State and Others vs Harish Naika and Others

Mohan M. Shantana Goudar, J—The Judgment and Order dated 29th September 2010/19th October 2010 passed by the Fast Track Court-VII, Doddaballapur in Sessions Case No. 262/2009 is the subject matter of these two appeals.

By the impugned Judgment, Accused No. 1 is convicted for the offences punishable under Sections 376, 313 and 420 of IPC and sentenced him to undergo imprisonment for seven years for the offence under Section 376 of IPC and three years for the offence under Section 420 of IPC; however no sentence is imposed on Accused No. 1 in respect of the offence under Section 313 of IPC. By the very Judgment, Accused No. 2 is acquitted of all the charges levelled against him.

Criminal Appeal No. 179/2011 is filed by the State praying for enhancement of sentence against Accused No. 1 in respect of the offence under Sections 376 of IPC so also it is prayed by the State to impose sentence in respect of the offence under Section 313 of IPC.

The appeal against acquittal of Accused No. 2 is not filed. Thus the order of acquittal passed against Accused No. 2 has attained finality.

Criminal Appeal No. 1178/2010 is filed by the convicted Accused No. 1 seeking his acquittal.

Case of the prosecution in brief is that Accused No. 1/appellant in Criminal Appeal No. 1178/2010 is working in KEB at Bangalore; his native place and the native place of the prosecutrix Kum. Pankaja Bai is one and the same; their houses are adjoining each other in their native place and thus they knew each other very well; Accused No. 2 is the friend of Accused No. 1.

About ten months prior to lodging of the complaint, in the afternoon of one day, Accused No. 1 entered the house of the prosecutrix when she was alone in her house; her younger brother, who was physically disabled has gone out of the house at that time; Accused No. 1 forcibly committed sexual assault on the prosecutrix; thereafter Accused No. 1 started telling the victim/prosecutrix that he would be marrying her; so saying, Accused No. 1 continued his relationship with the victim for about six months; in the meanwhile, the victim/prosecutrix became pregnant and the same was made known by the prosecutrix to Accused No. 1; hence Accused Nos. 1 and 2 took the prosecutrix on a motorcycle to Janatha Nursing Home situated at Doddaballapur and got the pregnancy of the prosecutrix aborted; thereafter the panchayath took place in the village inasmuch as the prosecutrix told the elders of the village about the repeated sexual assault by the accused on her; in the panchayath, Accused No. 1 has agreed to marry prosecutrix; however subsequently, Accused No. 1 did not marry prosecutrix, thereafter the complaint came to be filed as per Ex. P1 on 25.9.2008, which came to be registered in Crime No. 230/2008 in Doddaballapur Rural Police Station. Finally, P.W. 11-the Inspector of Police completed the investigation and laid the charge sheet.

In order to prove its case, the prosecution in all examined 11 witnesses and got marked 9 Exhibits. On behalf of the defence, 3 witnesses were examined and 4 documents were got marked.

Sri S.K. Venkata Reddy, learned advocate appearing on behalf of Accused No. 1 taking us through the material on record submits that the Court below is not justified in convicting Accused No. 1 for the offences under Sections 376, 313 and 420 of IPC. He submits that the case as made out by the prosecutrix before the Court is highly artificial; at the most, it can be stated that it is a case of consent of the prosecutrix with Accused No. 1; There is nothing on record to show that Accused No. 1 has committed forcible sexual intercourse with the prosecutrix; on the other hand, it was the prosecutrix who had given her consent for the sexual relationship with Accused No. 1; The evidence of the doctors � P.Ws. 7 and 8 is of no help to the case of the prosecution inasmuch as they are not the doctors who terminated the pregnancy of the victim; the doctor who terminated the pregnancy of the victim is one Dr. Shithal, but she is not examined before the Court; the panchayathdars examined before the Court are all relatives of Accused No. 1; D.Ws. 1, 2 and 3 though are cited in the charge sheet to speak about panchayath held between the parties, they were not examined by the prosecution, but the defence has chosen to examine them as D.Ws. 1, 2 and 3; The evidence of D.Ws. 1, 2 and 3 totally contradicts the evidence of P.Ws. 2, 3, 4 and 6; there is no material to prove that Accused No. 1 forcibly took the victim for getting the pregnancy aborted as alleged by the prosecution. According to the learned advocate, the reasons assigned and the conclusion arrived at by the trial Court are not proper and correct.

Per contra, Sri Majage, learned Addl. State Public Prosecutor argued in support of the judgment of the Court below. However he submits that the Court below is not justified in not awarding separate sentence to Accused No. 1 in respect of the offence under Section 313 of IPC. According to him, the sentence imposed on Accused No. 1 for the offence under Section 376 of IPC is on the lower side and therefore the same needs to be enhanced.

P.Ws. 1, 2, 3, 4 and 6 are the persons who allegedly acted as panchayathdars to resolve the dispute between the victim and Accused No. 1; all of them have deposed that the panchayath was held on 21.9.2008 and in the said panchayath, Accused No. 1 agreed to marry the victim, but subsequently Accused No. 1 refused.

P.W. 5 is the prosecutrix. She has lodged the complaint as per Ex. P1.

P.Ws. 7 and 8 are the doctors who examined the victim and issued the certificates as per Ex. P3 and Ex. P4. P.W. 7 has deposed that the prosecutrix has undergone dilation and curratage on emergency basis for incomplete abortion on 19.9.2008 in minor Operation Theatre. P.W. 8 has deposed about the history recorded by her at the time of examination of the prosecutrix in the hospital. Ex. P4 issued by her discloses that the hymen was absent and the doctor has opined that the sexual intercourse might have occurred as vagina admits 2-3 fingers to pass through. It is also mentioned in Ex. P4 that the victim was subjected to urine pregnancy test and the same was found positive.

P.W. 9 is the Sub-Inspector of Police before whom the prosecutrix filed written complaint as per Ex. P1, based on which Crime No. 230/2008 came to be registered. He sent the first information report to the Court as per Ex. P5.

P.W. 10 is the doctor attached to General Hospital, Doddaballapur. Accused No. 1 was taken to the said doctor on 16.12.2008 for examination. On examination, the said doctor found that Accused No. 1 has capacity to have sexual intercourse. He issued the certificate as per Ex. P6.

P.W. 11 is the Inspector who completed the investigation and laid the charge sheet.

Case of the prosecution mainly rests on the evidence of P.W. 5 and the panchayathdars apart from the medical evidence. In the complaint lodged by P.W. 5 vide Ex. P1, the prosecutrix has merely mentioned that she was sexually assaulted with force. Nothing is mentioned in Ex. P1 as to whether she has tried to escape from the clutches of Accused No. 1; as to whether she tried to raise hue and cry for drawing the attention of others; as to whether she tried to inform the villagers immediately after the incident; as to whether she has informed about the incident to her brother or to Smt. Sharada Bai, who is her colleague working in the Anganawadi centre or as to whether she has informed her near and dear relatives immediately after the incident. So also nothing is mentioned in the complaint that the accused threatened her with dire consequences. Curiously, the complaint further reveals that the sexual intercourse between the accused and the prosecutrix continued even thereafter; in view of the same, the complainant informed P.Ws. 1, 2, 3, 4 and 6 about the incident who convened panchayath and in the said panchayath, the accused allegedly agreed to marry the victim; Even thereafter also the sexual relationship between the prosecutrix and Accused No. 1 continued. It is also mentioned in the complaint that the prosecutrix became pregnant and hence Accused Nos. 1 and 2 took the prosecutrix to Janatha Nursing Home, Doddaballapur and got her pregnancy aborted; at that point of time, the accused had threatened the victim with dire consequences, if she tells anybody about the abortion; Subsequently, Accused No. 1 did not agree for marrying the victim and thereafter the complaint came to be lodged. Thus it is clear from the first information that the same is lodged after about ten months from the date of the initial sexual act. During the period of those ten months, Accused No. 1 and the deceased have met number of times in the house of the victim herself and had sexual intercourse. This fact was known to the villagers at large. Despite the panchayath being held, the sexual relationship between Accused No. 1 and the victim continued. No complaint came to be lodged immediately after the incident. If really, Accused No. 1 had committed forcible sexual assault on the victim, the victim would have lodged the complaint immediately after the incident as she (victim) was a Anganawadi teacher and knew about the legal consequences.

P.W. 5 is none other than the prosecutrix/complainant. She has deposed almost on par with the contents of Ex. P1. She has reiterated before the Court that the intercourse between her and Accused No. 1 continued from time to time till she became pregnant. In none of the occasions, the victim tried to save herself by raising hue and cry or by lodging the complaint. It is also deposed by P.W. 5 (victim) that she was taken by Accused Nos. 1 and 2 to Janatha Nursing Home, Doddaballapur for getting the pregnancy terminated; After termination of pregnancy, the accused took her (the victim) back to her house and left her there. She has also deposed about the panchayath being conducted. It is curiously deposed by P.W. 5 that Accused No. 1 had given in writing that he would marry her. But no such document is produced by the prosecution before the Court.

In the cross-examination, P.W. 5 (victim) has admitted that Smt. Sharada Bai who is working as Anganawadi worker alongwith her is her relative; the father of Accused No. 1 was working in Karnataka Electricity Board; so also Accused No. 1 was working in KEB during the relevant point of time and they are financially well off; the house of Accused No. 1 and the house of the victim are adjoining each other; Accused No. 1 and the victim were known to each other since childhood; She does not know as to on what date and time, the first incident of sexual intercourse took place. She clearly admits in the cross-examination that she has not stated before anybody about the sexual assault till the panchayath was called; Even when she was three months pregnant, she did not inform anybody about the same except to Accused No. 1. When she went to hospital alongwith the accused, an out-patient slip was given by the hospital, but the same is not produced before the Court. She has further deposed in the cross-examination that she went to the hospital for getting the pregnancy terminated at 9 a.m., but the doctors did not enquire with her anything and that she had also not told anything to the doctor. It is specifically admitted by her that only for getting medically checked, the doctors examined her and she was not subjected to any scanning or urine test. The prescription, the hospital bill, OPD slip etc., are not produced before the Court. It is further admitted by P.W. 5 that her younger sister''s marriage was performed more than about three years prior to lodging of the complaint and that her younger sister has got three years old son and 9 months old daughter. Through P.W. 5, Ex. D4 is marked. Ex. D4 is the further statement given by her on 11.2.2009. She has denied having made such statement. However the Police Inspector in his evidence has deposed that the victim has given her statement as per Ex. D4.

From the aforementioned evidence of P.W. 5, it is amply clear that the victim was a consenting party for the sexual act in question. Except deposing before the Court that Accused No. 1 had assured her to marry, no other important material is found in the evidence of P.W. 5 in favour of the prosecution. According to the defence, the victim wanted financial help from Accused No. 1 inasmuch as Accused No. 1 and his family members were financially well off. It is the further case of the defence that keeping the same in mind, the victim voluntarily developed friendship with Accused No. 1 and started pressurizing him to have sexual relationship with her. This defence of the accused finds support from Ex. D4. The said document reveals that the victim was financially weak and she was not able to look after her physically handicapped brother; since she was in dire need of money, she developed friendship with Accused No. 1 and ultimately, she started loving Accused No. 1; thereafter she started forcing Accused No. 1 to marry. These facts found in Ex. D4 would show beyond reasonable doubt that it was the victim who first developed friendship with Accused No. 1 and it was she who wanted his company. Even the tenor of the deposition of P.W. 5 as well as the contents of Ex. P1 amply disclose that the victim was a consenting party and it is a case of contemptuous act between the victim and Accused No. 1.

Though the prosecution contends that the accused took the victim to the hospital for getting the pregnancy aborted forcibly, the same is not proved. There is nothing on record to show that the accused took the victim to the hospital for getting the pregnancy terminated. It is no doubt true that the evidence of the doctors � P.Ws. 7 and 8 prima facie reveal that the victim was subjected to certain tests and that she underwent dilation and curettage on emergency basis for incomplete abortion. But none of these two doctors subjected the victim for abortion. One Dr. Shital examined the victim on 19.9.2008 and aborted the pregnancy of the victim and there was incomplete abortion of the pregnancy of the victim. Unfortunately, Dr. Shital is not examined before the Court. Doctor - P.W. 7 has deposed based on the medical records maintained by the hospital. He has no personal knowledge about the procedure of abortion on the victim. However he has deposed that he checked Blood Pressure and pulse of the prosecutrix and not anything more. Since he is not the doctor who conducted abortion, naturally, he would not know the faces of anybody who accompanied the victim at the time of abortion. Even the evidence of the doctor-P.W. 8 is not helpful to the case of the prosecution in that regard. As could be seen from the evidence of P.W. 8, she has examined the victim on 26.9.2008 and issued the certificate as per Ex. P4. Ex. P4 discloses that the victim was subjected to urine pregnancy test and the same was found positive, which means according to the doctor P.W. 8 and the certificate Ex. P4, the urine pregnancy test was found positive as on 26.9.2008. The evidence of the doctor - P.W. 8 as well as the certificate Ex. P4 discloses that victim might have become pregnant as on 26.9.2008. But by then, the pregnancy was allegedly aborted. According to the case of the prosecution, the pregnancy was aborted on 19.9.2008 itself i.e., much prior to examination by P.W. 8. The same is clear from Ex. P3 and the evidence of the doctor - P.W. 7. If it is so, medical documents produced before the Court and the evidence of the doctors � P.Ws. 7 and 8 are unreliable.

With regard to the panchayath held in the village, the same was also of no help to the case of the prosecution. P.Ws. 1, 2, 3, 4 and 6 are all relatives of the victim. P.W. 3 is a teacher in a private school in a different village and P.W. 4 is Upadhyaksha of Taluk Panchayath. P.Ws. 1 and 2 are close relatives of the victim. Moreover it is admitted by P.W. 5 herself that all the witnesses except official witnesses and the accused are her relatives, which means P.Ws. 1 to 6 as well as Accused Nos. 1 and 2 are related to one another. D.Ws. 1, 2 and 3 were also cited as witnesses to charge sheet. But they were not examined by the prosecution. The defence has chosen to examine them as their witnesses. All these witnesses have deposed that there was no panchayath held in the village on the subject in question. They have also deposed that the victim has not disclosed about the incident in the village and consequently, there was no occasion for them to conduct panchayath. In the light of the aforementioned material on record, in our considered opinion, the trial Court is not justified in convicting Accused No. 1.

In our opinion, the observations made by the Apex Court in Kaini Rajan Vs. State of Kerala, (2013) 10 AD 226 : (2013) CriLJ 4888 : (2013) 4 JCC 2358 : (2013) 4 RCR(Criminal) 365 : (2013) 11 SCALE 606 : (2013) 9 SCC 113 : (2014) 1 SCJ 645 and in Rajesh Patel Vs. State of Jharkhand, (2013) 4 AD 83 : AIR 2013 SC 1497 : (2013) 116 CLT 554 : (2013) CriLJ 2062 : (2013) 2 Crimes 83 : (2013) 2 JCC 1265 : (2013) 4 JT 110 : (2013) 2 RCR(Criminal) 346 : (2013) 3 SCALE 550 : (2013) 3 SCC 791 : (2013) AIRSCW 1793 : (2013) 2 Supreme 394 would apply to the facts of this case.

We find number of contradictions, inconsistencies, exaggerations and embellishments in the evidence of the prosecution witnesses. We also find that the testimony of the prosecutrix is highly unnatural and improper. The delay of about ten months in lodging the complaint is not properly explained by the prosecution. The prosecution case is not consistent. In the circumstances, the benefit of doubt would go in favour of Accused No. 1 and therefore the order of conviction passed by the trial Court against Accused No. 1 is liable to be reversed.

Accordingly, we pass the following order:

Criminal Appeal No. 1178/2010 is allowed. The impugned Judgment and Order of conviction passed by the trial Court convicting Accused No. 1 for the offences under Sections 376, 313 and 420 of IPC stands set aside. Accused No. 1 is acquitted of all the charges levelled against him. Bail bond of Accused No. 1 stands cancelled.

Criminal Appeal No. 179/2011 filed by the State stands dismissed.