B.K. Prakash vs State of Karnataka

Subhash B. Adi

Appeal by the accused against the judgment of conviction in S.C.No.244/2002 dated 22nd August 2005 on the file of II Addl.District & Sessions Judge, Bangalore Rural District, Bangalore.

Accused - B.K.Prakash was tried for the offences, punishable under Sections 323, 427, 376 of the Indian Penal Code read with Section 3 Clause (12) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The case of the prosecution was that, PW-20 - victim, her husband - PW-21, her parents - PWs-22 and 23, for the last six months all were residing together. They had come from Tamil Nadu to work in stone quarry. On 14.3.2001, PW-21 - husband of the victim - PW-20 had given Rs. .10/- to the victim for purchasing the charcoal. She had gone to purchase the charcoal to Marasandahalli. She was returning to Agasarahalli through a pathway. Near Karimaramma temple, accused Prakash, s/o Narayanamma followed her. When she enquired why he is following, he caught, her, removed her cloths and he also removed his cloths, forcibly made her to lay on the ground and by scratching on her face, he forcibly committed rape on her. At that time, PW-1 - Ramaswamy came, accused on seeing Ramaswamy went from there. Victim after wearing her cloths, took her charcoal bag and went to the house and informed her husband and her parents. On the next day, she went to Nandagudi Police Station where PW-28 recorded her statement as per Ex.P19 and registered a case in Crime No.30/2001. PW-27 sent victim to the Government Hospital at Hosakote where PW-15 examined the victim at about 8.00 p.m. on 15.3.2001 and issued wound certificate -Ex.P15 and opinion - EX.P16. PW-32 took over the investigation from PW-27. He went to the spot on 17.3.2001, recorded the statements of the witnesses and handed over the further investigation to PW-31. PW-31 engaged the Constables for the search of the accused. On 12.7.2001, accused voluntarily surrendered before the court and he was remanded to judicial custody. Thereafter, he was handed over to Police custody from 17.7.2001 to 19.7.2001. He subjected the accused for medical examination and PW-30 examined the accused and issued Ex.P24 - certificate certifying that the accused is capable of performing an act like that of sexual intercourse. PW-31 also sent M.Os., such as, the cloths worn by the victim and accused for FSL examination. After collecting the FSL report., opinion, recording the statement of the witnesses and after completing the investigation, PW-31 filed the charge sheet.

On committal, learned Sessions Judge secured the presence of the accused and in his presence, learned Sessions Judge framed the charges for the offences punishable under Sections 323, 427, 376 of the Indian Penal Code read with Section 3 Clause (12) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989, as under:

Firstly, that you on 14.3.2001 at Agasarahalli village you, having suction intention to commit rape on CW-1 Mangamma a minor teenager, followed her when CW-1 Smt. Matigamma was returning from Marsandahalli to Agasarahalli carrying charcoal bag on her head and. voluntarily caused hurt on her face with nail while attempting to commit rape on her and that thereby you committed an offence punishable u/s 323 of IPC and within the cognizance of this court.

Secondly, that on the aforesaid date time and place you committed mischief by tearing Langa, Saree and blouse of CW-1 Mangamma a minor teenager while attempting to commit rape on her and thereby caused loss to an extent of Rs.30/- to the said CW-1 and that thereby committed an offence punishable u/s 427 of IPC and within the cognizance of this court Thirdly, that on the aforesaid date, time and place you accused having an intention to commit rape on CW-1 Mangamma a minor teenager, followed on her way carrying charcoal bag on her head and felled her down forcibly near Muniyamma''s land at about 5.00 p.m. and committed rape on CW-1 Mangamma and voluntarily caused hurt on her face with nail and also committed mischief of causing loss by tearing langa, saree and blouse of the said CW-1 Mangamma and that thereby you committed an offence punishable u/s 376 of IPC and within the cognizance of this court.

Lastly, on the aforesaid date, time and place you accused not being the member of either SC or ST. committed rape, voluntarily hurt and mischief of causing loss to CW-1 Mangamma a minor teenager, knowingly that she belongs to SC community with intent to insult and humiliate the said minor teenager within the public view and thereby committed an offence punishable u/s 3 C1 (XII) of SC/ST (Prevention of Atrocities) Act, 1989 and within the cognizance of this court.

Accused pleaded not guilty and claimed to be tried.

To prove the charge, prosecution examined PWs-1 to 33, marked Exs.P1 to P29 and produced M.Os.1 to 9. No defence evidence was led.

After recording the statement of the accused u/s 313 of Cr.P.C, the trial court relying on the evidence of PW-20 - victim and also the evidence of PW-21 - husband of the victim, PWs-22 and 23 - parents of the victim and the evidence of PWs-15 and 16 - Doctors, held that the prosecution has proved the charge for an offence punishable under Sections 323, 427, 376 of the Indian Penal Code read with Section 3 Clause (12) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 and accordingly, it sentenced one year''s R.I. and Rs. .1,000/- fine, in default to undergo further S.I. for three months for an offence punishable u/s 323 IPC; 7 years'' R.I. and fine of Rs. .5,000/-, in default to undergo six months S.I. for an offence punishable u/s 376 of IPC; one year''s R.I. with Rs. .1,000/- fine, in default, two months'' S.J. for an offence punishable u/s 427 of IPC and one year''s R.I. with fine of Rs. . 1,000/-, in default, two months'' S.I. for an offence punishable u/s 3 Clause (12) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is against the said judgment, the accused is before this Court.

Heard Sri.M.R.Kanjunda Gowda, learned Counsel for the appellant - accused and Sri.Srinivasa Reddy, learned Government Pleader for the State.

Sri.M.R.Nanjunda Gowda, learned Counsel submitted that, out of 33 witnesses examined, the victim and her relatives like husband, parents alone have supported the case of the prosecution and all other independent witnesses have turned hostile. The trial court mainly relying on the evidence of victim - PW-20 has convicted the accused by observing that, there was no reason for the victim to falsely implicate the accused, as the accused has not proved any motive for the victim to falsely implicate him. The suggestion by accused to PW-20 that there was a quarrel and enmity between the accused and one Chikkanna and the said Chikkanna has got the complaint filed through PW-20 has not been established by the accused. Victim being a married woman, her evidence is natural and she belongs to Bhovi community'' and accordingly, the trial court convicted the accused.

However, he submitted that, the trial court has not considered the evidence of PW-20 - victim, who, in her evidence has stated that the incident occurred at about 5.30 p.m. and it was on a pathway. In the cross-examination, she has admitted that there is a tar road near the pathway and it is a busy tar road and the pathway where incident is alleged is busy pathway where people normally will be moving to go to dairy and Marasandahalli and also the people work in the quarry nearby. When the place of occurrence is a public place and she being a well built lady, as she has admitted that she can move the boulder weighing up to 50 kgs., as she has 10 years'' experience working in quarry, however, she has admitted that, the accused removed her cloths and then he removed his cloths and committed forcible rape. He submitted that the evidence of this witness is not natural, if she is strong enough to move a boulder of 50 kgs. and if place of occurrence is a public place where people will be moving around and it is nearer to the tar road, where the vehicles will be moving, it is highly unnatural that the accused could have committed forcible sexual act in a day light. He further relied on the wound certificate issued by PW-15 and the evidence of PW-15 and submitted that, the injuries pointed out by PW-15 are only injuries on the face and shoulder. There is no injury on any other part of the body. If there was a scuffle between the accused and the victim and if the victim had laid on her back to a rough surface and that too after removing the cloths, at least there would have been some scratches or abrasions on the back side of the victim and further, victim states that, scuffle and act took 45 minutes and for 45 minutes, if really she had struggled, then there should have been some injuries on the body of the accused. The opinion of PW-15 - Doctor also does not show that there was any sexual intercourse, does not show that she had suffered any such injury much less on the private part, as such, her evidence is not natural and does not prove that the accused had committed any sexual act on the victim.

He also submitted that the victim PW-20 has not disclosed the truth, though she had informed her husband, mother and father on the same day, however, she goes to the Police Station on the next day where her statement was recorded as per Ex.P19. Further in her statement, she has referred the name of the accused as ''Prakash, son of Narayanamma", whereas in the cross-examination, she states that she did not know the accused nor his name till the Police arrested the accused and shown to her, only then she came to know the name of the accused. She also admitted that, at the time of giving complaint, she was not knowing the name of the accused, except stating the physical description of the accused, she had not given the name, but the statement Ex.P19 discloses the name of the accused.

He further submitted that, victim has admitted that, there was no bloodstain on her cloths nor her cloths were torn, whereas, PWs-21, 22 and 23, in their evidence, they have stated that there were not knowing the name of the accused and they came to know the name of the accused from the villagers and PW-1. PW-21 has stated that, they went to the Police Station at 4.00 p.m. on 15.3.2001. PW-21 has also stated that, there was no bleeding injury either on the face or any part of PW-20. PW-22 - father of the victim states that, his daughter''s cloths were torn and there were scratches on her face. Accused had torn her cloths. He also admits that, they were not knowing the name of the accused. Only when villagers told, they came to know the name of the accused, that is after they returned home and admits that, there were no other injuries except on the face.

He also relied on the evidence of PW-23 - mother of the victim. PW-23 has stated that, she did not observe whether her daughters cloths were bloodstained and she has also stated that she was not knowing the name of the accused.

Be submitted that, though PW-24 has been examined to prove that the victim was aged less than 16 years, PW-24 has issued Ex.P20 stating that the victim''s age is about 15 to 16 years, but in the cross-examination, he has admitted that, he had not produced the x-ray and radiology report, he has not done ossification test of bones of the victim, he has also not done microscopic test of the teeth of the victim, but has admitted the presence of 3rd molar of the victim, and also admitted that, as per the Modi''s Medical Jurisprudence, 3rd molar will be visible only after the age of 17 years and also admitted that, there will be an error of plus or minus 2 to 3 years in the assessment of age and submitted that the tried court has rightly held that the victim is major.

Learned counsel further submitted that, the prosecution though has relied on the evidence of PW-20 -victim, but victim in her complaint, she has referred to the presence of Rarnaswamy - PW-1, but PW-1 has not supported the case of the prosecution and has denied that, he has seen the incident. He also submitted that, the evidence of PWs-1 to 23 is inconsistent to each other. PW-20, though she is a victim and her evidence stands on higher pedestal, but if the victim''s evidence creates serious doubts as to the act and is not trustworthy, the said evidence by itself is not sufficient to convict the accused, as the liberty of the accused is also equally important. He further submitted that, none of the Doctors have stated that victim was subjected to sexual intercourse, in turn, PW-21 being the husband of the victim has admitted that he had sexual intercourse with PW-20 before the date of incident. When there is no evidence much less the evidence of the Doctor to prove that the victim was subjected to any sexual act and the victim''s evidence is also doubtful, the trial court ought not to have solely relied on the evidence of the victim to convict the accused. He also submitted that, the evidence also does not prove that the accused had caused injury on her face.

The evidence also does not prove that PW-20 belongs to Scheduled Caste, as PW-26 - Tahsildar, though has issued certificate, but has admitted that he had not verified the original records nor had made enquiries as regard to the date and place of birth of the victim from her. He had given the certificate only on the basis of. the mahazar.

Sri. Srinivasa Reddy, learned Government Pleader, on the other hand, strongly relied on the evidence of PW-20 -victim and submitted that, PW-20 is a married woman and there is no reason for her to come before the court and complain of heinous offence against the accused, causing stigma on herself. Though there are minor discrepancies in her evidence, they should not be a ground to hold that her evidence is not credible. He also relied on the opinion of PW-33- Asst. Director of F.S.L., who has stated the presence of seminal stains on item No.2 i.e., petticoat of the victim and also relied on the evidence of PW-15, who has stated that, victim had suffered three injuries. He also relied on the evidence of PWs-20, 21 to 23. On this basis, he supported the findings of the trial court.

In view of the above submissions, the point that arises for consideration is:

Whether the judgment of conviction passed by the trial court calls for interference?

The entire case of the prosecution is dependent on the evidence of PW- 20 - victim, PW-15 - Doctor, who examined the victim at the first instance, PW-16 - Doctor, who examined the victim subsequently, PW-33 - Asst.Director of FSL, PW-24 - Doctor, who gave the age of the victim, PW-26 - Tahsildar, who issued the certificate and PWs-27, 31 and 32 -Investigating Officers.

It is not in dispute that, Ex.P19 is the statement of the victim recorded by PW-28. In Ex.P19 victim has stated that, she had gone to purchase charcoal to Marsandahalli and she was returning to Agasarahalli on a pathway, accused followed her and forcibly removed her cloths and committed forcible intercourse by scratching on her face with the nail. Though she screamed for help, however, nobody came, but little later, PW-1 - Ramaswamy came and then the accused left her and went and after wearing cloths, she went home along with her charcoal bag.

In the complaint, PW-1 has named the accused as Prakash s/o Narayanamma. PW-20 -- victim in her cross-examination has admitted that, she did not know the name of the accused. She came to know the name of the accused only when he was produced before the Police. At the time of giving complaint, she was not aware of the accused or accused''s name and she has admitted that she has not given the name of the accused to the Police. PW-31 - the Investigating Officer in his evidence has stated that, accused surrendered himself on 12.7.2001 before the court and he was given to the Police custody only on 17.7.2001. Incident occurred on 14.3.2001 and for the first time, accused was in Police custody only on 17.7.2001 i.e., nearly after four months, the accused was brought before the Police, however, in the complaint - Ex.P1, which was recorded at 5.00 p.m. on 15.3.2001, the victim discloses the name of the accused. The trial court has found that the victim is stating falsehood in her evidence as to the knowledge of the name of accused, still has ignored the said evidence only on the ground that the discrepancy will not have any bearing on the prosecution case.

Victim in her complaint has specifically stated that the accused scratched her face with the nail. PW-15 -Doctor, who examined the victim on 15.3.2001 at 8.00 p.m., has issued the wound certificate as per Ex.P15. The injuries are as under:

Sub-conjunctival haemorrhage on lateral side of left eye measuring 1/3. cm x 1 cm;

Multiple abrasions over right cheek;

Abrasion over right shoulder measuring 3 cms x 2 cms.

All the three injuries are simple in nature and there is no scratch injury mentioned by PW-15.

PW-20 - victim in her evidence has stated that, the whole act took 45 minutes and has stated that the accused had forcibly removed her cloths, such as sari, petticoat, bra and blouse, however, none of the cloths were torn. She has also admitted that, accused also removed his cloths and for removing her cloths, it took five minutes and for removing the accused''s cloths, it took another five minutes. The victim in her evidence has stated that, the incident occurred on pathway itself and has admitted that, on the other side of the pathway, there is a tar road and till 6.00 p.m., several people move.on the said pathway and about 50 workers work in the quarry, there are stone boulders on the side of the pathway and a tar road, there is also a temple called Karimaramma temple and a house and in the said house, some people live there. The evidence of PW-20 shows that, for 45 minutes there was scuffle and accused committed rape, If the accused had forcibly removed the cloths of the victim, victim does not allege that her cloths were torn. Victim has admitted in her evidence that, she can move boulders weighing 50 kgs. because she has ten years'' experience working in quarry. It shows that she is strong and she has also stated that, she is strong enough to move boulder of 50 kgs. In such circumstances, if the victim is forcibly dragged and her cloths being removed, it creates doubt as to how without any small cut or tear of a cloth, all the cloths of the victim were intact. It also creates doubt, for removing the cloths of the victim, it took five minutes and thereafter accused also removed his cloths and it took another five minutes, during this period, what effort the victim had made when her cloths were being removed or when accused was removing his cloths, the accused could not have held the victim and there was possibility of escaping from the place. It is not the case of the victim that, accused was armed, It creates doubt as to the credibility of the evidence of the victim. For 45 minutes'' struggle, she had not suffered any injury except on the face and shoulder. No injuries on her back, no injuries on any other part of the body. The accused has not sustained any injuries. PW-20 has admitted that the accused has not sustained any injuries.

The place where the incident took place is a pathway, an access between Marsandahalli and Agasarahalli and people go to dairy and there will be frequent movements of people till 6 o'' clock evening. There is also a tar road where vehicles will be moving and if it is a pathway, on its rough surface, if the accused had used his force to make the victim lay down on the rough surface, she must have at least sustained scratches or abrasions on her back, but the evidence of PW-15 shows no such injuries except the scratches on the face and shoulder.

PW-23 - mother of the victim in her evidence, in examination-in-chief, admits that, normally between Marsandahalli and Agasarahalli on the pathway, people will be moving and there is a house of one Rathnamma near Karimaramma temple. She also admits that, there is a tar road and there will be traffic of motor vehicles, lorries and quarry lorries will be moving till evening. PW-23 has stated that, when victim came home, her cloths were bloodstained and torn. PW-20 - victim in her cross-examination has staled that, there was no bloodstain on the cloth, as she was in fourth day of menstrual periods. There is inconsistency in the evidence of PW-20 and PW 23. PW-23 states that, cloths were bloodstained. PW-22 also states that the cloths of the victim were torn, but victim does not state that her cloths were torn.

Further, PW-15 is the Doctor, who first saw the victim, in his evidence, he has stated that, the victim was in her periods during the examination, evidence of rape could not be obtained, only swab was collected. PW-33 - Assistant Director of FSL, who had examined M.Os. 1 to 7, has opined the presence of seminal stain on item No.2 i.e., petticoat of the victim, however, PW-30 - doctor, who had examined the accused, had only issued Ex.P24, the certificate certifying that the accused is capable of performing act like that of sexual intercourse and he had not collected semen of the accused for examination. PW-21 - husband of the victim has also stated that, cloths of the victim were torn and has stated that, the accused had torn her cloths and committed rape and he has also stated that, her cloths were bloodstained. In the cross-examination, he has stated that, prior to the said incident, he had physical relation with his wife. This evidence of PW-21 suggests that, victim not only she is wife, but before the incident, they had a sexual relationship.

PW-15 - Doctor has not given the opinion as to whether the victim was subjected to sexual intercourse or not, as she was in her periods. PW-16, another doctor, who examined the victim, has only opined about the injuries and PW-16 in her cross-examination has stated that, the victim had not disclosed as to how she had sustained injuries. Though victim has been examined by PWs-15 and 16, however, both the Doctors have not given any opinion as to whether the victim was subjected to sexual intercourse and there is no evidence to prove the same.

No doubt, if the evidence of victim is credible and reliable, no corroboration is necessary and her evidence stands on higher pedestal, however, looking at the evidence of victim herself, where she has admitted that the place of occurrence being a pathway where people normally used to move from morning till evening, it is a place near another tar road where vehicular traffic will be there from morning till evening. It is admitted that there is a house near the temple where the incident took place. She has also stated that, accused forcibly committed rape, but to believe the same, it creates serious doubt when PWs-21, 22 and 23 have stated that the victim came with bloodstained torn cloths whereas, victim herself does not state that the cloths were torn and in turn, she specifically admits that, none of her cloths were torn. It also looks unnatural when, the accused removed her cloths forcibly and it took five minutes and thereafter, he removed his cloths and that also took five minutes, in a place where people has access, where there is a tar road, vehicular traffic will be there and when the victim has stated that she is strong enough to move a boulder of 50 kgs. and struggle has taken 45 minutes, it looks unnatural that she had made any effort to escape much less there was any injury on the body of the accused nor the injuries on the body of the victim would suggest that the accused has committed rape or used force against her. When the name of the accused was not. known to PW-20 for four months till the accused was arrested, but his name has been mentioned in her statement itself on the very next day. Though the victim states that she went to the Police Station in the morning and she was there till evening 7 o'' clock and she was taken to the hospital at 10 p.m., however, PW-21 - her husband states that, they went to the Police Station at 4.00 p.m. on 15.3.2001. If the victim had gone to the Police Station in the morning, her complaint was not registered till 5 p.m. and she was not subjected to medical examination till 8 p.m.

The trial court mainly because the victim is a married woman has treated her evidence as credible and trustworthy and relying on the evidence of PWs-21 to 23, who are husband, mother and father of the victim, the trial court has convicted the accused. While appreciating the evidence of PW-20, the trial court has observed that, the prosecution has - established the fact that, there were injuries sustained by PW-20 on her face and shoulder and other parts of the body. However, there is no injury on the other part of the body and the evidence of PW-20 - victim, even though the court has accepted that pathway between Marsandahalli and Agasarahalli is a busy place and always number of vehicles are moving, people are moving and the people, who carry milk to the dairy at Marsandahalli, are also moving throughout the day, but holds that it is not a ground to disbelieve the evidence of PW-20. The trial court, has also relied on the evidence of PW-33, who has stated that, seminal stains were detected on item No. 2 - petticoat, but there is no corresponding evidence to show that the seminal stains present on the petticoat are that of the accused. PW-21 has admitted that, he and his wife PW-20 had sexual relation earlier to the date of the incident. PW-30 - Doctor, who examined the accused, has also admitted that, he had not collected any material except giving certificate. None of the doctors stated that the victim was subjected to sexual intercourse, even if there is presence of seminal stains, it. cannot be ruled out that, the victim is a married woman and she has stated that, she removed her cloths when she went to the house. No spermatozoa were detected, further, the complaint is registered on the next day.

In turn, it is suggested by the accused to PWs-20, 21, 22 and 23 that, there was an enmity between'' one Chikkanna and the accused. Accused was earlier working with Chikkanna and there was a quarrel between them. Though this quarrel and enmity has been denied by PWs-20 to 23, but PWs-22 and 23 have admitted that, they were residing in the house of Chikkanna and they are all working under Chikkanna. Though PWs-20 to 23 have denied that at the instance of Chikkanna, the complaint is filed, but they admitted that all of them are working under Chikkanna. They also admit that they have applied for compensation, in these circumstances, when the evidence of the victim is doubtful and without corroboration, it is not sufficient to convict the accused. PW-1. who is stated to have seen the incident has not supported the case of the prosecution. When the evidence of victim being not only inconsistent, but does not inspire to believe that the accused could have committed rape in a public place, which is a busy place, even the circumstances do not support the prosecution case. Apart from the fact that PW-1 stated to be a witness, but has not supported the case of the prosecution.

In my opinion, the trial court mainly relying on the victim''s evidence and the evidence of PWs-21, 22 and 23 -husband, father and mother of the victim, who are only hearsay witnesses, has erroneously held that, the prosecution has established the offence beyond reasonable doubt. In my opinion, the prosecution has failed to prove the offence punishable u/s 376 of I.P.C.

Further to prove that the victim belongs to Scheduled Caste, PW-26 - Tahsildar has been examined. His evidence shows that he has issued the certificate - Ex.P22, showing that victim belongs to Bhovi community, in the cross-examination, he categorically admits that, he has issued Ex.P22 only based on the mahazar, he had not collected any original documents from the place of birth of the victim. Admittedly, victim has been residing only for six months prior to the incident in Agasarahalli and she is not a permanent resident of Agasarahalli. It is not in dispute that the victim has come from Tamil Nadu. In such circumstances, mahazar by itself does not prove the caste of the victim, as such, the offence alleged against the accused u/s 3 Clause (12) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989, is also not attracted.

When, the presence of the accused and committing rape itself is doubtful, the scratches alleged on the lace and shoulder of the victim cannot be attributed to the act of the accused, as such, conviction even for an offence punishable u/s 323 of IPC is not supported by any evidence.

In my opinion, the trial court in utter disregard to the entire evidence, only on the basis of the evidence of victim, has convicted the accused. In my opinion, the findings of the trial court are not based on consideration of the entire evidence of the prosecution. When the evidence led by the prosecution is doubtful and it creates serious doubt in the mind of the court as to whether the accused had committed rape or not. the trial court ought not to have held that the prosecution has proved the charges. Hence, the findings of the trial court are perverse and not sustainable in law. Hence, appeal requires to be allowed. Accordingly, I pass the following;

ORDER

The appeal is allowed. The judgment of conviction in S.C.No.244/2002 dated 22nd August 2005 on the file of II Addl.District 8c Sessions Judge, Bangalore Rural District, Bangalore, is hereby set aside. The accused is set at free. The bail bond stands discharged. Fine amount and cash security, if any, deposited be refunded to the accused.