Rama and Muniraju vs State of Karnataka

N. Ananda, J.—The appellants (hereinafter referred to as ''accused 1 & 2'') were tried and convicted for an offence punishable u/s 376(g) IPC. They have been sentenced to undergo rigorous imprisonment for a period of ten years and pay fine of Rs. 12,000/- each, in default to undergo simple imprisonment for a period of one year. Therefore, they are before this court. I have heard. Sri S. Shankarappa, learned counsel for accused 1 & 2 and Sri B.T. Venkatesh, learned SPP for State.

In brief, the case of prosecution is as follows:-

The victim of offence examined as PW 11 is the daughter of PW 9-Doddachannappa and PW 10-Ramanamma. They are the residents of Haragadde Village. PW 9 was working in A.S.E. Centre at Bangalore. PW 9 used to leave his house by 5.30 a.m. and return to his house from work at about 4 p.m., The victim of offence (PW 11) was a mentally retarded girl. She was aged about 16 years during the year 2002. PW 11 did not have mental growth correlating to her age. The efforts made by her parents to provide education had failed, because victim did not show remote signs of progress in education. Therefore, victim was being taken care of by her parents. The victim used to play with children. Accused 1 & 2 are residents of Devasandra Village, Anekal Taluk, which is at a distance of 1� kilometers from Haragadde Village. Accused 1 & 2 had come to Haragadde Village to catch bus. The victim and parents of victim were known to accused 1 & 2.

On 26.11.2002 at about 4.30 p.m., when victim was playing with other children near tank bund in Haragadde Village, accused 1 & 2 came on a two wheeler and took victim to an eucalyptus grove near Devasandra Village and committed rape on her, one after the other, thereby committed an offence punishable u/s 376(g) IPC. PW 9 returned home from office at about 4 p.m., and found that his daughter (PW 11) was not at home. On inquiry, PW 9 learnt that victim did not return to home; PW 9 and his wife (PW 10) searched for victim. During afternoon of 27.11.2002 (on the following day), one Allalappa of Devasandra Village brought victim to house of PW 9. The victim was in a state of shock and gradually, she narrated incident to her father (PW 9). Thereafter, PW 9 lodged first information, suspecting involvement of accused 1 & 2, on the basis of which case was registered against accused 1 & 2 for an offence punishable u/s 376 r/w 34 IPC. Accused 1 & 2 were arrested. The Investigating Officer visited place of incident and collected incriminating material. The victim was subjected to medical examination. After completion of investigation, charge-sheet was filed against accused 1 & 2. The learned trial Judge on appreciation of evidence of victim, parents of victim and medical evidence held accused 1 & 2 guilty of an offence punishable u/s 376(g) IPC.

In this appeal, the following points would arise for determination:-

(1) Whether prosecution has proved that on 26.11.2002 at about 5 p.m., accused 1 & 2 committed rape on victim (PW 11) in an eucalyptus grove of one Shankaranarayana Shastry in Survey No. 42 of Dyavasandra Village and thereby committed an offence punishable u/s 376(g) IPC?

(2) Whether learned trial Judge has properly appreciated evidence on record?

(3) To what order?

The victim girl has been examined as PW 11. The learned trial Judge has observed that victim was a mentally retarded girl and she was able to give answers with difficulty, however she was able to give rational answers. Therefore, learned trial Judge recorded evidence of PW 11 on oath.

PW 11-Victim girl has deposed; on the date of incident, she was playing with children on a katte in her village; at that time, accused 1 & 2 came on a two wheeler; accused 1 & 2 took her on a two wheeler to a big grove; accused No. 1 removed clothes of victim; thereafter both accused closed her mouth and touched her breasts and touched her private parts; both accused touched her thighs; both accused embraced her; both accused kissed her on both chins; removed their trousers and under garments and repeatedly pressed her thighs; victim was feeling pain in her genital; both accused did so; victim was afraid; at that time, accused had closed her mouth and prevented her from raising hue and cry; accused squeezed her both breasts; PW 11 felt pain in her breast and genitals and thighs; throughout night accused were lying PW 11 on ground and touching her body and pressing her genital organ; during morning both accused left that place; after some time, a person brought PW 11 to her house from grove; thereafter, PW 11 informed the incident to her parents; PW 11 was taken to hospital and she was examined by doctor. PW 11 has identified clothes worn by her at the time of incident. PW 11 had shown place of incident to police. During cross-examination, PW 11 has reiterated version given in examination-in-chief but for certain variations and discrepancies.

As already stated, victim (PW 11) was a mentally retarded girl. In the circumstances, endeavour of the court is to find out whether substratum of evidence given by victim has been consistent and credible. The court in spite of being conscious of the fact victim was a mentally retarded girl, cannot go by minor lapses and discrepancies found in evidence of victim

During cross-examination, victim has reiterated version that accused 1 & 2 had sexually assaulted her and she has identified accused 1 & 2. PW 11 has denied suggestion that she was tutored by her father (PW 9) to depose against accused.

The victim was a mentally retarded girl, but for physical growth, her activities were akin to activities of a girl aged about 10 to 12 years. The victim was an innocent girl and not aware of worldly affairs. PW 11 did not have grudge or enmity against accused 1 & 2. PW 11 was not mentally capable of developing animosity or grudge against accused 1 & 2. PW 11 had difficulty to give evidence before court. PW 11 had difficulty in narrating sequence of events. In the circumstances, contention of learned counsel for accused 1 & 2 that victim was tutored by her parents to give evidence against accused 1 & 2 cannot be accepted. Therefore, there are no reasons to suspect the evidence of PW 11 (victim). The incident had taken placed in an eucalyptus grove. The victim was the only witness. In the circumstances, to insist corroboration to evidence of victim would be adding insult to injury. There are no reasons to suspect the evidence of victim, who had complained of sexual assault by accused 1 & 2, more particularly when victim (a mentally retarded girl) did not bear animosity or ill-will against accused 1 & 2.

The father of victim namely PW 9-Doddachannappa has given evidence relating to post-occurrence events. PW 9 has deposed; he was working in A.S.E. Centre at Bangalore; he used to leave his house at 5.30 a.m., and return to his house at about 4 p.m.; PW 9 and his wife (PW 10) were already suffering from mental agony as victim though a grown up girl was mentally retarded and it was difficult for them to chalk out her future. It was difficult for them to protect the victim from evil forces. In the circumstances, evidence of PW 9 that he learnt incident of sexual assault on PW 11 and lodged first information, suspecting involvement of accused 1 & 2 does not suffer from any discrepancies. There are no reasons to suspect his evidence.

PW 10-Ramanamma is the mother of victim. PW 10 has deposed; after victim was brought to her house, she was in a state of shock; they gave her hot water bath and a cup of tea; the victim gained confidence and narrated incident to her mother. PW 10 has deposed before court as to what she had heard from mouth of her daughter (PW 11). The defence has made an attempt to establish that parents of victim were inimical to accused 1 & 2. The defence of enmity put forth by accused is a far fetched defence.

As already stated, PW 9 was working in A.S.E. Centre at Bangalore. It has been suggested to PW 9 that brother of accused No. 1 was in active politics and there was political rivalry between PW 9 and brother of accused No. 1. PW 9 has denied this suggestion. Therefore, attempts made by accused 1 & 2 to establish that parents of victim were inimical to accused 1 & 2 have failed. It is difficult to conceive that PW 9 & PW 10 would expose their mentally retarded daughter to ignominy and concoct a case against accused 1 & 2, staking honour and chastity of their daughter (PW 11). It is difficult to conceive that parents of a grown up girl would resort to such mean and cheap tactics that too at the cost of exposing and modesty of their grown up daughter. Therefore, there are no reasons to suspect the evidence of PW 9 & PW 10.

In my considered opinion, medical evidence adduced by prosecution is not sufficient to hold that there was a complete act of rape by accused 1 & 2.

At the first instance, victim was examined by PW 15-Dr. Gyana Prakash in General Hospital at Anekal. PW 15 has deposed; he examined victim on 28.11.2002 on receipt of report from Forensic Science Laboratory; PW 15 came to conclusion that there was evidence of recent sexual intercourse on victim.

At this juncture, it is necessary to state that incident of sexual assault had taken place on 26.11.2002. PW 15 had furnished his opinion after receipt of Forensic Science Laboratory report dated 04.02.2003. The evidence of PW 15 that there was evidence of recent sexual intercourse was based on Forensic Science Laboratory report (Ex. P. 10). The contents of Ex. P. 10 would reveal that presumptive tests for presence of seminal stains were found positive on items 4 (one kacha) & 7 (one underwear).

From the evidence of Investigating Officer and other documents relied upon by prosecution, it is not possible to arrive at a conclusion that items 4 & 7 referred to in Forensic Science Laboratory report were undergarments of victim and accused No. 1. Incidentally, it is necessary to state that Investigating Officer had also seized under-garments of accused 1 & 2. On the basis of presence of seminal stains on under garments, the identity of which has not been established, it is not possible to hold that there was completed act of rape. The victim was also examined by P.W. 14-Dr. K.W.D. Ravichander in Victoria Hospital at Bangalore. P.W. 14 has deposed; that he examined the victim on 29.11.2002 between 9.00 a.m. and 10.00 a.m.; he examined the victim girl physically and dentally, the victim did not consent for examination of her genitals and other secondary sexual characters; on examination of victim, he did not notice any external injuries; P.W. 14 was not able to furnish any opinion because victim did not consent for examination of her genitals and development of secondary sexual characters by P.W. 14.

At this juncture, it is necessary to state that PW 9 Dodda Channappa (the father of victim girl) has deposed; that after coming to know that accused Nos. 1 and 2 had committed rape on his daughter, he apprehended accused No. 2 and he had taken accused No. 2 to police station; thereafter, PW 9 lodged first information. In the circumstances, Investigation Officer should have referred accused No. 2 to medical examination to confirm that he had signs of recent sexual intercourse.

The evidence of P.W. 14-Dr. K.W.D. Ravichander would reveal that he examined accused No. 2-Muniraja between 11.00 a.m. and 12.00 noon on 29.11.2002. P.W. 14 has deposed; that he did not notice any external injuries; he did not notice signs of sexual intercourse on the person of accused No. 2. Therefore, it is not possible to arrive at a conclusion that prosecution has proved that there was a completed act of rape by accused 1 & 2.

Accused 1 & 2 had taken victim to an isolated place and they had taken advantage of mental retardation of victim; accused had undressed victim and they had felled her on ground. These facts would certainly prove that accused 1 & 2 had attempted to commit rape on victim.

The learned trial Judge has held that oral evidence of victim, even in the absence of medical evidence is sufficient to convict accused 1 & 2 for an offence punishable u/s 376(g) IPC.

It is true that oral evidence of victim without corroborative medical evidence is sufficient to convict accused for an offence punishable u/s 376 IPC, however, such oral evidence should be consistent, cogent and it should be corroborated from other circumstantial evidence.

In the case on hand, first information lodged by the father of victim does not reveal that accused 1 & 2 had committed rape on victim.

At this juncture, it is relevant to state that incident had taken place on 26.11.2002. The first information was lodged at 8 p.m. on 27.11.2002. PW 9 has categorically stated that after he learnt about incident from victim, he lodged first information, suspecting involvement of accused 1 & 2. In the circumstances, if there was completed act of rape, there was no impediment for PW 9 to state the same in first information. Above all, victim has not specifically deposed that accused 1 & 2 had committed rape on her. The victim girl had not consented for medical examination of genitals and development of secondary sexual characters. The learned trial Judge has ignored absence of this crucial evidence. Therefore, I hold judgment of conviction of accused 1 & 2 for an offence punishable u/s 376(g) IPC cannot be sustained. I hold accused 1 & 2 guilty of an offence punishable u/s 376 r/w 511 IPC.

The accused have examined DW''s. 1 to 3 as their witnesses. The evidence of these witnesses would reveal that victim was a mentally retarded girl and her parents were not taking proper care of her. In my considered opinion, the evidence adduced by D.W''s. 1 to 3 does not detract credibility of evidence adduce by prosecution.

Sri S. Shankarappa, learned counsel for accused 1 & 2 would submit that a lenient view may be taken in the matter of sentence.

The learned SPP would submit that accused 1 & 2 shave exploited a mentally retarded girl and they have sexually abused her. This court has convicted accused 1 & 2 for an offence punishable u/s 376 r/w 511 IPC for paucity of medical evidence. In the circumstances, no lenient view is called for in the matter of sentence. Having heard the learned counsel for parties and bearing in mind facts and circumstances of the case and plight of victim and defence put forth by accused 1 & 2, I am of the opinion if accused 1 & 2 are sentenced to undergo rigorous imprisonment for a period of five years and pay fine of Rs. 50,000/- each, in default to undergo simple imprisonment for a period of six months that would meet the ends of justice.

Therefore, I pass the following:-

ORDER

The appeal is accepted in part. The impugned judgment is modified. Accused 1 & 2 are acquitted of an offence punishable u/s 376(g) IPC. Accused 1 & 2 are convicted for an offence punishable u/s 376 r/w 511 IPC. Accused 1 & 2 are sentenced to undergo rigorous imprisonment for a period of five years and pay fine of Rs. 50,000/- each, in default to undergo simple imprisonment for a period of six months for an offence punishable u/s 376 r/w 511 IPC. Out of fine amount, a sum of Rs. 75,000/- shall be paid as compensation to the father of victim (PW 9). The period of detention undergone by accused 1 & 2 during trial is given set off u/s 428 Cr.P.C.