Manju vs State of Karnataka

Mohan M. Shantana Goudar, J.

The judgment and order of conviction dated 15.11.2010 passed by the II Additional District and Sessions Judge, Mysore, in SC. No. 185/2009, is called in question in these appeals.

The accused was tried for the offences punishable under Sections 376 and 506 of IPC. The trial Court has convicted the accused for the offence punishable under Section 376 of IPC and sentenced him to undergo imprisonment for five years and to pay a fine of Rs. 15,000/-. However, he is acquitted of the offence punishable under Section 506 of IPC.

Crl.A. No. 1249/2010 is filed by the convicted accused praying for acquittal, whereas Crl.A. No. 796/2011 is filed by the State praying for enhancement of sentence.

Case of the prosecution in brief is that houses of PW. 1 and the accused are nearby each other; there was no toilet in the house of PW. 1 and consequently PW. 1 used to go outside to attend the calls of nature; at about 7.00 p.m. on 26.2.2009, she went out of the house to attend calls of nature; when she was attending calls of nature near Banyan tree, PWs. 5 and 6 as well as the accused came towards the village; at that point of time, the accused told other two persons, i.e., PWs. 5 and 6 that they should proceed further and he would follow them after attending call of nature; hence, PWs. 5 and 6 went further towards village, whereas accused stayed back; thereafter, the accused approached PW. 1 and forcibly took her to adjoining place (cow-dung pit) and committed rape on her; when PW. 1 told the accused that she would be informing her husband, he threatened her with dire consequences; at that point of time, PW. 7 came to the spot with torch in his hand; after seeing PW. 7 accused ran away from the scene; PW. 1 informed PW. 7 about the incident; in turn PW. 7 pacified PW. 1 and sent her to her house; PW. 1 informed her husband (PW. 8) about the incident, who in turn took her to General Hospital, Periyapatna, wherein the victim was treated by the lady doctor-PW. 11; the doctor collected the clothes which were worn by the victim apart from collecting her vaginal swab, pubic hairs, nails, etc. and sent the same to the police for being examined by Forensic Science Laboratory; thereafter, PW. 11 has also sent medico-legal intimation to Periyapatna Police Station; police came to the hospital and enquired with the victim and her husband on the night of the date of the incident i.e., on 26.2.2009, however the complaint as per Ex.P1 lodged by PW. 1 came to be registered in Periyapatna Police Station at about 8.00 p.m. on 27.9.2009 in Crime No. 56/2009 by the Sub-Inspector of Police (PW. 20); the said Sub-Inspector of Police sent FIR as per Ex.P14 to the jurisdictional Magistrate; PW. 18, the Inspector of Police completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all has examined 21 witnesses and got marked 14 Exhibits and 9 Material Objects. On behalf of the defence, one Exhibit was got marked. The trial Court as aforementioned, convicted the accused for the offence punishable under Section 376 of IPC and sentenced him to undergo imprisonment for a period of five years and to pay a fine of Rs. 15,000/-.

Sri C.H. Jadhav, learned senior advocate appearing on behalf of the accused submits that the case of the prosecution as made out before the Court is unbelievable; except the oral assertion of PW. 1 that she was sexually assaulted, no other material is found to support her version; though it is not necessary to have corroboration in such matters to the evidence of PW. 1, the other material on record at least should have supported the version of PW. 1 to certain extent. He draws the attention of the Court that the material collected by the prosecution is unbelievable; the medical evidence as well as the report of Forensic Science Laboratory did not support the case of the prosecution; though the incident has taken place in cow dung pit and though it is the version of PW. 1 that she was sexually assaulted in thorny bush, neither the victim nor the accused had sustained any injury on any part of their bodies; though the police have come to the hospital within three hours after the incident and enquired with the victim and her husband including the doctor, her statement was not recorded; though it is the version of PW. 1 that her statement was recorded at about 11.00 p.m. by the doctor, the same is suppressed by the prosecution; the intimation given by the doctor-PW. 11 to the police about medico-legal case during night of 11.30 p.m. on 26.2.2009, is not produced before the Court and the such intimation is also suppressed. He further draws the attention of the Court to the evidence of the Investigating Officer that he got intimation about medico-legal case only in the evening of 27.2.2009 and thereafter he went to the hospital; according to the defence, the false case is foisted against the accused because of the civil dispute pertaining to temple site which is adjoining the house of PW. 1.

Per contra, the learned Government Pleader argued in support of the judgment of the trial Court. He also contended that the sentence needs to be enhanced in such matter.

PW. 1 is the victim; she has lodged the complaint as per Ex.P1. MO. Nos. 1 to 6 were seized from the victim. Among them, MO. Nos. 3 to 6 are vaginal swab, pubic hair and nails. MO. Nos. 1 and 2 are the clothes of the victim. MO. Nos. 7 and 8 are the clothes of the accused which were worn by him at the time of incident.

PWs. 2 and 3 are the witnesses for the offence panchnama at Ex.P2. Both of them have turned hostile to the case of the prosecution.

PW. 4 is the witness for seizure panchnama at Ex.P3 under which MO. Nos. 1 to 6 were seized from PW. 1 during the course of investigation. He has turned hostile.

PWs. 5 and 6 were accompanying the accused during the relevant point of time towards village. They have also turned hostile.

PW. 7 came to the spot immediately after the incident and he was informed about the incident by PW. 1. He has also turned hostile.

PW. 8 is the husband of PW. 1. He came to know about the incident and thereafter he took the victim to Periyapatna Government Hospital and thereafter complaint came to be lodged.

PW. 9 is the wife of PW. 5. She has also turned hostile to the case of the prosecution.

PW. 10 is the doctor who has examined the accused on 1.3.2009 and issued the medical certificate as per Ex.P8 to the effect that the accused was capable of doing intercourse.

PW. 11 is the lady doctor attached to Periyapatna Hospital. She has examined the victim at 11.10 p.m. on 26.2.2009 and issued the medical certificate as per Ex.P10. She has deposed that there are no signs of recent forcible sexual intercourse on her; no injuries were found on the body of the victim. After getting the report of Forensic Science Laboratory, she has further confirmed that there are no signs of forcible sexual intercourse suffered by the victim.

PW. 12 is the Assistant Sub-Inspector of Police, who arrested the accused on 1.3.2009.

PWs. 13, 14, 15 and 19 are the Police Constables who participated during the course of investigation at different levels.

PWs. 16 and 17 are the witnesses for panchnama at Ex.P13, under which MO. Nos. 7 to 9 (clothes and pubic hair of the accused) were seized during the course of investigation.

PW. 18 is the Investigating Officer who laid the charge sheet.

PW. 20 is the Sub-Inspector of Police, Periyapatna Police Station who registered the crime based on the complaint.

PW. 21 is the Scientific Officer of Forensic Science Laboratory. FSL report is at Ex.P9. It is clear from the FSL report as well as the evidence of PW. 21 would clearly reveal that MO. Nos. 1 to 6 including vaginal swab did not have seminal stains, however the underwear of the accused was having seminal stains.

According to the case of the prosecution, the incident has taken place at about 7.00 p.m. on 26.2.2009, when PW. 1 went outside the village to answer the calls of nature. The incident has allegedly taken place in cow dung pit. However, the complaint came to be lodged by PW. 1 at about 7.15 p.m. on 27.2.2009 in the hospital at Periyapatna. Based on which Crime No. 56/2009 came to be registered. Absolutely no explanation is forthcoming about such a long delay in lodging the first information by the victim.

PW. 1 (victim) has informed her husband (PW. 8) immediately after the incident and thereafter PW. 8 took the victim to Periyapatna Hospital by PW. 8 and admitted her in the hospital. PW. 11, the lady doctor treated the victim immediately thereafter. The dresses which were worn by the victim at the time of the alleged incident were collected by the doctor apart from collecting her vaginal swab, pubic hair, nails, etc. The doctor-PW. 11 also sent medico-legal intimation to Periyapatna Police Station at about 11.00 p.m. on 26.2.2009. PW. 1 has admitted that she narrated about the history of the case to the doctor immediately after her admission. She also admits that she came to the hospital immediately i.e., between 8.00 and 9.00 p.m. on 26.2.2009; her statement was recorded in the hospital by the police and her thumb impression also was taken on the said first information. But such information given by PW. 1 in the hospital between 8.00 and 9.00 p.m. on 26.2.2009 is not forthcoming on record. In this context, the submission of Sri C.H. Jadhav, learned senior advocate appearing for the accused that the first information is deliberately suppressed, assumes importance. Even assuming that no such information was recorded by the police on the night of 26.2.2009, no explanation is forthcoming from the prosecution as to why such information is not recorded by the police though they enquired with the victim as well as PW. 8. If really it is a medico-legal case relating to offence of rape, the police would not have failed to register the crime based on the say of PW. 1. Thus, it is clear that the prosecution has either suppressed the first information given by PW. 1 between 8.00 and 9.00 p.m. on 26.2.2009, i.e., on the date of the incident or such information is deliberately not recorded by the police. Undisputedly, the police had come to the hospital at about 8 to 9 p.m. on the date of the incident itself. The doctor-PW. 11 has admitted that after examining PW. 1 she has sent medico-legal intimation to the police and in turn police came to the hospital and enquired with the victim. Such intimation given by the doctor to the police is also suppressed by the prosecution, inasmuch as no such intimation is brought on record. Thus, we are at loss to understand as to what was the intimation sent by the doctor at the first instance to the police, so also we are at loss to understand as to what was the first version of the victim before the police immediately after her admission to the hospital. Thus, the prosecution, in our considered opinion, has suppressed the origin and genesis of the case of the prosecution.

It is also relevant to note that PW. 8, the husband of PW. 1 also admitted that the police came to the hospital at 11.00 p.m. on 26.2.2009 and saw the victim in the hospital. PW. 8 has informed the doctor about the incident, who in turn, informed the police. Despite the same, PW. 8 did not lodge the complaint before the police at 26.2.2009. He admits in the cross-examination that there was no hurdle for him to lodge the complaint. So also he did not inform the police to record his statement. It is further say of PW. 8 that the police once again came to the hospital at 11.00 a.m. on the next day i.e., on 27.2.2009 and at that time also, PW. 8 and PW. 1 were in the hospital. The police took the clothes of the victim along with them.

The aforementioned facts would clearly reveal that the first information or the real information about the case is deliberately suppressed by the prosecution.

In the cross-examination of PWs. 1 and 8, it is suggested by the defence that there lies a vacant space adjoining the house of PWs. 1 and 8; the said vacant space (site) was purchased by PW. 8 from one Mr. Basavegowda who was a Panchayat Member. After completion of term of Basavegowda, the elder brother of the accused, namely Krishnegowda became the ''Yajamana'' of the Village (Member of Village Panchayat). The said Krishnegowda (elder brother of the accused) was telling PW. 8 that the said vacant space belongs to temple situated in the village and that therefore he should hand over the same to the temple. Since the said site was not handed over by PW. 8 to the temple, there used to be quarrels and in that regard false complaint is lodged. However, all such suggestions are denied by PW. 8. On the other hand, PW. 1 has admitted that the elder brother of accused Krishnegowda was pressurizing PW. 8 to hand over the said site to the temple.

As aforementioned, the victim was examined by the doctor within 2 to 3 hours of the incident in question. It is specifically admitted by PW. 1 that the clothes (Mo. Nos. 1 and 2) which were seized by the police in the hospital, were the very clothes which were worn by her at the time of the incident. It is also admitted by PW. 11, the doctor that she has collected vaginal swab, pubic hairs, nails, etc. of the victim for further examination. All such material (MO. No. 1 to 6) were sent to Forensic Science Laboratory for examination. To a specific question put by the defence whether the victim had changed her dress, PW. 1 has reiterated that the clothes which were collected by the doctor and police in the hospital are the very clothes which were worn by her during the relevant point of time.

Though the alleged incident has taken place in the cow dung pit, the saree of the victim was not soiled in any manner. PW. 1 has improved her version before the Court by deposing that the accused took her to thorny bush, felled her and sexually assaulted her. Despite the same, the medical evidence clearly discloses that not even a smallest injury was found either on the accused or on the victim. The doctor-PW. 11 has admitted that there were neither external injures nor internal injuries suffered by the victim. PW. 11 has clearly opined that there were no signs of sexual intercourse on the victim during the relevant point of time. However, her second opinion is also secured by the police after getting the FSL report. Even the second opinion of the doctor would clarify that there were no signs of sexual assault, inasmuch as neither spermatozoa nor seminal stains were present on M.O. Nos. 1 to 6 seized from the victim.

Though it is the version of PW. 1 that the neck, mouth and other parts of her body were pressed forcibly by the accused, not even a contusion or an abrasion was found on her body. It is also clearly deposed by the doctor that when PW. 1 was examined, she was neither physically nor mentally perplexed and that the victim had not suffered depression. The clothes of the victim were not solid (though the alleged incident has taken place in cow dung pit).

The evidence of PW. 11 is supported by the version of PW. 21-Scientific Officer of Forensic Science Laboratory, who gave his report as per Ex.P9. He has deposed that none of MO. Nos. 1 to 6, i.e., Item Nos. 1, 2, 3, 4 5(A1), 5(A2) were having spermatozoa or seminal stains. MO. Nos. 1 to 6, as aforementioned were seized from the victim. In the cross-examination, PW. 21 has deposed that if a clothe on which seminal stain is found is not washed, the stain can be seen even for 10 years. If the cloth is exposed to sun light then, the seminal stain will not last for such a long duration. If a clothe with seminal stain is exposed to air and light in normal temperature, it would last for 2 to 3 days. In the matter on hand, admittedly, the vaginal swab was collected in a test tube and glass slides by the doctor as per the procedure; the clothes of the victim were packed neatly and sent to Forensic Science Laboratory for examination. Thus, it is clear that seminal stains, if any were not exposed to air and sun light in this matter.

In view of the above, we are of the clear opinion that the case as made out against the accused by the prosecution before the Court is not proved beyond reasonable doubt. The material on record is not sufficient to bring home guilt against the accused. The trial Court has overlooked the legal evidence and has not considered the same in a proper perspective. Going through the medical examination report and the FSL report as well as all the attending facts and circumstances of the case, we are of the opinion that it is improbable that the offence of rape was committed by the accused. We also find that the trial Court had not assigned valid reasons for coming to the conclusion. It has proceeded mainly on assumptions while passing the judgment of conviction against the accused. Hence, the impugned order of conviction is liable to be set aside.

Accordingly the following order is made:-

"i) The judgment and order of conviction dated 15.11.2010 passed by the II Additional District and Sessions Judge, Mysore, in SC. No. 185/2009, stands set aside.

ii) Crl. A. No. 1249/2010 filed by the convicted accused is allowed.

iii) Accused is acquitted of all the charges levelled against him.

iv) The bail bond of the accused stands cancelled.

v) Crl. A. No. 796/2011 filed by the State praying for enhancement of sentence is dismissed."