State by Hariharapura Police vs Naveesha

Mohan M. Shantanagoudar, J.—The judgment and order of acquittal dated 22.3.2012 passed by the Addl. Sessions Judge, Chickmagalur in Sessions Case No. 86/2010, is called in question in this appeal by the State.

By the impugned judgment, the trial Court has acquitted the accused for the offences punishable under Sections 376 and 506 of IPC.

The case of the prosecution in brief is that the accused/respondent herein took the victim (P.W.1) to the Acacia plantation at Devaramane village, Koppa Taluk, Chickmagalur District; committed forcible sexual intercourse without the consent of the victim; thereafter he gave threat of life to P.W. 1; the incident has taken place at about 2.30 p.m. on 27.5.2010; the victim has narrated about the incident to her parents and relatives immediately after the incident and showed the accused as the person who committed sexual assault on her; immediately after the victim pointed towards the accused, he was apprehended by P.Ws. 5, 6 and others; however, after disclosing his name to the mother and brother of the victim, the accused fled away from the scene.

The complaint as per Ex.P3 came to be lodged by P.W.2 (mother) of the victim at 6.00 p.m. on 27.5.2010, which came to be registered in Crime No. 21/2010 of Hariharapura police station for the offences punishable under Sections 376 and 506 of IPC. The police after completion of investigation laid the charge-sheet against the accused for the aforementioned offences.

In order to prove its case, the prosecution in all examined 16 witnesses, got marked 15 documents and 6 material objections. On behalf of the defence no witness is examined. As mentioned supra, the trial Court by giving the benefit of doubt in favour of the accused, acquitted the accused.

Sri. Vijayakumar Majage, learned Addl. SPP taking us through the material on record submits that the trial Court is not justified in acquitting the accused; though the offence of rape is not proved, the material on record clearly discloses the offence under Section 354 of IPC (outraging the modesty); the evidence of the prosecutrix and the doctor would be sufficient to conclude that the accused has committed the offence under Section 354 of Cr.P.C.; P.Ws.2, 3, 4, 5 and 6 have deposed about the accused coming behind the victim after the incident and he was interrogated by these persons, consequent upon which, the accused disclosed his name and place of residence and thereafter, fled away from the scene. According to him. the reasons assigned and the conclusions arrived at by the trial Court are not proper and correct.

Learned Amicus Curiae supported the judgment of the Court below.

P.W.1 is the prosecutrix. According to the case of the prosecution, she was below 18 years of age. However, the date of birth of the victim as disclosed in the school certificate (Ex.P9) would reveal that the age of the victim was 16 years two months as on the date of incident. P.W. 1 has deposed about the incident in question and in detail narrated as to the overt act of the accused.

P.W.2 is the mother of the victim and she is the complainant. Immediately after the incident, the victim was coming back to the village and the accused was following her from behind. The victim met her mother and brother after the incident and she narrated about the incident before them and immediately thereafter, accused was interrogated by P.Ws.2 and 3 and consequently, the accused disclosed his name and place of resident. P.W.2 lodged the complaint as per Ex.P3.

P.W.3 is the brother of the victim. His evidence is also on par with the evidence of P.W.2.

PWs.4, 5 and 6 are the persons known to the family of the victim. All of them have disposed that the victim was being searched by the mother and brother of the victim as well as by them, after the marriage function; these witnesses have deposed about the accused running away from that place and prior to that they had enquired with the accused as to why he had done the aforementioned act.

P.W.7. is the witness for scene of offence mahazar Ex.P2.

P.W.8. is the witness for mahazar Ex.P4, under which, clothes of the victim and the accused were seized.

P.W.9. is the doctor. On examining the victim he has issued the medical report as per Ex.P5. He has also examined the accused and has issued the report as per Ex.P7. He collected certain material such as vaginal swab etc., and sent it for forensic science laboratory examination. The report of Forensic Science Laboratory is marked as Ex.P8.

P.W. 10.is the Head Master of the school wherein the victim was studying earlier. He issued the certificate as per Ex.P9. The date of birth of the victim as per school records was 26.3.1994.

P.W. 11 .is the Village Accountant. He has issued the certificates as per Exs.P 10 and P11, which discloses the ownership of the land wherein the incident has taken place.

P.Ws.12 and 13 are the police constables. They participated in the course of investigation.

P.W. 14 is the Inspector of Police. He completed the investigation and laid the charge-sheet.

P.W. 15 is the Head Constable. He received the complaint as per Ex.P3 and registered the same based on the complaint. He has sent the FIR to the Court as per Ex.P12.

P.W. 16 is another Inspector of Police. He has conducted part of investigation.

T.P. Ws. 2, 3, 4, 5 and 6 have consistently and cogently deposed that victim had gone to attend the marriage ceremony of the daughter of Nazeer Sab on the date of the incident; after the marriage, the victim took lunch in the marriage hall; subsequently, the accused lured her to come along with him; the accused took the victim to the forest area and committed the incident in question; in the meanwhile, the family members of the victim as well as relatives of the victim were searching for the victim; the victim was mentally slow and therefore, the family members of the victim were anxious; after some time, the victim while coming back to the village, accused was following her from behind; immediately, the victim after meeting her mother and brother narrated about the incident to her mother, brother and relatives (PWs.2 to 6); the accused who was following the victim was in turn questioned by P.Ws.2 to 6; the accused disclosed his name and his place of residence; by the time they could apprehend the accused, he fled away from the scene. From the evidence of P.Ws.2 to 6 it is amply clear that the accused was found following the victim immediately after the incident and that the victim narrated about the incident to P.Ws.2 to 6 and consequently, the accused was enquired by P.Ws.2 to 6 about the incident. Thus, the presence of accused with the victim after the incident, in our considered opinion, is amply proved by the prosecution.

The important witnesses in the mailer on hand are the victim and the doctor. P.W. 1 victim has deposed that in the afternoon of the date of the incident she was in the marriage hall after having lunch; the accused look the victim to the forest by telling her that he would be giving chocolate to her; the victim believing his words went along with the accused and thereafter, he committed rape on her. In the cross-examination P.W. 1 has admitted that she has studied up to 6th standard; her residential house is situated at a little distance from the marriage hall; she went along with her mother, brother and aunt to attend the marriage on that day; the accused was not known to her at that point of time; she was with her mother, brother and relatives in the marriage function; she had her lunch in the marriage hall itself. It is admitted by the victim that she quietly went along with the accused and did not raise hue and cry; the place of incident is a far off place from the marriage hall and both the accused as well as the victim walked to a long distance to reach the scene of offence; the scene of offence is an isolated place; at the time of coming to the scene of offence, the accused did not talk with the victim; she did not raise hue and cry even when the incident of rape was going on; she did not protest for the incident by the accused; she did not sustain any injury on her person; so also, the accused did not cause any injuries on her body; the clothes worn by her were not torn and they were not blood stained. Based on these admissions, the trial Court has concluded that the victim had consented for going along with the accused and that she has consented for further act also.

The evidence of P.W. 1 cannot be brushed aside merely on the ground that she has deposed that she did not sustain any injury or that the accused did not cause injuries on her, so also, it cannot be said that the victim has given consent to the said act on the ground that she has not raised hue and cry even while going to the scene of offence, which is of long distance. This version of P.W.1 and the admissions made by P.W.1 will have to be viewed keeping in mind the deposition of P.W.2 - mother of the victim. P.W.2 has deposed in paragraph 8 of her deposition that the victim was knowing as to which is bad and which is good. But she was suffering from mental illness. Keeping that aspect of the matter, the version of P.W. 1 needs to be evaluated with all care and caution. Though the victim was knowing as to what is correct and what is wrong, she was not knowing about other niceties. Therefore, there may be variations in the evidence of the victim. Be that as it may. Having regard to the entire evidence of P. W. 1, we are of the clear opinion that the accused took the victim by luring her to the remote area wherein the incident has taken place.

The Doctor who treated the victim as well as the accused is P.W.9. He has issued the medical reports as per Exs.P5 and P7. Ex.P5 is the medical certificate of the victim, whereas Ex.P7 is the medical certificate of the accused. Ex.P5 clearly discloses that one abrasion measuring 1 cm x 1cm was found on the lower lip. However, the Doctor has categorically mentioned in the said certificate that there are no signs of sexual intercourse and that the victim was below the age of 18 years. He has also opined in Ex.P7 that accused was in a fit condition to commit sexual intercourse. However, he did not sutler any injury on his private part; nothing was found in the nail clippings of the accused. However, the Doctor has deposed an abrasion measuring 2 cm x 1cm on his left thigh. The material as found in Exs. PS and P7 is deposed by the Doctor P.W.9 before the Court. He has reiterated that the victim had sustained one abrasion measuring 1 cm x 1 cm on the lower lip whereas, the accused has sustained one injury on the left thigh measuring 2 cm x 1 cm. He has further reiterated that there are no signs of sexual intercourse at all on the victim as well as on the accused. Both the victim as well as the accused are examined by the Doctor on 27.5.2010 itself i.e., on the date of the incident. From the evidence of the Doctor as well as the medical certificates it is clear that it is not a case of rape at all. There are no signs of sexual intercourse; if really the victim was subjected to sexual intercourse, the Doctor would not have missed to say so. As mentioned supra, since the victim was suffering from mental illness, there is every likelihood that she would have exaggerated certain facts.

Looking to the totality of the facts and circumstances, more particularly, the evidence of the victim as well as of the Doctor P.W.9 it is clear that both the accused as well as the victim have suffered certain injuries. The victim has sustained one abrasion on the lower lip and whereas, the accused has suffered one lacerated wound measuring 2 cm x 1 cm on his left thigh. The incident has taken place in the forest area. We have already concluded that the accused was found in the company of the victim immediately after the incident while coming back to the village.

P.W.9 Doctor had collected vaginal swab, the inner garments of the victim as well as the accused etc., and sent the same for FSL examination. The FSI. report is at Ex.P8. The report of the FSL clearly discloses that the seminal stains were not detected on any of the articles sent for FSL examination. Having regard to these facts, we are of the opinion that the accused has not committed the offence of rape, but has committed the offence punishable under Section 354 of IPC (outraging the modesty of the girl P.W.1).

Having heard the learned advocates on the sentence, we are of the opinion that the accused should be imposed with imprisonment for one year and eight months. The respondent/accused has already undergone imprisonment for about one year and ten months during the course of trial. Hence, the period of imprisonment which the accused has already undergone itself would be sufficient punishment that can be imposed on him under the facts and circumstances of the case. Accordingly, the following order is made:

(i) The judgment and order of acquittal passed by Addl. Sessions Judge, Chickmagalur in S.C.No.86/2010 dated 22.3.2012 stands set aside.

(ii) Respondent herein/accused is convicted for the offence under Section 354 of IPC. He is sentenced to undergo imprisonment for one year and eight months.

(iii) He is entitled for set off of the period of imprisonment which he has already undergone, as per Section 428 of Cr.P.C.

(iv) As the accused has already suffered imprisonment for about one year and ten months during the course of trial, he shall not be imprisoned further. The sentence of imprisonment already suffered by the respondent/accused would be sufficient.

Appeal is allowed in part, accordingly.

We place on record the assistance rendered by Sri. Vageesh Hiremath, learned Amicus Curiae. Hence, the registry is directed to pay Rs.6,000/- to the learned Amicus Curiae.