IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14th DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.1492 OF 2016 BETWEEN:
PRADEEP @ PRADEEP KORAGA S/O. KITTA KORAGA, AGED 26 YEARS, R/O. DARKAS HOUSE, 38, KALATHURU VILLAGE, SANTHE KATTE POST, UDUPI TALUK AND DISTRICT-576 101. NOW IN JC, CTP NO. 3682, CENTRAL PRISON, DHARWAD, DHARWAD DISTRICT. ... APPELLANT (By Sri: N.R. KRISHNAPPA, ADVOCATE) AND:
STATE BY KARKAL POLICE UDUPI TALUK AND DISTRICT, REPRESENTED BY ITS SPP, HIGH COURT BUILDING, HIGH COURT, BENGALURU -560 001. ... RESPONDENT (By Sri: K.NAGESHWARAPPA, HCGP) THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 07.06.2016 PASSED BY THE PRL. S.J., UDUPI DIST., UDUPI IN S.C.NO.88 OF 2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 448, 376 AND 506 OF IPC AND THE APPELLANT/ ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 1 YEAR AND TO PAY FINE OF RS.5,000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO S.I. FOR 2 MONTHS FOR THE OFFENCE P/U/S 448 OF IPC AND FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 10 YEARS AND TO PAY FINE OF RS.2,00,000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO S.I. FOR 1 YEAR FOR THE OFFENCE P/U/S 376 OF IPC AND FURTHER, THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 2 YEARS AND TO PAY FINE OF RS.5,000/- IN DEFAULT OF PAYMENT OF FINE TO UNDERGO S.I. FOR 3 MONTHS FOR THE OFFENCE P/U/S 506 OF IPC. ALL THE SENTENCES SHALL RUN CONCURRENTLY AND THE APPELLANT/ACCUSED PRAYS THAT HE BE ACQUITTED.
THIS CRL.A COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
***** J U D G M E N T At the first instance, the accused was acquitted by the Trial Court of the charges under sections 448, 376 and 506 of Indian Penal Code. The State having carried the matter in appeal to this court, by order dated 22.09.2015 in Crl.A.No.250/2012, the judgment and order dated 28.10.2011 passed by the learned Sessions Court, Udupi, in S.C.No.88/2010 was set aside and the matter was remitted to the Sessions Court with a direction to revive the case on its original file and get the DNA test conducted to find out the actual role of the accused in the crime in question. It was further observed that after getting the report of the DNA test, it was open for the prosecution as well as the defence to adduce additional evidence, if any, in respect of DNA test.
2. Pursuant to the above order, the Trial Court obtained the DNA test report and examined four additional witnesses as PW.13 to PW.17. The prosecutrix PW.2 was also recalled and further examined. By the impugned judgment dated 7.06.2016, the learned Sessions Judge has found the accused guilty of the offences under sections 448, 376 and 506 of Indian Penal Code. The accused is sentenced to Rigorous Imprisonment for a period of one year and to pay a fine of Rs.5,000/-, in default to undergo simple imprisonment for a period of two months for the offence punishable under section 448 of Indian Penal Code; Rigorous Imprisonment for a period of ten years and a fine of Rs.2,00,000/- and in default, to undergo simple imprisonment for a period of one year for the offence punishable under section 376 of Indian Penal Code; Rigorous Imprisonment for a period of two years and a fine of Rs.5,000/- and in default, to undergo simple imprisonment for a period of three months for the offence punishable under section 506 of Indian Penal Code; and out of the fine amount, Rs.1,50,000/- is ordered to be paid to the minor son of the victim girl PW.2 as compensation and Rs.50,000/- is ordered to be paid to the victim PW.2 as compensation.
3. The brief facts of the prosecution case are that the accused and the prosecutrix (PW.2) belong to Koraga community – a weaker section of the society. The house of the accused was situated close to the house of the prosecutrix. He was frequently visiting the house of the victim. According to the prosecution, when the prosecutrix was alone in the house, the accused committed forcible intercourse on her and threatened her not to disclose the incident to anyone. At the time of commission of the offence, the prosecutrix was aged between 15 or 16 years. She did not disclose the incident either to her parents or to any other members of the family.
3(a) On 16.02.2010, she was taken to Community Health Centre, Hebri for medical examination as she had stopped menstruation. On physical examination, PW.1 - the Medical Officer at Community Health Centre felt the growth of abdominal mass of 16 to 18 weeks. Hence, she directed her to undergo urine pregnancy test. The report was positive. She referred the prosecutrix to Higher Centre for further evaluation. At that time, the prosecutrix is stated to have informed her mother and her elder sister that she was forcibly raped by the accused. The mother of the prosecutrix – PW.3 lodged a written complaint before the Hebri Police Station as per Ex.P4.
3(b) Based on the said complaint, Crime No.11/2010 was registered against the accused under sections 376 and 506 of Indian Penal Code. The prosecutrix as well as the accused were subjected to medical examination. It was ascertained that the age of the prosecutrix was 15 years as on the date of the examination. As per the abdominal scan, a single live intra uterine pregnancy of average gestational age of 23 weeks 6 days was detected. Based on this opinion and the statement of the material witnesses, the Investigating Officer – PW.12 laid the charge-sheet against the accused alleging commission of offences under sections 448, 376 and 506 of Indian Penal Code. The accused denied the charges.
3(c) In proof of the charges, the prosecution examined PW.1 to PW.12 and produced in evidence Ex.P1 to Ex.P14. As stated above, on appreciating the evidence, the learned Sessions Judge, by judgment dated 28.10.2011, acquitted the accused.
3(d) However, after remand, PW.13 to PW.17 have been examined. DNA test report was marked as Ex.P20 and in addition thereto, the prosecution produced documents at Ex.P15 to Ex.P21. On considering this evidence, by the impugned judgment dated 07.06.2016, the learned Principal Sessions Judge, Udupi has found the accused guilty of all the three offences and has sentenced him as above.
4. Learned counsel for the appellant has assailed the impugned judgment raising three fold contentions. Firstly, it is contended that there is inordinate delay in lodging the complaint. The incident is stated to have taken place about 3½ months earlier to the lodging of the complaint. This delay has not been properly explained by the prosecution. The circumstances brought out in the prosecution evidence indicate the involvement of the son-in-law of the complainant by name Suresh. This delay has been made use of to protect the son-in- law of PW.3, by falsely implicating the accused. Secondly, the evidence of the prosecutrix is not worthy of acceptance. The tenor of her evidence indicates that she was not in a position to understand the questions put to her. The answers elicited from her mouth do not implicate the accused. Her evidence is fraught with inconsistencies and improbabilities and therefore, the Trial Court ought not to have believed the testimony of PW.2 in holding the accused guilty of the above offences. Thirdly, the mother of the prosecutrix namely PW.3 has unequivocally admitted in her evidence that at the earliest point of time, the accusations were levelled against her son-in-law by name Suresh. She has admitted that a complaint was lodged against him and he was detained in the Police Station. The prosecution has deliberately suppressed this complaint with a view to shield the real culprit. Lastly, the learned counsel submits that the DNA report obtained by the prosecution does not establish either the charge of section 376 or the involvement of the accused in any of the offences alleged against him. Therefore, the conviction recorded against the accused being illegal and perverse requires to be interfered with by this Court in exercise of its appellate jurisdiction.
5. Learned HCGP however has argued in support of the impugned judgment. He submits that the testimony of the prosecutrix alone is sufficient to hold the accused guilty of the offences charged against him. Her testimony has to be appreciated in the background of her educational qualification and mental capacity. She is an illiterate girl. The evidence of her mother and the evidence of prosecutrix, if read together, would clearly indicate that the prosecutrix did not disclose the incident to her mother until she was detected with the fetus and therefore, the alleged delay cannot be taken as a factor either to doubt or disbelieve her evidence or to discard the case of the prosecution. Learned HCGP submits that whatever discrepancies that have been highlighted by the learned counsel for the appellant are now set at rest by the opinion given by the FSL authorities by way of DNA report which establishes beyond reasonable doubt that the accused and the accused alone is the author of the crime and therefore, there is no reason whatsoever to interfere with the well-considered judgment of the court below.
6. I have considered the submissions made at the Bar and have carefully examined the records, especially the statements of the prosecutrix and her mother and the evidence of the medical officers and the expert witnesses examined by the prosecution.
7. There is no serious dispute as to the age of the prosecutrix. Though the learned counsel for the appellant has contended that there is no clear proof of the age of the prosecutrix, it is seen that PW.6 – the Head Master of the school where the prosecutrix had studied has produced the school records at Ex.P8 wherein the date of birth of the prosecutrix is mentioned as 03.03.1995. Except eliciting that PW.6 has not stated the basis on which the said entry has been made, the date of birth entered therein is not shown to be false. That apart, PW.8 – the Medical Officer who examined the prosecutrix for determination of her age has categorically stated before the court that on physical and clinical examination of the prosecutrix, the age of the prosecutrix as on 1.4.2010 was between 13 – 14 years. Even if a margin of two years is added to the said age, it comes near about the age certified in the school records. No documents have been produced to show that the prosecutrix had attained majority or that she was above 16 years as on the date of commission of the offence. Therefore, it stands established that the prosecutrix was a minor as on the date of alleged commission of the offence.
8. Coming to the contention raised by the learned counsel for the appellant with regard to the delay in lodging the complaint, it needs to be mentioned that PW.2 – prosecutrix as well as her mother –PW.3 have narrated the circumstances under which the complaint came to be lodged. There is consistent evidence on record to show that the prosecutrix did not narrate the incident either to her mother or to any member of her family until she was taken for medical examination for stoppage of menstruation. It is only when she was found to be carrying a live fetus, the prosecutrix was driven to divulge the information to her mother which has led to lodging of the complaint. The evidence of PW.2 and PW.3 in this regard has not been falsified in the cross-examination. Except contending that the finger of suspicion was pointed out at the son-in-law of the complainant, the evidence of PW.2 and PW.3 with regard to the fact that the incident was kept secret by PW.2 till her examination has not been falsified. The very fact that accusation against the son-in-law came to be levelled only after the medical examination of PW.2 lends credence to the testimony of PW.2 that she did not narrate this incident to her mother until her medical examination. Moreover, she has stated in her evidence that on account of the threats issued by the accused, she did not disclose this incident to her mother which again explains the delay in approaching the police with the complaint. Therefore, having regard to the circumstances of the case, in my opinion, the delay has been properly explained by the prosecution. The evidence indicates that it is solely on account of the threats issued by the accused, the prosecutrix did not disclose this incident to her mother which appears to be the genuine reason for the delay in lodging the complaint with regard to the incident.
9. Coming to the discrepancies highlighted by the learned counsel in the evidence of the prosecutrix – PW.2 and in the evidence of PW.3, it is pertinent to note that PW.2 has clearly stated in her evidence that she had attended school upto 7th standard, but as she was not good at studies, she could not pass 7th standard and therefore, she gave up schooling and has been attending to weaving work. On the date of the incident, she was alone in the house. At that time, the accused caught hold of her and closed her mouth and even though she tried to scream, he threatened her and forcibly committed intercourse on her. She has further stated that thereafter on two or three occasions, he committed sexual intercourse on her but because of the threats issued by the accused, she did not disclose the incident to her mother or other family members. She has further stated that about 3½ months thereafter, as she had stopped menstruating, she was taken to the hospital and at that time, she had disclosed the incident to her mother.
10. In so far as the vital aspect of the prosecution case is concerned, I do not find any inconsistency or discrepancy in the testimony of PW.2 with regard to the incident and the forcible rape committed on her by the accused. Learned counsel for the appellant has endeavoured to point out that in the cross- examination, PW.2 was unable to answer as to how many days are there in a week and how many weeks are there in a month and that she was unable to name the days in a week, therefore, she was incompetent to give her statement before the court. I am not impressed by this argument. The answers elicited from the mouth of the prosecutrix, in my opinion, would only indicate that her IQ was low and nothing more than that. Therefore, it follows that she was virtually incapable of warding off the impending danger of sexual assault on her. The accused appears to have taken advantage of her imbecility and was emboldened to repeat the acts knowing fully well that she was not in a position to offer resistance to his illegal acts. In the said background, the mental deficiency of the prosecutrix cannot be taken as a circumstance to doubt or disbelieve her evidence. Mental deficiency of a witness cannot render his or her testimony unworthy of credit if the facts narrated by witness are found trustworthy and reliable. As already discussed above, PW.2 has unflinchingly narrated the overt acts committed by the accused and has stood the test of cross-examination, thereby establishing the fact that the accused committed the above offence by force against her wish and will. She has stood by the prosecution case that it is only when she was taken to the medical examination, she was constrained to disclose the incident to her parents. Therefore, on overall consideration of her evidence, I do not find any reason to doubt or disbelieve her evidence. Moreover, her testimony is now fully corroborated by the DNA report. Therefore, I do not have any hesitation in accepting her evidence as truthful and reliable and her evidence could be taken as the sole basis to answer the charges framed against the accused.
11. In so far as the evidence of PW.3 is concerned, she has fully corroborated the testimony of PW.2. She has explained the reason for the delay in lodging the complaint. No doubt in her evidence she has admitted that finger of suspicion was initially directed against her son-in-law and he was detained in the Police Station to enquire into the alleged incident. But in appreciating this issue, it is relevant to note that in the cross- examination, she has stated that the said allegations were levelled against her son-in-law by the members of the Koraga Sangha. Therefore, merely because initially PW.3 lodged the complaint against her son-in-law, it does not affect the credibility of the evidence of PW.2 and PW.3 with regard to the involvement of the accused in the offence charged against him.
Therefore, I do not find any substance in this contention. The accused has not brought on record any circumstance to show that the son-in-law of PW.3 was instrumental in causing the pregnancy to PW.2. Therefore, this contention is also liable to be rejected.
12. In my opinion, the evidence of PW.2 itself is sufficient to hold the accused guilty of the charges levelled against him. Moreover, after remand, the prosecution has subjected the accused, the victim as well as the child born to the victim for DNA examination and it stands established from the DNA profile of baby Abhay that the accused is the biological father of the child born to the prosecutrix namely PW.2. PW.17 who issued the DNA report has spoken about the procedure followed by him in conducting the DNA examination. The expertise and the competency of PW.17 to give the opinion at Ex.P20 are not challenged by the defence. On the other hand, the evidence of PW.17 indicates that he was well qualified and competent to issue the opinion. The opinion given by him contains not only the procedure and the method followed by him in conducting the DNA examination, the opinion is supported by valid reasons and justifications. As such, the evidence of PW.17 and the opinion given by him becomes admissible under section 45 of the Evidence Act. This opinion coupled with the oral testimony of the prosecutrix and her mother, in my opinion, conclusively establishes the guilt of the accused for the offences charged against him.
13. On consideration of the entire material on record, I do not find any reason to differ with the view taken by the Court below. The findings recorded by the Court below are based on evidence on record. The impugned judgment does not suffer from any perversity or illegality warranting interference by this court. Hence, the contentions urged by the appellant/accused are rejected. The conviction of the appellant/accused for the offences punishable under sections 376, 448 and 506 of Indian Penal Code is confirmed.
Consequently, the criminal appeal is dismissed.
Sri.N.R.Krishnappa, learned counsel appearing for the accused has commendably argued the appeal. He has canvassed every conceivable defence available to the accused in challenging the impugned judgment. The same is placed on record.
Sd/- JUDGE Bss.