Sunchu Vinod vs State Of T.S.

The appellant is convicted under Section 5(I) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (for short ‘the Act’) and sentenced to undergo simple imprisonment for a period of three years simple and also sentenced to undergo Rigorous Imprisonment for a period of 10 years under Section 376(2)(i) of IPC. Questioning the said conviction, present appeal is filed.

Briefly, the facts of the case are that P.W.2-victim’s family and the family of the appellant are neighbours since several years. A complaint was lodged on 10.04.2017 vide Ex.P1 by P.W.1-mother of P.W.2 stating that P.W.2 was aged 17 years and when she questioned P.W.2 noticing certain changes in her, P.W.2 disclosed that the appellant promised to marry P.W.2 and on 04.06.2016, when P.W.2 went to appellant’s house to meet his sister, no one was present and at that point of time, the appellant raped her and this happened several times when no one were present in the appellant’s house. However, after some time, the appellant  refused to talk with P.W.2 for which reason, P.W.1 filed the complaint. P.W.2-victim was also examined, who corroborated the evidence of P.W.1. After complaint was lodged, PW.2-victim was examined at Barosa center and medical examination was also conducted. According to P.W.5, no external injuries were found on P.W.2. However, the Doctor opined that there was no evidence of any illegal sexual assault and gave her opinion under Ex.P6.

Heard learned counsel for the appellant and learned Assistant Public Prosecutor appearing for the respondent-State.

Learned counsel for the appellant argued that there is an abnormal delay in lodging the complaint when the incident took place on 04.06.2016, the complaint came to be filed on 10.04.2017 after a delay of ten months. Further from the evidence of P.W.2, it cannot be said that she was not a consenting party to the relation between the appellant and P.W.2. Though the prosecution alleged that the victim girl, as on the date of complaint was 17 years ten months, but as per the evidence of the D.W.2 who is the father of PW2, P.W.2 was aged 21 years as on the date of the his evidence. The said assertion is enough to determine that PW2 was 19 years when the incident took place.

The counsel for the appellant relied on the following judgments; (i) The Hon’ble Supreme Court in State of Karnataka v. Mapilla P.P.Soopi 2003 (8) SCC 202, the facts and circumstances, it was found that when there was no injury to the victim to indicate any forcible assault, the acquittal of the appellant was upheld.

(ii) In Bhika Ram v. State of Rajasthan 2001 Crl.LJ 2123 the High Court of Rajasthan held that when there is an inordinate delay in the registration of FIR, in the circumstances, it casts any amount of suspicion on the credibility of the case of the prosecution and for the said reason, the appellant was acquitted.

(iii) In Azhar @ Azharuddin @ Md.Azharuddin v. State by Women Police Station, Davanagere, rep. by the State Public Prosecutor, High Court Building, Bengaluru [Crl.Appeal No.404 of 2019, dated 05.05.2020], in similar circumstances, the High Court of Karnataka at Bengaluru held that when there was a delay of nearly 4 months in lodging the compliant, it reversed the finding of guilt and acquitted the appellant. Further it was also held that when two views are possible on the basis of record, one favouring the appellant pointing towards his innocence should be considered and adopted.

Learned counsel for the appellant while relying on the judgments of Hon’ble Supreme Court in Bhaiyamiyan @ Jardar Khan v. State of Madhya Pradesh (Crl.Appeal No.802 of 2004 dated 03.05.2011); Ramdass and others v. State of Maharashtra [Appeal (Crl.) 1156-1158 of 2005, dated 07.11.2006]; and Kali Ram v. State of Himachal Pradesh 1973 AIR 2773, argued that where there was delay in lodging complaint it casts a doubt on the prosecution case being correct and when two views are possible, one favouring the accused has to be considered.

On the other hand, the learned Assistant Public Prosecutor submits that the age of victim girl-P.W.2 is evidenced under Ex.P9. As on the date of the alleged complaint and also the incident took place, P.W.2 was below 18 years, for which reason, though, it is assumed that there was consensual sexual act between P.W.2 and the appellant, the said consent will not be deemed to be consent in accordance with law. Accordingly, a presumption arises under Section 29 of the Act of 2012 and the burden shifts on to the appellant. However, the appellant failed to discharge his burden, for which reason, the conviction cannot be interfered with.

This is a peculiar case wherein P.W.1 and her mother-P.W.2 have spoken against the appellant. However, the father of P.W.2 and his parents, who are grand parents, have entered into the witness box as defence witnesses D.Ws.1 to 3 and deposed that the appellant had in fact proposed to marry P.W.2 and later refused. Except proposing the marriage, there was never any rape committed on the victim girl or any kind of misbehavior with her. Further, she was also married and she had a child on the date of deposition. D.Ws.1 to 3 have deposed that the age of P.w.2 was 22 years as on 25.09.2019.

The argument of the learned counsel for the appellant that there is an inordinate delay in lodging the complaint and the prosecution failed to explain the said delay convincingly holds good. Further, it is evident from the deposition of D.Ws.1 to 3, for the reason of the appellant refusing to marry, after initial acceptance, the present complaint is filed.

The evidence of P.Ws.1 and 2, it is evident that there was marriage proposal with the appellant. P.W.2 deposed in her cross examination as follows:

“There were talks between my family and family of accused for my marriage with the accused.”

As narrated by P.W.2, she indulged in sexual intercourse with the appellant on several occasions in the absence of family members of the appellant, that in itself would go to show that on the said occasions when the family members of the appellant were not present, P.W.2 had voluntarily gone to the residence of the appellant. Further, for the reasons best known, though there was acceptance of marriage proposal with P.W.2, later the appellant has declined to marry P.W.2. The acceptance talks and refusal have taken place prior to lodging of the complaint. In the said circumstances, there are two versions of the case, one supporting the prosecution version by PW1 and PW2 and the other version of DW1 to DW3 casting a serious doubt on the prosecution case being correct. Further, the view of the appellant not being guilty is supported by witnesses, who are none other than the father (DW2) and grand parents(DW2 and DW3) of P.W.2.

The father of the victim girl-P.W.2 and the grandmother have specifically deposed that she was major as on the date of alleged incident. The prosecution filed Ex.P9 date of birth certificate issued by P.W.8, who is the Government Junior College Principal. The said bonafide certificate issued by the Junior College would be based upon the declaration given at the time of joining. The prosecution has failed to produce the proof of date of birth by the hospital where P.W.2 was born or from any governmental authority which issued date of birth certificate at the time of the birth of P.W.2. When the father asserted that P.W.2 was a major, the same can be considered in the back ground of unreliable certificate Ex.P9.

In the present facts and circumstances, the case of inordinate delay in lodging the complaint and consequently, the father of the victim and grandparents having specifically deposed in favour of the appellant and further there are no reasons as to why the father of the victim and grand parents would depose against the statement of victim girl-P.W.2 and her mother P.W.1. Further as admitted by P.Ws.1 and 2, there was proposal of the appellant and P.W.2 to get married, further the appellant had declined later and immediately thereafter, present complaint came to be lodged.

In the said circumstances, the conviction recorded against the appellant is liable to be set aside and accordingly set aside. The appellant shall be set at liberty forthwith.

The appeal is allowed. As a sequel thereto, miscellaneous petitions, if any, pending, shall stands closed and bail bonds stand cancelled.