Siddaraju vs State

Subhash Badi

Appeal by the accused against the judgment of conviction in S.C.No. 33/2005 dated 14th November 2005 on the file of Fast Track Court-IV. Mysore.

Accused - Siddaraju. s/o Basavaraju was charge sheeted and tried for an offence punishable u/s 376 of the Indian Penal Code.

Case of the prosecution was that, the victim - PW-10 is the daughter of PW-11. On 10.11.2004 at about 8.30 p.m., PW-10 was on her way to her aunt''s house to bring sambar. At that time, accused pulled her into a room next to his house, laid her down, gagged her mouth and committed rape and thereafter pushed her outside. When accused pulled her, one Mahesh - PW-4 was present. While committing the rape, he scratched on her face, shoulder and forcibly committed rape. She came back to house and informed the same to her mother. When her father came, she did not inform him. Next day, the victim and her mother met the elder people in the village and on their advice, complaint was filed before the PW-12 as per Ex.P11. PW-12 registered the case in Crime No. 289/2004 and sent the FIR as per Ex.P10 and sent the victim along with the woman Police to the government hospital for examination.

PW-1 - Dr. Gayathri examined the victim at 10.15 p.m. on 11.11.2004 and she noticed nail scratch marks over the forehead, both cheeks and chin and also on the right side and inner side of the thigh and clinically she opined that the victim had past sexual intercourse, but she could not give the opinion whether the victim had recent sexual intercourse, as she did not had the FSL report and in the cross-examination, she stated that, she did not find signs of recent sexual intercourse.

PW-2 is another doctor, who examined the victim by taking her x-rays and opined that the victim may be aged between 12 to 14 years, as per Ex.P5. PW-13 arrested the accused and sent him for medical examination. PW-3 examined the accused on 12.11.2004. PW-3 opined that, he did not find symptoms of recent sexual intercourse and clarified the recent means 48 to 36 hours prior to the examination of the accused and opined that it is not necessary that there should be any external injuries, if the sexual act is committed by force on a minor girl.

PW-13 after recording the statement of the witnesses and collecting the materials and the opinion, he filed the charge sheet.

On committal, learned trial Judge framed the charge for an offence punishable u/s 376 of IPC as under:

Thai you on 10.1.1.2004 during night at 8.30 P.M., in the verandah of Basvaraju situated at Hura village of Nanjangud taluk committed rape on CW1 Shilpa who is below 18 years of age, and thereby committed an of fence punishable u/s 376 of Indian Penal Code and within the cognizance of court of sessions.

Prosecution in order to prove the guilt of the accused, examined PWs-1 to 14 and marked Exs.P1 to P17. On the defence side, portion of the statement of PW-10 was marked as Ex.D1.

The trial court on appreciation of the evidence found that, the victim is minor and also found that the accused had committed rape and accordingly, accused was sentenced with seven years R.I. with fine of `5,000/-, in default, to undergo six months'' R.I. As against the said judgment, the accused is before this Court.

Heard Sri. G.B. Manjunatha. learned Counsel for the appellant - accused and Sri. Srinivasa Reddy. learned Government Pleader for the State.

Learned Counsel for the accused submitted that, the prosecution has not proved that, the victim is aged less than 16 years. The prosecution has also not proved that, the victim was subjected to rape and lastly he contended that, because of the enmity between the families of accused and the victim, a false complaint has been lodged against the accused and submitted that, there is also delay in filing the complaint and as such, the prosecution ease is full of doubts.

He also relied on the evidence of PW-5 - the younger sister of the victim. PW-5 has shown her age as 13 years as on 19.9.2005 and she has stated that the victim is her elder sister. If the age of PW-5 is considered and even if the age of two years'' difference is taken between the PW-5 and the victim, PW-5 was in 8th standard, the younger sister must, have been 14 years and victim must have been more than 16 years, He also submitted that. PW-2 -- Doctor, who has given the age of the victim between 12 to 14 years, has admitted in his cross-examination that, he is not a Radiologist, as such, the evidence of PW-2 docs not prove (he age of the victim. He also submitted that, though PW-14 has been examined to prove the age. PW-14 in his cross-examination has stated that, on the basis of the information given by the parents, date of birth of the victim is entered in the records and the parents had not produced any document. Relying on this evidence, he submitted that, to prove that the victim was less than 16 years, the prosecution has not: produced, any cogent material, which proves the age of the victim and if the victim''s age is not proved, the finding of the trial court that she was minor, is not based on any evidence.

He also submitted that, PW-1 - Doctor in her evidence has stated that, the victim had a past sexual intercourse and it is not recent. There is no evidence of recent sexual intercourse. This is also supported by the evidence of PW-3 - another Doctor, who examined the accused and has opined that, there is no symptom of recent sexual intercourse. Further, he relied on the evidence of PW-5 - sister of the victim. PW-10 - victim and PW-11 - mother of the victim, to Show that there was enmity between the families of the victim and the accused and all the three witnesses have admitted that, cases were filed against each other. Victim herself has stated that, a false ease was filed against the family of the accused. This coupled with the complaint being filed at 7.00 p.m. on 11.1 1.2004 for the incident alleged to have occurred at 8.30 p.m. on 10.1 1.2004 clearly proves that, the victim and her family members in order 10 falsely implicate the accused have filed the belated complaint.

He also relied on the evidence of PW-1 and submitted that, the bloodstains found on the cloths of the victim may not be on account of rupture of hymen, as the victim had past intercourse and as such, the entire prosecution case is doubtful and there is no evidence, which proves that the accused had committed the offence of rape and there is no evidence that the victim was less than the age of 16 years.

On the other hand, learned Government Pleader submitted that the victim in her evidence has categorically stated that, she was subjected to rape and her evidence is supported by the evidence of PWs-5 and 11 - the younger sister and mother of the victim. PW-1 - doctor though has stated that the victim had past intercourse, her evidence clearly shows that the victim had suffered injuries on her face inner thigh, which is suggestive that the victim was subjected to rape. He also relied on the evidence of PW-3 to state that, no external injury is required to be occurred on the private part of the accused, if the girl is minor. PW-14 has supported the case of the prosecution and has produced the evidence to show that the victim was admitted to their school and the date of birth is given as 3.8.1992 and as on the date of incident, she was below 16 years. If this evidence is appreciated, it clearly proves the case of the prosecution that, the accused committed rape on the victim.

Learned Government Pleader also submitted that, PW-11 - mother of the victim had consulted the village elders and their relatives before filing the complaint and on their advice, the victim filed the complaint and in this process, there is delay.

Complain; is filed on 11.1.2004 at 7 p.m. in the complaint, PW-10 - victim has stated that, she was on her way to her aunt''s place, at that time, accused pulled her and forcibly took her inside the room adjacent to the house of the accused and committed rape. No doubt, the complainant''s house is just 30 feet: away from the place of incident and they are all row houses. However. PW-10 in her evidence has stated that, the accused gagged her mouth by both the hands and committed rape. PW-10 has also stated that, at the time of incident, except the father of the accused, no one was present in the adjacent house, the place where the accused committed rape was a vacant room and was used by the accused. The father of the accused is a deaf and dumb. Further, the accused was holding her tight and as such, she could not try to escape. No doubt, victim has admitted that, there are cases between her family and accused''s family, but has also admitted that, despite cases, the relationship between them was cordial and she used to go to accused''s house, except her father, all other members of the victim''s family are in talking terms with the accused''s family.

PW-1. the doctor, who examined the victim on the next day i.e.. on 11.11.2004 at 10.15 p.m. i.e.. nearly 26 hours after the incident, in the cross-examination, has stated that, victim had suffered nail scratch mark on the forehead and both cheeks and chin and also scratch mark on the right thigh and inner side of the thigh. In the complaint as well as in evidence PW-10 has stated that, the accused scratched on her face and other parts of the body. These scratch marks show that, the accused had used force to commit rape. No doubt, in the cross-examination, PW-1 has stated that, victim had past sexual Intercourse and there is no evidence of present sexual intercourse as the FSL report was not available.

FSL report - Fx.P17 does not show the presence of seminal stains and spermatozoa test was found Negative in item Nos. 2 to 6. Item Nos. 2 to 6 are swab from external O.S. on cotton with a stick, swab from posterior fornixs on cotton with two sticks, scalp hair and vaginal smear. However, this evidence has to be considered in the light of the time gap between the incident and when these articles were collected. Victim was examined at 10.15 p.m. on 11.1.1.2004 i.e., nearly after 26 hours and it is thereafter, the chemical examination has been made. It cannot also be ignored that there is a possibility that the victim on the next day morning must have washed and the presence of spermatozoa or seminal stains likely to vanish.

However, the evidence of PW-1 to the extent that the victim had suffered scratch injuries and she had undergone intercourse and victim in her cross-examination has categorically stated that she had not undergone sexual intercourse earlier to the rape committed by the accused, when the victim in her evidence categorically states that she is subjected to rape and this is corroborated with the evidence of PW-1. the evidence of victim stands on higher pedestal as against some discrepancy in the medical evidences and there is no enmity as such alleged between the victim and the accused or the accused''s family, even though they had some disputes. In addition to this, even mother and sister of the victim also have corroborated the evidence of victim that the victim had gone to her aunt''s house, she was subjected to rape by the accused and the said fact was revealed before them immediately after she returned.

It has come in the evidence of PW-10 - victim and PW-11 - her mother that they consulted with the village elders, they also showed the bloodstained cloths of the victim to them and village elders suggested for filing a complaint. Normally in villages, if any incident occurs, the village elders will immediately fry resolve the same and in such circumstances, it cannot be said that, PW-11 going to the village elders and informing them of the incident and on the next day the victim going to the Police Station and given her statement is not unnatural.

To show that the victim is less than 16 years, PW-14 has been examined. PW-14 - Government School Teacher in her evidence she has produced Ex.P16 and she is a Government school teacher and she has stated that she has produced the certificate as per the records and the date of birth of the victim is shown as 3.8.1992. Though argument was advanced to show that victim''s younger sister - PW-5 was 13 years as on the date of evidence and she was studying in 8th standard, if the age of the younger sister is taken at 6 years at the time of entering the school, when she had reached 8th standard, she must be ''14'' and the difference of two years is added to the age of victim, victim would be 16 years and above at the time of the incident and it is submitted that, the evidence of PW-14 is not conclusive as PW-14 has stated that the parents bad not produced the records in proof of the date of birth. However, PW-5 has stated that, she is 13 years as on the date of giving evidence and she has given evidence on 19.9.2005 i.e.. about ten months after the incident. Even if the age of the younger sister is taken at 13 years and difference is also taken as two years between the victim and the younger sister, it would be less than 16 years.

PW-2 - Doctor, in the evidence, though he has stated that, he is not a Radiologist, but on the basis of radiology report, has stated the age of the victim as 12 to 14 years. If this evidence is corroborated with the evidence of PW-10 -victim, there is no reason to disbelieve the evidence of these witnesses. If the victim is minor as on the date of incident, even assuming that incident had occurred in the house of the accused, which is 30 feet away from the house of the victim and she had not protested, even if there was consent, her consent will not help the accused, as it amounts to rape within the meaning of Section 375 of IPC.

Learned Counsel for the appellant had relied on the decision reported in AIR 2003 SC 2136 and submitted that, the sole testimony of the prosecutrix cannot be relied, as the medical evidence is not corroborated. When victim had claimed that she is virgin, when the corroborating evidence is not produced and the victim''s evidence is not reliable, the Supreme Court held that the sole testimony of the victim is not sufficient to convict, the accused. Me also relied on another decision reported in The State of Karnataka Vs. Mapilla P.P. Soopi, and submitted that, undue delay in lodging the complaint would create serious doubt on the prosecution case. He further submitted that, even in the said case, there was one day delay. However, in the said case, the Supreme Court on the basis of the facts of that case has decided the matter, there is no principle enunciated in the same. He also relied on another decision of the Supreme Court reported in Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and Another, .

In this ease, it is not only the prosecutrix''s version, but the medical evidence also suggests that she was subjected to sexual intercourse and injuries are found not only on her forehead, but also on the thigh and inner part of thigh and the victim was minor at the time of the incident.. Even if there is consent, it amounts to rape. Hence, the judgments referred to by the learned Counsel for the appellant are of no assistance to this case.

When victim herself has come before the court and the complaint is lodged on the very next day and the age of the victim is less than 16 years, the evidence proves the offence beyond reasonable doubt. Just because there is some discrepancy in the medical evidence, (he credibility of the victim''s evidence cannot be doubted. The evidence of the other witnesses also corroborates the evidence of the victim.

The trial court on proper analysis of this evidence and on proper appreciation of the material on record has held that the accused has committed rape on the victim, the findings are sound and legal. Hence the judgment of conviction passed by the trial court does not call for interference.

Accordingly, the appeal fails and same is dismissed. Accused to surrender before the trial court. In case the accused fails to surrender, the trial court to take steps to secure the presence of the accused and commit him to prison to serve the sentence. The pre-trial detention and the sentence already served by the accused is given set off u/s 428 of Cr.P.C.