R IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.574 OF 2013 BETWEEN:
STATE OF KARNATAKA REPRESENTED BY KOTHANUR POLICE STATION BENGALURU CITY. ... APPELLANT (BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC PROSECUTOR) AND:
WASIM PASHA @ ABBU SON OF LATE ANWAR PASHA AGED ABOUT 24 YEARS RESIDING AT NO.414, 1ST CROSS HEGADENAGAR, SHIVARAM KARANTH LAYOUT POST BENGALURU-77. ... RESPONDENT (BY SRI. MADANGOUDA N. PATIL, ADVOCATE FOR SRI. R. KOTHWAL AND ASSOCIATES) THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30.06.2012 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-XIII, BENGALURU IN SESSIONS CASE NO.655/2011 – ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 363, 506 READ WITH SECTION 34 OF INDIAN PENAL CODE AND SECTION 376 OF INDIAN PENAL CODE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 02.07.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
JUDGMENT This appeal filed by the State challenging the judgment of acquittal dated 30.06.2012 passed in SC No.665/2011 on the file of Fast Track Court – XIII, Bengaluru City, for the offences punishable under Sections 363, 366-A, 376 and 506 of Indian Penal Code.
2. The factual matrix of the case is that; the accused on 18.03.2011 kidnapped the minor girl who is P.W.4, at about 6.30 p.m., when the victim girl P.W.4 and her sister P.W.3 were coming back to home. The accused who is working in a welding shop nearby the house of P.W.1 came in a red color Maruthi Car driven by other accused, called the victim and when the victim came near the accused, held her hand, forcibly pulled her inside the car and closed the window glass and instructed the driver to move immediately. When P.W.4 started screaming, the accused closed her mouth with his hands and threatened her that if she again makes any noise, he would kill her and thereafter, victim girl was taken to lodge by name Shri Comfort Lodge situate on the Kanakapura Main Road and committed rape on her in room No.101.
3. It is the case of the prosecution that P.W.3 who along with victim – P.W.4, came and told about the incident and immediately, P.W.1 had lodged complaint with the police and drew the mahazar. Thereafter, Police, who were deputed, apprehended the accused and the victim girl on the next day near Nagavara Ring Road signal and produced them before the police in the Station. They were subjected to medical examination and obtained the report. After collecting the date of birth of the victim girl from the school, statements of witnesses were recorded. After completion of the investigation, the police have filed the charge sheet for the above offences.
4. The accused did not plead guilty and claim to be tried. Hence, the prosecution examined witnesses as P.Ws.1 to 14 and relied upon Exs.P.1 to 10 and no material objects have been marked. The accused did not choose to lead evidence but filed his statement under Section 313 of Cr.P.C. was recorded. The Court below after hearing the prosecutrix and also defence counsel, has acquitted the accused for the charges leveled against him.
5. Being aggrieved by the judgment of acquittal, the State has filed this appeal contending that the very judgment of acquittal is against the records and the trial Judge did not appreciate the evidence in the right perspective. The trial Judge ought not to have considered the minor discrepancies which do not go to the very root of the case of the prosecution. The Court should have considered the evidence of prosecutrix and medical evidence, to come to the conclusion that the victim girl was subjected to sexual act by the accused. The prosecution also relied upon the evidence particularly P.W.3 who was along with victim at the time of incident to prove the fact that the accused forcibly kidnapped the victim by pushing her inside the car and subjected her for sexual act. The other witnesses also supported the case of prosecution. In spite of sufficient material available before the Court, the Court below considering the minor discrepancies which are not fatal to the case of prosecution, erroneously acquitted the accused.
6. Learned Additional State Public Prosecutor Sri.I.S.Pramod Chandra, in his arguments, vehemently contended that the trial Judge failed to consider the evidence of the victim who has been examined as P.W.4 and also the medical evidence produced before the Court to substantiate that she was subjected to sexual act which is also against her wish. The injuries found on the accused has not been explained by the accused in his 313 statement. Learned counsel also would contend that in the 313 statement, there is nothing but total denial. Hence, the trial Judge ought not to have acquitted the accused. The evidence available before the Court both oral and documentary evidence was not considered in right perspective and hence, the very judgment of acquittal is liable to be reversed by allowing the appeal.
7. Per contra, the learned counsel appearing for accused/respondent would contend that the trial Judge meticulously considered the evidence of P.Ws.1 to 14 and found the material contradictions in the evidence of each of the prosecution witnesses. The prosecution failed to prove the ingredients of kidnap. The Court has observed that according to the case of prosecution the victim was forcibly taken to lodge. But, no material is placed on record that she made an attempt to escape from the clutches of the accused. The trial Judge has given a reasoning that the victim girl might have consented to sexual act. The documentary proof with regard to her date of birth i.e., the School Certificate is not based on any birth register or any other documents produced at the time of admission. Only approximate age has been mentioned in the school records and she was not subjected to any ossification test. The Court below has taken note of the evidence of the doctor, who deposed that victim is between the age group of 14 to 16. When there is no documentary proof, the trial Court meticulously considered the evidence and acquitted the accused in the absence of prima-facie material against the accused to prove the charges beyond reasonable doubt. Hence, there are no grounds to interfere with the order of the trial Court.
8. Having heard the arguments of learned counsel for appellant and also learned counsel appearing for respondent/accused, the point that would arise for our consideration is;
“1. Whether the Court below has committed an error in acquitting the accused for the offences punishable under Sections 363, 363-A, 376 and 506 of Indian Penal Code?”
9. Point No.1:- It is the case of the prosecution that on 18.03.2011 at about 6.30 p.m., when the victim girl – P.W.4 and her sister – P.W.3 were proceeding together, the accused came in a red colour car and called P.W.4 - victim girl and when the victim girl – P.W.4 went near the car, accused pulled her inside the car and instructed the driver to move immediately. Thereafter, accused took the victim girl and subjected her for sexual act. He has also threatened her when she refused to accompany him. The prosecution, in order to prove the charges levelled against the accused, examined P.Ws.1 to 14 and also relied upon Exs.P.1 to 10.
10. Now, let us consider the evidence of prosecution witnesses. P.Ws.1 and 2 are not eye witnesses to the incident of kidnapping P.W.4 – victim girl. The evidence of P.Ws.1 and 2 is similar that P.W.3 came and told that accused had kidnapped P.W.4 forcibly by pulling her inside the car. P.W.1 came to know about the same through P.W.3 and hence, P.W.1 had lodged the complaint.
In the cross-examination of P.W.1, it is elicited that the place in which she was kidnapped, is a public place. While giving the statement, he gave statement that the name of the relative is mentioned as Dattaram. He also admits that he gave complaint that three persons kidnapped her. He further admits that he has signed Ex.P.2 at the police station. In the cross-examination of P.W.2, he admits the relative name is Sitaram. He further admits that on the next day, he came to know that victim girl – P.W.4 next day morning at 8.13 a.m., was in the police station and her mother was also in the station. She came to house on the next day at 3.00 p.m.
11. P.W.3 is the witness, who is aged about 10 years and who was along with P.W.4. In her evidence, she says that herself and P.W.4 went to her relative Sitaram’s house and when they came out from the house, accused came in a red colour car and called P.W.4. He took her in the car. In the cross-examination, it is elicited that when they took her in the Car, she screamed “Amma Amma”. It is suggested that no incident had taken place as deposed and the said suggestion was denied.
12. P.W.4 is the victim girl. In her evidence, she says that herself and P.W.3 were going to the house of Sitaram. The accused came in a red colour car along with other persons. The accused called her and she thought there may be some work. When she went near the car, he pulled her holding her hand inside the Car and thereafter, took her to Hotel. In spite of her refusal, he subjected for rape and he committed rape twice. She claimed her date of birth is 24.06.1996. She claimed that on the next day, herself and accused were taken to police station and subjected to enquiry and thereafter, sent for medical examination. She also claims that she signed the spot mahazar – Ex.P.3 in the police station. In the cross- examination, she admits that she left the school one month prior to the incident since she was having headache. In the cross-examination, she admits that while going to the house of Sitaram, the incident has taken place near the temple and the said place is public place and car was parked a little distance from the said temple. P.W.4 also admits that when the accused pulled her inside the Car, she screamed calling the name of her sister. P.W.4 also admits that when she was walking near her house, accused was talking to her and family members were not liking to speak with the accused and hence, they were scolding her. It is suggested that when she continued to talk to him, she was forced to discontinue the education and the said suggestion was denied. But, she claims that she was having cell phone with her. It is elicited that after this incident, in her uncle’s house, she fell down from second floor and sustained injury. It is suggested that a false case was registered against the accused, even though she fell down from the second floor. The said suggestion was denied. She also admits that there was a parapet wall on the second floor. P.W.4 further admits that after treatment, she was taken to Rajasthan and brought her to give evidence before the Court. It is elicited that at the first instance, the statement was recorded by the Police 19.03.2011 and again, after 5-6 days, she was called to police station and she was in the station on that day along with her mother. It is further elicited that both of them were taken to hospital and her statement was not recorded in the hospital. She was enquired by the lady Medical Officer. P.W.4 admits that P.W.6 used to visit the shop of P.W.1. In the further examination, it is elicited that she cannot tell, where the accused was sitting in the car, when she was kidnapped. She also does not know who was driving the car. However, she claims that she was sitting in the back seat. P.W.4 further admits that they took half an hour to go to hotel. The driver of the car left the accused and the victim girl near the hotel and thereafter, after talking to receptionist, both of them went inside the room. On the same day, they vacated the room. They only stayed for half an hour and thereafter, they went to Kothanur Police Station along with other two persons. She did not make any phone call from her cell phone and police got changed her cloth. It is suggested that accused did not subject her for sexual act and the said suggestion was denied. She cannot tell the name of the Doctor who conducted the examination. At the time of conducting the examination by the lady Medical Officer, no one was there.
P.W.4 admits that P.W.6 was not at the spot when she was kidnapped.
13. P.W.5 is the room boy of the lodge. He says along with accused one girl was there and they stayed for a day and identifies the xerox receipt showing that the same belongs to their hotel and also extract of hotel register saying that the same belongs to their hotel. In the cross-examination, he admits that the police, though visited the lodge in the night, he cannot tell the colour of dress of both the accused and the victim girl or any identification. He admits that he cannot tell who had signed the said receipt and also the handwriting on the same. It is suggested that accused did not visit the said lodge and the same was denied. Further suggestion was made that the facts of the case was explained by reading the same and the same is also denied. It is suggested that accused did not come to lodge along with any lady and the same was denied.
14. P.W.6 claims he is an eye-witness. He was subjected for cross-examination. In the cross-examination, he says in his presence, the victim was kidnapped and the same was informed to the police and there were fifteen workers at the spot. But, he says that when the incident had taken place, he did not think that it is a kidnap. He did not go to police station on the date of incident. He only went to police station in the month of April in order to enquire about the status of the case. It is suggested that he has signed the mahazar in the police station and the same was denied.
15. P.W.7 is the High School Head Mistress and produced Ex.P.4 – Date of Birth Certificate as 24.04.1996 and the same was given at the request of police in terms of Ex.P.5. In the cross-examination, it is elicited that she left the school in the year 2010 and does not know the reason for leaving the school. Except the Certificate, which they have issued, there are no other documents in the school.
16. P.W.8 is another employee of the lodge. In his evidence, he says that in terms of records, accused took the room on 18.03.2011 i.e., room No.101 and there was an entry that room was taken at 9.30 p.m. He identifies the xerox copy of the receipt claiming that an amount of Rs.1,100/- was paid and the said receipt was given at the time of vacating the room. He also identifies another xerox document. Prior to giving the room to the accused, one Yellappa was in the room and he vacated the room. In the cross-examination, he admits that they used to take the identification of the persons before providing the room and he also admits that during night, police visited the lodge and enquired, who are all in the room. He admits that xerox documents are not in his handwriting. But, he admits that he mentioned the date as 18.03.2011 and he admits that bill and receipt contains the date as 19.03.2011. He further admits that when they were not in the reception, room boy will not be there. He identifies the accused and also identifies P.W.4 based on the photo, which was attached to Ex.P.1.
17. P.W. 9 is the constable who was deputed to search the accused and the victim girl. P.W.9 says when they went near the Nagavara Ring road signal as per the credible information, they found accused and the victim girl at 9.15 a.m. He produced them before the Station House Officer and gave the report in terms of Ex.P.6. In cross examination, it is elicited that from Thanisandra to Nagavara ring road, the distance is about 4 kms. It requires 15 minutes. They did not prepare the arrest memo at the spot and did not take the assistance of public to apprehend both of them. Both of them were taken to the station in an auto rickshaw. It is suggested that they have not apprehended both of them and the same has been denied.
18. P.W.10-Woman Police Constable in her evidence says that she took the victim girl to medical examination and after subjecting her to medical examination she was produced before the Station House Officer. In the cross examination, it is elicited that when she came to station, she found the victim girl. She was subjected to medical examination from 12.15 p.m. to 1:00 p.m. When they went to medical college, the lady medical officer was not there. It is suggested that she was not subjected to medical examination and the said suggestion was denied.
19. P.W. 11 , Police Constable in his evidence says that on 20.03.2011, he took the victim to medical college. After examination, he brought her back and produced before the Station House Officer. In the cross examination, he admits that when he came to station, he found the victim in the station. It is elicited that she was subjected to medical examination from 1.00 p.m. to 2.00 p.m. He came back to station at around 3.30 p.m. The distance between the station and medical college is 15 kms. There was no government hospital near the station. It is suggested that he was not taken to medical examination and same was denied.
20. P.W. 12 is the PSI. In his evidence, he says that he deputed his staff to apprehend the victim and the accused. The staff produced the accused and victim at 9.45 a.m. he also recorded the voluntary statement of the accused. In his voluntary statement, he has stated that if he is taken to Shimsha, he will show the room where he was staying. He also says that he deputed his staff to take them to medical college. In the cross examination, he admits that he has prepared the request letter while sending them to hospital for medical examination. He has mentioned the details in the letter. He admits that he did not take the accused to Shivanasamudra and also did not sieze the clothes of both accused and victim. It is suggested that he did not depute any staff to apprehend the accused and victim. He is falsely deposing that he is not apprehended and the said suggestion was denied.
21. P.W. 13 is the doctor. He has deposed that on the request of police, he has conducted the medical examination on accused on 20.03.2011. He conducted examination at 1.p.m. with the consent of the accused. He noticed the injuries made from nails on the neck, chest, right side neck, lip, right side cheek and opined that the said injuries might have occurred while the victim refused to sexual act. He also found the injury on the penis which appears to be two days old. He subjected the substance which he found on the penis for lagole iodine test and the same was positive. He says that he gave the report in terms of Exs.P8 and P9. He also says that the victim was subjected to medical examination. She was subjected to x- ray in order to ascertain the age of the victim. She found the injuries on her private part. Hymen was ruptured. She was having pain in her private part. She found seminal stains. She claims that she has removed the clothes and washed. It is also his evidence that on perusal of the x-ray she was in between the age of 14 to 16 years. maybe 15 years old. There are signs of subjecting her to sexual assault two days prior to the examination. There was no evidence of she having been subjected to sexual act prior to that. He identifies the signature on Ex.P.9. In the cross examination he admits that Ambedkar Medical College Hospital is a private hospital. The Kothnur police used to refer the Medico Legal Cases to the hospital. He admits in Ex.P.8 and P.9 he did not mention the timings of examination. He also admits that in Ex.P.9 he did not mention the name of the lady medical officer. But, she claims that she has signed. He admits that he did not examine the blood and seminal stains of the accused. He admits that he found seminal stains on the private part of the victim but he did not examine whether it belongs to accused. He claims that it was not in his jurisdiction. He admits that he did not furnish the x-ray to the Investigating Officer. It is suggested that if the age is determined through medical examination, there may be difference of 2 years and the said suggestion was denied. He admits that he did not find any blood stains on the clothes of the accused. He further admits that in Ex.P.8 and 9, he has not given separate wound certificate. It is suggested that only in order to show that she was subjected to rape, he has mentioned the injuries in Exs.P.8 and 9 and the said suggestion was denied.
22. P.W.14 is the Police Inspector. In his evidence, he says that P.W.1 came and gave complaint on 18.03.2011. He registered the case and sent the First Information Report to Court. He also identifies Ex.P.1 and conducted spot mahazar in terms of Ex.P.2. On 20.03.2011, he recorded the statements of the victim girl, PSI-Chandrashekar and others. He also states that he obtained the medical report from Ambedkar Medical College Hospital as Ex.P.8 and 9. He also collected the date of birth certificate from school in terms of Ex.P.4. He claims that on 13.04.2011 the victim made further statement that she was subjected to rape at comfort lodge near the Banashankari temple. He has drawn the mahazar in terms of Ex.P.3. He collected the photo copies of the receipts for the stay of accused and victim girl in the said lodge. He recorded the statements of Cws.7 and 9. After completion of investigation, he has filed the charge sheet. In the cross examination, he admits that P.W.6 did not make any statement that he witnessed the incident of kidnap. He further admits the place which is shown in Ex.P.2 is a public place. He admits that he did not mention that there were three persons at the time of kidnapping the victim girl and no mention in Ex.P1 also that there were three persons. It is elicited that he did not take the accused to shimsha.
23. Keeping in view the contentions urged by both the counsel appearing for the State and the defence counsel, this Court has to re-appreciate the oral and documentary evidence. This Court would like to consider the charges levelled against the accused for the offences punishable under Sections 363 and 506 read with Section 34 of the Indian Penal Code which are extracted hereunder:
“363. Punishment for kidnapping Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
506. Punishment for criminal intimidation Whoever, commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
If threat be to cause death or grievous hurt, etc.: And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
24. The case of the prosecution is that on 18.03.2011 at about 6:30 p.m. at 5th cross, Hegdenagar, the appellant along with another absconded with an intention to commit kidnap of a minor girl – P.W.4 and also threatened her by stating that she would be killed if she did not follow him. In order to prove these two offences, the prosecution relied upon the witnesses, PWs.1 to 4.
25. P.W.1 is the cousin brother of the victim girl and P.W.2 is brother of P.W.4. Both of them came to know about kidnap through P.W.3. Hence, it is clear that PWs.1 and 2 have not witnessed the incident and both of them are hearsay witnesses. P.W.6 though he contends that he also witnessed the incident, he admits that he was not at the spot. The material witnesses are PWs.3 and 4.
26. First, we would like to consider the evidence of P.W.3. According to her, she states that the accused came in a red colour Car and called P.W.4 and took her in the Car. In examination-in-chief, she did not tell anything that P.W.4 was forcibly taken by the accused. Only in the cross-examination, she claims that while taking her in the Car, she screamed as ‘amma amma’. On perusal of evidence of P.W.4, the victim, she claims that the accused called her. She went near the car thinking that he may be having work. The accused held her hand, made her to sit in the Car and thereafter, took her to hotel. She has not spoken anything that she was subjected to threat. In the cross-examination, she says that when she was inside the car, she screamed once calling her sister’s name. Both PWs.3 and 4 gave different version. It is pertinent to note that in the cross-examination, she categorically admits that accused used to speak with her which was not liked by her family members and they were scolding her. Further, she admits that she was having cell phone with her and she gave the cell phone to the accused. It is further important to note that she categorically states in the evidence that he took her to hotel, enquired with the receptionist and both of them went inside the hotel. The driver of the car dropped both of them near the hotel and left. They took half an hour to go to hotel. She did not make any phone call to anybody. Hence, it is clear that there is no ingredient of Section 363 of the Indian Penal Code to come to the conclusion that she was kidnapped forcibly. The evidence of P.W.4 also shows that she did not make any phone call when accused No.1 was enquiring with the receptionist or while entering the room. Though it is the case of the prosecution that she was threatened, P.W.4, who is the right person to speak about the same, did not tell anything. Hence, in the absence of any substantive piece of evidence to attract the penal provisions of Section 363 as well as Section 506 of the Indian Penal Code, we are of the opinion that the prosecution has utterly failed to prove the charges levelled against him for the offences punishable under Sections 363 and 506 of the Indian Penal Code.
27. Now, let us consider the evidence available before the Court with regard to whether P.W.4 was subjected to sexual act or not. P.W.4 categorically states that after taking her to the lodge, in spite of her refusal, the accused has committed rape on her twice. First, we would like to consider the age of the victim. According to her, date of birth is 24.04.1996 and in support of the said claim, the prosecution relied upon the evidence of P.W.7 – Head Mistress of the School. In her evidence, she states that as per the school records, her date of birth is 24.04.1996 and was studying 9th standard for which she has issued Ex.P5. It is elicited in her cross-examination that the victim left studies in the year 2010. It is further elicited that she joined the school in 2009-10 for 8th standard on 02.06.2009. It is elicited that based on the entries found in the school records, she has given the date of birth certificate and no other documents were available in the school. As on the date of the incident i.e., on 18.03.2011, she had not completed the age of 16 years and hence she is a minor. It is important to note that she was also subjected to medical examination and the Doctor- P.W.13, who examined her, in his evidence states that as per the x-ray, her age was in between 14 to 16 years, probably 15 years. In the cross-examination of P.W.13, it is suggested that if the age is determined through medical examination, there may be difference of 2 years and the said suggestion was denied. Further suggestion was made that when the medical certificate was issued, normally there would be difference of two to three years and the said suggestion is also denied. The medical evidence is clear that she is aged about 15 years. According to the school certificate, her age was 15 years 10½ months and she has not completed the age of 16 years. If the victim is below the age of 16 years, consent is immaterial. Section 375 of the Indian Penal Code provides that if the victim below the age of 16 years consents, the same is not at all consent. If she is subjected to Sexual Act, it amounts to rape. The sex with or without consent when she is under sixteen years of age amounts to rape.
28. We would like to rely upon the judgment of the Hon’ble Apex Court in the case of PARAG BHATI (JUVENILE) THROUGH LEGAL GUARDIAN-MOTHER-RAJNI- BHATI VS. STATE OF UTTAR PRADESH AND ANOTHER reported in 2016 (12) SUPREME COURT CASES 744 wherein with regard to the juvenile offender is concerned, it is settled position of law, that if matriculation or equivalent certificates are available and there is no other material to prove correctness of date of birth, date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of date of birth of accused. However, if there is any doubt or a contradictory stand is being taken by accused, which raises a doubt on correctness of date of birth, then an enquiry for determination of age of accused is permissible.
29. Having regard to the principles laid down in the judgment referred supra, in the case on hand, it is clear that there is no other document except the school certificate which reveals that while admitting to School in 2009, that too for 8th standard, the date of birth is shown as 24.04.1996. Though the learned counsel for the accused disputes the same, he did not place any material before the Court. Unless the contrary is proved, the Court has to accept the evidence available on record i.e., the school certificate. The evidence of Doctor, who has been examined as P.W.13 is clear that the average age of the victim is 15 years. In the cross-examination of P.W.13 also, nothing is elicited to contravene the same except suggesting that there would be a difference of age of 2 to 3 years and the same has been categorically denied.
Having accepted the school certificate, which is marked as Ex.P6, it is clear that she is a minor as on the date of the incident.
30. Now, let us consider the material on record whether she was subjected to sexual act or not. P.W.4 in her evidence, categorically deposed that she was subjected to sexual act against her wishes and when she refused, he had forcible sexual intercourse twice. In the cross- examination of P.W.4, it is suggested that she was not subjected to sexual act and the same has been categorically denied. However, it is suggested that she was in love with the accused and since her family members were against her love, a false case is registered against him and the same was denied. It is suggested that the accused did not take her to any place and has not committed rape and the said suggestion is also denied.
31. The medical evidence is to be looked into in order to connect the accused with the offence. She says that she was taken to Ambedkar Medical College Hospital and subjected to medical examination and the same was done by the Lady Medical Officer, but she has not named the Doctor. She claims that at the time of examination, except the lady medical officer, no other persons were there. P.W.13 – Doctor in his evidence states that the accused was subjected to medical examination and he found the injuries on the right side of the neck, on the chest, on the right side below the neck, on the right side of the cheek which are caused by nail and the same were two days old. He further states that those injuries might have occurred while having forcible sex. It is also the evidence of P.W.13 that he found the injury on penis of the accused measuring 1 cm x 0.2 cm. The same is two days old. He collected the sperm and subjected it for Lagole-iodine test and the same was positive. P.W.4 was subjected to medical examination with lady medical officer and she found the injuries on her private part. Hymen was ruptured. It is elicited in the cross-examination that they did not mention the name of the lady medical officer, but only mentioned a lady assistant. As per his report, she was subjected to sexual act within 48 hours and given positive report that she was subjected to sexual act within two days. He further admits that the sperm of the accused were not subjected to any test. The sperm found on the private part of the victim was not examined as to whom the same belongs to. He volunteers that the same does not come within his purview. It is elicited that he did not find any blood stains on the clothes of the accused. He further admits that he has not given any separate wound certificate except Exs.P8 and P9. It is suggested that he has given Exs.P8 and P9 at the instance of the Police and the same is denied. It is to be noted that P.W.13 categorically says that he examined the accused and the injuries. In the cross-examination of P.W.13, nowhere it is suggested that the accused was not subjected to any medical examination, but admitted that it is a private medical hospital. He admits that he has not issued separate wound certificate. However, Exs.P8 and P9 clearly confirm that both the accused and victim were subjected to medical examination and found the injuries on private part of both the victim and the accused. The same is also not denied in the cross-examination. Hence, it is clear that the accused subjected the victim for sexual act and the injuries sustained by him clearly shows that the victim refused to have sexual intercourse. It is the specific evidence of Doctor that the injuries which are found on the accused are nail injuries and those injuries may be caused if sexual act has taken place with resistance. Hence, it is clear that the accused subjected the victim for sexual act against her wishes. The injuries found on the victim and also on the accused clearly show that sexual act is against wishes of the victim. P.W.4 categorically stated that he had sex twice against her wishes and the same is supported by the medical evidence of P.W.13. The evidence of the Doctor is clear that the injuries noted on the accused are nail injuries on the neck, chest, right side neck, lip, right side cheek and it corroborates that the victim was subjected to sexual act against her wishes. Medical evidence also corroborate that he had injuries on his penis and the same are two days old. Both of them were subjected to medical examination within two days of the incident. The Doctor evidence is clear that hymen was also ruptured and she was having pain in her private part. The medical evidence and the evidence of the victim corroborates the case of rape committed by the accused.
32. The other circumstance proved by the prosecution is that the accused took the victim to a lodge. An employee of the said lodge has been examined as P.W.5. He also identifies the accused and he categorically states that the accused came along with one girl and they stayed there for a day. No doubt, in the cross- examination, it is elicited that he cannot tell any specific identification as to the colour of the clothes of the accused and the girl. In the case on hand, it is to be noted that the original documents are not secured and only xerox copy is shown. These lapses on the part of the investigation cannot take away the case of the prosecution and also cannot take away the very right of the prosecution in a case where the victim is subjected to rape. No doubt in the cross-examination of the Investigating Officer, it is elicited that though accused gave the voluntary statement, the accused did not take him to particular Shimsha lodge, but collected the documents of Comfort Lodge. It is also pointed out that the lodge registers are not secured and marked. The lapse on the part of the Investigating Officer cannot take away the case of the prosecution. The Investigating Officer who has been examined states that he did not take the accused to Shimsha lodge but P.W.4 later says that she was taken to comfort lodge. The Investigating Officer ought to have collected the original registers of the Comfort Lodge but the same is not collected. The lapses of the prosecution are not fatal to the case on hand since it is a case of rape on a minor girl and the other evidence available on record viz., the evidence of the victim and the medical evidence corroborates the case of the prosecution.
33. We would like to refer to the judgment of the Apex Court with regard to appreciating the evidence in the case of sexual act. The Apex Court in the judgment rendered in the case of MUKESH VS. STATE OF CHATTISGARH reported in (2014) 10 SCC 327 held that the sole testimony of prosecutrix is sufficient to establish the offence of rape even in the absence of corroborative evidence. In the case on hand, it is to be noted that we have already pointed out that the victim supports the case of the prosecution and medical evidence on both the victim as well as accused is clear when both of them were subjected to medical examination, the doctor found the injuries on the private part of both the victim and the accused. Hence, the medical evidence also corroborates the case of the prosecution.
34. The Apex Court also in the judgment rendered in the case of STATE OF HIMACHAL PRADESH VS. MANGA SINGH reported in 2018 SCC Online SC 2886, in para Nos.11 and 12 has held as under:
“11. The conviction can be sustained on the sole testimony of the prosecutrix, if it inspires confidence. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration be required unless there are compelling reasons which necessitate the courts to insist for corroboration of her statement. Corroboration of the testimony of the prosecutrix is not a requirement of law; but a guidance of prudence under the given facts and circumstances. Minor contractions or small discrepancies should not be a ground for throwing the evidence of the prosecutrix.”
12. It is well settled by a catena of decisions of the Supreme Court that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the ‘probabilities factor’ does not render it unworthy of credence. As a general rule, there is no reason to insist on corroboration except from medical evidence. However, having regard to the circumstances of the case, medical evidence is not available. In such cases, solitary testimony of the prosecutrix would be sufficient to base the conviction, if it inspires the confidence of the Court.”
35. Referring to the judgment of State of Punjab v.
Gurmeet Singh ((1996) 2 SCC 384 p.403, the Apex Court has observed as under:
“The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? ”
36. The Apex Court considering the principles of the judgment rendered in the case of STATE OF RAJASTHAN V. N.K. THE ACCUSED, reported in (2000) 5 SCC 30, held as under:
“….This Court deprecated viewing evidence of such victim with the aid of spectacles fitted with lenses tinted with doubt, disbelief or suspicion. We need only remind ourselves of what this Court has said through one of us.’ 37. Having considered the principles laid down in the judgment referred above, the Apex Court restored the judgment of the trial Court convicting the respondent therein under Section 376 of the IPC by setting aside the judgment of the High Court.
38. Having considered the material available on record and also the principles laid down in the judgment referred supra and also the facts and circumstances of the case on hand, the evidence of P.W.4 i.e., victim and also the medical evidence of P.W.13 – Doctor and also the evidence of P.W.5, who identifies the accused that he came to the lodge with a girl inspires the confidence of this Court that the accused has committed a heinous offence of rape against the wishes of the victim and hence, it is a fit case to bring the accused within the purview of Section 376 of the Indian Penal Code. The Court below taking note of some minor discrepancy in the evidence of the prosecution, particularly, the evidence of P.Ws.1 to 4 has given benefit of doubt in favour of the accused. The same ought not to have been given in favour of the accused when the medical evidence and the evidence of the victim support the case of the prosecution. The Court below failed to appreciate the Medical evidence and the evidence of the victim. In a case of rape, the court need not necessarily consider the corroboration, but the sole evidence of victim is sufficient. In the case on hand not only victim evidence but the medical evidence also corroborates. The court below has committed an error in appreciating the evidence available on record and gave more importance to the minor discrepancies available on record. The discrepancies cannot take away the case of prosecution. The Court below failed to consider the gravity of offence which shocks the conscience of the Court which is a heinous offence. The approach of the Court below cannot be accepted.
39. The Apex Court in the case of STATE OF UTTAR PRADESH VS. CHHOTEY LAL reported in 2011(2) SCC (CRIMINAL) 674 while reversing the judgment of the High Court held that it did not take into consideration crucial evidence on record and acquitted the accused. In the case on hand also, the trial Court acquitted the accused on flimsy grounds taking into consideration of the evidence of P.Ws.1 to 4. In the case of rape, when the medical evidence and the evidence of the victim corroborates that the accused subjected the victim for sexual act against her wishes, minor discrepancies occur and the Court should not give much importance to the same.
40. The evidence of the victim in a case of offence of rape as held in the judgments referred supra, inspires the confidence of the Court. The conviction can be based solely on the solitary evidence of the prosecutrix and no corroboration is required unless there are compelling reasons. In the case on hand, one cannot find any compelling reasons to come to any other conclusion. Hence, it is a fit case to reverse the finding of the trial Court in respect of offence punishable under Section 376 of the Indian Penal Code. However, the Court has to take note of the factual aspects of the case whether the offence committed requires awarding of maximum sentence or minimum sentence. In the case on hand, the victim is minor and she was taken in car along with accused and both of them were apprehended on the next day in the ring road. Hence the minimum sentence of seven years is just and reasonable.
41. We have already held that the prosecution failed to prove the ingredients of Sections 506 and 363 of the Indian Penal Code. In view of the discussions made above, we pass the following:
ORDER i) The appeal is allowed in part.
ii) The judgment dated 30.06.2012 passed by the Fast Track Court – XIII, Bengaluru city to the extent of acquitting the accused under Section 376 of Indian Penal Code is set aside.
iii) The accused is convicted for the offence punishable under Section 376 of the Indian Penal Code. He is sentenced to undergo simple imprisonment for a period of seven years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) payable to P.W.4- victim and in case of default of payment of fine, to undergo further imprisonment for a period of one year.
iv) The acquittal of the accused in respect of offences punishable under Sections 363 and 506 read with Section 34 of the Indian Penal Code is confirmed.
v) The Court below is directed to secure the accused and subject him to serve sentence.
vi) Needless to state that if the accused was in custody during the course of trial, he is entitled for the benefit of set off under Section 428 of Cr.P.C.
Sd/- Sd/-
JUDGE JUDGE ST/AKC/NBM