State vs Lakshmana

N. Ananda, J.—The State has preferred this appeal against acquittal of accused for offences punishable under Sections 376 & 506 IPC.

We have heard Sri N.S. Sampangiramaiah, learned HCGP for State and Sri Shankarappa, learned Counsel for Respondent/accused. We have been taken through evidence and the impugned judgment.

It is the case of prosecution that on 17.03.2005 at about 6 p.m. Victim a girl aged about 13 years, studying in Chiradoni Kamalamma Government Primary School, situate at Devaraj Urs Layout at Davanagere, was returning home near Netaji Yuvaka Sangha, accused came on a motor cycle bearing No KA-16-H-5911 and enticed the victim that he would drop her near her house and took her near a building under construction by the side of Shanthi Talkies and committed rape on her and held out threats to her life.

During trial, PW1 to PW20 were examined and documents as per Ex.P.1 to Ex.P.26 were marked and material objects as per M.O.I to M.O.9 were marked.

The parents of victim namely PW7-S. Srimandara and PW8-Parimala have not supported the case of prosecution and they have denied the incident.

The victim examined as PW9 has not supported the case of prosecution. PW9 has deposed that nothing had happened to her; she has not identified the accused before court; she has not deposed that she was sexually assaulted by accused; she has identified one person in the test identification parade conducted by PW1. The victim has failed to identify the accused before court. Her identification of accused in the test identification parade cannot be treated as substantive evidence.

PW5-Shivakumar. who was examined to prove that he had seen the accused taking the victim on his motor cycle on the date of incident, has not supported the case of prosecution.

During cross-examination of PW5. no incriminating evidence was brought on record.

PW10-Chaitanya has given evidence regarding examination of victim at 2 p.m. on 20.03.2005. From the evidence of PW10, we find that gynaecological examination of victim was conducted by Dr. A. Parvathamma, who had observed that hymen of victim was torn. The prosecution for the reasons not appearing on record had not examined Dr. A. Parvathamma, who had examined the victim. Therefore, the evidence of PW10 is of no avail to the case of prosecution.

The evidence of PW12-Narayana Rajapoot relates to investigation of the case.

On re-appreciation of evidence, we find due to hostility shown by the victim, her parents, material witnesses and also non- examination of Dr. A. Parvathamma, who had conducted gynaecological examination of the victim, the trial court had no other option but to acquit the accused. Therefore, we do not find any grounds to interfere with the impugned judgment.

Accordingly, we pass the following:

ORDER

The appeal is dismissed.