State of Karnataka vs N Chandrashekhara

Mohan M. Shantana Goudar, J.

The judgment and order of acquittal passed by the Sessions Court in Sessions Case No. 10/2009 dated 29th April 2011 is called in question by the State.

The respondent-sole accused is tried and acquitted of the offences punishable under sections 366 and 376 of IPC.

Kum. D. Sharada, prosecutrix/victim, aged about 14 years, lodged a complaint as per Ex. P8 at 1.15 P.M. on 16.8.2008, before the PSI of Hiriyur police station. The PSI-P.W. 12 registered the complaint in crime No. 440/2008, for the offence punishable under section 376 of IPC. In the complaint, it is alleged by the minor girl that she is the resident of Gudihalli village; she was pursuing her education in 8th standard by studying in Vedavathi High School, Hiriyur. She was staying in a Government General Hostel, situated at Vedavathinagar, Hiriyur, at that point of time; at 10. A.M., on 15.8.2008, i.e. on the Independence Day, while she was in hostel, the accused who is also a resident of Gudihalli village came to the hostel and informed the complainant-victim that her mother is not well and asked her to accompany him in a car to go to her native place Gudihalli. After obtaining permission from the hostel warden, he proceeded with the accused in a car for some distance; thereafter the accused instead of taking the victim to her village, took her in a different route and stopped the car near a Tamarind tree; despite victim''s protest, she was sexually assaulted by the accused by gagging her mouth with a cloth; thereafter, the accused brought her back and left her in the hostel; the victim narrated the incident to hostel warden(P.W. 1) who in turn called the victim''s father (P.W. 10) over phone; the father of the complainant came to the hostel and talked with the victim girl; thereafter, the complaint came to be lodged by the victim as per Ex. P8.

The police after investigation laid charge sheet.

In order to prove its case, the prosecution in all has examined 12 witnesses and got marked 13 exhibits and 5 material objects. On behalf of defence, one exhibit namely, a portion of statement of P.W. 11 is marked.

Sri Chetan Desai, learned Government Pleader appearing on behalf of State taking us through the material on record, submits that evidence of the victim coupled with the evidence of the doctor is sufficient to bring home the guilt against the accused. The victim was a minor aged 14 years at the time of incident and consequently, in law, she could not have given her consent. The evidence of victim is supported by the evidence of father of victim (P.W. 10). The accused has taken undue advantage of innocence of victim and took her by misguiding her and committed rape. On these grounds, he prays for reversal of the judgment of the Court below.

Per contra, Shri N. Srinivas, learned Counsel appearing on behalf of the respondent argued in support of the judgment of the court below.

P.W. 1 is the warden of the hostel. She did not support the case of the prosecution. She has deposed that on that day, Independents day Celebrations were held in the hostel and thereafter, children were taken to the school for Independence Day celebrations. She maintains an inward and outward register in the hostel and notes down the names of the persons who take their children out of the hostel. She has noted down in the register maintained by the hostel about the name of P.W. 10-father of the victim taking the victim outside the hostel in the evening of 15.8.2008 i.e., after having lunch.

P.W. 2 is the student of the very same hostel.

P.W. 3 is the cook working in the hostel.

P.W. 4 is the doctor who examined both the accused and victim and issued the certificate as per Ex. P4 in respect of the accused. Ex. P5 is the certificate in respect of the victim girl. Ex. P6 is the FSL report. The doctor has clarified that there were no injuries found on the body of the accused and pubic heirs were not matted. He has further opined that after examining the victim there is no evidence suggestive of recent sexual inter course on the victim.

P.W. 5 is the police constable who helped the investigating officer during the course of investigation by taking articles to Forensic Science Laboratory. He had taken first information report also to the Court.

P.Ws. 6 and 9 are the witnesses for the scene of offence-Ex. P9 and seizure of Omni Car-Ex. P10. Both have turned hostile.

P.W. 7 is the victim. She has deposed about the incident in question.

P.W. 8 is the police constable. He arrested the accused on 16.8.2008 at 4.00 P.M. at Matikurke village and produced before the Inspector-P.W. 11.

P.W. 10 is the father of the victim. He has deposed that he came to the hostel at 4.00 P.M. on getting telephone call from her daughter and after talking with her, the complaint came to be lodged by him in the police station at 10.00 P.M.

P.W. 11 is the inspector of police who completed the investigation and laid the charge sheet.

P.W. 12 is the sub-inspector of police who received the complaint lodged by P.W. 7 as per EX. P8 and registered crime No. 440/2008. After sending the first information report to the jurisdictional Magistrate, he handed over investigation to P.W. 11.

The case of the prosecution mainly rests on the evidence of the prosecutrix, P.W. 1 (warden of the hostel) and evidence of the doctor-P.W. 4 who examined accused and victim immediately after the incident.

As aforementioned, complaint Ex. P8 came to be lodged by P.W. 7 at 1.15 P.M. on 16.8.2008. Based on it, crime No. 440/2008 came to be registered. It is disclosed in the complaint that the accused came to the hostel at 10.00 A.M. and took the victim in the car on the pretext that the mother of the victim was unwell and therefore, she has to go to village along with him. However, after proceeding for some time in the car, accused diverted the car to certain isolated place and committed rape on her. The complaint further discloses that accused brought her back to the hostel at 12.00 noon and left her in the hostel. The aforementioned facts were narrated by the complainant to the warden, who in turn informed about the incident to P.W. 10-father of the victim and consequently, the complaint came to be lodged.

In the examination in chief, P.W. 7, virtually reiterates all the contents as found in Ex. P1. The version of the victim in her examination in chief is almost similar to the version as found in the complaint Ex. P1. However, in the cross-examination, the complainant-P.W. 7 has admitted that independence day celebrations were being held on that day in the hostel as well as in the school. Though she participated in the flag hoisting ceremony in the hostel, she did not go to the school for participating in the independence day celebrations. She has admitted in the cross-examination that there were talks between herself and the accused when she was proceeding in the car. However, when the car was taken to a different route, she allegedly protested for the same. Meanwhile, her mouth was gagged by the accused with the help of cloth and thereafter, offence of rape is committed by the accused. It is specifically admitted by the victim that she was undergoing menstrual period during the relevant point of time. However, the said fact was not disclosed by her either to the accused or anybody. She further admits that while coming back from the spot wherein the incident has taken place to the hostel, the car passed through busy area such as court, circle etc. However, she did not raise any hue and cry.

It is specifically admitted by her that the complaint came to be lodged on the date of incident, i.e. 15.8.2008 itself by going to the police station. In para 7 she admits that there was a quarrel between accused and father of the victim P.W. 10 on 14.8.2008 itself and in that regard, both had been to the police station. It is also admitted subsequently by P.W. 7 that accused was made to sit in the cell of the police station on 15th and 16th August 2008. This admission of P.W. 7 completely destroys the case of the prosecution inasmuch as it is clear that accused was not outside the police station but he was inside the police station on 14th, 15th, and 16th of August 2008. According to the case of the prosecution and victim, the incident has taken place at 10.00 A.M., on 15.8.2008 which appears to be false, particularly in view of the admission of P.W. 7 before the Court.

Though it is the specific case of the prosecution that victim informed about the incident to the warden immediately after coming to the hostel from the spot of incident and thereafter, the warden called P.W. 10 (father of the victim) over phone and requested him to come to hostel, this factor is not proved by the prosecution. P.W. 1/warden of the hostel has stated that the victim has not stated about the incident to her and consequently, she did not call upon P.W. 10 over phone to come to the hostel immediately. The warden is treated as hostile witness and she is cross-examined by the Public Prosecutor. Even in cross examination, hostel warden has reiterated that nothing is stated to her by the victim. Per contra, P.W. 1 has admitted when cross-examined by the defence that she maintains her inward and outward register to record the names of the persons who take the children out of hostel. Whenever, the child goes out of the hostel, the same would be recorded in the register. She has further admitted that on 15.8.2008, independents day celebrations were held both in the hostel as well as in the school and students were not given leave on that day.

It is further specified in para-6 of her deposition that the victim has gone out of hostel on 15.8.2008 only after lunch with her father. The records of the hostel were brought and produced by her to substantiate the same. Except that entry, no other entry is found in the register. Therefore, it is clear that the victim has not gone out of the hostel prior to her lunch on 15.8.2008 and consequently, the entire case of prosecution that the victim was taken by the accused at 10.00 A.M. in the car and was taken back to the hostel at about 12.00 noon falls to the ground.

The evidence of the doctor-P.W. 4 further clarifies that there is no evidence suggestive of recent sexual intercourse on the victim. The pubic hairs, vaginal swab and other articles were sent to Forensic Science Laboratory for examination and on getting the report as per Ex. P6, P.W. 4-doctor has opined that there was no signs of recent sexual intercourse on the victim. He did not find any evidence of marks on the body of the victim. He did not find any marks on the genital part of the victim girl.

From the evidence of the doctor, it is clear that it is not a case of sexual assault at all during the relevant period.

Having regard to the aforementioned material and other attending facts and circumstances of the case, we are of the opinion that the trial Court is justified in acquitting the accused. Even on reappreciation of the material on record, we do not find any ground to interfere with the judgment and order of acquittal, more particularly when the accused was stated to be in the cell of the police station on 14th, 15th, and 16th of August 2008 as admitted by the victim. Therefore, the incident of rape could not have been taken place on 15.8.2008 in an isolated area.

Accordingly, the appeal fails and the same stands dismissed.