State of Karnataka vs Kumara

Mohan M. Shantana Goudar, J—The judgment and order of acquittal dated 17.12.2011, passed by the First Fast Track Court, Hassan in Session Case No. 108/2010, is called in question in this appeal.

Case of the prosecution in brief is that the parents of the prosecutrix/victim Kumari.Shruthi, left house at about 6.00 a.m., on 16.12.2010 for selling Jowar in Hassan Market; at that time Kumari.Shruthi, prosecutrix, aged about 19 years and her sister studying in 9th standard and brother studying in 7th standard were staying in the house. At about 10.30 a.m., the accused came to the house of the prosecutrix and tapped the door of the house. The accused was the relative of the victim; the victim opened the door; immediately the accused rushed inside the house and closed the doors of the house; he dragged the victim to the room and tore her chudidhar and committed rape on her; the accused had sexual intercourse with the victim on three occasions for a period of 2 1/2 hours. During the course of sexual assault, the accused bit the left breast of the victim; though the victim tried to escape, the accused gagged her mouth and threatened her with dire consequence. When the accused was still in the house, the father and mother of the prosecutrix/victim came to the house from Hassan Market; they told prosecutrix/victim to open the door; however she did not open the doors in as much as the prosecutrix/victim was naked during the relevant point of time and she was lying on the bed with the accused; however the mother of the victim (PW-2) pushed the door with force and entered the house; she saw the accused inside the room. At that time, the accused escaped from the scene by pushing aside PW-2.

The father of the victim by then had been to cattle-shed and from cattle-shed, he went to the land for grazing the cattle. The father of the victim did not know about the incident, however PW-2 was informed by PW-1 about the incident. Since the father of the victim was sensitive and as PW-1 and PW-2 were fearing about the health of the father of the victim, they did not tell about the incident to the father of the victim. Immediately, thereafter he was told about the incident on 20.02.2010 and thereafter the victim was taken to the Police Station by her father and the first information came to be lodged as per Exhibit-P1 by the prosecutrix at about 8.00 p.m. on 20.02.2010, which came to be registered in Crime No. 22/2010 in Gorur Police Station for the offences punishable under Sections-376 and 506 of I.P.C. During the course of the investigation, the accused and the prosecutrix were examined by the Doctor, PW-7. After completion of the investigation PW-8, the Inspector of Police laid the charge-sheet.

In order to prove the case, the prosecution in all examined eight witnesses and got marked 8 Exhibits and two material objects. On behalf of the accused, two witnesses were examined and two Exhibits were marked.

3.1. The Trial court on evaluation of the material on record held that the prosecution has not proved its case beyond reasonable doubt and consequently, acquitted the accused. Hence, this appeal by the State.

Sri. Vijaya Kumar Majage, learned Additional S.P.P. taking us through the entire material on record, contended that the evidence of prosecutrix/victim has remained unimpeached. Her evidence is corroborated by PW-2 and the evidence of the Doctor PW-7 who examined her and issued the Wound Certificate as per Exhibit-P2; he further submits that the evidence of the prosecutrix is supported by the Wound Certificate Exhibit-P5 relating to the injuries sustained by the accused; the prosecutrix''s version fully supports the case of the prosecution and the same is sufficient to bring home the guilt of the accused.

Sri. B.M. Mohan Kumar, learned counsel argued in support of the judgment of the trial court contending that the case as made out by the prosecution before Court is wholly artificial. Therefore, the trial court is justified in acquitting the accused.

PW-1 is the prosecutrix/victim; she lodged the first information as per Exhibit-P1; she was examined by the Doctor, PW-7. Exhibit-P2 is the Medical Certificate of the victim issued by the Doctor. She is also a witness of the Mahazar. PW-2 is the mother of the victim, she came to the spot immediately after the incident; she pushed the door and went inside the house; and saw that the accused was running away from the house. She also deposed that the hat and the mobile phone of the accused were lying in the room where the incident has taken place. PW-3 is the witness to the scene of the offence and the Mahazar. She is also the witness for seizure of the mobile phone and the hat. She has turned hostile. However, PW-4 is the witness for the very Panchanama. She has Mahazar supported the case of the prosecution. PW-5, is the Assistant Sub-Inspector of Police and he received the complaint lodged by PW-1 and registered the same in Crime No. 22/2010 in Gorur Police Station. PW-6 is the Police Constable who carried the FIR to the Jurisdictional Magistrate. PW-7 is the Doctor working in Hassan Medical College in the department of Forensic Science. He examined the victim and the accused at about 1 a.m. to 2 a.m. on 21.02.2010. He issued the Wound Certificate at Exhibit-P2 in respect of injuries sustained by the victim, and Exhibit-P5 in respect of the accused. PW-8 is the Investigating Officer who completed the investigation and laid the charge-sheet.

DW-1 and DW-2 are the friends of father of the victim. Both of them have deposed that according to them, the father of the victim had requested them to mediate with the father of the accused, with regard to the marriage of the accused to be performed with the victim.

As afore mentioned, the incident has taken place at about 10.30 a.m. on 16.02.2010, in the house of the victim. The incident continued for about 2 1/2 hours i.e., till 1.00 p.m. by that time, the parents of the victim arrived to the house and they were very much present when the accused was inside the house. PW-2 has deposed that the accused was running away from the house, while she entered the house. However, the first information/complaint came to be lodged by the victim on 20.02.2010, at about 8.30 p.m., i.e., after a delay of about 4 1/2 days. The reason assigned by the prosecution for the delay in lodging first information is that the father of the victim was not at all aware about the incident. Though he was very much present in the village during the relevant point of time, since PWs 1 and 2 were fearing about the delicate health of the father of the victim they did not inform him. However, the father of the victim was informed about the incident just before to lodging of the complaint and thereafter the first information came to be lodged at 8.30 p.m. on 20.02.2010. This version of the prosecution is falsified by Exhibit-D1 and D2. Both these exhibits would clearly reveal that the father of the victim was very much present along with PW-2 and he came along with PW-2 from Hassan at 1.30 p.m.; he entered the house and even threatened the accused. Despite the same, he did not take any action either to apprehend the accused or to inform anybody including the police. He simply allegedly went away with the cattle to graze them in the land. Hence, it is amply clear that Exhibits-D1 and D2 negative the contention of the prosecution that the father of the victim was not informed by them and only after informing him on 20.02.2010, the complaint came to be lodged.

8.1. So also PW-2, the mother of the prosecutrix has clearly admitted that even prior to she entering the house, her husband i.e., the father of the victim had already entered the house from another door of the same house and he was already inside the house when PW-2 entered the house. These undisputed facts would clearly reveal that PW-1, PW-2 and father of the PW-1 were aware of the alleged incident then and there only i.e., at 1.00 p.m. on 16.02.2010. Despite the same, no action was taken by them for lodging a complaint. There is absolutely no explanation, much less acceptable explanation forthcoming from the prosecution witnesses about the delay in lodging the complaint.

In order to connect the accused with the alleged incident, the prosecution has relied upon following circumstances:

"(a) scratch marks on the accused.

(b) The hat and the mobile phone of the accused found on the spot of the incident and seized during the spot mahazar.

(c) Ocular testimony of PW-1 and PW-2 as well as the Doctor, PW-7".

The accused was examined by PW-7, the Doctor from 1.00 a.m. to 2.00 a.m. on 20.02.2010 in the Hospital. PW-7 has deposed that he found certain abrasions on the neck of the accused. PW-7 has clearly admitted that there is lot of difference between an abrasion and scratch mark. He further admits that the abrasion can happen because of other factors on an Agriculturists. Whereas scratch marks can be caused only by the intervention of human agency, i.e., scratch mark will be made by a person while opposing certain action. In this case, abrasions are found on the accused and not the scratch marks created by the nails. It is not uncommon to have abrasion marks on the body of the Agriculturist. Abrasion marks can happen at any time of the agricultural operations, etc. The Doctor has also clearly admitted that he has not noticed any nail marks on the body of the accused. Wherefore, the said circumstance relied upon by the prosecution fails. The trial court has assigned detailed reasons for coming into such conclusion.

With regard to the presence of the Hat and the Mobile Phone on the scene of offence, which came to be seized under Exhibit-P3, we find that the material is concocted. As aforementioned, the scene of offence panchanama was conducted on 21.02.2010 from 1.00 p.m. to 2.00 p.m. in the house of the victim, which means the hat and the mobile phone of the accused were allegedly and strangely lying in the house of the victim though 5 days had elapsed. The Investigating Officer has deposed that he did not know as to from where the Hat and Mobile Phone were seized. Moreover there is nothing on record to show that the Hat and the Mobile Phone belonged to the accused. The Investigating Officer has not even tried to find out as to in whose name the ''SIM card'' of the Mobile Phone stood or to whom the mobile phone belongs to.

PW-1 has admitted in her cross-examination that in her statement before the police during the course of investigation she has not stated that the mobile phone and the hat of the accused were found on the spot then. Thus, her version before the Court that the aforementioned material were found in the said room was clear improvement on her part. It is a major omission amounting to contradiction. We feel that only to connect the accused to the crime MO Nos. 1 and 2 are brought on the scene of offence. Thus, looking into the material on record, it is clear that the Police has tried to improve the case by bringing the hat and mobile phone on the scene of offence. There is no connecting link between the MO Nos. 1 and 2 and the accused. Even otherwise, the theory as put forth by the prosecution with regard to the seizure of mobile phone and the hat is a serious improvement made by the prosecution witnesses.

It is the case of the prosecution that PW-1 was medically examined on 21.02.2010 at about 1.00 a.m. to 2.00 a.m. by PW-7. It is a serious case of rape. The incident has taken place about 5 days prior to the medical examination, thus there was no great urgency in getting the victim examined by a Male doctor that too during mid night. There was already a delay of five days at the time of medical examination. The Doctor PW-7, as well as the Investigating Officer should have waited till morning and should have got a Lady Doctor for examining the victim. The well-settled law on the point is that the rape victim should be normally examined by a lady doctor in as much as the victim as well as the Doctor will be comfortable at the time of conducting the medical examination.

Strangely, though PW-7 is a Senior Doctor in the Hospital he allegedly examined the victim and issued Wound Certificate as per Exhibit-P2 at 1 a.m. In the cross-examination, PW-7 has clearly admitted that he cannot say that the victim was sexually assaulted and he is unable to verify whether it was first sexual intercourse on her and he was unable to answer as to whether the victim was subjected to forcible sexual intercourse repeatedly for three times etc. Except mentioning in Exhibit-P2 that the vagina of the victim was bit light red in colour and that the victim had suffered marks on the left breast, no other serious material is found in support of the case of the prosecution. The very Doctor has examined the accused; despite the same, he did not collect any material from the accused to show that the marks found on the breast were as a result of the act of biting by the accused. He has not collected the measurement of the teeth of the accused nor he has collected the nail impressions, etc.

If the victim had really scratched on the chest or neck of the accused or if the accused had bit on the left breast of the victim, he could have collected the relevant material to show the same. Unfortunately, such material is not collected by the Doctor, PW-7. It is also to be mentioned here itself that he did not even examine and collect the clothes of the victim or the accused. He did not get any incriminating material in as much as, he has not seen any blood stains or semen on the clothes of the victim or on the clothes of the accused. Thus, we find that the evidence of PW-7 is highly superficial. Though he was not generally supposed to examine the alleged victim of rape, he has allegedly examined the victim hurriedly that too at 1.00 a.m. to 2.00 a.m. on 21.02.2010. There is no reason forthcoming as to why he did not wait till morning till about 8.00 a.m. on the very day as there was no urgency for conducting medical examination during mid night, particularly, when the incident has taken place five days prior to the examination. In this regard, the defence is justified in arguing that the medical examination of the victim as well as the accused allegedly conducted by PW-7 under the supervision of the Investigating Officer is farce and the same is made only for creating the material against the accused.

If the incident has really happened inside the house of the prosecutrix without her consent, PWs 2 and her husband would not have left the accused un-apprehended. As afore-mentioned, PW-2 and her husband, who is the father of the prosecutrix were very much present on the scene of the incident and both entered the house and father of victim has even threatened the accused. Despite the same, he did not take any action for apprehending the accused.

16.1. More over, it is a case of the prosecution that there were blood-stains on the bed-sheet, as a result of the sexual assault on the victim by the accused. Naturally there may be some stains on the bed-sheet as well as on the clothes of the victim and the accused if really the rape had taken place. Despite the same neither the bed-sheet nor the clothes of the accused and the victim are collected by the Investigating Officer during the course of the investigation. Absolutely no reasons are forthcoming for not collecting such important material, which could have helped the prosecution to connect the accused with the crime.

Looking into every material, we are of the clear opinion that the trial court is justified in acquitting the accused on the ground that the case as made out by the prosecution before the court does not bring home guilt against accused. Even on reconsidering the entire material on record, we do not find any ground to disagree with the conclusion reached by the trial court. The reasons assigned by the trial court is just and proper. Since the view taken by the court below is one of the plausible view under the facts and circumstances of the case, no interference is called for.

Accordingly, the appeal fails and hence stands dismissed.