Suresh vs State of Karnataka

Budihal R.B., J.—Though this revision petition is listed for admission but with the consent of both the counsels it is taken up for final disposal.

Brief facts of the case are that the victim girl filed complaint on 25.12.2012 wherein she has alleged that on 18.12.2012 in the morning the present petitioner stating that he will marry her and asked her to come to Navalgund bus stand. He also stated that he has already told the same thing to her parents and they have also agreed. Accordingly, she came to Navalgund bus stand about 1.00 p.m. and she searched for the present petitioner upto 6.00 p.m. and he has not come. There afterwards the present petitioner came to the said place on his hero honda motorcycle and he took her to Halekusugal and after taken her to his house. He told that his parents have gone to another village, then the victim girl told him if the parents are not in the house she will go back. Then the petitioner forcibly retained her in the house and forcibly he removed her clothes and then he slept on her and put his private part into the private part of the victim girl inspite of her protest and even after she objected for the same he committed sexual intercourse on her. On the next day stating that he will marry her and told that they can go to his parents and he brought her on the motorcycle and left her near Yamanur cross stating that he will come back after taking the petrol to his vehicle and then he did not come back.

On the basis of the said complaint filed by the victim girl a case was registered wherein the petitioner herein has been arrayed as accused No. 1. Investigation was conducted and the Investigating Officer filed charge sheet before the trial Court. Then it was committed to the Court of Sessions wherein the present petitioner made application u/S 227 of Cr.P.C. seeking his discharge from the proceedings. Same was objected by the prosecution and after hearing the counsels on both the sides ultimately the trial Court rejected the application holding that there are prima facie materials to show involvement of the present petitioner in committing the alleged rape. The said order has been challenged before this Court in this criminal revision petition.

I have heard arguments of the learned counsel appearing for the petitioner-accused No. 1 and also the learned Govt. Pleader for the respondent-State.

Learned counsel for the petitioner submitted that the victim girl is aged 18 years even according to her contention in the complaint and though it is stated that the alleged incident of forcible sexual intercourse said to have been taken place on 18.12.2012 but the complaint was lodged after seven days, i.e., on 25.12.2012. Hence, submitted that this delay is not properly explained by the prosecution. Further, he made submission that so far as the alleged act of forcible sexual intercourse of the victim girl is concerned her case is not supported by the medical reports. He submitted that the articles were sent to FSL for examination and report of the FSL clearly goes to show that no blood stains and seminal stains were found on the articles sent for examination. Hence, it is his contention that, when the case is not supported by the medical evidence and the averments made in the complaint is the only material and when there is a delay in lodging the complaint it cannot be said that there is prima facie materials to frame charge against the present petitioner for the alleged offences.

It is also his contention that, looking to the order passed by the trial Judge the materials were not at all properly examined and the learned Sessions Judge by observing in one sentence "perusing the materials and the medical evidence there is a prima facie case made out by the prosecution". Hence, he submitted that the learned Sessions Judge has not properly appreciated the investigation materials and wrongly proceeded to pass such order. Hence, learned counsel submitted the petition be allowed and the order passed by the learned Sessions Judge be set aside and the present petitioner may be discharged from the proceedings.

Per contra learned Govt. Pleader made submission that though there is a delay in lodging the complaint but looking to the materials placed on record and looking to the nature of the offences said to have been taken place this is natural because in case of such offences there will be come delay. It is also his submission that looking to the medical evidence, the Doctor who examined the victim girl clearly observed that hymen was ruptured and there are signs of sexual intercourse of the victim girl. Hence, he submitted that this is sufficient to proceed with the trial of the case and when the complainant has given complaint making specific allegation that the manner in which the incident has taken place that too in the house of the present petitioner. He further submitted it is not a fit case to discharge accused No. 1. Hence, he submitted that the order of the learned Sessions Judge is in accordance with law and does not require interference by this Court.

I have perused the averments made in the petition, the order passed by the trial Court on the discharge application and I have also perused the entire charge sheet material produced along with the petition by the learned counsel for the petitioner.

Complainant in this case is the victim girl. On perusing the complaint dated 25.12.2012 there is clear allegation by the complainant that she was taken to the house of the present petitioner on his motorcycle and after coming to the house the petitioner told her that the parents are not in the house. Then though she stated that if the parents are not there she wanted to go back he had not allowed her to go and retained her at the house. In the night the petitioner forcibly removed her clothes, he slept on her, put his private part into her private part and thereby committed forcible sexual intercourse inspite of her protest and though she told him not to do like that.

I have also perused the medical evidence. The Doctor who examined the victim mentioned so far as the hymen is concerned, is ruptured at 3''o clock and 9''o clock position and one finger can be inserted easily. It is also mentioned by the Doctor after gynecological examination of the victim he is of the opinion that hymen is not in tact. She is used to the act like that of sexual intercourse. No doubt true it is mentioned by the same Doctor on vaginal and cervical smears are negative for spermatozoa. So also I have perused the FSL report dated 14.03.2013. According to this totally 12 articles were sent for examination and report and in the opinion column of the FSL Report it is mentioned at sl. No. 1 that presence of blood was not detected in article No. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12. It is also mentioned that presence of Seminal stain was not detected in item No. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12.

Looking to these materials placed on record it is seen that, firstly in the complaint there is allegation that there is forcible sexual intercourse on her. Regarding sexual intercourse and the signs therein the Doctor opinion is also positive. Hymen said to have been ruptured. May be presence of spermatozoa was not seen by the Doctor according to the report.

On perusal of the materials on record they establish prima facie case as against the present petitioner for committing the offence of rape. Even discharge of semen is not necessary, penetration is sufficient. There need not be ejaculation, about all these aspects during the course of trial, the trial Judge has to thrash out the matter on the basis of the evidence going to be examined before the trial Court. So far as the delay in lodging the complaint is concerned, it is submitted by the learned Govt. Pleader that such a serious offence wherein it is going to affect the honour and dignity of the family in the Indian Society, it is quite natural that the elders and parents to take some time to decide in the matter to approach the Police Station or Court or not. These are the things to be considered by the trial Court after full fledged trial.

At the stage of considering the application under Section 227 of Cr.P.C. the Court has to see whether on the basis of the material collected during the investigation prima facie case about involvement of the accused the Court cannot conduct a mini trial and embark to ascertain truth or falsity of such statements.

Therefore, looking to the materials collected by the I.O. the learned Sessions Judge observed in the impugned order that he has examined the investigation materials and held that there is prima facie case as against the present petitioner. On perusal of the entire materials on record and the order of the learned Sessions Judge, I do not find any illegality in the said order and the same is in accordance with law. There is no merit in the revision petition. Accordingly, I pass the following order.

Criminal revision petition is hereby rejected.

It is made clear that, whatever the observations made in the body of this order are made only for disposal of this petition and the learned Sessions Judge shall not be influenced by the same and shall dispose of the matter in accordance with law.