IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 PRESENT THE HON’BLE MR. JUSTICE K.N. PHANEENDRA AND THE HON’BLE MR. JUSTICE K. NATARAJAN CRIMINAL APPEAL NO.1780 OF 2018 BETWEEN:
C. ARMUGAM S/O. CHINNATHAMBI, AGED ABOUT 45 YEARS, RESIDENT OF II CROSS, THAYAPPA GARDEN, BILEKAHALLI, DC HALLI MAIN ROAD, BENGALURU.
AND:
(BY SRI N.R. KRISHNAPPA, ADVOCATE) THE STATE BY MICO LAYOUT POLICE, BANGALORE, REPRESENTED BY S.P.P., HIGH COURT BUILDING, HIGH COURT, BANGALORE.
... APPELLANT ... RESPONDENT (BY SRI VIJAYAKUMAR B. MAJAGE, ADDITIONAL S.P.P.) * * * THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 21.10.2016 PASSED BY THE L ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, IN SPECIAL C.C. No.266/2014 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376 AND 506 OF THE IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 29.01.2019 COMING ON FOR PRONOUNCEMENT, THIS DAY, K. NATARAJAN J., PRONOUNCED THE FOLLOWING:-
J U D G M E N T The appellant was sole accused in Special Criminal Case No.266/2014 on the file of the L Additional City Civil and Sessions Judge, Bengaluru, wherein the appellant/accused was convicted for the offences punishable under Sections 376 and 506 of the IPC and sentenced to undergo imprisonment for life for the offence punishable under Section 376 of the IPC and to pay a fine of Rs.5,000/-, in default of payment of fine, he shall further undergo simple imprisonment for a period of three months and also sentenced to undergo one year for the offence punishable under Section 506 of the IPC vide judgment dated 21.10.2016. Being aggrieved by the same, the appellant has filed this appeal by questioning the validity of the judgment of the trial Court on various grounds.
2. We have heard the learned counsel for the appellant and the learned Additional State Public Prosecutor for the State.
3. Before adverting to the grounds urged by the learned counsel for the appellant, it is worth to mention the brief facts of the prosecution case;
4. PW.1-Sudha, who is the wife of the accused, filed the report before the Mico Layout Police Station on 09.02.2011 alleging that she is working in export garments at Bengaluru, she is having a daughter, by name, Shilpa, aged about 14 years (hereinafter referred to as ‘the victim’) and a son, by name, Karthik, aged about 7 years. Previously, she had married to one Anthony Perera and said Anthony Perera deserted her in the year 1998. Out of her marriage with Anthony Perera, a daughter-victim was born. In the year 2002, she re-married the accused, who was working as Painter with her elder brother. Her daughter-victim is studying in 9th Standard at Dyana English Medium High School. In January - 2011, her daughter started vomiting, hence, she took her to a gents Doctor and obtained treatment, the vomiting was stopped. There was no mensus for two months and due to suspicion, she had a doubt and took her daughter to the Gayathri Clinic on 09.02.2011 at 10:00 a.m., they asked to take urine check up and scanning, at that time, it was found the victim was pregnant of 15 weeks and on enquiry, the victim told that when she went to Lakkavalli, Shivamogga District, to her uncle’s house in November, 2010 when she was sleeping in the room, her father- accused closed her face tightly with bed-sheet and committed rape on her and threatened her not to inform anybody, otherwise he will kill both the victim and the complainant. Therefore, she has filed the complaint and requested the Police to take action against the accused.
5. Based upon the complaint, the Police registered the case in Crime No.68/2011 for the offence under Sections 376 and 506 of the IPC. On the same day, the Police arrested the accused. The accused was subjected to the medical examination and then, he was remanded to the judicial custody and it appears that from 10.2.2011, he is in jail. The Investigating Officer investigated the matter and during the investigation, on the information of the victim, he came to know the incident was occurred at Kundur which comes under Lakkavalli limits at Chikkamagalur District and he has transferred the case to the Tarikere Police and after taking up of the investigation, the Tarikere Police came to know, there was no incident occurred at Tarikere Police limits and again re-transferred the case to the Mico Layout Police Station and again the Mico Layout Police further investigated the case and filed the charge- sheet.
6. After receipt of the committal records, the trial Court secured the presence of the accused. The charges were framed, the accused denied the charges and pleaded not guilty and hence, he was put on trial. The prosecution to prove its case in all examined 20 witnesses as PWs.1 to 20 and got marked 14 documents as per Exs.P1 to 14. After closure of evidence on prosecution side, the statement of the accused under Section 313 of Cr.P.C. has been recorded. When the incriminating evidence were read out to him, the case of the accused was one of total denial, but not entered into any defence. However, on behalf of the accused, the Ex.D1 has been marked. After hearing the arguments of the Public Prosecutor and the learned counsel for the accused, the trial Court found the accused guilty and convicted and sentenced him, as stated supra.
7. The learned counsel for the appellant argued that there is a contradiction in the evidence of the PWs.1 and 2 in respect of the place of occurrence. As per the evidence of PW.1- the complainant, the offence was committed at Lakkavalli and as per the evidence of PW.2-the victim, the offence was committed at Kundur which is coming under the Shivamogga District and both of them also stated that the offence was committed at Thayappa Garden, Bilekahalli, Bengaluru. There is no consistency in the evidence of the witnesses in respect of the place of occurrence. Previously, the case was transferred by the Mico Layout Police to the Tarikere Police and after the investigation, the Tarikere Police stated that there was no offence committed at Tarikere Police limits. Hence, they re-transferred the file to the Mico Layout Police. Therefore, he has contended that the place of occurrence was not proved by the prosecution beyond reasonable doubt. He also contended that, the age of the victim was more than 20 years and the houses of uncle and grandparents of the PW.2 were by the side of the house of PW.1. Some persons coming to the house of the complainant, there is every possibility of committing offence by some other persons are not ruled out. He also contended that the marriage of PW.1 with the accused was not proved. The evidence of brother and sister-in-law of the accused clearly goes to show that the accused not at all attended the marriage of daughter of his elder brother along with the victim and even otherwise, as per their evidence, they all slept together in a hall, the question of committing rape is impossible. Therefore, it is contended that the judgment of the trial Court is liable to set aside.
8. Per contra, the learned Additional State Public Prosecutor strenuously argued that PW.1 married the accused and they lived together at Bengaluru in Thayappa Garden. Out of their marriage, a son, by name, Karthik was born. Prior to their marriage, PW.1 married to one Anthony Perera and the victim was born to them and the said Anthony Perera deserted the complainant. At that time, the age of the victim was 2 years. The accused came in contact with PW.1, when he was working as Painter with her elder brother and PW.2-victim treated the accused as her father and used to call as father and both the victim and the accused had been to his brother’s house and while sleeping in the night hours, the accused committed rape on the victim and threatened to kill her and her mother, if she discloses the same to her mother. It is also contended that after coming back to Bengaluru, the accused taking advantage of loneliness of the victim in the house, when PW.1 went to attend her job, the accused used to send his son, Karthik, to the tuition and committed rape on the victim almost 5 to 6 times. Due to which, the victim became pregnant. After lodging of the complaint, the victim subjected to the medical examination by the Doctors and later, the pregnancy was terminated in M.S. Ramaiah Hospital. The foetus was collected and sent to DNA test along with the blood sample of the accused which was proved that the accused was the biological father of the foetus. Therefore, the prosecution was successful in proving the accused had committed rape on victim due to which the victim became pregnant. Thereby, the prosecution successfully proved the case against the accused. Though there may be some discrepancies in the evidence of the prosecution witnesses, but the fact remains that the victim became pregnant because of the rape committed by the accused. Therefore, it is contended that there is no illegality in the judgment of the trial Court in convicting the accused and hence, prayed for dismissing the appeal.
9. After hearing the arguments of the learned counsel on both side, this Court is required to re-evaluate the evidence of the prosecution on record which is hereunder;
9.1. PW.1-Sudha, the complainant, has deposed that she was working in a garments factory at Hulimavu, having two children, namely Shilpa-daughter and Karthik-son. In 1995, she first married to one Anthony Perera. Out of the said marriage, the victim was born. She lived with the said Anthony Perera till 1998 and due to some misunderstanding; the said Anthony Perera deserted her. At that time, the age of daughter-victim was around 2 years. After her husband left her company, she was residing with her mother at Bilekahalli and during the year 2000, she came in acquaintance with the accused, who was working as a Painter with her elder brother, and in 2002, she married the accused and out of her marriage with the accused, her son, Karthik, was born. Both her children i.e. the victim and her son were looked after by herself and the accused. The accused also treated the victim as his daughter and he was taking care of both the children, used to feed them, send them to the School and looking after other activities. Both herself and the accused used to share the responsibilities of both the children. It is further alleged that, her daughter-victim attain the puberty in the year 2009. After she attained the puberty, the accused came very close with her daughter. The victim used to tell her mother that her father- accused is not good and she was always afraid of him. The complainant further alleges that her daughter was attending tuition in the evening and accused did not allow her to attend the tuition classes and sending only the son to the tuition class. The accused used to drop her daughter to the School and pick her back everyday. The accused was coming to the house by 4:00 p.m. and he was always around the victim and he did not allow the victim to talk with the complainant. The victim sometimes used to weep and sometime silent. On enquiry, the victim used to tell that she had no belief on her, but believe pappa-the accused more. It is also alleged that the accused used to drink alcohol in the house and ask the victim to apply Moov (pain killer ointment) and also to rub his back while taking bath and the accused was not allowing PW.1 to do those things and insisted the daughter-victim to do those things. She further deposes that, when she was working in the kitchen, the victim used to shout and when she questioned the victim, she did not tell her the reason and accused used to tell her, he has touched her and she used to scold her daughter for such shouting stating that accused is her father. At that time, her daughter used to tell that she does not believe the accused and requested to send her to uncle’s house.
9.1(a) PW.1 further deposes that in January 2011, her daughter was vomiting and she did not get her periods for two months. There was a school function on 08.01.2011, at that time, she also accompanied her with the accused and her daughter was very tired asking her to take to the Doctor, she took her daughter to the Anand Clinic, he gave some tablet to the victim, vomiting was stopped for 3 to 4 days and again vomiting was started. Therefore, she thought there is some problem in victim, hence, she took the victim-daughter to Gayathri Clinic and explained the symptoms and the Doctor advised to take urine test, then she had colleted the urine and gave it to the Clinic and after the test, the Doctor informed that her daughter is pregnant, then they advised to go for scanning. Accordingly, by 9th or 10th January 2011 she took her daughter to the Prashanth Nursing Home where the pregnancy was confirmed. Then, she telephoned and informed to the accused, at that time, the accused admitted that he was the cause for the pregnancy and requested her not to inform her brother or mother and he advised to terminate the pregnancy. After taking the scan report and enquired with her daughter about the pregnancy, at that time, her daughter told that she cannot become pregnant as she is not yet married. Then she explained to the daughter about getting pregnancy by somebody misbehaved with her. At that time, her daughter started weeping and told that the accused has misbehaved and made her pregnant and also stated that the accused threatened to kill both, i.e. herself (victim) and her mother, if she reveals the same to anybody. She further deposed that her daughter also told that the accused was in drunken condition and committed rape on her in Lakkavalli for the first time. When she questioned the accused over telephone, he has admitted that he committed rape when he was not in sense due to drinks, thereafter, she went to the Police Station along with her daughter and lodged complaint as per Ex.P1. Then Police arrested the accused on the same day. They visited the house, referred the victim to the Sanjay Gandhi Hospital. Thereafter, they have been sent to Women and Child Welfare Department situated near NIMHANS Hospital.
Her daughter got admitted in the hospital for counseling. During counseling, her daughter informed that she was raped in the house at Bilekahalli, but not at Lakkavalli and also told that the accused covered her face and forcefully committed rape. Thereafter, she has been sent to M.S. Ramaiah Hospital, where the victim got admitted and aborted. They stored the foetus. The Police also recorded the statement and she also produced and identified the ration card to show the accused name was mentioned in the ration card, voter ID card of the accused, SSLC marks card of the victim in which the name of the accused is shown as father of the victim.
9.2. PW.2-Shilpa is very important witness and victim of this case. Her age is 16 years at the time of recording evidence. The trial Court, after considering the demeanor of the witness recorded the evidence.
PW.2 deposed that PW.1 is her mother, the accused is her father. They were residing at Thayappa Garden. When she was studying in 9th Standard at Dyana English Medium High School, in February 2011, her brother was studying in 2nd Standard, her mother was working in a garments factory, the offence was committed by the accused. From her childhood, she was nourished by her mother, grandmother and the accused. She further deposed that in her childhood, the accused used to assault her and did not take anywhere outside and he was always scolding her till she completed 8th standard and while studying in 8th standard, she attained puberty. Thereafter, the behaviour of the accused was changed, he became very friendly and close to her. He used to touch her body where he was not required to touch and he used to speak with ugly words, he was touching her chest and private part, this was continued for 3 to 4 months. In spite of objection and protest, he was doing the same by holding her tightly. She further deposed that herself, her brother went to Lakkavalli along with the accused to her senior uncle’s house (elder brother of the accused) the accused consumed alcohal and slept beside her at 12 midnight. She got up and went to sleep to other side, again the accused came towards her and slept beside, he covered her face tightly with bed-sheet, she was unable to breath and suffocated and the accused removed her skirt, held her tightly not allowed her to struggle and removed his lungi and slept on her and inserted his private part in her private part and after 5 minutes, he got up and thereafter, removed the bed sheet tied on her face. Later, she got stomach pain and she was tired and next day morning, the accused, herself and her brother returned to Bengaluru.
9.2(a) She further deposes that after returning to Bengaluru, she was intending to inform the incident to her mother, but the accused did not allow her to do so. He also told that if she discloses the incident to her mother, he will kill her and her mother and also he will kill himself. Thereafter, the accused was always calling her and used to come and sleep beside her in spite of her protest and he had committed rape on her for almost 5 to 6 times.
9.2(b) She further deposes that in January 2011, she started vomiting and her mother took her to Anand Clinic, where the Doctor checked up and gave the medicine. The vomit was controlled for a week, but later again it started. Her mother took her to a lady Doctor at Gayathri Clinic and she was advised to go for urine test and urine test was done, then she came to know that she was pregnant. Then her mother took her to Vivekananda Hospital for scanning, where the pregnancy was confirmed as she was 3 months pregnant. Thereafter, her mother enquired her how she became pregnant and she has informed that she was not aware that one can be pregnant under intercourse and she was under the impression that one can be pregnant only after the marriage and also informed to her mother that the accused was done this to her and made her pregnant. Then her mother called the accused immediately, but the accused told he was very busy and unable to come to the house immediately. Later, her mother took her and also accused to the Police Station and lodged the complaint. She also stated that she was missed her mensus for two months and came to know about the pregnancy. She further deposed that on the next day, the Police sent her to Sanjay Gandhi hospital and also she was referred to NIMHANS Hospital. She has undergone counseling for 15 days and she has informed the entire incident to the Counselor. Thereafter, she was sent to M.S. Ramaiah Hospital where the abortion was done. Then again came back to NIMHANS Hospital. She also identified Ex.P2 is the spot panchanama conducted by the Police. Though this witness treated hostile by the prosecutor in respect of preparing spot panchanama in the house of the complainant as she has stated that she has signed the panchanama in the Police Station, but in the cross- examination of the learned Public Prosecutor, she has admitted that she herself shown the spot where the accused raped her in the house. She further admitted that the accused threatened her that, he will kill her and her mother by removing the gas pipe of the cylinder, if she discloses the incident to her mother. The evidence of PWs.1 and 2 will be discussed in the later part of the judgment.
9.3 PW.3-Hemanth, who is nephew of PW.1, deposed that he was called to the Police Station. They obtained signature on Ex.P2 i.e., on the spot mahazar and though this witness is treated as hostile, but this witness admitted on 02.04.2011 that the Police took him to the house of PW.1 at Thayappa Garden, PW.2 also present, the Police prepared the spot panchanama on the spot, PW.2 shown the place in the house, where the accused has committed rape on her. So far as this witness is concerned is a pancha witness to the spot which was conducted by the Police in the house of PW.1. Though this witness is related witness to PW.1 and the place of occurrence also disputed by the accused in the cross-examination, therefore, the place of occurrence will be discussed in the later part of the judgment.
9.4 PW.4-Hamsaveni, who is the sister-in-law of the accused i.e. wife of the elder brother of the accused, deposes that she knows the accused and PW.2 and she is residing at Lakkavalli, Bhadravati Taluk. The accused and his son Karthik attended his daughter’s marriage held at Lakkavalli, but PW.2 did not come with them. However, this witness says the accused and PW.2 came to her house during Christmas holidays and stayed for 3 days and returned to Bengaluru. Later, she came to know, the accused committed rape on PW.2. She also stated during the stay in her house for 3 days, they all slept together. She also gave the statement before the Police.
9.5 PW.5-Dr. Pradeep Kumar M.P, Assistant Professor, Forensic Department in Bangalore Medical College, Bangalore, deposed on 10.02.2011 that when he was on duty, the Police produced the accused-
Armugam before him for medical examination. He has examined the accused and gave Certificate as per Ex.P8 pointing that the accused is capable to perform the sexual intercourse. Then on 18.04.2011, at the request of the Police, as per the direction of the Court, he has drawn sample blood of the accused and the victim and handed over the same to the Police. He also identified the accused before the Court. In the cross-examination, the learned counsel for the accused suggested that the accused is an Eunuch and he gave false certificate. But the learned counsel has nowhere taken such defence that the accused is an Eunuch in any of the witnesses, even including the Investigating Officer. That apart, the accused married PW.1 and out of the wedlock, a son, Karthik, was born. Such being the case, suggestion made by the learned counsel cannot be acceptable and as per the evidence of this witness, the accused is capable of performing sexual intercourse and drawn sample blood of the accused and the victim for DNA Test.
9.6 PW.6-Dr.Jayamma, Senior Specialist at Jayanagar General Hospital, Bangalore, deposed that, on 10.02.2011, she has examined the victim as per requisition of the Mico Layout Police. On examination, the victim’s general condition was good and she has examined her clinically, no abnormal detected. She further deposed, uterus found enlarged to about 12 – 14 weeks pregnant size. On vaginal examination, it admits two fingers easily. Ultrasound scan was done and accordingly, she gave report as per Ex.P9. Further, this witness recalled and examined the MLC register of the said hospital also produced and marked as Ex.P11. The copy of the scan report is marked as Ex.P10. In the cross-examination, nothing has been elicited to disprove the evidence of this witness, who examined the victim and confirmed the pregnancy of the victim.
9.7 PW.7-Sri Pachchappa, elder brother of the accused, deposed that he is residing at Kundur which is abutting to Lakkavalli, Bhadravathi Taluk. He has celebrated the marriage of his daughter Manjula in the year 2010. The accused along with his wife and his son Karthik attended the marriage, stayed for 3 days and returned. After two months of the marriage of his daughter, again the accused came to his house along with his children i.e., the victim and Karthik during Christmas holidays, they stayed for 3 days and returned back. This witness also deposed later he came to know through PW.1 that the accused raped his daughter. During the cross-examination, it was suggested during the stay in his house, the accused treated the victim as his daughter and this witness admits that he did not suspect anything wrong between the victim and the accused.
9.8 PW.8-Prakash, who is the elder brother of PW.1, deposed that previously his sister Sudha was married to one Antony Perera around 1994. They lived together for 5 to 6 years. PW.2 was born out of the said wedlock. Subsequently, the said Antony Perera deserted his sister. Then both PWs.1 and 2 started living in his house and PW.1 was working in the garments factory. At that time, the age of the victim was 4 to 5 years and the accused was working as a Painter with him and later, the accused gave up the painting job and started working as a Cleaner in the travel agency. While working as a Painter with him, the accused used to visit his house, at that time, the accused came in contact with his sister. Thereafter, he celebrated the marriage of the accused with his sister-
PW.1 in Annamma Temple, Bengaluru. Thereafter, the accused started residing in the house at Bilekahalli along with PW.1 and PW.2. Out of the wedlock between PW.1 and the accused, a son was born, by name, Karthik. The accused was treated PW.2 as his own daughter. The accused himself used to pick and drop PW.2 to the School. PW.2 was studying in 9th standard and Karthik was studying in 3rd standard. The evidence of this witness shows the marriage of PW.1 with accused held at temple and the accused resided with PWs.1 and 2 in one roof at Bilekahalli.
9.9 PW.9-Izaz Ahmed, who is said to be a care taker of the house situated at Thayappa Garden where PW.1 said to be resided. This witness deposed that a site measuring 100x70ft belongs to his cousin Imtiyaz, who is residing at Chennai and he has authorised to supervise the site and small sheet roofed house measuring 10x15 was put up in one corner of the site. The one Chandru, elder brother of PW.1, was residing from 1996. After his death, PW.1-Sudha, her husband i.e., the accused and their children were residing and he also identified the accused before the Court and stated that the accused was not paying any rent to the house. Thereafter, he came to know that the accused committed rape on the victim and she conceived. During the cross-examination, it was disputed by the learned counsel for the accused stating that, there is no power of attorney to supervise the house and no documents to show that Chandru was residing in the said house and thereafter, PW.1, the accused along with the daughter stayed, but this witness categorically stated that the accused and PWs.1 and 2 were staying in the house without paying any rent. It is also case of PWs.1 and 2 that they are not paying any rent to the owner and put up the shed and residing. Merely, the General Power of Attorney was not given by Imtiyaz, but that itself cannot be the ground to reject the evidence of this witness. Even from the evidence of PWs.1, 2 and PW.8-Prakash (brother of PW.1) go to show that, accused, PWs.1 and 2 and his son were residing in the house at Thayappa Garden in a shed.
9.10 PW.10-Vasanthi, Superintendent, working in the Department of Women and Child Welfare, deposed that on 11.02.2011, the Child Welfare Committee referred the minor girl to their centre with a direction to get counseling and getting treatment from NIMHANS, Adolescent Child Psychiatry Wing. Accordingly, they got admitted the girl for the short stay at NIMHANS. On the next day i.e., 12.02.2011, Dr. Preethi, Child Psychiatrist, told over the phone that the girl was shifted to M.S. Ramaiah Hospital for further treatment and the girl was sent to M.S.Ramaiah hospital by Ambulance. The medical termination of pregnancy was done in M.S. Ramaiah Hospital. The victim was discharged on 16.02.2011 and came back to the NIMHANS hospital. Again, she was admitted and counseling was done. Then they discharged the victim from NIMHANS hospital on 22.02.2011. There is no much cross-examination in this witness, except denial. From the evidence of this witness, the prosecution was able to show that the victim was admitted to NIMHANS Hospital prior to the termination of the pregnancy and from NIMHANS Hospital, she has been sent to M.S. Ramaiah Hospital and after the medical termination of pregnancy, the victim again got admitted to NIMHANS Hospital and counseling has been done.
9.11 PW.11-Pushpa, who is the friend of PW.1 also deposed that on 02.04.2011 at about 10:00 a.m., when she was in the house of PW.1, Mico Layout Police came and conducted the spot mahazar as per Ex.P2 and she also signed on the same. She also deposes that the victim pointed out the place of the offence to the Police. During the cross-examination, the learned counsel for the accused disputed the place of occurrence. However, the evidence of this witness will be discussed little later, while discussing the place of occurrence.
9.12 PW.12-Dr.Shekar deposed that when he was working as a Psychiatrist at NIMHANS hospital, the victim has been sent to the NIMHANS Hospital and he has treated the victim from 10.02.2011 to 22.02.2011. He has enquired the victim, where the victim said to have informed that her foster father sexually assaulted her and after confirming the pregnancy, the same has been aborted at M.S. Ramaiah Hospital. Again the victim came and admitted in their hospital, he found that the victim was depressed. After counseling, he has discharged her and sent the report as per Ex.P12. He also sent another report Ex.P13 to the Police Station. He also deposed that, while doing medical termination of pregnancy, they obtained the consent of the mother and the victim as per Exs.P14 and 15. There is no cross-examination in this aspect. Thereby, the prosecution able to show that the victim was admitted in the NIMHANS Hospital and counseling was done and this witness referred the victim to M.S. Ramaiah Hospital for abortion and after counseling, he discharged her and gave report to the Higher Officer and to the Police.
9.13 PW.13-Dharmalingam, Head Constable attached to Mico Layout Police Station, has deposed that on 19.04.2011, he went to M.S. Ramaiah Hospital took the foetus and produced before the Investigating Officer and gave report as per Ex.P16. The learned counsel for the accused has not chosen to cross- examine this witness.
9.14 PW.14-Shwetha, Women Police Constable, deposed that on 21.04.2011 on the direction of the Investigating Officer, she went to M.S. Ramaiah Hospital and obtained the blood samples of the accused as well as victim for the purpose of DNA test and submitted the same to the FSL, Madiwala, for DNA test and filed report as per Ex.P17. This witness also not cross-examined by the learned counsel for the accused.
9.15 PW.15-Krishnaiah K., Head Constable attached to the Mico Layout Police Station, deposed that on 11.02.2011 on the direction of the Police Sub- Inspector, he went to Kundur, which comes under Lakkavalli limits at Chickmagalur District, contacted Pachchappa and went to his house, he prepared the panchanama and a sketch and identified the same as per Exs.P19 and 20 respectively. The evidence of this witness is also not chosen to cross- examine by the learned counsel for the accused.
9.16 PW.16-Yogesh, Sub-Inspector of Police, Lakkavalli Police Station, Chickmagalur District, deposed that when he was working as Sub-Inspector of Police in Lakkavalli Police Station, on 26.02.2011, on the basis of the incident occurred at Lakkavalli limits, they transferred the case file of this case to him. After receiving the same, he registered a case in Crime No. 12/2011 and issued the FIR. Thereafter, he has handed over the case to the Circle Inspector of Police and he has identified Ex.P21 is the FIR. This witness has also not cross-examined by the learned counsel for the accused.
9.17 The learned counsel for the appellant contended that during the course of arguments, the Advocate, who appeared in the trial Court remained absent and not chosen to cross-examine PWs.13 to 16. Therefore, he has requested to set aside the judgment of conviction and to remand the matter back to the trial Court to give an opportunity for the purpose of cross- examination to decide the case afresh.
9.18 On the other hand, the learned Additional State Public Prosecutor contended that PWs.13 to 16 are formal witnesses, where PW.13 gave the report as per Ex.P16 by receiving the foetus from M.S. Ramaiah Hospital. PW.14, who is the Women Police Constable, who obtained the blood samples of the accused and the victim from the hospital and she took the same along with the foetus to Madiwala FSL and handed over the same for DNA test. PW.15 is another Head Constable, who went to Lakkavalli Police Station limits, prepared the spot panchanama and PW.16 is the Sub-Inspector of Police, who received the case file from Mice Layout Police Station and he has handed over the investigation to the Circle Inspector of Police. Therefore, it is contended that these witnesses are only formal in nature. Therefore, the matter is not required to be remanded to the trial Court.
9.19 Upon hearing the learned counsel and on perusal of the evidence of these witnesses, PW.13-Head Constable, who went to M.S. Ramaiah Hospital, just received the tube containing foetus, after the medical termination of pregnancy of the victim. He has not stated anything about the victim or offence committed by the accused. He just received the parcel handed over by the Doctor. Therefore, this witness is the formal in nature. Likewise, PW.14-Women Police Constable also received the blood samples of the accused and the victim, which was already collected by the Doctor and went to the FSL and handed over the same for DNA test. The blood sample of the accused, the victim and the foetus were examined by the Scientific Officer, who has been cross-examined by the learned counsel for the accused. Therefore, we hold these two witnesses are formal in nature and non cross-examination of these witnesses would not prejudice the case of the accused in any manner.
9.20 PW.15-Head Constable who visited the spot at Lakkavalli and prepared the sketch and PW.16-Sub- Inspector of Police, who received the case file from the Mico Layout Police Station. On transfer, he has registered a case and later, he handed over the papers to the Circle Inspector of Police, who gave report that no offence was committed at Lakkavalli and re-transferred the case to Mico Layout Police Station. Such being the case, the evidence of these two witnesses also do not play any important role, which is also formal in nature. Therefore, merely PWs.13 to 16 are not cross-examined by the learned counsel for the accused, but no prejudice would be caused to the case of the accused and the matter need not be remanded back for giving opportunity to cross-examine these witnesses.
9.21 PW.17, Dr. Shakila Shetty deposes that she is working in M.S.Ramaiah Hospital. When the victim came to the hospital, she was pregnant of 4 months, but not married and at the request, she has terminated the pregnancy and gave report as per Ex.P22. In the cross-examination, this witness has also mentioned the reason for the termination of pregnancy. Though the learned counsel for accused got admitted regarding not obtaining signature of PW.2 on Ex.P22 and reason for termination of pregnancy, but the evidence of this witness in respect of terminating the pregnancy of the victim was not seriously disputed and not at all denied. On the other hand, the prosecution establishes from the evidence of this witness, PW.2 and her mother accompanied for medical termination of pregnancy and gave report to the Police.
9.22 PW.18-R.B. Maledavara, who was working as Circle Inspector of Police at Lakkavalli Tarikere Circle, deposes that, on 26.02.2011, he took up further investigation of this case from PW.16 Yogesh, Sub- Inspector of Police. He visited Kundur Village, no person was residing in the said house and he came to know that PW.2 was studying in Dyana School, Bengaluru, and he obtained the Study Certificate of the victim and also sent request to the garments factory in respect of PW.1. PW.2 has continuously attended the class regularly and PW.1 attended the duty regularly. Thereafter, on 12.03.2011, he had visited the Bengaluru, met the victim, recorded victim’s as well as her mother’s statement and he came to know that the offence was committed at Bengaluru and not at Kundur. Therefore, again he has re-transferred the file for further investigation to Mico Layout Police Station. There is no much cross-examination of the witness by the learned counsel for the accused.
9.23 PW.19-H.S.Parmeshwar, Circle Inspector of Police, who has investigated the case and filed charge- sheet against the accused.
9.24 PW.20-Dr. Vinod Janardhan Lakkappa, Scientific Officer and Assistant Director of FSL, DNA Centre, deposed that on 21.04.2011, he has received a request from the Mico Layout Police for the purpose of DNA test. He has found the seals were in tact, one paper packet containing two blood samples in two tubes and it was named that one tube containing blood sample pertaining to the accused and another blood sample pertaining to the victim and another bottle containing the foetus belonging to the victim and he has given the mark on the tubes as P-209A and P-210S and also given mark as P-211B to the foetus. He has subjected all three articles to FSL for DNA test and gave report that the foetus belongs to the human male foetus and the blood samples of the accused and the victim also matches with the foetus and he has stated that the accused was the biological father of the foetus and this witness identifies the original DNA report as per Ex.P26 and in the cross-examination, it was suggested that the blood sample marked as P-209A shows that the accused was not the biological father of the blood sample in P-210S. The blood sample of the accused goes to show that he was not the biological father of the victim girl.
Except this suggestion, nothing has been elicited by the learned counsel for the accused. From the evidence of this witness clearly goes to suggest that the blood sample of the victim clearly reveals the accused was not the biological father of the victim. It is not the case of the prosecution that accused was the biological father of victim, but he was only a foster father, who married the mother of the victim. From this witness, it clearly establishes by the prosecution that the accused was the biological father of the foetus which was removed from the womb of the victim by medical termination of pregnancy in M.S. Ramaiah Hospital.
10. On re-evaluating the entire evidence of record, relied upon by the prosecution goes to show that PW.1- Sudha married the accused at Annamma temple Bengaluru. Prior to her marriage, she was married to one Antony Perera and after giving birth to a daughter, i.e. PW.2, her first husband deserted her. Thereafter, PW.1 along with her daughter PW.2 lived in the house of her brother PW.8-Prakash. The accused was working under PW.8 as a Painter and while visiting the house of PW.8, he came in contact with PW.1 and both of them fell in love. Thereafter, PW.8 himself conducted the marriage of the accused with PW.1. Thereafter, the accused lived with PW.1 along with her daughter at Thayappa Garden, Bengaluru. Out of their marriage, a son was born. Though the accused previously taken the contention that the marriage between himself and PW.1 was not proved by the prosecution, but from the evidence of PW.1, PW.8-Prakash-brother of PW.1, PW.7- Pachchappa-elder brother of the accused and PW.4- Hamsaveni-sister-in-law of the accused have clearly stated that PW.1 is the wife of the accused. Therefore, the prosecution has established that the accused married PW.1 and at the time of marriage, PW.2 who was aged 3 to 4 years was present. PW.2, the victim girl categorically stated that the accused is her father. The evidence of PW.9-Izaz Ahmed goes to show that the accused and PW.1 lived along with their children in site No.2 at Thayappa Garden belonging to Imtiyaz. From the evidence of this witness, it is seen that the accused was not paying the rent and prior to that, the brother of PW.1 along with his mother stayed there and after the death of the father, PW.1 was staying with the accused. From the evidence of PWs.1 and 2, it is clear that the accused himself was dropping both the children to the School in the morning and picking up them in the evening. PW.1 was working in the garments factory and used to go to garments factory in the morning and come to the house by 8 or 9 p.m. The evidence of PWs.1 and 2 clearly go to show the accused was earlier hesitating to speak to PW.2 and never took her to any place, but when PW.2 attained puberty, when she was studying in 8th standard, the accused came in close contact with PW.2 and he was taking much care of her. However, PW.2 was telling that her father is not good and she wants to go out. Even from the evidence of PWs.1 and 2, it was established that when PW.1 was cooking in the kitchen, the accused used to misbehave with PW.2 by touching her body and private parts and PW.2 used to shout and when PW.1 questioned the same, PW.2 did not reveal, but she used to tell that her father is not good. It is also established that PW.2 and her brother- Karthik used to go to a private tuition class in the evening, but the accused was not sending PW.2 to tuition class and was sending only Karthik and PW.2 was alone in the home, during that time, the accused used to misbehave with PW.2. Thereby, the prosecution established that the accused after marrying PW.1 resided with PWs.1 ant 2 and after the son was born, all of them were residing in Thayappa Garden in a shed constructed therein.
11. The evidence of PWs.1 and 2 go to show that in June 2011, when PW.1 along with PW.2 and the accused went to attend School function, PW.2 vomited and she was taken to the hospital. After obtaining some medicine, vomiting was stopped. After 4 to 5 days, again she started to vomit and PW.1 took PW.2 to Gayathri Clinic, where it was revealed that there was no mensus for the last two months. Therefore, urine test was done and it was confirmed that PW.2 was pregnant. Thereafter, she was taken to scanning centre and further confirmed the pregnancy of PW.2. Thereafter, PW.1 enquired with PW.2 as to how she became pregnant. At that time, PW.2 informed her mother that one could be pregnant only after the marriage. PW.1 informed that she could become pregnant only if any person misbehaved or had intercourse with her. At that time, PW.2 revealed that the accused was the cause for she becoming pregnant. Thereafter, PW.1 took PW.2 to the Police Station and lodged the complaint as per Ex.P1. The evidence of PWs.1 and 2 clearly go to show that, thereafter they have been referred to NIMHANS Hospital for counseling of the victim. At that time, again PW.2 informed the Doctor that the accused had committed rape on her at Lakkavalli during November, 2010 when they visited her uncle-PW.7 house. She also revealed that, when they were sleeping in a room, the accused came to sleep next to her and by closing her face with bed-sheet tightly, he has committed rape on her. On the next day morning, she along with the accused and her brother came back to Bengaluru. The accused also threatened PW.2 that if she reveals anything to her mother, he would kill her, her mother and he would also commit suicide. Due to threat given by the accused, the victim did not disclose the same to PW.1. Further, PW.2 stated in her evidence that after coming back to Bengaluru, the accused committed rape on her 5 to 6 times, when she was alone in the house after sending her brother-Karthik to tuition class. The evidence of PWs.1 and 2 and pregnancy of PW.2 was not impeached by the accused. The evidence of PW.17- Dr. Shakila Shetty goes to show that, she has done medical termination of pregnancy in M.S. Ramaiah Hospital. The evidence of PW.6-Dr. Jayamma G., the Senior Specialist, Jayanagar General Hospital, Bengaluru, goes to show that on 10.02.2011, she examined the victim and confirmed the pregnancy saying that the victim was pregnant about 12 to 14 weeks and gave report as per Ex.P9. She also gave scan report as per Ex.P10 and MLC Register as per Ex.P11. These documents clearly reveal that the victim was pregnant when they examined her. The evidence of PW.12-Dr. Shekhar, who is a Psychiatrist at NIMHANS Hospital, also deposed that on 10.02.2011, the victim was admitted to their hospital for counseling. On enquiry, the victim girl revealed that a father has committed sexual assault on her and she was referred to M.S. Ramaiah Hospital for medical termination of pregnancy. After the medical termination of pregnancy, the victim again came back and got admitted in NIMHANS Hospital, counseling was done as per Exs.P12 and 13. This witness also identifies the consent of PWs.1 and 2 obtained by the Doctor prior to medical termination of pregnancy. These documents were not seriously disputed by the learned counsel for the accused which goes to show that the victim became pregnant and she was taken to NIMHANS Hospital for counseling, thereafter, referred to M.S. Ramaiah Hospital where medical termination of pregnancy was done, foetus taken for the DNA test. The evidence of PW.17-Dr. Shakila Shetty, who conducted the medical termination of pregnancy and gave report as per Ex.P22, goes to show that the victim was pregnant, medical termination of pregnancy was done and foetus taken for DNA test. PW.20-Dr. Vinod Janardhan Lakkappa, Scientific Officer and Assistant Director of FSL, DNA Centre, deposes that he has examined the blood samples of the accused as well as PW.2 and foetus and gave report that accused is the biological father of the foetus which was removed from the womb of PW.2 under medical termination of pregnancy. Ex.P26-DNA report clearly corroborates with the evidence of PW.20 thereby, the prosecution succeeded in establishing that the victim-PW.2 became pregnant due to rape committed by the accused and the pregnancy was confirmed through the prosecution witnesses PWs.6, 10, 12, 17 and 20 and the pregnancy was also terminated by PW.17-Dr. Shakila Shetty in M.S. Ramaiah Hospital.
The pregnancy of the victim was not disputed by the learned counsel for the accused. Apart from that, the learned counsel for the accused try to bring the evidence of PWs.1 and 2 that Naveen, a neighbour of PW.1 used to visit the house of PW.2 and PW.2 used to talk with him liberally and both the witnesses denied that the victim never spoke with the said Naveen. The learned counsel for the accused also tried to bring in a situation that brother’s son of PW.1 namely, PW.3- Hemanth used to visit the house of the victim and victim used to talk to him. Though PW.1 admits that her brother’s son was residing adjacent to her house, the victim was living along with her parents, but denied the victim having any affairs with the said Hemanth. When the DNA test in respect of foetus of PW.2 and the blood of accused matching with each other and proved that the accused and PW.2 are the biological parents of the foetus, the question of rebutting presumption by the accused does not arise. Though the accused try to project that some more persons were also visiting the house of PW.1 and having contact with PW.2, but no evidence was brought in the evidence of PWs.1 and 2 and any other witness. There is strong DNA test report and medical evidence available in favour of the prosecution to show that the accused was the cause for pregnancy of PW.2. The probability of presuming some other person visited the house of PW.2, thereby PW.2 became pregnant cannot be acceptable. PW.2 had categorically stated that taking advantage of her loneliness in the house, after sending her brother Karthik to tuition and her mother coming only after 7 or 8 O’ clock in the evening from the job, the accused misbehaved with her and committed rape. He has not allowed the victim to disclose the same to her mother. PW.2 has categorically stated that about 5 to 6 times, the accused has committed rape on her in the house at Thayappa Garden.
12. Learned counsel for the accused strenuously argued that the place of occurrence of offence is not proved by the prosecution beyond reasonable doubt that as per the evidence of PWs.1 and 2, the offence was committed in November, 2010 at Lakkavalli. As per the evidence of PW.16-Yogesh K.M, Sub-Inspector of Police, Lakkavalli Police Station, who conducted part of the investigation at Lakkavalli and PW.18-R.B. Maledavara, Inspector of Police, Urva Police Station, conducted investigation at Kundur and Lakkavalli stated that no such offence was committed either at Kundur or Lakkavalli and re-transferred the case to PW.19-H.S. Parameshwar, the Investigating Officer at Mico Layout Police Station. Therefore, it is contented that the evidence of the prosecution is not reliable in respect of the place of occurrence.
13. On the other hand, the learned Additional State Public Prosecutor argued that though the evidence of PWs.15 and 18 show that there was no offence committed at Lakkavalli, but from the evidence of PWs.4 and 7, it was proved that the accused along with PW.2 and his son visited their house after two months of their daughter’s marriage and stayed for three days. The said factor was not seriously disputed by the accused. Though PW.2 not visited the marriage of the daughter of PWs.4 and 7, subsequently, during Christmas season both the accused and PW.2 visited their house and stayed there for three days. It is also contended that when PW.2 categorically stated that the accused was the cause for her pregnancy and the accused has misbehaved 5 to 6 times with her in their house at Thayappa Garden, the prosecution is successful in proving the case that the accused has committed the rape on the victim both at Lakkavalli and Thayappa Garden.
14. On perusal of the evidence of PW.15- Krishnaiah K., Head Constable, Mico Layout Police visited Kundur and prepared panchanama as per Ex.P19 and submitted the same to the Investigating Officer. PW.18 the Police Inspector visited the spot, gave a report and transferred the case on the ground that the victim has not visited the house of PWs.4 and 7 along with the accused. Though PW.1 stated that she went along with her brother and accused to the marriage, but they visited the house of PWs.4 and 7 only during Christmas vacation which was proved from the evidence of PWs.4 and 7 and the evidence of PWs.1 and 2. Apart from that, the evidence of PW.3-Hemanth and PW.11-Pushpa both of them were pancha witnesses to the spot, where the Police conducted spot panchanama in the house at Thayappa Garden. They categorically stated that PW.2 shown the spot, where the accused committed rape on her in the house. Looking to the evidence of PWs.1 to 4, 11 and Investigating Officer, the prosecution is able to prove that the accused committed rape on the victim in the house at Thayappa Garden. Normally, in a criminal case, the place of occurrence plays a dominant role in proving the case of the prosecution. But in a case where rape committed on the victim and when the victim has become pregnant which was medically and scientifically proved that the accused was the biological father of the foetus which was removed from the womb of the victim under medical termination of pregnancy, then the place of occurrence loses its importance and it is immaterial. Therefore, we hold that the place of occurrence, even if not able to be proved by the prosecution beyond reasonable doubt, either at Bengaluru or at Lakkavalli, but the evidence of PW.2- victim clearly corroborates with the medical and scientific evidence that the prosecution is successful in proving that the accused committed rape on her thereby, she became pregnant.
15. The next aspect, the learned counsel for the accused tried to show, is that the age of the victim is above 20 years. In this aspect, learned counsel for the accused only subjected with PWs.1 and 2 that the age of the victim is 20 years at the relevant point of time, that means, the learned counsel wants to bring that there is consent of the victim for the intercourse. However, it was not directly suggested by the learned counsel, but he is trying to bring evidence on record that her age is 20 years, but PWs.1 and 2 have categorically stated that age of the victim is only 14 years as on the date of offence. It is pertinent to note that the marriage of PW.1 with the accused was held in the year 2000. PW.8 stated that in the year 1994, PW.1 married Antony Perera. They lived up to 5 to 6 years and he has deserted PW.1. At that time, the age of the victim was 2 years and when PW.1 was in her brother’s house, the accused being a Painter working under PW.8, the brother of PW.1, used to visit his house. At that time, PW.1 fell in love with him and later, PW.8 performed the marriage of PW.1 with the accused. PW.1 has categorically stated that she lived with her former husband up to 1998 and he deserted her, at that time, the age of the victim was 2 years. When the age of the victim was 2 years as on 1998, if it is calculated, the offence was committed in the year 2010. Her age might be only 14 years. PWs.1 and 2 also stated that PW.2 attained the puberty in the year 2009 while studying in 8th Standard and at relevant point of time, the victim was studying in 9th Standard. To support the case of the prosecution, PW.1 also produced S.S.L.C. marks card of PW.2 which is marked as Ex.P.7 wherein, S.S.L.C. marks card shows the date of birth of the victim as 22-2-1996. If we calculate the date of occurrence, it was occurred in November 2010, automatically the age of the victim becomes 14 to 15 years. Even otherwise, all the medical record shows the age of the victim was referred as 14 years. It is also not disputed by the accused that after the marriage of PW.1 with the accused in the year 2000, a son, namely Karthik, was born in the year 2003. Therefore, the contention of the learned counsel for the accused that the age of the victim was 20 years cannot be acceptable. On the other hand, the prosecution able to prove that the age of the victim was 14 to 15 years as on the date of incident, i.e., October or November 2010. PW.1 also produced the document, i.e. Ration Card marked as Ex.P.3, PW.1 having ESI card through her employer for medical facilities. Voter ID of PW.1 marked as Ex.P5. Accused’s Voter ID marked as Ex.P6 and these documents goes to suggest that the accused, PWs.1 and 2 and Karthik are residing in one house at Thayappa Garden. Even Ex.P7 shows the accused name was mentioned as father of PW.2 when accused married PW.1. When the victim was of tender age of 3 to 4 years, while admitting to the School, the accused might have given his name as father of the victim at the undisputed point of time and even the victim might not have any knowledge that she was not born to the accused and born to Antony Perera. Therefore, from the evidence of PWs.1, 2 and 8 and coupled with PWs.3 to 7, the prosecution is successful in proving that accused married PW.1 and at that time, the victim was 3 to 4 years. After victim attaining puberty, the accused came very close to her and asking her to massage his body and taking the advantage of loneliness of her, he committed rape on her. PW.2 not revealed the offence committed by the accused to PW.1 as the accused threatened her to kill her and PW.1 and also threatened to commit suicide himself. Hence, PW.2 not disclosed the same. Apart from that, PW.2, such a innocent girl, does not know that one can become pregnant due to intercourse and believed that pregnancy occurs only due to marriage and she came to know only after PW.1 told her, she became pregnant due to intercourse by the accused that was confirmed during the scanning test conducted in the hospital. Therefore, even if PW.2 considered that she gave consent for intercourse, her consent is immaterial as she was aged below 16 years studying in 9th Standard.
16. Therefore, by overall scrutiny of the entire evidence, there is nothing to disbelieve the evidence of the prosecution witnesses and from the evidence of PWs.1 and 2 and medical evidence of PWs.17 and 20, and the scientific evidence of the witness, we can safely hold that the accused was the perpetrator of the offence, who committed rape on the victim, a young girl. The accused is also foster father of PW.2 and due to rape committed by the accused, she became pregnant, which was terminated by medical termination of pregnancy in M.S. Ramaiah Hospital, thereby the prosecution is successful in proving the offence under Sections 376 and 506 of the IPC beyond all reasonable doubt. Therefore, we do not find any error or any illegality committed by the trial Court by holding the accused guilt of the above said offences. The appeal is devoid of merit.
Accordingly, the appeal is dismissed.
SD/- JUDGE SD/- JUDGE GBB/mv/kvk