed an error in 35 accepting the evidence of the prosecution by convicting the accused for the offence under Section 366A of IPC when there is no ingredient made out by the prosecution. Considering the evidence on record, we are of the opinion that the Trial Court though right in acquitting the accused under Section 376 of IPC, but committed error in convicting the accused under Section 366A of IPC. Therefore, we are of opinion that the prosecution failed to prove the charges against the accused for the offence punishable under Section 366A or 376 of IPC beyond all reasonable doubt. Therefore, the accused is entitled for acquittal of both the charges leveled against him before the Trial Court. Accordingly, we proceed to pass the following order:
The appeal filed by the State in Crl.A.No.524/2014 against the acquittal of the accused for the offence under Section 376 of IPC is hereby dismissed.
Consequently, the appeal filed by the accused in Crl.A.No.194/2014 is hereby allowed.36
The judgment of conviction and the order of sentence passed by the Trial Court in S.C. No.2/2011 on the file of II Additional District and Sessions, Ramanagara District, for the offence punishable under Section 366A of IPC is hereby set aside.
The appellant-accused is hereby acquitted and set at liberty forthwith.
Bail Bond, if any, stands cancelled.
Fine amount deposited, if any, is ordered to be refunded to the accused.
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JUDGE Sd/-
JUDGE mv