Shashidhara vs The State of Karnataka

Mohan M. Shantana Goudar, J—The judgment and order dated 15.12.2009 passed by the Principal Sessions Court, Hassan in S.C. No. 61/2008 by which the accused (appellant herein) is convicted for the offences punishable under Sections 376 and 324 of IPC, is called in question in this appeal by the convicted accused.

Case of the prosecution in brief is that the victim Kumari Gowri, aged about 12 years was proceeding along with her friend Kumari Mamatha towards Railway Station in Arasikere Town during mid-night of 3.1.2008 in order to catch the train to go to Bangalore; at that point of time, the accused (Police Constable) came from behind and told both the girls to stop; on seeing the accused, the victim and Kumari Mamatha were frightened and started running away from that place; however the accused ran towards the victim and held her with tuft and dragged her to a dilapidated house of one Mr. K. Vijayakumar situated next to Vakkaligara Sangha Rangamandira at Rangegowda Street, Arasikere; he made her to fall on the ground in the said dilapidated house and had forcible sexual intercourse with her though she was shouting; PWs.13, 14 and 17 after hearing the cries of the victim, rushed to the spot and tried to nab the accused; in the meanwhile, Kum. Mamatha (friend of the victim) fled away from the scene; Kum. Mamatha met the police personnel P.Ws.6 and 18 who were on guard duty; she narrated about the incident and immediately, the police went to the spot; they apprehended the accused with the help of P.Ws.13, 14 and 17.

The complaint came to be lodged by the victim/prosecutrix at 3.00 a.m. on 4.1.2008 i.e., immediately after the incident, which came to be registered in Crime No. 2/2008 of Arsikere town police station by the Sub-Inspector of police P.W.20; the accused was formally arrested; the victim was sent to medical examination at 8.00 a.m. on 4.1.2008. P.W.23 the Inspector of police completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 23 witnesses and got marked 16 exhibits and 13 material objects. On behalf of the defence, no witness is examined. The trial Court, as aforementioned, on evaluation of the material on record, convicted the accused for the offences punishable under Sections 376 and 324 of IPC and sentenced him to undergo imprisonment for life.

Sri. C.H. Jadhav, learned Advocate appearing on behalf of the appellant taking us through the material on record submits that the entire evidence on record needs to be considered homogenously; the medical evidence does not support the theory of the prosecution that the accused has committed the offence under Section 376 of IPC. At the most it can be said that the victim has committed the offence under Section 511 of IPC in as much as, it is a case of attempt to commit rape and not the case of rape; Ex. P2-the wound certificate does not disclose any injury on the private part of the victim; not even tenderness is found on the vagina of the victim; the hymen was in tact; there is no report of Forensic Science Laboratory to support the case of the prosecution; evidence of the police officers i.e., P.Ws.6 and 18 appears to be exaggerated, in as much as, they have falsely deposed that the accused was naked when he was apprehended; the evidence of P.Ws.6 and 18 contradicts the version of P.Ws.13, 14 and 17, in as much as, these witnesses have deposed that the accused was wearing clothes. According to him, the reasons assigned and the conclusions arrived at by the Court below is not proper and correct.

Sri. Chetan Desai, learned Government Advocate argued in support of the judgment of the Court below contending that it is a clear case of rape, in as much as, the prosecutrix has deposed before the Court as to how the incident has taken place and as nothing is brought out in her cross-examination by the defence, the trial Court is justified in convicting the accused for the offence under Section 376 of IPC.

P.Ws.1 and 2 are the witnesses for scene of offence mahazars Ex. P1 under which, M.O. No. 1 brick is also seized. P.W.3 is a Gynecologist working at Government Hospital, Arsikere town. She examined the prosecutrix at 8.30 a.m. on 4.1.2008 and noticed five injuries. The injury certificate is at Ex. P2. She has rendered the opinion as per Ex. P3 on 8.1.2008, which is received by the investigation officer on 12.1.2008. P.W.4 is another Doctor. He examined the accused at 8.45 a.m. on 4.1.2008 and noticed six injuries. The injury certificate is at Ex. P4. His opinion is at Ex. P5. P.Ws.5 and 7 are the witnesses for seizure panchanama Ex. P6, under which, the clothes of the accused M.O. Nos. 5 to 7 and clothes of the prosecutrix (P.W.12) at M.O. Nos. 2 and 3 are seized under the very panchanama. P.Ws.6 and 18 are the police constables. They were on beet duty during the relevant point of time. On hearing the cries of the girl, they rushed to the spot and apprehended the accused and took him to the police station along with P.W.12 (Prosecutrix). P.W.8 is the police constable. He carried the articles to Forensic Science Laboratory for examination. P.W.9 is the owner of the house wherein the incident has taken place. P.W.10 is the Chief Officer of the Town Municipal Council, Arsikere. He issued the khata extract of the place of incident as per Ex. P7. P.W.11 is the Engineer. He drew the sketch of scene of offence as per Ex. P8. P.W.12 is the prosecutrix/victim. She is the complainant. She has deposed about the incident in question. P.Ws.13, 14 and 17 are the neighbouring witnesses. They rushed to the scene of offence after hearing the cries and tried to nab the accused and chased him. Meanwhile, the police personnel (P.Ws.6 and 18) who were coming from opposite direction apprehended the accused. P.W.15 is the aunt of P.W.12 and P.W.16 is the mother of Kum. Mamatha (P.W.22). Both these witnesses have turned hostile to the case of the prosecution. The evidence of P.W.15 discloses that P.W.12/Prosecutrix was living in her house during the relevant point of time. P.W.17 has narrated about the incident soon after the incident. P.W.19 who is the police constable, carried the first information report to the jurisdictional Magistrate. P.W.20 is the Sub-Inspector of police of Arsikere police station. He received the complaint and registered the crime. Based on the complaint lodged by P.W.12, he arrested the accused and conducted part of investigation. P.W.21 is the Scientific Officer of Forensic Science Laboratory. He has issued the certificate as per Ex. P13. P.W.22 is Kum. Mamatha. She has accompanied P.W.12 to go to railway station. However, she has turned hostile to the case of the prosecution. P.W.23 is the Investigation Officer, who completed the investigation and laid the charge sheet.

From the aforementioned narration it is clear that the case of the prosecution mainly depends upon the evidence of prosecutrix/P.W.12 and the police constables P.Ws.6 and 18 who apprehended the accused as well as the evidence of P.Ws.13, 14 and 17-the neighbouring witnesses who rushed to the spot immediately after hearing the cries.

As aforementioned, the first information Ex. P9 came to be lodged by prosecutrix. The complaint discloses that herself and P.W.22 Kum. Mamatha ran from their house situated at Honnashettihalli village to go to Bangalore city since said Mamatha was not willing to marry at an early age, in as much as, her parents were planning to get her married; they reached Arsikere at 4.00 p.m. from Honnashettihalli; they saw a cinema by name Maasti in Sadana Talkies till 6.00 p.m.; they came to the bus stand of Arsikere at 6.00 p.m., but by then they had lost their bags in which they had kept certain amount of money; ultimately, they decided to go towards railway station Arsikere; when they were proceeding towards railway station at about 12.00 midnight intervening between 3.1.2008 and 4.1.2008, the accused came from behind from the side of Ganesha Temple and told the victim as well as P.W.22 to stop; however, the victim and P.W.22 started running from the said place; the accused caught hold of the victim with her tuft; he gagged the mouth of the victim and took her to a dilapidated house; the clothes of the victim were taken off by the accused and thereafter, he committed sexual assault on her; the neighbouring three persons i.e., P.W.13, P.W.14 and P.W.17 came to the spot and after seeing them, the accused started running away from the scene; those three persons however were able to apprehend the accused; in the meanwhile, two police personnel who were on beet duty came to the spot and took the custody of the accused as well as victim - P.W.12; the accused as well as P.W.12 were taken to police station. Thereafter, complaint came to be lodged.

The very version as found in the complaint Ex. P9 in respect of the main offence of rape is deposed to by P.W.12/Prosecutrix. However, she has not deposed about she and Mamatha going to Cinema etc., However, her deposition discloses that she and Mamatha proceeded towards railway station in the midnight intervening between 3.1.2008 and 4.1.2008 and in the meanwhile, the accused forcibly held her and dragged her to dilapidated house and committed sexual assault on her. In the further cross-examination by the defence on 31.7.2009 curiously P.W.12/prosecutrix has turned completely hostile. Be that as it may. Her deposition before the Court earlier made on 15.6.2009 clearly reveals the high handed act of the accused, as mentioned supra.

At this stage, it is relevant to note that the prosecutrix was admittedly minor, aged about 12 to 13 years at the time of incident. Her evidence is recorded before the trial Court on 15.6.2009. In the examination- in-chief she has emphatically deposed about the entire incident, including sexual assault on her by the accused as mentioned supra. Even in the cross-examination, she has reiterated about the said facts. She has completely withstood in her cross-examination recorded on 15.6.2009. After completion of the cross-examination of the victim, the trial Court has specifically recorded that there is no reexamination by the Public Prosecutor. Thus, it is clear that the entire examination of the said witness (prosecutrix-PW.12) was completed on 15.6.2009 and at the end of recording of evidence, the Presiding Officer of the Court below has put his signature. Even the signatures of the victim are taken on each page of her deposition which runs to seven pages. However, prosecutrix was once again summoned and was subjected to further cross-examination on 31.7.2009, i.e., after the lapse of about 1 1/2 months from the date of her earlier deposition. Strangely, the prosecutrix has taken ''U'' turn by deposing against her case as made out in the complaint at Ex. P9 lodged by her as well as against the case of the prosecution. In her further cross-examination on 31.7.2009, the prosecutrix has proceeded to give a clean chit in favour of the accused. At that stage, the Public Prosecutor treated her as hostile witness and she was cross-examined by the Public Prosecutor. During the cross-examination by the Public Prosecutor, she admits at the first instance that her evidence recorded on 15.6.2009 by the trial Court was not a tutored version. However, on next breath she has proceeded further to state that her deposition recorded on 15.6.2009, was deposed by her as told to her by the Investigating Officer. Thus, practically, the victim did not support her version recorded on 15.6.2009. The reason is obvious. The accused being the Police Constable seems to have won over the minor victim later and consequently she has taken contradictory stand on 31.7.2009, i.e., after about 1 1/2 months. But the Court has to evaluate the entire material on record homogenously. Whatever deposed by the prosecutrix on 15.6.2009 also cannot be ignored. She has reiterated in her cross-examination recorded on 15.6.2009 that accused has committed rape on her. If really the accused was innocent, the victim would not have deposed against the accused even on 15.6.2009.

The evidence of the prosecutrix P.W.12 is supported by the evidence of P.Ws.13, 14 and 17 who are the independent persons residing in the locality wherein the incident has taken place. All these three witnesses have consistently deposed that immediately after hearing the cries of a girl they rushed to the spot from their respective places; on seeing them, the accused tried to run away. However, in the meanwhile, two police personnel came from opposite direction and consequently, the accused was caught. P.Ws.13, 14 and 17 have not only deposed about the presence of the accused on the spot but also presence of the victim. They have also deposed that the victim was frightened. However, P.W.14 has deposed in his examination-in-chief that the accused was wearing clothes while he started running. None of these three witnesses have deposed that the accused started running away naked. On the contrary, P.Ws.13, 14 and 17 have clarified that the accused was wearing clothes and they have seen the face of the accused in the light situated in the front portion of Manjunatha lodge. From the evidence of P.Ws.13, 14 and 17 it is clear that the accused was present at the spot in question during the relevant point of time and he started running away from the scene after seeing P.Ws.13, 14 and 17. They have also deposed about the presence of the victim on the spot. They came to know from the victim that the accused tried to commit rape on her.

Case of the prosecution is further supported by the evidence of P.Ws.6 and 18 - the police constables who were on guard duty. P.W.6 has deposed that when they were on beat duty, a girl came running from the railway station, Arsikere in a frightened mood; on being asked, the said girl (P.W.22) told P.Ws.6 and 18 that another girl by name Gowri is held by the accused and is taken to a dilapidated house. Immediately, thereafter, P.Ws.6 and 18 went to the said spot and found that the victim as well as the accused were naked and were sleeping. After seeing the police, the accused started running away from the scene. Similar is the version of P.W.18. He has also deposed that the accused was found along with the victim in a room of a dilapidated house at midnight intervening between 3.1.2008 and 4.1.2008 and immediately, after seeing the police as well as P.Ws.13, 14 and 17, the accused started running away from the scene. Even according to P.W.18, the victim as well as the accused were naked.

Though the case of the prosecution is supported by the evidence of P.Ws.6, 18, 13, 14 and 17, we find that there are some variations in the evidence of these witnesses. However, such variations do not materially affect the case of the prosecution. P.Ws.6 and 18 have deposed that the victim as well as the accused were naked and had seen the victim and the accused sleeping together. But the evidence of P.Ws.13, 14 and 17 would reveal that they came to the spot at the first instance and immediately after seeing them, the accused started running away from the scene and he was wearing the clothes. None of these witnesses have deposed that the victim was naked during the relevant point of time. Thus, this portion of the evidence of P.Ws.13, 14 and 17 contradicts the versions of P.Ws. 6 and 18. Looking to the totality of the material on record, we are of the opinion that P.Ws.13, 14 and 17 being the neighbouring witnesses came to the scene of offence immediately after hearing the cries and on seeing them the accused started running away from the scene. While the accused was running away from the scene, two police personnel (P.Ws.6 and 18) came from the opposite direction and apprehended the accused. Thus, it appears that the evidence of P.Ws.6 and 18 that they saw the accused sleeping with the victim naked appears to be exaggerated version before the Court.

Except that portion of the evidence, we find the evidence of all these witnesses consistent, cogent and reliable.

Though it is the case of the prosecution that the accused has committed rape on the minor girl aged about 12 years, in our considered opinion, the prosecution is not able to place sufficient material to prove the offence of rape in the matter. The victim was examined by P.W.3. After examination, the Doctor P.W.3 has issued wound certificate as per Ex. P2. The wound certificate of the victim reveals that she has sustained five injuries, which are as under:--

"1. 2 cm abrasion on dorsum of right hand.

Abrasion injury measuring 2 x 1 cm on posterior aspect left elbow.

Oedema and contusion of nasal bridge measuring 2 x 1 cm.

2 x 2 cm contusion on forehead present

Abrasion injury 2 x 1 cm below both the eyes"

The doctor has opined that all the injures are simple in nature and they are fresh. The certificate is issued by the Doctor at 9.00 a.m. on 4.1.2008. The victim was examined by the Doctor at 8.30 a.m. While issuing Ex. P2, the Doctor P.W.3 has in detail examined the victim and thereafter, issued Ex. P2 - the certificate. However, in her evidence before the Court, P.W.3 has tried to improve the case of the prosecution by deposing that the victim had been subjected to internal examination and she noticed one abrasion measuring 1 cm. on the vaginal right side; she has deposed that hymen was intact; she collected swab and undergarments of the victim and sent them for forensic science examination. This portion of the evidence of P.W.3 that the victim had suffered an abrasion measuring 1 cm. on the vaginal right side is an improvement made before the Court, in as much as, such injury is not found in the wound certificate Ex. P2. Ex. P2, as aforementioned, was issued immediately after the examination of the victim at 9.00 a.m. on 4.1.2008. However, subsequently, the police officer has sought further opinion of the Doctor. Accordingly, the Doctor P.W.3 has given her further opinion as per Ex. P3, in which, she has opined that she cannot rule out the possibility of rape on the minor victim. This opinion is given by the Doctor on 8.1.2008 i.e., after about four days of the medical examination. However, such opinion was received by the investigation officer on 12.1.2008 i.e., 8 days after the medical examination. Firstly, there was no reason as to why such important factor was not mentioned by the Doctor when she examined the victim at 8.30 a.m. on 4.1.2008. Not even tenderness was observed on the vagina of the victim, by the Doctor during the relevant point of time. However, after four days, the Doctor has opined that she cannot rule out the possibility of rape of the victim. In her opinion dated 8.1.2008, which was received by the investigation officer on 12.1.2008 it is also mentioned that she saw one abrasion by the side of the vagina and tenderness was also present. This opinion Ex. P3 appears to be an afterthought, in as much as, the same directly contradicts the wound certificate Ex. P2. The deposition of the Doctor before the Court is based on Ex. P3. She has not explained as to why the injury on the vagina was not mentioned in the wound certificate Ex. P2.

The Forensic Science Laboratory report is found at Ex. P13. The officer of Forensic Science Laboratory is examined as P.W.21. The evidence of P.W.21 and the certificate of the Forensic Science Laboratory Ex. P13 clearly reveal that 11 articles were sent for examination including clothes of the victim, undergarments, nail pieces, one T-shirt and jeans pant; seminal swab, vaginal swab etc., none of the articles sent for examination showed the presence of seminal stains. Hair was also not found on the items. The Scientific Officer has given the negative report. From the aforementioned material it is clear that the case of the prosecution that the accused committed rape appears to be exaggerated, particularly, in the light of Forensic Science Laboratory report as well as the medical evidence. Undisputedly, the victim was examined within few hours of the incident in question. Despite the same, no incriminating material is found in the Forensic Science Laboratory report.

We are aware of the legal position that even a partial penetration in the vagina is sufficient to bring home the crime of rape. We are also conscious that the victim was a minor girl. However, in the absence of any material to show that the victim has suffered any injury including a minor tenderness on her private part, in our considered opinion, the defence Advocate is justified in contending that it is a case of attempt to commit rape and it is not a case of rape.

Since we find that it is a case of attempt to commit rape, the offence is punishable under Section 511 read with Section 376 of IPC. The maximum punishment prescribed for the offence under Section 376 of IPC in respect of the crime against a minor girl that too by a police constable is imprisonment for life. At this stage, Sri. C.H. Jadhav, learned senior Advocate submits that it is merely a case of attempt to commit rape and since the offence has taken place in the year 2008 i.e., prior to amendment of the concerned provision, leniency may be shown in favour of the accused by imposing lesser sentence. The said submission cannot be accepted. The accused was admittedly a police constable during the relevant point of time. Victim was admittedly a minor aged about 12 years. The accused being the police officer has taken the law into his hands. He has tried to commit rape of an innocent minor girl. If the law guarding agency commits such ghostly crime, the same will have to be viewed with all seriousness and the accused should be dealt with iron hand. Therefore, no leniency can be shown in favour of the accused.

Under Section 511 of IPC, half of the maximum punishment prescribed needs to be imposed. Since it is a case coming under Section 376/511 of IPC and as the maximum punishment prescribed for the offence under Section 376 of IPC is life imprisonment, sentence of half of the life imprisonment needs to be imposed on the accused. Since nowhere it is prescribed as to what would be half of the life imprisonment, we take the assistance of Section 57 of IPC for the purpose of imposing punishment. Under Section 57 of the IPC, for the purpose of calculating fraction of the term of punishment, the imprisonment of life shall be reckoned as imprisonment for 20 years. Half of 20 years would be 10 years. Therefore, the interest of justice would be met, if the accused is sentenced to undergo imprisonment for 10 years. Accordingly, the following order is made:--

"(i) Appeal is allowed in part. The judgment and order of conviction passed by the trial Court is modified.

(ii) Accused is hereby convicted for the offence punishable under Sections 324 and 376/511 of IPC.

(iii) Accused is sentenced to undergo imprisonment for 10 years and to pay fine of Rs. 50,000/-. In case of default of payment of fine, the accused shall undergo further imprisonment for three years. In case of recovery of fine, the entire fine shall be paid to the victim/P.W.12. The sentence as imposed by the trial Court for the offence under Section 324 of IPC continues to remain.

(iv) The sentence imposed in respect of the offence under Section 324 of IPC and Section 376/511 of IPC mentioned supra, shall run concurrently.

(v) The appellant is entitled for set off under Section 428 of Cr.P.C."