Karnataka High Court
Mahadeva S/O Eswarappa Ratoda vs The State Of Karnataka Through on 31 May, 2018
1 Crl.A.No.3529/2011
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 31st DAY OF MAY, 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.3529/2011
BETWEEN:
Mahadeva S/o Eswarappa Ratoda,
Age 21 years, Occ. Stone Breaking Work,
R/o Karadakal Thanda,
Lingasugur Taluk, Raichur District.
... Appellant
(By Sri Shivanand V.Pattanashetti, Advocate)
AND:
The State of Karnataka
Through Lingasugur Police Station
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C., praying to allow this appeal by setting aside the
judgment and order dated 21.01.2011 passed by the
learned Additional Sessions Judge and Presiding Officer,
Fast Track Court-I, Raichur in S.C.No.104/2009 and acquit
2 Crl.A.No.3529/2011
the appellant for the offences punishable under Sections
341, 417, 323, 506 and 376 of IPC.
This Appeal is coming on for further hearing this day,
the Court delivered the following:
JUDGMENT
This appeal arises out of the judgment and order of conviction and sentence dated 21.01.2011 passed by the Additional Sessions Judge and Presiding Officer, FTC-I, Raichur in S.C.No.104/2009. By the impugned judgment and order the appellate court has convicted the appellant/accused for the offences punishable under Sections 341, 417, 323, 506 and 376 of IPC and sentenced him to imprisonment of various terms the maximum one being simple imprisonment of 7 years and fine of Rs.10,000/- for the offence punishable under Section 376 of IPC.
2. Lingasugur Police charge sheeted the appellant in Crime No.66/2009 for the offences punishable under Sections 341, 417, 323, 506 and 3 Crl.A.No.3529/2011 376 IPC on the basis of the complaint filed by PW.1 - Shankarappa Chown.
3. The case of the prosecution in brief is as follows :-
That about five months prior to 06.04.2009 at about 5.30 p.m., when PW.6 the daughter of PW.1 was returning from Lingasugur on her bicycle and proceeding near water tank of Karadkal Thanda the accused wrongfully restrained her and dragged her to the nearby Ekra gross and committed forced sexual intercourse on her, when she resisted he assaulted her. Further he threatened her that if she reveals the incident to anybody herself and her parents will be killed. On 04.04.2009 when PW.6 was found with indifferent health PW.1 took her to the hospital. On examining PW.6 the doctor told to PW.1 that PW.6 is five months pregnant. On inquiry PW.6 revealed the incident. Thereafter PW.1 filed a complaint as per 4 Crl.A.No.3529/2011 Ex.P.1. On the basis of such complaint PW.11 registered the FIR as per Ex.P.10 and handed over the further investigation to CPI - CW.17. CW.17 referred the victim for medical examination, conducted spot mahazar, recorded the statements of witnesses and on completing the investigation filed the charge sheet.
4. On committal the case was registered before the Trial court in S.C.No.104/2009. The Trial court on hearing both side framed the charges against the appellant/accused for the offences punishable under Sections 341, 376, 323, 506 and 417 IPC. Since the accused denied the charges, the trial was conducted. In support of the charges, the prosecution examined PW.1 to PW.12 and got marked Ex.P.1 to Ex.P.10. On examination of the accused under Section 313 Cr.P.C. Then on hearing the parties the appellate court by the impugned judgment convicted and sentenced the appellant/accused as aforesaid 5 Crl.A.No.3529/2011 holding that the sole testimony of PW.6 the victim is corroborated by the medical evidence and that is sufficient to convict the accused.
5. Sri.Shivanand V. Pattanashetti learned counsel for the appellant/accused seeks to assail the impugned judgment and order on the following grounds :-
i) The complainant, the scribe of the complaint, the mahazar witnesses and all other independent witnesses except PW.6 the victim and the Doctor P.W.9 have turned hostile. Such uncorroborated testimony of PW.1 and PW.9 does not entail the conviction of the accused. The Doctor who further examined PW.6 is not examined before the Trial court.
ii) The Investigating Officer who conducted the investigation and filed the charge sheet is not examined. The conviction based on the sole testimony of PW.6 and PW.9 is unsustainable.
iii) No DNA test conducted on the baby allegedly born due to rape.6 Crl.A.No.3529/2011
In support of his contention he relies upon the following judgments -
1. Mirthagai Ali vs State Madras High Court 2007 Crl.L.J 1247;
2. Basavaraj vs State of Karnataka 2015 Cr.R. 274 (Kant.).
6. Per contra Sri.Mallikarjun Sahukar learned High Court Government Pleader seeks to support the impugned judgment, order of conviction and sentence on the following grounds :-
i) Though the other witnesses have turned hostile, PW.6 the victim and PW.9 the Doctor who examined PW.6 have supported the prosecution version. Their evidence has gone un-impeached.
There is no rule to seek corroboration to the evidence of the victim of the rape.
ii) PW.6 has deposed that due to the incident she gave birth to a child and she claimed in the evidence that the father of the child is accused. The said statement is not disputed in her cross- 7 Crl.A.No.3529/2011 examination. Having regard to that there was no need to seek the corroboration or the experts evidence on that.
iii) The accused does not suggest anything to PW.6 to demonstrate that she has any reason to falsely implicate him nor explains the same in his examination under Sections 313 of Cr.P.C.
iv) The victim of the rape stands on a higher pedestal than an injured witness. Therefore her evidence should be given due credence.
v) In support of his contention he relies upon the following judgments:-
1. State of Haryana vs Basti Ram - (2013) 4 Supreme Court Cases 200;
2. Mohd.Iqbal and another vs State of Jharkhand - (2013) 14 Supreme Court Cases 481;
3. State of Punjab vs Gurmit Singh and others - (1996) 2 Supreme Court Cases
384. 8 Crl.A.No.3529/2011
7. Having regard to the rival contentions the point that arises for consideration is ;-
"Whether the charge brought against the accused is proved beyond reasonable doubt and whether the impugned judgment and order of conviction and sentence warrants interference by this court ?"
8. It is true that the complainant the father of the victim girl, the scribe of the complaint, the mahazar witnesses have all turned hostile. The only witnesses who supported the charge are PW.6 the victim, PW.9 the Doctor who examined PW.6 at the first instance, PW.10 who examined the accused about his potentiality to perform a sexual act, PW.11 the Police Officer who registered the case on the basis of complaint of PW.1. It is true that the Investigating Officer who conducted further investigation is not examined and also the Doctor who further examined PW.6 is not examined.
9 Crl.A.No.3529/2011
9. Having regard to these facts the sole question is whether the evidence of PW.6 is corroborated by the evidence of PW.9 and conviction can be recorded on the solitary testimony of PW.6.
10. In Mirthagai Ali's case was relied upon by the learned counsel for the appellant to urge that if the scribe of the complaint turns hostile the evidence of the prosecutrix shall not be relied and accused cannot be convicted. But in the said judgment no such ratio is laid down. As against that in Para No.10 of the judgment it is held as follows :-
"10. As rightly contended by the learned Government Advocate (Crl.Side), the conviction can be passed on the solitary evidence of the prosecutrix if the same is reliable and acceptable. The Hon'ble Supreme Court has held in State of M.P. v. Dayal Sahu reported in 2005 Crl.L.J. 4375 that, Once the statement of prosecutrix inspires confidence and accepted by the Courts as such, conviction can be passed only on the 10 Crl.A.No.3529/2011 solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for Judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Non-examination of doctor and no-production of doctor's report would not be fatal to the prosecution case, if the statement of the prosecutrix and other prosecution witnesses inspire confidence."
(Emphasis supplied)
11. In Basavaraj's Case relied upon by the learned counsel for the appellant based on the evidence in the matter it was held that prosecutrix was a consenting party to the sexual act. Having regard to that it was held that her evidence has to be evaluated with surrounding circumstances to find out whether her evidence is credible and acceptable. In this case the appellant/accused has not taken such 11 Crl.A.No.3529/2011 defence of consent. No such suggestion is made to PW.6. Therefore, the said judgment is not applicable.
12. What value to be attached to the evidence of prosecutrix in rape cases is enunciated in Gurmit Singh's case referred supra which reads as follows :-
"8. The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl. She was a student of Xth Class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony. No fault could also be found with the prosecution version on the ground that the prosecutrix had not raised an alarm while being abducted. The prosecutrix in her statement categorically asserted that as soon as she was pushed inside the car she 12 Crl.A.No.3529/2011 was threatened by the accused to keep quiet and not to raise any alarm, otherwise she would be killed. Under these circumstances to discredit the prosecutrix for not raising an alarm while the car was passing through the bus adda is a travesty of justice. The court over-looked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix ? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. The trial court fell in error for discrediting the testimony of the prosecutrix on that account. In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of 13 Crl.A.No.3529/2011 reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. The prosecution has explained that as soon as Trilok Singh PW6, father of the prosecutrix came to know from his wife, PW7 about the incident he went to the village Sarpanch and complained to him. The Sarpanch of the village also got in touch with the Sarpanch of village Pakhowal, where in the tubewell kotha of Ranjit Singh rape was committed, and an effort was made by the panchayats of the two villages to sit together and settle the matter. It was only when the Panchayats failed to provide any relief or render any justice to the prosecutrix, that she and her family decided to report the matter to the police and before doing that naturally the father and mother of the prosecutrix discussed whether or not to lodge a report with the police in view of the repercussions it might have on the reputation and future prospects of the marriage etc. of their daughter. Trilok Singh PW6 truthfully admitted that he entered into consultation with his wife as to whether to lodge a report or not and the 14 Crl.A.No.3529/2011 trial court appears to have misunderstood the reasons and justification for the consultation between Trilok Singh and his wife when it found that the said circumstance had rendered the version of the prosecutrix doubtful. Her statement about the manner in which she was abducted and again left near the school in the early hours of next morning has a ring of truth. It appears that the trial court searched for contradictions and variations in the statement of the prosecutrix microscopically, so as to disbelieve her version. The observations of the trial court that the story of the prosecutrix that she was left near the examination centre next morning at about 6 a.m. was "not believable" as "the accused would be the last persons to extend sympathy to the prosecutrix" are not at all intelligible. The accused were not showing "any sympathy" to the prosecutrix while driving her at 6.00 a.m. next morning to the place from where she had been abducted but on the other hand were removing her from the kotha of Ranjit Singh and leaving her near the examination center so as to avoid being detected. The criticism by the trial court of the evidence of the prosecutrix as to why she did not complain to the lady teachers or to other girl students when she appeared for the examination at the centre and waited till she went 15 Crl.A.No.3529/2011 home and narrated the occurrence to her mother is unjustified. The conduct of the prosecutrix in this regard appears to us to be most natural. The trial court over-looked that a girl, in a tradition-bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy. Therefore her informing to her mother only on return to the parental house and no one else at the examination center prior thereto is an accord with the natural human conduct of a female. The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting 16 Crl.A.No.3529/2011 woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The 17 Crl.A.No.3529/2011 Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, 18 Crl.A.No.3529/2011 treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. In State of Maharashtra Vs. Chandraprakash Kewalchand Jain (1990 (1) SCC
550) Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words: (SCC p.559, para 16) "A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars.
She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured 19 Crl.A.No.3529/2011 complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecurtix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction of her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely 20 Crl.A.No.3529/2011 involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw 21 Crl.A.No.3529/2011 out an otherwise reliable prosecution case. If evidence of the prosecutrix inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
(Emphasis supplied)
13. Further in Basti Ram's case the Hon'ble Supreme Court in Para No.25 has held as follows :-
"25. The law on the issue whether a conviction can be based entirely on the statement of a rape victim has been settled by this Court in several decisions. A detailed discussion on this subject is to be found in Vijay v. State of M.P. in (2010) 8 SCC
191. After discussing the entire case law, this Court concluded in para 14 of the Report as follows :22 Crl.A.No.3529/2011
"14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix." "
(Emphasis supplied)
14. The same view is reiterated in Mohd.Iqbal's case referred supra, Paras 17 to 19 of the said judgment reads as follows :-
"17. There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses.
18. In Narender Kumar v. State (NCT of Delhi) - (2012) 7 SCC 171, this Court has observed that even if a woman is of easy virtues or used to sexual intercourse, it cannot be a licence for any person to commit rape and it further held (SCC p.
180, paras 30-31) "30. .....conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case 23 Crl.A.No.3529/2011 the court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected.
31. The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case and not in the isolation. Even if the prosecutrix is of easy virtus/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of." (See also Vijay v. State of M.P.) - (2010) 8 SCC 191;
19. In the statement of the appellant-accused under Section 313 CrPc, only a bald statement had been made by both the appellant-accused that they were innocent. No explanation had been furnished by either of them as to why the prosecutrix had deposed against them and involved them in such a heinous crime."
(Emphasis supplied) 24 Crl.A.No.3529/2011 In view of these judgments of the Supreme Court the contention that the evidence of prosecutrix requires corroboration and if the witnesses have turned hostile her evidence cannot be accepted, lacks merit.
15. In this case PW.6 in her evidence deposed that when she was returning from the school on her bicycle the accused dragged her into the Ekra gross of the side by field despite her protest and committed rape on her. She further stated that the accused threatened to eliminate her and her parents if the incident is revealed to anybody.
16. At the time of giving evidence she has stated her age to be 18 years. PW.6 has deposed that due to the incident she begot a baby girl aged one year and the father of the child is the accused. In the cross-examination of this witness she begetting the child not at all questioned. She is unmarried girl. That 25 Crl.A.No.3529/2011 fact is also not disputed. No alternate theory of paternity of child is suggested to the victim.
17. It is not even suggested that PW.6 is a girl of easy virtue. The accused and victim were known to each other prior to the incident is also not disputed. Contrary to that it is suggested to PW.6 that there was documentation of monitory transaction and her signature was taken on stamp paper, which she denied. The trial court notices all these suggestions and held that the complainant PW.1 is tampered on monitory terms. The trial court further held that the evidence of PW.6 has gone un-impeached and it can be relied upon.
18. PW.9 who was the Causality Medical Officer in Raichur Institution of Medical Science states that on 06.04.2009 she examined PW.6 and referred her to Gynecologist Dr.Isharath Siddiqui and she examined the victim and gave the report. She further states that 26 Crl.A.No.3529/2011 as per the said report at the time of examination PW.6 was five months pregnant. She says so based on the provisional report Ex.P.8. In the cross-examination of this witness the contents of Ex.P.8 or Dr.Ishrath Siddiqui and this witness working in Government Hospital, Raichur are not disputed.
19. In Ex.P.8 it is stated that the victim reported into hospital with the history of rape and on examination she was found pregnant of five months approximately. Nothing is elicited to show that the culprit of PW.6 is somebody else and PW.8 has any reason to shield that person and falsely implicate the appellant/accused.
20. So far as the contention regarding the delay in filing the complaint PW.6 was hardly 18 years old at the time of incident. It is said that accused had threatened her of her life if she reveals the incident to anybody. The evidence of PW6 shows that due to such 27 Crl.A.No.3529/2011 reason she was not able to reveal the incident until she was subjected medical examination on noticing some physical impact on her.
21. The accused in his statement under Section 313 of Cr.P.C does not whisper anything against the victim for false implication. His defence in the cross-examination of PW.6 is total denial. PW.6 as already pointed out was a tender aged girl and it becomes hard to believe that she implicates the accused falsely sparing the true culprit if any other than the appellant.
22. Having regard to these facts and the judgments of the Supreme Court referred to supra i.e., in Gurumit Singh's case, Basti Ram's case and Mohd. Iqbal's case, this court does not find any error in Trial court relying on the solitary evidence of PW.6 and medical evidence for convicting the 28 Crl.A.No.3529/2011 appellant/accused. There are no grounds to interfere with the judgment of the trial court.
23. Learned counsel for the appellant/accused seeks for reduction of the sentence on the ground that the accused is young and has wife and children. The punishment prescribed for the offence under Section 376 of IPC as on the date of the offence was imprisonment for not less than seven years which may extend to imprisonment for life. Even before 2013 amendment to Indian Penal Code, to reduce the sentence to less than seven years, the courts were required record special reasons. In this case no such special reasons are found to reduce the sentence.
24. As held by the Hon'ble Supreme Court the offence of rape is not an offence against any individual but it is an offence against the society. In this case tender aged girl is saddled with burden of bringing up a child due to the acts of the accused and accused had 29 Crl.A.No.3529/2011 no remorse for his acts. Therefore, prayer for reduction of sentence is also untenable. Therefore appeal dismissed.
Sd/-
JUDGE sn