State of Karnataka vs Mahammed Asim and Others

Mohan M. Shantana Goudar, J.

The judgment and order dated 17.3.2010 passed by the II Addl. City Civil and Sessions Judge, Bangalore (CCH No. 17) in Sessions Case No. 233/2009 is called in question in these two appeals.

The investigation initially was conducted against five accused including Smt. Sridevi (accused No. 5). However, presence of Smt. Sridevi could not be secured before the trial Court. She remained absconding and hence, the trial did not proceed against her and case was split up as against her. Consequently, trial of Sessions Case No. 233/2009 proceeded only against accused Nos. 1 to 4 i.e., respondents in Crl.A. No. 819/2010. Accused Nos. 1 to 4 were tried for the offences punishable under Sections 376, 420, 506, 109 and 114 r/w Section 34 of IPC and under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 r/w Section 34 of IPC. The trial Court acquitted accused Nos. 1 to 4 of the offences punishable under Sections 376, 109, 114 r/w Section 34 of IPC and under Section 376(g) r/w Sections 34, 109 and 114 of IPC. They were also acquitted of the offence punishable under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. However, accused No. 2 is convicted under Section 506 II r/w Section 34 of IPC; accused No. 1 is convicted for the offence punishable under Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Sections 417 and 506 II r/w Section 34 of IPC; accused Nos. 3 and 4 are convicted for the offences punishable under Sections 417 and 506 II of IPC r/w Sections 34 and 109 of IPC.

The State has filed Crl.A. No. 819/2010 questioning the judgment and order of acquittal passed against accused Nos. 1 to 4 in respect of certain offences.

Crl.A. No. 562/2010 is filed by accused No. 4 questioning the judgment and order of conviction passed by the Court below for the offences punishable under Sections 417 and 506 II r/w Sections 34 and 109 of IPC. The other accused i.e., accused Nos. 1 to 3 who are convicted in respect of certain offences as mentioned supra, have not filed any appeal. It seems they have already undergone the sentence imposed on them in respect of such offences for which they are convicted.

The case of the prosecution is that the prosecutrix (P.W.1) is coming under the category of scheduled caste; she was working in a private factory at Mahadevapura, Bangalore; accused No. 1 was pressurizing her to marry him; however, she was refusing to marry him. Accused Nos. 3 and 4 are friends of accused No. 1; accused Nos. 4 and 5 were also assisting accused No. 1 for getting the marriage of prosecutrix (victim-P.W.1) with accused No. 1. Accused No. 1 was also pressurizing P.W.1 to have sexual relationship with him. On the date of the incident in question i.e., on or about 18.12.2007, accused Nos. 4 and 5 took P.W.1 to the house of accused No. 3 Shivu by telling her that they would apply some cream to her face and body so that she would look fairer; P.Ws.4 and 5 thus taking P.W.1 as aforementioned to the house of accused No. 3, applied certain cream on the entire body including the face of the victim; consequent upon which, the victim fell unconscious; accused No. 1 thereafter had forcible intercourse with her; such act of having intercourse by accused No. 1 on the victim was allegedly recorded by accused No. 3 on his mobile phone and thereafter, accused No. 3 sexually abused the victim and that was videographed by accused No. 2; P.W.2 too had sexual intercourse with P.W.1 subsequently.

Thereafter, all the three accused used to torture the victim and pressurize her to have sexual intercourse with them repeatedly; ultimately, the victim became pregnant. When the pregnancy was of six months, she intimated about the aforementioned incident to her parents, who in turn, took the victim to the house of P.W.3, the uncle of P.W.1; the pregnancy of the victim was got aborted with the help of a Doctor; subsequent to abortion also the victim started residing in the house of P.W.3. After about one year i.e., on 19.12.2008, when P.W.1 was in the house of P.W.3 Siddappa, accused No. 1 entered the house and forcibly took P.W.1 with him. The same was seen by P.W.3, his wife and Smt. Haseena-P.W.2, who apprehended accused No. 1 and took him to Sampigehalli police station, in turn accused No. 1 was sent to K.R. Puram police station on the point of jurisdiction. Complaint came to be lodged by the prosecutrix as per Ex. P1 at about 23.30 hours on 19.12.2008, which came to be registered in Crime No. 484/2008 by P.W.9 and sent First Information Report to the jurisdictional Magistrate as per Ex. P11. P.W.11, the Assistant Commissioner of Police completed the investigation and laid the charge sheet against five accused.

In order to prove its case the prosecution in all examined 12 witnesses and got marked 14 exhibits and one material object. On behalf of defence three witnesses were examined and got marked five exhibits. As aforementioned, the trial Court has acquitted accused Nos. 1 to 4 in respect of major offence i.e., offence punishable under Section 376(g) r/w Section 34 of IPC. However, accused Nos. 1 to 4 are convicted for the offences as mentioned supra, in respect of certain offences.

Heard Sri. Vijayakumar Majage, learned Addl. SPP appearing for the State and also learned Amicus Curiae appearing for accused Nos. 3 and 4.

Sri. Vijayakumar Majage, learned Addl. SPP taking us through the entire record submits that the Court below is not justified in ignoring the incriminating evidence placed on record by the prosecution to prove that the age of the victim is below 16 years; the evidence of the Head Master who issued the school certificate and the evidence of the Doctor who examined the victim would clearly reveal that the age of the victim was below 16 years at the time of incident in question. He further submits that the evidence of prosecution itself is sufficient to bring home the guilt against the accused for the offence punishable under Section 376(g) of IPC apart from other offences.

Learned Amicus Curiae has also assisted the Court by taking us through the entire material on record.

P.W.1 is the prosecutrix; she lodged the complaint as per Ex. P1 before the K.R. Puram police station, based on which, investigation proceeded. P.W.2 is the neighbour of P.W.3 and she is a resident of Yelahanka. She saw accused No. 1 taking P.W.1 forcibly on 19.12.2008; immediately herself and P.W.3 apprehended accused No. 1 and handed over to police. P.W.3 is the uncle of P.W.1; victim was living with him after the alleged abortion of pregnancy; from his house, accused No. 1 tried to take away the victim elsewhere; however, such attempt was aborted by P.Ws.2 and 3 jointly. He along with P.W.2 apprehended accused No. 1 and handed over him to Sampigehalli police. P.Ws.4 and 5 are the witness for seizure mahazar Ex. P4 under which, a mobile M.O.1 is seized. Both of them have turned hostile. P.W.6 is the Tahsildar, who has issued the caste certificate of accused and the complainant as per Exs. P6 and P5 respectively. Caste certificate of the complainant reveals that she comes under scheduled caste category. P.W.7 is the Doctor who examined P.W.1 and issued certificate as per Ex. P7. He has also examined accused Nos. 1, 2 and 3. Exs. P8, P9 and P10 are the certificates relating to medical examination of accused Nos. 1, 2 and 3. P.W.8 is the witness for scene of offence panchanama Ex. P3. He has turned hostile. P.W.9 is the Sub-Inspector of Police, K.R. Puram police station. He received Ex. P1 and registered the crime. He has sent the first information report to jurisdictional magistrate as per Ex. P11. P.W.10 is the Head Master. He has issued the date of birth certificate as per Ex. P13. He has also produced the extract of admission register Ex. P14. P.W.11 is the Assistant Commissioner of Police. He laid the charge sheet after completion of investigation. P.W.12 is the Inspector of Police of Sampigehalli police station. As aforementioned, P.Ws.2 and 3 approached the said police station after apprehending accused No. 1 and handed over him to the said police station. However, P.W.12 later handed over the custody of accused No. 1 to K.R. Puram police station on the ground of jurisdiction.

D.W.1 is none other than accused No. 1 himself. He has denied the case of the prosecution. He has deposed that the main prosecution witness viz. P.W.3 and his family members have committed rioting in the house of a Doctor and threatened him with dire consequences. In that regard, he has produced Exs. D3 and D4 to show that the prosecution witnesses are having criminal background. D.W.2 is the co-worker of accused No. 1. According to him, police approached him while he was working and asked about the address of accused No. 1''s house. Accordingly, D.W.2 took the police to the house of accused No. 1 from where, accused No. 1 was arrested. D.W.3 is Doctor Somegowda. His evidence is of no use in as much as, he has not examined P.W.1 at any point of time. His version is general in nature.

The trial Court, on evaluation of the material on record, has concluded that the prosecutrix was not below 16 years at the time of incident in question. It has also come to the conclusion that she had sexual intercourse with accused No. 1 with consent. It has also concluded that no case is made out against accused Nos. 2 to 4 in respect of the offence punishable under Section 376(g) of IPC.

Ex. P13 is the birth certificate issued by the Head Master of Government Primary School, Chokkanahalli, Bangalore. Ex. P14 is the extract of admission register. Those documents reveal the date of birth of the victim as 7.4.1995. The incident as alleged has taken in the year 2007, which means, the victim was just aged about 12 1/2 years at the time of incident. In support of those documents, the Head Master of the school who has issued the said document is examined as P.W.10. He admits in the cross-examination that nothing is found in Ex. P14 as to when the victim was admitted to school. He further admits that he was not the Head Master when the victim was admitted to school and he has not seen the application seeking admission by the complainant; there is nothing on record to show as to whether the date of birth mentioned in Exs. P13 and P14 were supported by the date of birth certificate issued by the Tahsildar. He further admits that the admission register does not contain the photographs of either the complainant or her parents. He has further admitted that there are two students by name Chaithra and he does not know as to how many children were still there in the same name in the said school. Exs. P13 and P14 are handwritten and are on answer paper sheets which are generally meant for the students during examination. There is some interpolation in the date of admission. It is also relevant to note that the victim has not produced the date of birth certificate issued by the competent authority i.e., the Tahsildar or the Municipality. Even otherwise, looking to Exs. P13 and P14 and the version of P.W.10, we cannot definitely decide that the age of the victim was just 12 1/2 years at the time of incident or below the age of 16 years. According to the prosecutrix she was aged about 14 years during the relevant point of time. However, evidence of the Doctor-P.W.7 would amply reveal that the victim was subjected to ossification test; he has opined that the victim was aged about 14-16 years at the time of incident. Ex. P7, the certificate of examination issued by the Doctor P.W.7 would further reveal that the victim may be aged about 14-16 years at the time of incident and that she had attained puberty (date of menarche and L.M.P) about four years prior to her examination by the Doctor. It is by now well settled that the results of ossification test cannot be taken as conclusive proof for determining the date of birth. Therefore, margin of error can be taken as two years. In view of the same and as there is no concrete material to show the exact date of birth of the victim, the trial Court is justified in concluding that the prosecution has not conclusively proved that the age of victim was below 16 years. It needs to be noted here itself that the voters'' list was summoned by the defence at the time of recording the statement of the accused under Section 313 of Cr.P.C. Accordingly, the jurisdictional officer produced the voter''s list, which discloses that the age of the victim was 21 years as on the date of the incident. In view of such conflicting versions relating to the date of birth, the trial Court, in our considered opinion, has correctly opined that it is not a fit case to exactly state that the age of the victim was below 16 years.

The evidence of the Doctor-P.W.7 and the certificate issued by him vide Ex. P7 discloses that the victim was examined by him in the presence of female doctors; he did not find any injuries on the body of the victim; he did not even find any defects in her body; however, the Doctor has opined that the victim was habituated to sexual intercourse. He has also recorded the statement of the victim in the certificate Ex. P7 in the form of history to the effect that accused No. 1 had physical contact with her by making her to believe him. From the evidence of P.W.7, the Doctor, it is clear that the victim was a consenting party. Though, she has deposed in her evidence before the Court that she was subjected to sexual assault by accused Nos. 1 to 3 repeatedly by black mailing her to expose her by publishing the video graphs taken, such version of P.W.1 does not find support from any other evidence. Though, the mobile phone of accused No. 1 is seized and the same is marked as M.O.1, the SIM of the mobile phone is not seized and subjected to any test. There is nothing on record to show that accused Nos. 1 to 3 subjected the victim for sexual assault with force. On the other hand, the history given by accused No. 1 before the Doctor P.W.7 at the time of his examination would clearly reveal that he had got sexual contact with the complainant since one year with her consent. From the totality of the evidence on record, we are of the clear opinion that not only accused Nos. 1 to 3, but also accused Nos. 4 and 5 are innocent and they have not participated in the crime either directly or indirectly. Hence, the offence punishable under Section 376 r/w 34 of IPC is not proved against them.

We have already mentioned supra that the medical records clearly reveal that no injuries were found on the body of the victim and there were no signs of forcible sexual intercourse on her. The complaint is lodged after about one year of the alleged incident. If P.W.1 was not a consenting party, she would not have kept quiet without lodging the complaint against accused No. 1. Though, it is alleged that the victim was subjected to abortion, the same does not find support from the material on record. Nothing is produced to show that the victim was aborted at any point of time. From the material on record, we are of the opinion that the prosecution has tried to improve its case from time to time and it has not come before the Court with true facts.

Since this being the appeal against acquittal, the appellate Court would be normally slow in interfering with the order of acquittal, particularly, when two views are possible. We find that the view taken by the trial Court is one of the possible views in the facts and circumstances of the case. The judgment and order passed by the Court below is well reasoned. We agree with the reasons assigned and the conclusion arrived at by the trial Court. Hence, no interference is called for. Accordingly, both the appeals fails and the same stands dismissed.

We place on record the valuable assistance rendered by Sri. Sampangi Ramaiah, learned Amicus Curiae. Hence, the registry is directed to pay Rs. 10,000/- to learned Amicus Curiae.