Swamy vs State of Karnataka

N. Ananda, J.—The appellant (accused) was tried and convicted for an offence punishable u/s 376 IPC. Therefore, he is before this Court. I have heard Sri P. Nataraju, learned counsel for accused and learned Government Advocate for State.

The accused was tried for the following charge:

That on 11.10.2007 at about 8.30 p.m. in a village Kumbrahallimata, within the limits of Mysore South Police Station, you the accused had lifted CW1 Smt. Mangalamma, wife of Kariyappa, aged about 24 years, nearby bush and committed rape on her and thereby you the accused has committed an offence punishable u/s 376 of I.P.C. and within my cognizance.

Before adverting to appreciation of evidence and submissions made at the Bar, it is necessary to state certain facts which are not in dispute:

The victim (PW1) is the wife of PW3 - Kariyappa. PW4 - Puttamadaiah is the brother of P.W. 3. PW2 -Chikkathayamma is the wife of PW4. The accused and PW3 - Kariyappa (husband of PW1 - victim) are step brothers. They were living in different portions of the same house.

It is the case of prosecution that on 11.10.2007 at about 8.30 p.m., victim had gone to attend nature''s call behind her house in Kumbrahallimata village. The accused was standing near that place and committed rape on her. Thereby, accused committed an offence punishable u/s 376 IPC.

The victim has deposed the incident of rape, so also the post occurrence witnesses. During cross-examination of victim, accused has taken a definite stand that there was illicit intimacy between accused and victim. The victim was issueless. She wanted to bear a child by accused. Therefore, accused and victim had illicit intimacy and they had consensual sex, not only on the date of incident but also on several incidents prior to the date of incident From the tenor of cross-examination of victim and other post occurrence witnesses, we find that accused has sought to establish that on the date of incident, some of the witnesses had noticed accused and victim near the place of incident. Therefore the victim raised hues and cry to save her honour and to make it appear that accused had committed rape on her. The accused had also confronted a photograph to victim, wherein accused and victim are seen. As per evidence of victim, this photograph was taken in a studio in Sathebennur Village. The victim has deposed that accused took her by force and forced to have a photograph with him. The evidence of victim that she had accompanied the accused to a studio at Sathebennur under duress cannot be accepted. However, photograph of accused and victim will not lead to an inference that there was long illicit intimacy between victim and accused. Even if it is held that victim was not of good character and she was a woman of easy virtue, that cannot be a reason to hold that accused could commit rape on her and that victim had forfeited right to resist sexual assault on her.

In a decision reported in State of Uttar Pradesh Vs. Pappu alias Yunus and Another, , the Supreme Court has held:

In a rape case even assuming that the victim was previously accustomed to sexual intercourse, that is not a determinative question. On the contrary, the question which was required to be adjudicated was did the accused commit rape on the victim on the occasion complained of. Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim. Even if the victim in a given case has been promiscuous in her sexual behaviour earlier, she has right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. The prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. Thus the finding of the High Court that the girl being of loose morale and easy virtues, the accused were entitled to acquittal, would be indefensible.

From the evidence of victim and immediate post occurrence witnesses and contents of FIR, we find that soon after the incident, victim and her husband had gone to jurisdictional police station and lodged the first information against accused during the intervening night of 11/12.10.2007. The first information report had reached the jurisdictional Magistrate at 3.45 p.m. on 12.10.2007. This would lend assurance to the fact that the first information was lodged during intervening night of 11/12.10.2007 at jurisdictional police station. The distance between place of incident and jurisdictional police station is about 15 kms.

From medical evidence given by PW14 -Dr. Nirmala, we find that victim had suffered following injuries:

(i) small cut injury over the left parietal bone with no bleeding

(ii) multiple linear scratches

(iii) abrasions over right cheek sustained by nails

(iv) small cut injury over the upper lip measuring 0.5 cm.

(v) blood stains over left upper chest

The victim was examined by PW14 - Dr. Nirmala in Mysore Medical College Hospital. The injuries found on the victim are reflected in the wound certificate marked as Ex. P11. These injuries show that victim would belie the defence version that victim was a consenting party and accused had consensual sex with her.

In the circumstances, defence version of accused that victim was a woman of loose character and he had illicit intimacy with her, the accused had consensual sex with victim not only on the date of incident but also on several incidents prior to the date of incident, cannot be accepted.

The next point for determination is that whether the prosecution has proved that there was completed act of rape?

PW14 - Dr. Nirmala had examined victim in Mysore Medical College Hospital at 12.05 p.m. on the following day. At this juncture, it is relevant to state that victim had not changed her dress. She had not taken bath before going to hospital. PW14 on examination of injuries on victim and also private parts of victim and contents of Forensic Science Laboratory report has held that there was no symptoms of rape on victim. Therefore, it is not possible to hold that there was completed act of rape. Yet the fact remains accused had dragged victim to place of incident under cover of darkness and inflicted injuries on her to commit rape on her. The accused had attempted to commit rape on victim, notwithstanding the fact victim is the wife of his elder brother. Therefore, I hold the accused guilty of an offence punishable u/s 376 read with Section 511 IPC.

The learned Trial Judge without considering medical evidence has held accused guilty of an offence punishable u/s 376 IPC. It is true that accused can be convicted solely on solitary testimony of victim. However, when victim was subjected to medical examination within a short period of incident, the court has to seek corroboration from medical evidence. Therefore, the impugned judgment requires modification. In the result, I pass the following:

ORDER

The appeal is accepted in part. The impugned judgment is modified.

The accused is acquitted for an offence punishable u/s 376 IPC.

The accused is convicted for an offence punishable u/s 376 read with Section 511 IPC.

The accused is sentenced to undergo rigorous imprisonment for a period of five years and pay fine of Rs. 10,000/-, in default to undergo simple imprisonment for a period of six months.

The period of detention undergone by accused during trial is given set off u/s 428 Cr.P.C.