State of Karnataka vs Ashok Kumar

N. Ananda, J.—The respondent (hereinafter referred as ''accused'') was tried and acquitted of an offence punishable u/s 354 IPC. Therefore, State is before this court. I have heard Sri B. Visweswaraiah, learned HCGP for State and Sri S. Rajesh, learned counsel for accused.

The accused was tried for the following charges:--

On 06.09.2007 at about 12.30 p.m., (afternoon), accused being the Cleaner of a private bus bearing No. KA- 19-A-1753 had taken the victim child from her mother, who was travelling in said bus. The victim child was sitting on the lap of accused. The accused introduced his fingers into vagina of child and thereby committed an offence punishable u/s 354 IPC.

The learned trial Judge on appreciation of evidence of PW1-Nethravathi, PW2-victim child, PW3-Padmini, a neighbour of PW1, PW4-Dr. Anil Kumar and PW8-Dr. Savitha has held that prosecution has failed to prove charge levelled against accused and acquitted accused.

The prosecution has relied on evidence of victim, the mother of victim and medical evidence. PW1-Nethravathi (the mother of victim) has deposed; on 06.09.2007 at about 12.30 p.m., (afternoon) she was travelling in a private bus along with victim (her daughter) from Balkunje to Karnire; bus was overcrowded; PW1 could not stand in bus holding child (victim); accused (cleaner of bus) was sitting in hind side of bus, accused took the child from PW1 and child was sitting on the lap of accused; after bus reached Karnire, PW1 took the victim from accused and got down from bus; on that day at about 4.30 p.m., PW1 gave bath to victim; victim complained of pain in her vagina; PW1 informed the matter to her neighbour (PW3-Padmini); PW1 & PW3 suspected that victim might have come in contact with some hard object; when PW1 & PW3 enquired victim if she had come in contact with some hard object, victim told person on whose lap she was sitting when she was travelling in bus had touched and tried to insert his fingers into her vagina; PW1 took the victim to the clinic of PW4 at Suratkal and gave history of injury; PW4 examined victim and gave some ointment and tablets. The husband of PW1 came home during late night; therefore, he could not lodge first information during that night; on the following day, PW1 reached Mulki Police Station and lodged first information as per Ex. P. 1; PW1 had also taken the victim to Police Station; victim was taken to General Hospital at Mulki; the victim was examined by PW8-Dr. Savitha.

During cross-examination, PW1 has deposed; on the date of incident at about 4.30 p.m., she came to know about pain suffered by victim when she wanted to give bath to victim. PW1 has deposed; she gave a written first information; the husband of PW1 was working as a driver in a private bus. PW1 has denied suggestion that her husband had quarreled with accused and she had lodged first information at the instance of her husband. PW1 has admitted that her husband and her relatives and other persons had thrashed accused and brought him to police station.

PW2 is the victim. PW2 was aged about 5 years at the time of incident. The trial court after questioning the victim and after recording a finding that victim was capable of giving rational answers had examined victim. The victim had identified accused before court. PW2 has deposed; when she was sitting on the lap of accused while travelling in bus, accused had inserted his fingers and touched her vagina and she was suffering from pain; PW2 informed the incident to her mother (PW1); thereafter, PW2 was taken to hospital.

During cross-examination, victim has admitted that her parents had brought the victim to court. PW2 has admitted that she was instructed by her parents to give evidence. PW2 has denied suggestion that she had been tutored by her parents and incident had not taken place.

PW3-Padmini is the neighbour of PW1. PW3 has deposed; on the date of incident at about 5 p.m., PW1 told PW3 that her daughter (victim) had some pain in her vagina; PW3 examined and found that there was swelling on vagina of victim.

PW3 is not an eye-witness to incident, however she has deposed about injury found on vagina of victim.

PW4-Dr. Anil Kumar has deposed; he had examined the victim at about 6 p.m., on 06.09.2007 in his clinic at Suratkal; PW4 had treated victim on earlier occasions; on examination of vagina of victim, he found that there was blood clot and scratches on vagina; PW1 gave history of injury to PW4. PW4 has deposed; if a person were to insert fingers into vagina, such injuries would be caused.

During cross-examination, PW4 has admitted that police had enquired him on the same day and injury found on vagina could be caused if the victim were to come in contact with a hard and blunt object.

The evidence of PW5-Shamshuddin relates to spot mahazar.

The evidence of PW6-Murali Devadiga relates to seizure mahazar.

PW7-Kumara Naika has not supported the case of prosecution and he was declared as a hostile witness.

At the relevant time, PW8-Dr. Savitha was working as Lady Medical Officer in General Hospital at Mulki. PW8 has deposed; she had examined the victim at about 2.30 p.m. on 07.09.2007 in General Hospital at Mulki and found a scratch injury measuring 0.2 cm on vagina of victim. PW8 has deposed; if a person were to insert his fingers and touch vagina, such injury could be caused.

During cross-examination, PW8 has admitted that injury found on vagina of victim could be caused if the victim were to come in contact with a hard and blunt object.

The evidence of PW9-Suresh Kumar relates to registration of case.

At the relevant time, PW10-M. Sudarshan, was working as Police Sub-Inspector in Mulki Police Station. The evidence of PW10 relates to further investigation of case.

The victim was aged about 5 years at the time of incident. She was innocent. She could have hardly concocted a story against accused, who was not known to her prior to the date of incident. The mother of victim (PW1) did not suspect any foul play. When the victim complained of pain in her vagina, on enquiry with victim, PW1 learnt as to what was done by accused to victim. The medical evidence of PW4-Dr. Anil Kumar and PW8-Dr. Savitha would confirm injury suffered by victim on her vagina.

In a decision reported in Dalip Singh and Others Vs. State of Punjab, , the Supreme Court has held:--

A witness is normally considered to be independent unless he or she springs from sources which are likely to be tainted and that usually means that unless the witness has cause such as enmity against the accused, to wish to implicate him falsely.

In the case on hand, victim was an innocent child aged about 5 years. Her mind was not polluted with baser qualities such as ill-will, animosity, hatred and vengeance. The mother of victim (PW1) had no grudge or grievance against accused. PW1 was not able to hold child while travelling in bus. Therefore, PW 1 had handed over child to accused (cleaner) of bus, who was sitting on hind portion of bus. The victim was sitting on the lap of accused. The accused had inserted his fingers into vagina of victim to satisfy his sensual pleasure in a peculiar manner. The evidence of PW3 would lend corroboration to evidence of PW1. The evidence of PW1 and PW2 (victim) is supported by medical evidence.

The defence put forth by accused that victim had suffered injury on her vagina by coming into contact with a hard and blunt object, later PW1 had concocted a story of molestation against accused by exposing her child (victim) as victim of molestation is untenable.

PW1 had nothing to gain by concocting a story against accused, that too by projecting her child of tender age. It is true that PW1 has admitted that she had given a written first information. It is seen that first information (Ex. P.1) is a typewritten document, however, it bears the signature of first informant (PW1).

The law is fairly well settled that first information is not a substantive evidence. The first information can be used for purpose of corroboration is provided u/s 157 of the Evidence Act. It can be used for the purpose of contradiction as per section 145 of the Evidence Act.

It appears that written first information lodged by PW1 was typewritten. We find the signature of first informant on first information. Above all, the Station House Officer had no grudge or grievance against accused to create first information report. The evidence of PW5 finds substantial corroboration from evidence of first informant (PW1)

The learned counsel for accused, relying on the judgment of the Supreme Court, reported in K. Venkateshwarlu Vs. The State of Andhra Pradesh, , would submit that in an appeal against judgment of acquittal, appellate court cannot interfere with the judgment of acquittal, merely because other view is possible. The appellate court can interfere with the judgment of acquittal if it is found to be perverse.

The learned counsel for accused would submit that reliance can be placed on evidence of a child after careful scrutiny as child witness can be tutored either by coercion or inducement.

In the discussion made supra, I have held that neither PW1 nor victim (PW2) had any thing to do with accused. They did not know accused before the date of incident. They had no grudge or enmity against accused. The defence put forth by accused that there was enmity between accused and husband of PW1 is not tenable. The husband of PW1 was working as a driver in a private bus. The accused was working as a Cleaner in another private bus. Above all, accused has not stated the reasons for the husband of PW1 to develop enmity against accused.

The learned trial Judge without bearing in mind the basic principles relating to appreciation of evidence and the background of witnesses has found fault with the evidence of PW1 and victim. The learned trial Judge without attaching due importance to evidence of PW1 and her daughter (victim) has held that victim was a tutored witness. The victim has denied that she was tutored by her parents. If parents of victim had given instructions to victim to depose about the incident, it cannot be said that victim was a tutored witness. Above all, neither the parents of victim nor victim had anything to gain by adducing tutored evidence against accused. The accused has no case that parents of victim were trying to black mail accused by projecting their daughter (PW2) as a victim of molestation. After the incident, victim had suffered trauma, so also her parents. In the circumstances, it is hardly possible to hold that victim and her parents had concocted a case against accused. The learned trial Judge has suspected the evidence of PW1 and victim by assigning innocuous reasons, to say the least, the judgment of trial court is perverse. Therefore, I hold that prosecution has proved that accused had committed an offence punishable u/s 354 IPC.

The learned counsel for accused would submit that a lenient view may be taken in the matter of sentence.

The learned HCGP would strongly oppose the same.

The accused had outraged the modesty of a girl aged about 5 years by touching her vagina and trying to insert his fingers into her vagina to satisfy his mental lust. It is said that "we should see God through the eyes of children". It is said so, because children would be totally free from baser qualities such as ill-will, hatred, jealousy, animosity, pride and prejudice. The accused instead of seeing God through the eyes of victim had introduced his fingers into vagina of victim. The victim was not even aware as to what was done to her by the accused. The accused does not bear criminal antecedents. He has chances to reform himself. Therefore, I deem it proper to sentence accused to undergo rigorous imprisonment for a period of one year and pay fine of Rs. 50,000/-, in default to undergo simple imprisonment for a period of six months for an offence punishable u/s 354 IPC. In the result; I pass the following:--

ORDER

The appeal is accepted in part. The impugned judgment is set aside. The accused is convicted for an offence punishable u/s 354 IPC. The accused is sentenced to undergo rigorous imprisonment for a period of one year and pay fine of Rs. 50,000/-, in default to undergo simple imprisonment for a period of six months for an offence punishable u/s 354 IPC. Out of the fine amount, a sum of Rs. 45,000/- shall be paid as compensation to PW2 (victim). After the fine amount is deposited, the trial court shall invest a sum of Rs. 45,000/- in fixed deposit in the name of victim (PW2) in any nationalized bank till she attains the age of majority. Office is directed to send back records along with a copy of this judgment. The trial court shall secure accused to implement the sentence.