IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER 2017 BEFORE THE HON'BLE MR. JUSTICE BUDIHAL. R.B CRIMINAL APPEAL NO.1135/2013 BETWEEN:
Ravi @ Ravikumar S/o Late Natraj Aged about 26 years Bovi Jananga Stone Cutter R/o D.No.89, Mogarahalli Kallumanti Village Belagola Hobli Srirangapatna Taluk District-Mandya Pincode-571 401. .. APPELLANT (By Sri Pratheep K C, Adv.) AND:
The State of Karnataka Through K.R. Sagar Police C.P.I., Srirangapatna Circle Srirangapatna-571 438. ..RESPONDENT (By Sri S Vishwamurthy, HCGP) This Criminal Appeal is filed under Section 374(2) CR.P.C. praying to set aside the judgment and order of conviction and sentence dated 30.09.2013 passed by the III Addl. Dist and S.J., Mandya (Sitting at Srirangapatna) in S.C.No.191/2012 – convicting the appellant/accused for the offences punishable under sections 376, 506 of IPC.
This Criminal Appeal coming on for Final Hearing this day, the Court delivered the following:
JUDGMENT This is the appeal preferred by the appellant/accused filed under section 374(2) of Cr.P.C., being aggrieved by the judgment and order of the conviction and sentence passed by the III Additional District and Sessions Judge, Mandya (sitting at Srirangapatna) dated 30.09.2013 in Sessions Case No.191/2013. By the said judgment and order of conviction, the appellant/accused was convicted for the offence punishable under section 376 and 506 of IPC and he was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.30,000/-, in default to pay the fine amount, he shall undergo simple imprisonment for period of 6 months for the offence punishable under section 376 of IPC. Further, the appellant/accused is sentenced to pay a fine of Rs.2,000/-, in default of the payment of fine amount, he shall undergo simple imprisonment for a period of 1 month for the offence punishable under section 506 of IPC. Being aggrieved by the same and challenging the legality and correctness of the judgment and order of conviction and also sentence imposed by the trial Court, the appellant/accused is before this Court on the grounds as mentioned in the appeal memorandum at ground Nos.1 to 24.
2. The brief facts of the prosecution case as per the Ex.P1-complaint averments that the victim girl is the complainant. She lodged the complaint stating that she is staying along with her father and mother at Mogarahalli and was studying in 7th standard on Mogarahalli government High School. On 11.04.2012 as there was a festival in their village, she went and sat nearby Mariyamma temple at night about 8.00 p.m. At that time, Ravi-appellant/accused herein who was standing at a little distance called the victim girl and when she went to him, he told the victim girl to bring 7up cool drink, she asked him to pay amount. At that time, the appellant/accused told that he will also accompanying her up to the shop and he took the victim girl to the shop of one Shivanna. There, the appellant/accused gave Rs.100/- to Shivanna and asked him to gave 7up cool drink. The said Shivanna gave 7up cool drink to the hands of the appellant/accused so also changes were given to him. Then, the victim girl told him that she will go to her house. At that time, the accused person told her that she can have 7up along with him, stating so, he took her to some distance. At that time, the victim girl, because of the fear again told that she will go to the house. At that time, all of a sudden, the appellant/ accused caught hold her hand and forcibly dragging her stating that she should come with him and he took her nearby Tati tree, which was near grave yard. When he was dragged her to the said place, though she screamed, even then nobody come for her help, as it was night at 8.00 p.m, the person already closed their doors of the houses. The appellant/accused dragged the victim girl nearby Tati tree, there he removed her clothes by tearing them and also removed her paijama and undergarment and he also removed his pant and undergarment and forcibly he made her to lie on the ground and forcibly committed sexual intercourse with her. Thereafter, the appellant/accused gave her cloths and told to the victim girl that tomorrow at 9.00 p.m., she should come near the Tati tree, if she did not dome, he will kill her, stating so, he threatened her. Then he told her to go to the house. After coming to the house, she informed about the incident to her parents. The parents told her that as it was night, morning they will go to the police station and can give complaint. Therefore, she come to the police station on the next day of the incident i.e., on 12.04.2012 and requested the police to take legal action against the appellant/accused who has committed forcible sexual intercourse on her.
3. On the basis of the said complaint, FIR came to be registered as against the appellant/accused as per Ex.P2 for the offence punishable under sections 376 and 506 of IPC.
4. After conducting and completing investigation, the police have filed charge sheet against the appellant/accused herein for the said offences.
5. After hearing both sides and as the accused pleaded not guilty and claims to be tried, the trial Court framed the charges against the appellant/accused for the said offences and posted the mater for trial.
6. In order to prove its case, the prosecution in all examined 17 witnesses at PWs.1 to 17 and got marked documents as per Exs.P1 to 12 and also marked the material objects at M.Os.1 and 2 and closed its side. On the side of the defence, no witnesses examined nor any document got marked.
7. After hearing the arguments of both sides and after considering the materials placed both oral and documentary, the trial Court comes to the conclusion that the prosecution has proved its case beyond all reasonable doubt and convicted the accused for both the charges i.e., for the offence punishable under sections 376 and 506 of IPC. Hence, the appellant/accused is before this Court.
8. Heard the argument of the learned counsel appearing for the appellant/accused and also argument of learned HCGP for the respondent-State.
9. Learned counsel appearing for the appellant/ accused made submission that looking into the prosecution witnesses i.e., victim girl, her mother and other witnesses, there is no consistency in the evidence of prosecution witnesses. Learned counsel submitted that looking into the evidence of these witnesses, it cannot be said that the prosecution has proved its case beyond all reasonable doubt. It is also his submission that as far as age proof of the victim girl is concerned, except the school certificate, there is no other document produced in support of the same. Learned counsel further submitted that even looking into the evidence of Head Mistress of the said school during the course of cross-examination, she admitted that whatever the date mentioned by the parents of the victim, they have mentioned the said date as date of birth of the victim girl. Hence, he submitted that the said certificate cannot be taken to be in proof of date of birth of the victim girl. It is also his submission that as far as injuries aspect is concerned, the medical record goes to show that there are no external injuries present on the victim girl, so also no injuries to the private part of the victim girl. Learned counsel submitted that when it is the case of the prosecution that forcible sexual intercourse is taken place on the victim girl and when the place of incident as per oral evidence of the prosecution witnesses itself, it was hard surface, naturally there will be injuries like abrasion-injuries on the back of the victim girl, if really such incident took place that too for the minor girl as projected by the prosecution. It is also his contention that the victim girl herself deposed before the Court that she has not changed the cloths nor she has washed cloths and she has not taken bath and on the next day of the incident, she was sent to medical examination. Even looking into the medical examination report also, there is no material supporting the case of the prosecution. Hence, he made submission that the medical examination conducted by the prosecution also will not comes to the aid and assistance of the prosecution case in proving the charge. Learned counsel also made submission that totally 8 articles were sent to the FSL for examination and looking into the FSL report, there is a negative opinion form the FSL authorities. Hence, it is his contention that looking into all these materials, absolutely there is no material placed on record, both oral and documentary to show the commission of the alleged offence by the appellant/accused. Learned counsel submitted that looking into the prosecution material itself, reasonable doubt arises in the mind of the Court and the benefit of the reasonable doubt may be given to the appellant/accused. Learned counsel submitted that the trial Court wrongly comes to the conclusion that the prosecution has proved its case beyond all reasonable doubts. He has also made submission that the findings and reasons of the order by the trial Judge are not in accordance with law and materials placed on record. Hence, learned counsel prayed to allow the appeal and set aside the judgment and order of conviction passed by the trial Court and acquit the appellant/accused from all the charges.
10. Alternatively, learned counsel for the appellant/ accused also made submission that in case, if the honorable Court still holds that there is offence committed by the appellant/accused, it cannot be rape itself. He made submission that in that event, the punishment will be half of the punishment as prescribed for the main offence. Learned counsel submitted that the appellant/ accused already in judicial custody for the period of 5 years 9 months 20 days. Hence, he made submission that considering the length of period of the custody and if it is admitted that the accused has committed rape if at all as held by this Court, whatever the sentence undergone by the appellant/accused is sufficient and it can be an order for release of the appellant/accused immediately. In support of his contention, learned counsel appearing for the appellant/accused relied upon the decisions of this Court and honorable Supreme Court, which he has filed along with memo dated 23.10.2017.
11. Per contra, learned HCGP who appearing for the respondent-State made submission that age of the victim girl is 14 years. It is also his submission that her oral evidence is sufficient and it does not require any corroboration from any other independent witnesses. Learned HCGP further made submission that looking into the medical record, doctor who conducted the medical examination of the victim girl mentioned as far as hyman it was not intact. Therefore, he made submission that itself is sufficient to hold that there was evidence of rape. Learned HCGP further made submission that the doctor also mentioned that vegina admits one finger easily. He also made submission that the evidence of the mother and aunt of the victim and other prosecution witnesses also support the case of the prosecution. Hence, he submitted that if there is no such incident, there was no reason for the victim girl to tell these things before her parents to lodge this complaint. Hence, he submitted that all these aspects were properly appreciated and considered by the trial Judge and he rightly comes to the conclusion holding that the appellant/accused is guilty of the offence punishable under section 376 and 506 of IPC. Therefore, he made submission that no illegality has been committed by the trial Court nor there is perverse and capricious were taken in coming to such conclusion. He further submitted that the decisions relied upon by the learned counsel appearing for the appellant/accused are not come to the aid and assistance of the appellant/accused. Hence, he submitted that there are no valid and justifiable grounds to this Court to interfere into the judgment and order of conviction passed so also sentenced imposed by the trial Court. Lastly, he made submission that as there is no merit in this appeal, the same may be dismissed and confirm the judgment and order of conviction passed by the trial Court.
12. I have perused the grounds urged in the appeal memorandum, judgment and order of conviction passed by the trial Court, evidence of prosecution witnesses P.Ws.1 to 17, documents Exs.P1 to P12 and considered the oral submissions made by learned counsel on both sides at the bar and also the decisions relied upon by the learned counsel for the appellant, referred to above.
13. To constitute an offence under Section 376 of IPC, if the evidence of prosecutrix is trustworthy and cogent, it does not require any corroboration from other witnesses. But the evidence adduced in a particular case and facts and circumstances involved in such case are to be looked into by the Court to ascertain whether such offence has been committed or not.
14. Victim girl is the complainant in this case. She has lodged the complaint as per Ex.P1. She has been examined before the Court as P.W.1. It is her contention in the complaint that on 11.4.2012 there was festival of Mariyamma diety in their village. She had been to the said temple along with other family members at 7.30 p.m. The other family members returned home, but the victim remained there itself. At that time, the appellant-accused who was standing there called the victim and asked her to bring 7UP. When she told him that she want to go home, he held her hand and dragged her forcibly to accompany him and took her near the thati tree situated near the graveyard and committed forcible sexual intercourse on her. The alleged offence is said to have been committed at about 8.30 p.m. on 11.4.2012. But the complaint came to be filed on the next day morning. Hence, let me refer to the prosecution material whether there are cogent and sufficient reasons for the delay in filing the complaint.
15. P.W.1, the victim girl has mentioned in the complaint that after the incident she came to the house and informed the same to her parents and her parents in turn told her that as it was night they would go to the police station on the next day to lodge the complaint.
16. P.W.2, the mother of the victim has stated that as her daughter did not return to the house, they went in search of her and saw her coming weeping near the graveyard and when asked, she narrated about the incident before her mother and other relatives who came to the said place. It is also mentioned that her aunt asked her as to where she had gone and stating so, she slapped on her cheeks. However, P.W.1 has deposed in her evidence that after the incident she went to the house along with her aunt and her aunt informed about the incident to the parents of the victim girl. Looking to this material it is seen that there is no consistency in the evidence of P.W.1 and contents of the complaint, so also, in the evidence of P.Ws.2 and 3 regarding delay in lodging the complaint.
17. So far as the alleged incident is concerned, P.W.1, the victim girl has deposed that appellant took her to the nearby thati tree near the graveyard and forcibly made her to lie on the ground, removed her clothes, he also removed his clothes and committed forcible sexual intercourse on her. On the next day i.e., on 12.4.2012, when she went to the police station to lodge the complaint, after receiving the compliant police referred her to the medical officer for examination. It is her evidence that she had not changed her clothes and also not taken bath when her medical examination was conducted. She has deposed that her clothes were not went but inner garment was wet. Clothes of the victim girl were seized and totally 10 articles were sent for the forensic laboratory for examination and report. The FSL report is produced as per Ex.P9. In Ex.P9, in the result of analysis column in respect of item Nos.4 to 8 it is mentioned as ‘notstained’. The opinion column at Sl.Nos.1 to 4 shows, (1) Presence of seminal stain was not detected in item Nos.1, 4, 5, 6, 7, 8 and 10. (2) Presence of spermatozoa was not detected in Article Nos.2 and 3 (3) Presence of blood was not detected in item Nos.4, 5, 6, 7 and 8, (4) (wrongly mentioned as Sl.No.3) No hairs were detected in item Nos.4,5,6,7 and 8. In the FSL report there is a negative finding so far as the alleged offence under Section 376 of IPC is concerned. Apart from that, the medical officer who examined the victim girl gave his report as per Ex.P11. In column No.26 of the said report he has mentioned that hymen not intact. The opinion of the Doctor was kept pending till the receipt of FSL report.
18. Dr.Vijay has been examined before the Court as P.W.17. He has deposed in the examination-in-chief that on 12.4.2012 at 6.20 p.m. in the presence of Dr.Sanjay and women staff nurse, he examined the victim girl Vinodini and stated that he has not noticed any external injuries and that Dr.Sanjay, the Gynecologist who examined the victim girl has mentioned all the details in the medical report. They collected the clothes for the purpose of sending them to chemical examination. Totally 8 articles were sealed for sending to FSL. He issued the certificate as per Ex.P11. He has stated that at the time of examination of Vinodini, the hymen was torn and one finger could be easily inserted into private part of Vinodini. The FSL report is as per Ex.P12.
During the course of cross-examination he deposed that as Vinodini was 11 years old, her vagina was small in size and looking to her body condition it is difficult for a male person to have sexual intercourse with her. If a person had sexual intercourse on her there will be swelling in the vagina and hymen and would become reddish colour and ruptures and bruises will also be seen. If there is a forcible sexual intercourse there will be pain in the abdominal portion and in the liver portion and also while walking. The said symptoms were not at all noticed at the time of examination of Vinodini. These materials do not support the prosecution case regarding the allegation of rape.
19. So far as the place of incident is concerned, it is stated by the victim girl that incident has occurred nearby thati tree situated near the graveyard. Oral evidence of the prosecution witnesses shows that the surface of the said place was hard and was uneven. When it is the case of the prosecution that appellant forcibly made the victim to lie on the ground and committed forcible sexual intercourse on her, naturally there will be some injuries on the back of the victim girl. But no such injuries were found on the person of the victim girl.
20. I have perused Ex.P2, the spot mahazar. Even in the spot mahazar there is no mention that there were struggle marks on the ground. It is simply mentioned that victim girl has shown the place and accordingly, in the presence of panchas, panchanama was drawn.
21. P.W.2, the mother of the victim girl, has stated in her examination-in-chief that since there was festival of Mariyamma diety they went to the temple at 7.30 p.m. Since the victim girl insisted to stay at the temple along with other children, they left her in the temple and returned home. At about 7.45 p.m. since there was no power supply, all the children returned back but the victim girl did not return. Hence, they went towards the temple in search of her and she was not traced near the temple. Therefore, they were in a perplexed mood and herself, her husband, Lakshmamma, Mani made search in the village. When she was not traced, in order to ascertain whether she had gone to nature call near the graveyard they went towards the said place and saw their daughter coming weeping.
This evidence of P.W.2 is again contrary to the evidence of P.W.1. P.W.1 has deposed that after the incident she came to the house and she herself informed her parents about the incident.
22. As regards the delay in lodging the complaint is concerned, P.W.2 has stated that during the night they went to the house of the accused to enquire about the incident and there was discussion and since it was late night and there was no vehicle facility to go to the police station they went on the next day to lodge the complaint.
The reason assigned by P.W.2 is again contrary to what is deposed by P.W.1, so also, what is mentioned in the complaint Ex.P1.
23. The place of incident is said to be near the Maariyamma Temple. As per the prosecution witnesses nearby the temple and also the shop of Shivanna there are residential houses. So also, near the thati tree there are RCC houses and people are residing there. As per their evidence since it was the last day of the festival the function went on till 10.30 p.m. and people were present near the temple. When that is so, the evidence of P.W.1 that when the appellant held her hand and dragged her towards the thati tree, she made cries and nobody came to her rescue and that since it was 8.00 p.m. people had closed the doors of their houses and had slept cannot be accepted at all. The evidence of the prosecutrix is totally contrary to the evidence of prosecution witnesses i.e., P.Ws.2, 3 and 4. When the people were present at the temple and even there are houses nearby the thati tree and people are residing there, it is very difficult for this Court to accept the contention of P.W.1 that though she made hue and cry nobody came to her rescue. Apart from that, looking to the prosecution material and as I have already observed above, except the oral say of P.W.1 that the appellant took her to the said place and committed forcible sexual intercourse on her, there is no supporting material like injuries on her body. Even as per the medical records there were no external injuries. As per the Doctor’s opinion no injuries were found even on the private part of the victim girl. It is no doubt true that the Doctor who has examined the victim girl has mentioned that the hymen was not intact. But only on this ground when all other materials suggests totally inconsistent facts against the prosecution case and also when it is not the opinion of the Doctor hymen was recently ruptured, , it is not possible for the Court to come to the conclusion that there was rape committed on the victim girl by the appellant, as alleged by the prosecution.
24. Even it has come on record that when P.W.2 and other witnesses have enquired about the victim girl they were informed that till there was power supply they have seen the victim girl, but when there was stoppage of power, they have not seen the victim girl. This aspect shows that on that day during night there was failure of power supply also. At what time there was stoppage of power is not clarified by the prosecution during the course of examination of prosecution witnesses.
25. P.W.3, Maniyamma, aunt of victim girl has deposed that when she saw the victim girl there were injuries on her lips and cheeks. Even in the cross- examination she has deposed that when she saw Vinodini there were injuries on the lips and also on the cheeks. This evidence is totally contrary to the medical evidence. The Doctor who examined the victim girl never noticed such injuries on the person of the victim girl, but on the contrary, it is mentioned that no external injuries were seen on the person of the victim girl.
26. The trial Court has not taken these aspects into consideration and has not properly read the oral and documentary evidence on record. It has come to the wrong conclusion in convicting the accused for the said offences. There is perversity on the part of the trial Court in appreciating the prosecution evidence. The opinion and the findings of the trial Court are not in accordance with law. The trial Court, only on the basis that the hymen of the victim girl was not intact, as mentioned by the doctor, has accepted the entire version of the prosecution without examining the material carefully. It has wrongly come to the conclusion in holding that prosecution has proved its case beyond all reasonable doubt.
27. Perusing both oral and documentary evidence, I am of the opinion that prosecution has not proved its case beyond all reasonable doubt. Reasonable doubt arises in the mind of the Court so far as the case of the prosecution and the manner in which the alleged incident said to have taken place. The appellant has made out a case that the judgment and order of conviction passed by the trial Court is not sustainable in law. There are valid and justifiable grounds for this Court to interfere into the judgment and order of the trial Court.
28. Accordingly, appeal is allowed. The judgment and order of conviction passed by the Court below is hereby set aside and accused is acquired of all the offences charged. He shall be released forthwith, if he is not required in any other case.
Since the main appeal itself is disposed of, consideration of I.A.No.2/2017 filed seeking suspension of sentence does not arise at all. Accordingly, it is disposed of.
Sd/- JUDGE DL/bkp