State of Karnataka vs Shaik Nagaur Saheb and Others

Mohan M. Shantana Goudar, J—The judgment and order of acquittal dated 24.3.2010 passed by the II Additional City Civil and Sessions Judge in Sessions Case No. 139/2007, is called in question, in this appeal, by the State. Though the matter is posted for Orders, the same is taken up for final disposal, at the request of learned SPP.

The case of the prosecution in brief is that the complainant who was residing with her sister and brother-in-law for prosecuting her studies, came in contact with accused No. 1 who was residing in a house situated behind the house of the complainant. At about 8.30 p.m., on 8.9.2006, the accused took the victim to a shop from the shop wherein she had been to purchase stationery; the accused insisted the victim to love him. However, the same was refused by the victim. Ultimately, the accused committed rape on the victim. It is alleged that the accused threatened the victim with dire consequence, if she tells about the incident to anybody. Then she consumed 5 to 6 poisonous leaves and she started vomiting. Thereafter the accused ran away from the seen. Once again, he came to the place wherein the victim was present along with accused 2 and 3. All the 3 persons took the victim to Krishnadevaraya Hospital in a lorry. In the meanwhile, her brother-in-law, Venkataratnaiah along with 2 persons came near her and shifted her to the NRV hospital. From there she was shifted to Baptist Hospital in an ambulance. At about 12 noon on 10.6.2006, the victim told the lady doctor in the Baptist Hospital that she had eaten poisonous leaves. The same was informed to the brother-in-law of the victim. Thereafter, the statement of the victim was recorded by the Investigating Officer as per Ex. P1, based on which Crime No. 297/2006, came to be registered against the accused for an offence punishable under Section 376 IPC.

In order to prove its case, prosecution in all has examined 15 witnesses and got marked 17 exhibits and 4 material objects. The accused did not choose to examine any witness in their defence. The Trial Court on appreciation of oral and documentary evidence, acquitted the accused for the offences punishable under Sections 363 and 376 of IPC and Sections 3(1)(xi) and 3(2)(v) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989 read with Section 34 and Section 109 of IPC. However, accused No. 1 was convicted for the offence punishable under Section 3(1)(xii) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989. The State has preferred this appeal praying conviction of all the accused for the offence punishable under Section 376 of IPC.

P.W. 1 is the prosecutrix. She has deposed in support of the case of the prosecution. Ex. P17 is the medical certificate issued by the doctor who examined the victim. P.W. 15 is the doctor who was working along with Dr. Sukanya in the hospital; P.W. 15 doctor is acquainted with hand writing of Dr. Sunkanya. He has deposed about the medical certificate - Ex. P17.

Though it is the case of the prosecution that the victim was aged below 16 years at the time of incident, no valid documents are produced in support of the said contention.

In the complaint, the victim claims to be aged about 15 years of age as on 10.9.2006. In the school Transfer Certificate marked as Ex. P10, her date of birth is shown as 21.3.1992, according to which her age was 14 years 5 months 17 days during the relevant point of time. It is a photo stat copy of the original, which has been attested by the Principal. However, the Principal of the school who has issued the said certificate is not examined before the court. Consequently, the trial court has rightly concluded that Ex. P10 is not proved in accordance with law, inasmuch as the same is not placed on record, as required by following due procedure.

Ex. P9 is the wound certificate issued by the hospital authorities in which the victim was examined first. The brother-in-law of the victim had admitted her to the hospital. At the time of admission, the brother-in-law of the victim had told that the age of the victim was 20 years. However, Ex. P17 - Medical Certificate of the victim does not disclose her age. No test of the P.W. 1 is conducted. Parents of the victim are not examined to prove the date of birth or her age. Even brother-in-law (PW2), namely, Venkataratnaiah has not deposed anything about the age of the victim, so also her sister - PW4 has not deposed anything with regard to the age of the victim. P.W. 11 the doctor who first examined the victim has stated that he has examined P.W. 1, who was aged about 20 years on 9.9.2006 and on that day, she was accompanied by her brother-in-law (PW2).

The Investigating Officer (P.W. 14) has deposed that he has not obtained the birth certificate. He has also not obtained SSLC marks card of the complainant. In view of the scanty material on record, the prosecution was not able to prove that the age of the victim was below 18 years.

In the matter on hand, the material on record reveals that the prosecutrix appears to have accompanied the accused on her own accord. If the accused was unknown, the prosecutrix should not have accompanied him, when he invited her for talks. Though it was her deposition that she was threatened by accused No. 1, such facts were not revealed by her or anybody including her parents. Even the conduct of P.W. 1 after commission of the alleged rape clearly reveals that the victim was a consenting party. If the accused really intended to kidnap her, they would have taken her and ran away. They would not have shifted the victim to the hospital. It is also borne out from the records that one of the accused informed the brother-in-law of the victim that the victim had consumed poisonous leaves. Subsequently, the brother-in-law came to a particular spot and shifted the victim to the hospital.

There is no element of enticement of the victim by any of the accused. She had voluntarily left the house with the permission of her sister and brother-in-law, by telling them that she is going to a shop to purchase stationery. The victim has not raised hue and cry for drawing the attention of the public with regard to the alleged abduction.

Even with regard to the forcible sexual attack on the victim, the trial court may be justified in concluding that the intercourse must have taken place with consent of the victim. The medical evidence reveals that there is no evidence of rape. We hasten to note that medical evidence is not a sine-qua-non for the proof of rape. However, at the same time, it cannot be forgotten or overlooked while appreciating the evidence on record, more particularly, when the evidence of the prosecutrix needs certain amount of corroboration.

Though the alleged offence is deposed to by the victim, the clothes of the victim were not torn. The victim was taken in a car by her brother-in-law to the hospital, despite the same, the complainant does not discloses about the alleged sexual assault by accused No. 1 before her brother-in-law who came in a car and shifted her to the hospital. The alleged incident has occurred on 8.9.2006, but the complainant has given her statement on 11.9.2006 before the Investigating Officer in the hospital and in the presence of the doctor. In the said statement, the complainant has not disclosed about the factum of rape before the doctor - P.W. 11, who examined her on 9.9.2006. No mention is made in Ex. P9 - the medical record about the alleged act of rape.

Ex. P17 - wound certificate discloses that the patient was admitted to the hospital with the history of consuming poisonous leaves. The doctor has found that the victim was fully oriented and conscious. The doctor has examined the victim on 10.9.2006. In the second hospital also, at the time of admission, she was oriented and conscious. It is opined by the doctor that the victim was sexually active and vagina was admitting 2 fingers easily without any pain. There is no evidence of sexual assault or evidence of any injury anywhere on her body. Nail clipping, pubic hair, semen and swab, etc. were collected and were sent to Forensic Science Laboratory. Based on the report, she has deposed that there is no evidence of rape. In this view of the matter, the trial court has concluded that there must have been an act of sexual intercourse with the consent of the victim.

Even on reappreciation of the material on record, we do not find any ground to disagree with the conclusion raised by the trial court. The view taken by the trial court is one of the possible view under the facts and circumstances of the case.

Hence, no interference is called for in this appeal against acquittal. The appeal fails, accordingly same is dismissed.