Sri. Venkatesh @ Shambuga @ Jayarama vs State of Karnataka

Subhash B. ADI

This appeal is by the accused against the judgment in S.C.NO. 292/2004 dated 6th January 2006, on The file of the Fast Track Court-III, Bangalore Rural District, Bangalore.

Accused Venkatesh @ Shambuga @ Jayarama. S/o Muniswamappa was charge-sheeted and tried for offence punishable u/s 363, 343, 376 of IPC.

The case of the prosecution was that in the year 2004. PW-1, daughter of PW 2 and grand-daughter of PW-3 was studying in 10th standard in Shri. Jayabharathi Co-operative Composite Junior College, Attibele. On 11.02.2004 at about 9.30 a.m., while she was getting ready to go to school, the accused came to her house and asked her to join him along with clothes as he intended to marry her. He threatened her that if she does not join him, he would commit suicide and keep a death note by implicating the family members of PW-1. He forced PW-1 to accompany him along with clothes, they went to Attibele bus-station, from there to Hosur and from there to Krishnagiri and from there they went to Periyamuttur Village.

The accused had taken a house on rent from PW-15 and kept PW-1 in the said house. PW-1 and accused stayed in the first floor of the house of PW-15 for about live days. During all five days and the accused committed sexual intercourse. On 16.02.2004, the accused received a telephonic information that PW-2 has filed a complaint before the police station. On the same day he forced FW-1 to go to Attibele to her mother''s house and took her to the bus-stand and boarded her in a bus by giving her Rs. 5/- and he also purchased a ticket for her. PW-1 came to her house on 16.02.2004 at about 5.00 p.m. and narrated the incident to PW-2 and PW-3. Since it was late night, PW-2 took PW-1 to the Police Station on 17.02.2004, at 11.00 a.m., where the police recorded the statement of the victim and registered a case for offence punishable u/s 363, 343 and 376 of IPC.

In the meanwhile, PW-2 had filed a missing complaint on 14.02.2000, interalia, stating that her daughter who had left the house to got to school at 9.30 a.m., on 11.02.2004 had not returned. PW-18 registered the missing complaint. PW-16, the Doctor examined PW-1, issued certificate as per Exhibit P9. PW-14 continued the investigation from FW-18, thereafter PW-17 after completing the investigation he filed the charge sheet.

On 11.02.2004, the Sessions Judge, securing the presence of the accused framed the following charges:

Firstly that you on 11.02.2004, at Attibele, kidnapped CW-1 Kumari. Shilpashree a minor under sixteen years from lawful guardianship of Munirathnama, her mother, and thereby committed an offence punishable u/s 363 of IPC and within the cognizance of the Court of Session.

Secondly that you from 11.02.2004 till 15.02.2004 wrongfully confined CW-1 Shilpashree in the house of CW-11. Vishwanath at Periyamathur village in Krishnagiri Taluk of Tamilnadu and thereby you have committed offences punishable u/s 343 of IPC and within the cognizance of the Court of Session.

Thirdly that you at the above said place and during the said period committed rape on said CW-1, Shilpashree and thereby you have committed offences punishable under Section. 376 of IPC and within the cognizance of the Court of Session.

Accused pleaded not guilty and claimed to be tried.

The prosecution in order to bring home the guilt of the accused examined PWs-1 to 18, marked Exs.P1 to P16 and produced M.O.1 - nighty and M.O.2 - plastic box containing vaginal swab. On the defence side, DW-1 - wife of the accused and Exs. D1 and D2 were marked in the evidence.

The trial court relying on the evidence of PW-4 - Vice Principal of Sree Jayabharathi Co-operative Composite Junior College - Ex. P4 held that, the victim was less than 16 years at the time of the commission of the offence, by relying on the evidence of PW-1 - victim,. PW-2 - mother. PW-3 - grandmother of the victim and PW-16 - Doctor held (hat, the victim being a minor was kidnapped by the accused by inducing a fear in her mind and committed rape by confining her in the house of PW-15. Accordingly, the trial court held that the prosecution has proved the charges for an offence punishable under Sections 363, 343 and 376 of the Indian Penal code and convicted the accused.

Heard Sri. Amar Correa, Learned Counsel for the appellant - accused 2nd Sri. Bhavani Singh, learned State Public Prosecutor for the State.

PW-1 is the victim. PW-2 is the mother and PW-3 is the grand-mother of the victim.

Case of the prosecution as unfolded was that the victim was studying in 10th standard in Sree Jayabharathi Cooperative Composite Junior College. On 11.2.2004 at 9.30 a.m. while she was getting ready to go to school, accused came and asked her to accompany him and expressed that he would many her. He also threatened her that, if she docs not join him, he would commit suicide and keep death note implicating all the family members of PW-1 and accordingly, he took the accused from Attibele to Hosur, from Hosur to Krishnagiri and from Krishnagiri to Periyamuttur where they stayed for five days and during this period, he commuted sexual act on PW-1. On 16.2.2004, victim came back to home and informed PWs-2 and 3. PW-2 took the victim to the Police Station where PW-18 recorded her statement and registered the case.

PW-1 in her statement before the Police has stated that, on 11.2.2004 at 9.30 a.m., her mother - PW-2 had gone for work, at that time, the accused came and asked her to collect her cloths to join him, run away from the house and marry by threatening that, he will write a suicide note and commit suicide, implicating all the family members of PW-1. Accordingly, she joined him and went in bus to Hosur and from Hosur to Krishnagiri and from Krishnagiri to Periyamuttur. In her statement, she has also stated that, after five days on 16.2.2004, accused came to know that PW-2 has filed a complaint. He removed rolled-gold mangala sutra and toe ring and thereafter asked the PW-1 - victim to go to her house. He brought her to Krishnagiri bus stand and made her to sit in the bus, purchased ticket to Hosur and gave her ` 5/- and she came to the house at about 5 p.m.

PW-2 is the mother of the victim. In her evidence she has stated that, as on the date of giving evidence PW-I victim was about 18 years of age. The accused used to come to their house and 2-3 times, he had tried to hold PW-1 and PW-2 had warned him not to come to their house. She had also informed PW-1 not to be liberal with the accused and on 11.2.2004 when she came back from work at about 8 p.m., she found that PW-1 had not returned from the school. She enquired with her mother - PW-3, they searched for PW-1 in their relatives'' house. Since they did not find her, they went to the Police Station on 14.2.2004 and lodged a complaint.

In the cross-examination she has admitted that, she had not produced any document to prove the age of the victim before the Police. PW-3 is the grand-mother of PW-1. In her examination-in-chief she has stated that, when she returned at about 6 p.m. and PW-2 returned at 8 p.m., they enquired as to why PW-1 had not returned from school. After searching for four days, they filed a complaint. In the cross-examination, she admits that, they had not gone to the Police Station till PW-1 had returned. Further she admits that, husband of PW-2 died about 20 years back and the marriage of PW-2 with her deceased husband was held about 40 years back.

The evidence of PW-1 - victim shows that the accused, threatening PW-1 that he would commit suicide, had taken PW-1 to Periyamuttur, where they stayed for about five days in the house of PW-15. PW-15 in his evidence has stated that, he had let out first floor of his house to the accused on ` 500/- advance and ` 300/ rent. Accused had told PW-15 that the victim is his wife. They stayed for five to six days in the first floor. In the cross-examination he has stated that, he felt that the accused and PW-1 were husband and wife, he has also stated that accused and PW-1 used to go out and whenever the accused alone used to go out, victim PW-1 used to remain alone in the house, she had come to the house of PW-15 to watch TV. One night accused had not come to the house, PW-1 had remained alone in the house.

PW-16 is the Doctor, who examined the victim on 17.2.2004, in his examination-in chief, he had not stated anything as to whether the victim had undergone any sexual act, in turn, he had only collected vaginal swab and sent it for chemical examination.

PW-4 has been examined to prove the age of the victim. PW-4 is the Vice Principal of Sree Jayabharathi Cooperative Composite Junior College. He had produced Ex. P4. Ex. P4 is the certificate signed by PW-4 stating that. PW-1 is studying in tenth standard, as per the records, her date of birth is 20th June 1988.

The trial court relying on the evidence of PW-4 and Ex. P4 has held That the victim was less than the age of 16 years as on the date of the incident even if there is a consent by the victim, victim being minor, the sexual act committed by the accused amounts to rape. Further it is held that, victim was kidnapped and forcibly confined, and it attracts the provisions of Sections 343 and 363 of IPC.

To appreciate the prosecution case as to whether the prosecution has proved that the victim was less than the age of 16 years as on the date of the incident, PW-4 is the main witness. PW-4 has stated that, he had issued the certificate on the basis of available records in the school. Ex. P4 is not an admission register nor it is original birth certificate, but it is a certificate signed by PW-4. PW-4 has not stated that the victim was admitted to their school from first standard. PW-4 has also not stated that he had verified the records and issued the certificate. In the cross-examination, he admits that, he docs not know on what basis and with what certificate, she was admitted to the said school, the proof of date of birth would be insisted only when she is admitted for the first standard.

The evidence of PW-4 does not show that any birth certificate or proof of birth was given to the said school while admitting PW-1. It also does not show that PW-4 had verified any original records as regard to the date of birth of the victim. As per Section 35 of the Evidence Act, the relevant entries in the public record are admissible, provided the entry is in public record or in official book or a register made by a public servant in the discharge of his public duty or any other person in performance of a duty specially enjoined by law of the country. It is doubtful as to whether the school from which the certificate - Ex. P4 is produced is a Government School. The title of the school shows that, it is "Sree Jayabharathi Cooperative Composite Junior College - Secondary School Division". If it is a co-operative school, it is not shown how the certificate issued by PW-4 would become public document. Further, the person, who has signed the certificate, is the Vice Principal. It is not shown that he is a public servant. It is also not shown by the prosecution that, he had issued certificate in discharge of public duty. Ex. P4 also does not come within the meaning of the "public documents". To create presumption of existence of the fact, Ex. P4 by itself will not prove the age of the victim, as PW-4 himself does not admit that he had verified the original register and issued the certificate nor there is any evidence to show that. PW-1 was admitted to the said school from 1st standard.

Even the other evidence viz., PW-16 - Doctor, who examined the victim, does not say that he had examined the victim to determine her age, in turn, he admits in the cross-examination that, he had not medically examined the victim to determine the age. The prosecution has also not produced any radiology report to ascertain the age of the victim. In turn, PW-2 - mother of the victim in her examination-in-chief itself, she states that, as on 11.8.2005, PW-1 is about 18 years of age. In August 2005, if the victim is aged about 18 years, as on the date of 11.2.2004 i.e., about one year six months back, the victim, even according to PW-2, would have been 161/2 years. Further, PW-3 - grandmother of the victim, in her cross-examination has admitted that, the husband of PW-2 died 20 years back i.e., 20 years prior to 11.8.2005. Even if there is some exaggeration, victim PW-1 could have been born before the death of the husband or immediately after the death of husband of PW-2, the time gap between the date of incident and the approximate date of death of husband of PW-2 also corroborates that the victim must be more than 18 years as on the date of giving evidence by PW-3. If this evidence is considered, it shows that, evidence of PW-4 and Ex. P4 by itself will not conclusively prove the age of the victim as less than 16 years. The evidence of PWs-2 and 3 creates serious doubt as to the correct age of the victim. Further. PW-2 in her cross-examination has admitted that, she had not given any certificate before the Police as regard to the age of the victim. The entire evidence relied by the prosecution does not prove that, the victim was less than 16 years as on the date of incident, in turn, it suggests that the victim was more than 16 years at the time of incident.

The trial court having referred to the evidence of PW-2 and PW-3 has discarded the said evidence on the ground that, the statement of the PWs-2 and 3 is general in nature. Trial court ought to have seen that, it is prosecution, which has to prove beyond reasonable doubt that, the victim was less than the age of 16 years, any higher age possibility would also enure to the benefit of the accused. When there is serious doubt as to the age of the victim and it is also supported by the evidence of PWs-2 and 3 and the Doctor has not even examined the age of PW-1, the trial court was not justified in ignoring the evidence of PW-2 and PW-3 to give a finding that the victim was minor. Though several decisions were cited before the trial court, which were binding in nature and they directly relate to the determination of the age of the victim and more so, when there is no direct evidence as to the age of the victim, relying on the certificate Ex. P4 issued by PW-4, which does not prove the age much less in the absence of original record. Trial court erroneously has relied exclusively on Ex. P4 and the evidence of PW-4 to convict the accused on the ground that the victim was minor.

Now the question arises whether the victim was consenting party for the commission of rape? PW-1 - victim herself has stated that, the accused had come to her house and he told that he would marry her and if she does not join him, he threatened her that he would commit suicide by leaving death note, implicating all her family members. She admits that, she went along with the accused. She had not stated that she made any galata neither at her house nor at Hosur or at Krishnagiri where they went by bus or from Krishnagiri 10 the house of PW-15. Even she has not stated that, she had made any attempt to escape from the house of PW-15 i.e., from Periyamuttur. She does not say that she had no means to go, in turn, she has stated that, she stayed for five days. Even assuming that, there was a threat or fear, PW-15 in his evidence has stated that, he believed that, accused and PW-1 were husband and wife. He has stated that. PW-1 had come to his house to watch TV. It is also stated that, one night accused was not there and she slept alone, but PW-1 in her cross-examination states that, she went to the house of PW-15 and slept. Even in the absence of accused, PW-1 had not made any attempt to escape, in turn, in her examination-in-chief, she admits that, accused came to know that, PW-2 has given complaint and told the victim to go to her house and she was reluctant to go to her house as her family members will not accept her. It is the accused, who insisted PW-1 to go to her house and took her to Krishnagiri Bus Stand, made her to board the bus and thereafter he purchased the ticket and gave ` 5/- and she came to her house. PW-15, who was the immediate neighbour where victim and accused stayed together, does not say that there was any galata, he does not say that the victim had expressed that she has been forcibly brought by the accused nor victim had made any attempt to escape from the place.

This is also supported by the evidence of PW-2. According to PWs-2 and 3, PW-1 had left the house at 9.30 a.m. on 11.2.2004. Admittedly, PW-2 does not file complaint and only on 14.2.2004 she files a missing complaint. In her examination-in-chief and in the cross-examination, she has stated that the accused used to come to her house and in the cross-examination she has stated that, she had told PW-1 not to be liberal or friendly with the accused. However, PW-2 had not even suspected the accused nor there is any acceptable explanation for the delay in filing the missing complaint. In turn, PW-3 grandmother of the victim admits that, PW-1 Informed her that she will go to school. PW-1 in her evidence has admitted that, she had younger brother, who was also studying in the very same school. Though presence of PW-2 in the house is not staled, but it is doubtful whether PW-3 was present or not and there is no explanation as to what happened to the brother of PW-1 who was studying in the same school.

The Doctor PW-16, who examined PW-1 on 17.2.2004, has stated that, he did not find any external injuries on the body of the victim. No doubt, on 17.2.2004, it was more than one day after she left the company of the accused, but the evidence of the Doctor does not suggest or prove that there was any sexual act however, the suggestions made to PW-1 and PW-16 by the accused do show that the accused and victim stayed together and had sexual act, but to prove the offence punishable u/s 376 of IPC, the prosecution was required to prove the ingredients of the definition of "rape" u/s 375 of IPC. In case a man has sexual intercourse with a woman against her will, without her consent or with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. In this case, the prosecution was required to prove that the accused committed sexual act against the consent or willingness of the victim. The evidence of PW-1 does not suggest that there was any unwillingness by PW-1, as PW-15, who is the immediate neighbour where both accused and victim were staying, had not stated that there was any such incident nor PW-1 herself has stated that, at any time, she had protested when they were staying together. Even assuming that, some kind of fear is created, but PW-1 having not made any attempt and in turn, expressing her unwillingness to leave his company when the accused forced her to go to her house suggests that, PW-1 wanted to continue in the company of the accused. It is only when she returned to her place, she gave the statement.

The trial court had not proceeded on the basis that there was no consent or willingness and accused had committed rape. The trial court had proceeded only on the ground that, the school authorities without authenticated document will not enter the date of birth in the admission register, at the time of admitting PW-1 to the first standard, her date of birth was given to the school authorities, hence, Ex. P4 is more authenticated evidence with regard to the age of PW-1 and there is no contrary material to show that the date of birth of PW-1 mentioned in Ex. P4 is inherently improbable. It is only on the basis of the age of the victim, the trial court comes to the conclusion that even if there is consent, it amounts to rape. But the trial court failed to see that Ex. P-4 was not the original nor original records are produced. Further, Ex. P-4 is not admission register. There is no evidence that victim was studying in the same school from 1st standard.

In view of the above discussion, if the age of the victim is not proved to be less than 16 years and if there is consent and the victim is consenting party to the sexual act, it does not constitute "rape" within the meaning of Section 375 of IPC. The judgment of the trial court is only based on Ex. P4 and as discussed above, if Ex. P4 does not prove the age of the victim, even the other evidence does not prove the age of the victim as less than 16 years. If she is not minor as found by the trial court and as per the evidence on record, the accused may have had the sexual act with the victim, but that does not constitute an offence, as PW-1 had gone with the accused and evidence shows that she is a consenting party.

In my opinion, the findings of the trial court are perverse, as the trial court has ignored the material evidence and has erroneously convicted the accused. Hence, the appeal deserves to be allowed. Hence, I pass the following;

ORDER

The appeal is allowed. The judgment of conviction in S.C. No. 292/2004 dated 6th January 2006 on the file of the Fast Track Court-III, Bangalore Rural District, Bangalore, is hereby set aside. The accused is set at free. Bail bond stands discharged. If the fine amount is deposited, the same may be refunded to the accused.