Prakash vs The State of Karnataka

Budihal R.B., J.—The judgment and order of conviction dated 01.06.2012 passed by the V Addl. Sessions Judge, Belgaum in S.C. No. 56/2010 is challenged in this appeal. By the said judgment the appellant-accused has been convicted of the offence punishable under Section 376 of IPC. The appellant has challenged the legality and correctness of the said judgment of the trial Court on the grounds as mentioned in the appeal memorandum.

Heard the arguments of the learned counsel appearing for the appellant-accused and also the learned HCGP appearing for the respondent-State.

Learned counsel for the appellant has submitted that the trial Court has not properly appreciated the oral and documentary evidence and the entire material was wrongly read by the trial Court. He has further submitted that the evidence of the prosecution witnesses, more particularly the evidence of P.W. 8-comlpainant clearly shows that the complaint was deliberate and filed with an intention to falsely implicate the appellant in the case because of the land dispute between the family of the accused and the family of the complainant side in respect of landed property of Smt. Durgavva. He has submitted that though it is averred in the complaint that when P.W. 8-complainant and her sister P.W. 3 were going to the land for collecting the fodder and on the way nearby the land of one Sri. Uppar, the accused came from behind and lifted P.W. 8 and took her into the maize crop grown in the land of said Sri. Uppar and when P.W. 3, the sister of the complainant, started to make hue and cry and she was weeping, hearing the same P.W. 7 Sri. Hanamant came there. Learned counsel has submitted that P.W. 7 has deposed in his evidence that he was in the house, so his evidence is contrary to the evidence of P.W. 3 that he came nearby the land of Sri. Uppar after hearing the cries of P.W. 3. He has also submitted that though it is the prosecution case that in the land of Sri. Uppar there were maize crop and the spot where the alleged offence of rape took place, the maize crop was damaged and it was fallen in the area, the Investigating Officer has not seized the stumps of the said maize crops. It is also his submission that looking to the medical evidence and the oral evidence of P.Ws. 9, 12 and 14, the doctors and their reports as per Exs. P-7 and P-9 clearly show that there was no external injuries on the body of the victim girl and even there were no injuries to the private part of the victim girl P.W. 8. He has also submitted that even the FSL report Ex. P-5 show that there were no seminal stains in the undergarments of the victim and the accused, and though it is mentioned in the said report that in item Nos. 3 and 4 there were stains of human blood, but the grouping was not ascertained. He has also submitted that no seminal stains were found on the clothes of the accused. He has also submitted that looking to the oral evidence of victim P.W. 8 and her family members, more particularly, P.Ws. 3, 7 and other witnesses, it is totally inconsistent and not worth believable. Learned counsel has submitted that so far as the mahazar for seizure of clothes of the victim girl under Ex. P-1 and mahazar of the scene of occurrence conducted under Ex. P-2, the panch witnesses are P.Ws. 1 and 2, both of them have turned hostile and not supported the case of the prosecution. Hence, he has submitted that when the case is not supported by the medical evidence and even the evidence of victim P.W. 8 is also not worth believable, the trial Court has not taken all these aspects into consideration and wrongly proceeded in convicting the appellant-accused. Hence, learned counsel has submitted that the prosecution has utterly failed to prove its case beyond all reasonable doubt for the alleged offence punishable under Section 376 of IPC. Alternatively and without admitting the proof of the offence under Section 376 of IPC, learned counsel has further submitted that, even if, the Hon''ble Court considers the evidence of the prosecution witnesses, at the most, the offence may fall under Section 354 of IPC i.e., outraging the modesty of a women and not the offence of rape under Section 376 of IPC. Hence, he has submitted to acquit the appellant-accused by allowing the appeal.

Per contra, learned HCGP during the course of his arguments has submitted that the evidence of prosecution witnesses are to be appreciated in the background of the witnesses hails from rustic village and they are villagers. He has submitted that there may be some minor inconsistencies, contradictions in the evidence of prosecution witnesses, but so far as the main event of offence of rape is concerned, there is evidence on the side of the prosecution. He has also submitted that the FSL report and the oral evidence of the doctors are also supporting the case of the prosecution. He has submitted that prosecutrix P.W. 8 has clearly deposed in her evidence about the accused going at the said place, lifting her and taking her into the maize crop of Sri. Uppar and there he committed rape on her. He has submitted that the evidence is to be weighed and not to be counted by the Court, the question is what is the quality of the prosecution witness deposed before the trial Court. He has submitted that no grounds are made out in the cross-examination of the prosecution witnesses that there is a false implication of the appellant-accused. He has also submitted that P.W. 3 is the eye-witnesses, who accompanied the victim girl (P.W. 8), to the land and she has seen personally accused going at the said place, lifting P.W. 8 and taking her inside the maize crop. Hence, he has submitted that the trial Court has properly appreciated the materials on record and rightly convicted the appellant-accused and the judgment and order passed by the trial Court does not require any interference by this Court. Hence, he has submitted to dismiss the appeal. In support of his arguments, learned HCGP has relied upon the following decisions:

i. Veer Singh and Others Vs. State of U.P., .

ii. State of Rajasthan Vs. Girdhari Lal, .

I have perused the oral evidence of P.Ws. 1 to 19 and the documents Exs. P.1 to P.14.

P.W. 8-Prema, who is the victim, lodged the complaint as per Ex. P.4 wherein she has stated that she is residing in the address as mentioned in the complaint and that on Friday, 04.09.2009 in the morning, herself and her sister Fakirawwa-P.W. 3 together were going to the land to collect the fodder and when they were nearby the land of one Uppar, at about 7.00 a.m., one Prakash Kareppa Madar, a native of their village, coming their behind, all of a sudden, clasped her and dragged her into the maize crop field of Uppar. She screamed and her sister Fakirawwa started hue and cry, even then the accused did not relieve her, but lifted her and took into the maize crop fields. There he made her to lie on the ground in a supine position and he removed his pant and the inner garment (chaddi) and fell on her. Though she struggled to get herself relieved, he did not allow her to do so and he put a towel into her mouth, gagged and held her tightly and lifted her petticoat and the saree upwards, removed her inner garments (chaddi), took her lower limbs on his shoulder and put his private part into the private part of the complainant and for about 5 to 6 minutes, he committed forcible sexual intercourse on her. Her sister brought P.W. 7-Hanumanth, the brother-in-law of the complainant, but in the meantime the accused after committing rape on her ran away from the said place. Then the complainant came to the house along with her brother-in-law-P.W. 7 and P.W. 3 and informed the same to her husband, her in-laws and then they secured the parents of the complainant and hence filed the complaint lately. The complaint was registered at 2100 hours in the Savadatti Police Station.

Perusing the evidence of P.W. 3-Fakirawwa, who is the sister of the complainant, she also deposed in her evidence as per the contents of the complaint that herself and the complainant were going to the land for collecting the fodder and at about 7.00 a.m. nearby the land of Uppar the accused came from behind and lifted her sister - P.W. 8 and took her into the maize crop field of said Uppar. Then she started to weep. She also made hue and cry and on hearing the same her brother-in-law Hanumanth-P.W. 7 came there and both of them went inside the land in search of the accused. But the accused was not traced there. She also deposed that her sister told before them that the accused committed forcible sexual intercourse on her. She has also identified the clothes of the complainant. So also, she identified the towel of the accused and one pant and shirt. Though she was cross-examined at length, she withstood the cross-examination and consistently she deposed even in the cross-examination that she had accompanied her sister P.W. 8 the complainant to the land and the accused came from behind and lifted P.W. 8 into the maize crop field of Uppar. Nothing was elicited during the course of cross-examination of P.W. 3 so as to disbelieve her evidence.

P.W. 7-Hanumanth Madar in his evidence, in the examination-in-chief, deposed that about 1 1/2 years ago, in the morning at 7.00 a.m., P.W. 3-Fakirawwa and the complainant Prema were going to the land to bring fodder and after some time, he also proceeded towards the land. When he went about 1 km. distance, P.W. 3-Fakirawwa was coming towards village weeping. He asked her as to why she was weeping, then P.W. 3 told before him that accused lifted and took P.W. 8-Prema into the maize crop field of one Uppar. Then himself and P.W. 3-Fakirawwa together went inside the said crops, then the accused ran away from the said place and when he enquired with the victim girl, she told before them that the accused committed rape on her. He identified the accused who was present before the Court during the course of the trial. Then himself and Prema told about happening of the said incident in the house before the family members. In the cross-examination by the counsel for the accused, he deposed that there is no enemity or quarrel between himself and the accused. He denied the suggestion that because of the dispute with regard to the land of one Durgawwa, in respect of which case is going on in the Court of Savadatti they wanted to falsely implicate the accused. He deposed that he did not come to know if there was any contact between the complainant-P.W. 8 and the accused.

P.W. 8-Prema, who is the complainant, also deposed in her oral evidence, in the examination-in-chief in accordance with the averments made in the complaint-Ex. P.4. She identified her clothes as M.Os. 1 to 4. She also deposed that when the accused committed rape on her, she was wearing M.Os. 1 to 4. During the cross-examination of this witness she deposed that the witnesses in this case were her family members and she was not having any sort of relationship with the accused and she does not know why the accused committed rape on her. On the previous night of the date of incident, she did not have sexual intercourse with her husband. When the accused committed rape on her, her bangles had broken in the process of struggle. On the date of the incident she gave the complaint to the police. She denied the suggestion that in connection with the land of Durgawwa and in order to file a false case against the accused, her husband and her brother-in-law were assaulting her. She does not know what was the time when they came to the police station but it was noontime and her parents had brought one person who wrote the contents of the complaint for which she has signed. While writing the complaint she was asked. She does not know what was written in it, but she has signed. She denied the suggestion that the accused has not at all committed forcible sexual intercourse and at the instance of her family members she lodged the complaint.

Looking to the evidence of these three witnesses i.e., P.W. 3-Fakirawwa, P.W. 7-Hanamanth and P.W. 8-Prema, the complainant, and so also the contents of the complaint-Ex. P.4, the prosecution consistently established the fact that on the date of the accident in the morning at 7.00 a.m. when the complainant and her sister P.W. 3-Fakirawwa went to the land to collect fodder the accused went there from behind and he lifted the victim girl P.W. 8 into the maize crop field of Uppar. The documentary evidence i.e. the mahazar under Ex. P.2 is the scene of occurrence and the same goes to show that P.W. 8 - the complainant show the spot to the police in the said land and in the said mahazar it is also mentioned that there was maize crops of the height of 6 to 7 feet and in the place measuring 4 x 5 ft. the maize crops had fallen, there were struggle marks on the ground. It is no doubt true that P.W. 1 and 2, the panch witness have not supported the case of the prosecution about the panchanama Ex. P.2, but P.W. 19, who is the investigating officer, in his evidence deposed that he conducted the spot mahazar in the presence of P.Ws. 1 and 2 and the said place was within the jurisdiction of Hirur village and it was towards southern side of the village and he has seen the panchanama-Ex. P.2, his signature as Ex. P.2(a). The said panchanama was conducted from 9 a.m. to 10 a.m. on 08.09.2009. During the course of cross-examination, it was suggested that while conducting the spot mahazar it was raining but witness denied the said suggestion. It is true that he has deposed that, usually, the month of September will be rainy season but only because of that it is a rainy season in the month of September, it cannot be presumed that on the day of the conducting panchanama Ex. P.2 it was raining, when the witness has specifically denied the suggestion made by the learned counsel for the accused. Therefore, all these materials clearly goes to show that the accused took the victim girl into the land of Uppar to the place of occurrence.

With regard to the accused committing rape on the victim girl is concerned, I have perused the evidence of the doctors i.e., P.Ws. 9 and 14 and the documents at Exs. P.6 and 9.

P.W. 9-Malakappa, who is the casualty Medical Officer serving at that time in the District Hospital, Belgaum, deposed in his evidence that on 05.09.2009, he examined Prema the victim girl. He has not seen any external injuries on her body, even there was no injuries around the private part of the victim girl, her pubic hairs were collected and her inner garment (chaddi) was also collected and she was admitted to gynecology ward. There also she was examined and even there also no external injuries were seen, hymen was absent and in the smear spermatozoa was not present. Her pubic hairs, inner garment (chaddi), petticoat and saree were collected and were sent to the FSL. The FSL report is as per Ex. P.5 and he deposed looking to these materials that Prema was not at all involved recently in the sexual intercourse and accordingly he issued the certificate-Ex. P.6. But in the very next paragraph, he has deposed that there are signs of Prema engaging in the sexual intercourse. He deposed that he would consider 48 hours as the period for recent sexual intercourse, and that spermatozoa will be alive for 72 hours. He further deposed even if there is ejaculation, the spermatozoa may not be seen. In the cross-examination by the counsel for the accused also, he deposed that there are no signs of recent sexual intercourse.

P.W. 14-Dr. Suresh, Government Hospital, Savadatti, deposed in his evidence that on 05.09.2009, he examined Prema, no external injuries were seen on her body. Even there were no injuries in her private part. To get the radiological and gynecological opinion, he sent her (Prema) to the District Hospital, Belgaum. Looking to the materials, he deposed that recently she was not involved in sexual intercourse and he issued the certificate as per Ex. P.9. This doctor also deposed that she was not engaged in recent sexual intercourse, but it appears that previously she was engaged in the sexual intercourse. In the cross-examination by the learned counsel for the accused, he deposed that he examined her for about 40-45 minutes with the help staff nurse and he did not see any injuries on her private part. Though the doctors'' evidence was adduced through the mouth of P.Ws. 9 and 14 and the documents Ex. P.6 and P.9 were produced but both the doctors have given the evidence which is not having the clarity. At one stretch they say that there are no signs of sexual intercourse and on the other they depose that there are signs of sexual intercourse.

I have also perused the document Ex. P.5 which is the report from the Forensic Science Laboratory. Totally, 10 articles were sent for examination. The langa and chaddi belonging to the victim girl are showm at item Nos. 3 and 4 and one knicker belonging to the accused is shown at item No. 9. Looking to the results of the analysis and the serological report, it is seen that item Nos. 3 and 4 i.e. langa and chaddi of the victim girl were stained with blood and it is also mentioned that they were stained with human blood. Regarding the blood group is concerned, it is mentioned in the serological report that the blood group of the stains in item Nos. 3 and 4 could not be determined as the result of the tests were inconclusive. In Ex. P.5, at the end portion, there is also report on seminal stains wherein it is mentioned that presence of seminal stains were found positive in item No. 4 and 9. It means that on the chaddi (item No. 4) of the victim girl and on the knicker (item No. 9) of the accused, seminal stains were found.

Looking to these materials on record, I am of the opinion that materials clearly goes to show the involvement of the accused in committing the offence of rape on the victim girl. When Ex. P.5 shows that seminal stains were found on the knicker at item No. 9 which was seized during the course of investigation in the presence of panch witnesses, it clearly goes to show that immediately after the incident, the cloth of the accused were also seized including the knicker. About seizure of the clothes, two witnesses were examined viz., Basha-P.W. 5 and Manohar-P.W. 11. Both these witnesses have consistently deposed that in their presence the clothes of the accused were seized by the investigating officer-P.W. 18-Malagouda Shankaragouda Naikar and mahazar was also drawn as per Ex. P.3. But, P.W. 18 was not at all cross-examined by the defence. So even the evidence of P.W. 18, the investigating officer, for the seizure of the clothes of the accused has remained totally unchallenged.

Considering the evidence of the prosecution witnesses, except some minor discrepancies in the evidence of prosecution witnesses, the prosecution was able to establish its case beyond all reasonable doubts that the accused committed rape on the victim girl. There may be a little delay in approaching the police. In such heinous offence, which goes to affect the dignity and honour of the family of the victim girl, it is but natural for the members of the family to take a decision before approaching the police. It is stated by the complainant in her complaint and also in her evidence that from the land herself, P.W. 3 and P.W. 7 came to the house, informed the same before the members of the family and the parents of the complainant were also secured and then they went to the police station. The contents of the complaint were written by one Ramesh. Ramesh, who has been examined as P.W. 10 in this case, has deposed that about 1 1/2 years ago, he wrote the contents of the complaint as per the say of P.W. 8-Prema and he also signed on the same as a ''dastoor''. In his cross-examination, it was suggested that, at the instance of the police, he wrote the complaint, but the same was denied by him. Even he has denied that the elders demanded amount from the father of the accused and the accused did not agree for the same.

The incident is said to have taken place at 7.00 a.m. on 04.09.2009 and on the very same day in the night at about 2100 hours, the complaint was lodged, the same was despatched and it was produced before the concerned Magistrate at 11.45 p.m. on 04.09.2009 itself. Therefore, everything was done without causing much delay and there is no material to show that the delay in approaching the police to file the complaint is only with an intention to falsely implicate the accused in the case. Though it was suggested to the prosecution witnesses that in respect of land of one Durgawwa civil case was going on in the Court at Savadatti and in that connection there was enmity between the family of the complainant and the family of the accused and that was the reason for false implication of the accused in the case, the said suggestion was denied by all the witnesses.

So far as the contention of the appellant-accused that complainant filed false case against him and he has been falsely implicated in the case is concerned, it is to be noted that the complainant is a married woman who was leading her marital life with her husband, who is examined as P.W. 4 in this case. It cannot be expected that at the cost and risk of her matrimonial life P.W. 8-Prema lodged a false complaint in order to falsely implicate the accused in the case. Because of this incident the husband of the victim sent her back to her native place and he married another lady and since from the date of the incident the complainant is residing in her parental place which is evident from the evidence of Bhimappa Ekkerappa Madar, husband of the complainant. Therefore, the contention of the defence that there is a false complaint against him cannot be accepted in view of the evidence of prosecution witness and more particularly the evidence of P.W. 4-the husband of the victim girl.

The conduct of the accused is also important. Immediately after the incident he absconded and on the next day of the incident he has been arrested. The evidence of P.W. 15-Sri Iqbal Ahmad Abdul Rajak, A.S.I. goes to show that he was deputed as per the instructions of the C.P.I. to trace the accused in this case and as per the said instructions when he was searching for the accused at Munavalli on 05.09.2009 the accused was traced in the bus stand at 12.00 noon. He was brought at 1.00 p.m. and produced before the C.P.I. He has also submitted the report as per Ex. P.10 and his signature is at Ex. P. 10A. Even in the cross-examination of P.W. 15 nothing has been elicited so as to disbelieve his evidence. It goes to show that immediately after the incident the accused left the village and he absconded and on the next day of the incident he has been arrested in the bus-stand at Munavalli. The conduct of the accused in absconding from the place is also material and relevant piece of evidence in appreciating the case of the prosecution.

Looking to all these materials on record and also the judgment and order of conviction passed by the Trial Court, the Trial Court has properly appreciated the materials on record and rightly convicted the accused for the offences. The Trial Court is justified in convicting the accused. The view taken by the Trial Court is one of the possible views. I do not find any illegality in the judgment and order of conviction passed by the Trial Court.

Accordingly, the appeal fails and the same is hereby dismissed.