T.G. Ambujakshi vs Shankar and others

The judgment and order of acquittal dated 28.2.2012 passed by the III Fast Track Court, Bengaluru Rural District, Bengaluru, in S.C. No. 61/2011 is called in question in these appeals.

Crl.A.No.702/2012 is filed by the original complainant whereas Crl.A. No. 855/2012 is filed by the State. Since both the appeals arise out of the same judgment and order of acquittal, they are clubbed and heard together.

Case of the prosecution in brief is that, at about 9.00 a.m. on 23.7.2009, accused No. 1 had sexual intercourse with Ambujakshi (PW.1) in her house against her will and he had promised her to marry; thereafter, accused No. 1 with the help of accused Nos. 2 to 4 kidnapped PW. 1 in a matador vehicle to Anekal from her native place; accused No. 1 along with other accused took her to Thimmaraya-swamy temple and forcibly married her; after marrying her, again he had sexual intercourse with her against her will.

However in the meanwhile, a missing complaint as per Ex.P5 came to be lodged by PW.2 - father of the victim at 5.00 p.m. on 24.7.2009 and at that point of time, the victim was aged about 18 years. The missing complaint was registered in Crime No. 129/2009 at Tirumalashettyhalli Police Station. Subsequently, another complaint as per Ex.P2 is lodged on 16.9.2009 at 6.50 p.m, which came to be registered in Crime No. 139/2009 at Tirumalashettyhalli Police Station by the Sub-Inspector of Police-PW. 14 for the offences punishable under Sections 366 and 494 of IPC. One Mr. P. Shiva Kumar - Circle Inspector of Police, Tirumalashettyhalli Circle, completed the investigation and laid charge-sheet. However, said Shiva Kumar (CPI) is not examined before the Court.

In order to prove its case, the prosecution in all has examined 14 witnesses and got marked 16 Exhibits and 4 Material Objects. On behalf of the defence, one Exhibit got marked. As mentioned supra, the Trial Court on evaluation of the material on record acquitted the accused.

Sri. Vishnu Murthy, learned Advocate and Sri. Majage, learned Additional SPP taking us through the material on record including the judgment of the Court below submit that, the Court below is not justified in acquitting the accused; absolutely no reasons are assigned by the Trial Court to disbelieve the version of PW. 1/victim of the crime the evidence of PW. 1 itself is sufficient to bring home the guilt against the accused; the document at Ex.P1 is not proved by the defence as required under the provisions of the Act and therefore, the same cannot be relied upon by the defence; the reasons assigned and the conclusion arrived at by the Trial Court are improper and incorrect.

However, learned Advocate appearing on behalf of the respondents argued in support of the judgment of the Court below.

PW.1 is the victim. She has supported the case of the prosecution by deposing as per the complaint lodged by her father at Ex.P2.

PW.2 is the complainant. He is the lather of the victim. He has lodged missing complaint as per Ex.P5 and thereafter he bulged the complaint as per Ex.P2 based on which the proceedings herein are initiated. The has lodged the complaint based on the information given to him by the victim.

PWs.3, 4, 5, 6, 7, 8 and 13 have tinned hostile to the case of the prosecution. Though they are cross-examined by the prosecution as well as by the defence, no useful purpose is served. Hence, their evidence is of no use for deciding this matter.

PW.9 is the Woman Police Constable. She has taken the victim to the medical examination.

PWs.10 and 12 are the Police Constables who have participated during the course of investigation.

PW.11 is the doctor, who has issued age estimation certificate of the victim as per Ex.P11 which discloses that the age of the victim is in between 16 to 18 years. He has also issued medical report of the accused as per Ex.P12.

PW. 14 is the Sub-Inspector of Police. He received the complaint as per Ex.P2 and registered the same. He sent FIR to the jurisdictional Magistrate. He conducted part of the investigation.

As mentioned supra, Mr. P. Shiva Kumar, Circle Inspector of Police (CW.23) completed the investigation and laid the charge-sheet. However, he is not examined before the Court.

From the above, it is clear that the case of the prosecution mainly rests on the evidence of PW.1- Prosecutrix. We are conscious of the law and it is by now well settled that the evidence of prosecutrix alone is sufficient to bring home guilt against the accused if her evidence before the Court is reliable, trustworthy and untainted. Since the case of the prosecution (in this case) fully rests on the evidence of the prosecutrix (PW.1), we have evaluated her evidence and other evidence on record carefully. According to the prosecution, the victim was missing from 9.00 a.m. on 23.7.2009. Father of the victim namely Govindappa (PW.2) lodged missing complaint on 24.7.2009. In the said missing complaint, he has not suspected anybody with regard to missing of the victim. Subsequently, he lodged another complaint as per Ex.P2 on 16 9.2009, i.e., after about two months of missing of the victim based on which the criminal proceedings are initiated. According to the prosecution, the victim was traced on 16 9.2009. PW.2 coming to know about the victim''s presence in the Police Station on 16.9.2009, lodged the complaint as per Ex.P2 on the very day itself, which means that the victim though was major in age, did not try to lodge the complaint anytime from 23.7.2009 to 16.9.2009.

It really the victim was kidnapped and if really she was forced to marry accused No. 1 and to have sexual intercourse with him, she would not have kept quiet without lodging the complaint at least within a reasonable period from 23.7.2009. Admittedly, the prosecutrix was studying in II Year PUC, i.e., 12th Standard and therefore it cannot be said that she was not educated. She was bold enough to go to college at Siddapur from her village Thindlu; everyday she used to go to college on cycle and come hack; she was knowing Kannada, Tamil and Telugu languages; since she was studying in II Year PUC, she would be knowing English language also at least to certain extent.

The contents of the complaint at Ex.P2 based on which the prosecution is launched, reveal that the complainant (father of the victim) though was searching for the victim, did not find her whereabouts till 16.9.2009. The complaint further mentions that accused No. 1 has already married and has got two children and he is living apart from his wife; that accused No. 1 took the victim and married her second time and therefore the complainant has prayed to register a case against accused No. 1 who married her daughter as second wife. The complainant has not made any allegations with regard to sexual harassment, etc. against accused No. 1 or anybody.

However, the prosecutrix-PW. 1 has deposed that the accused came in a matador van and waylaid her when she was going to college on her cycle; accused No. 2-Srinivas got down from the said vehicle; accused No. 2 is none other than the cousin of the victim; he directed her to proceed with them in the vehicle; when she refused to do so, he slapped on her cheek; immediately other accused tied the mouth of the victim and took her in the said vehicle; she was confined in a room wherein accused No. 1 subjected her to sexual intercourse; thereafter accused No. 1 used to have sexual intercourse everyday; ultimately she was taken to Thimmarayaswamy temple near Anekal Town and performed her marriage with accused No. 1 by facilitating accused No. 1 to tie thali (mangalasutra) to the neck of the victim; after four days of the marriage, all the accused took the victim and left her near Tirumalashettyhalli Police Station, wherein the Sub-Inspector of Police took her statement; she has signed on the said statement.

In the cross-examination, the victim has admitted that she has given the statement as per Ex.D1 and she has signed on the said statement as per Ex.D1(a). She has admitted that she was aged 17 years at the time of incident in question. She has further admitted that she can put her signature in English and that she has put her signature in a different manner in the hospital. As mentioned supra, she has admitted that she has given the statement as per Ex.D1 before the police and the same is signed by her.

We have perused the statement of the victim-PW. 1 recorded before the police as per Ex.D1 which discloses that the victim was having love affair with accused No. 1 since two years prior to the incident in question; so also accused No. 1 was loving her very intensively; since one year, both of them were having sexual intercourse; about 3 to 4 months prior to the incident in question, all the family members of the victim (i.e., her parents and brothers) started torturing her both physically and mentally on the ground that the victim was having live-in-relationship with accused No. 1; since 2 to 3 months prior to the incident, such harassment by the parents and brothers of the victim multiplied and therefore she informed accused No. 1 about she being harassed by her family members repeatedly; she was aware that accused No. 1 was having wife and children during the relevant point of time; the victim herself pressurised accused No. 1 to take her elsewhere to lead happy life and accordingly, accused No. 1 took her to Anekal on 23.7.2009 and both of them were staying together in Anekal; she was two months� pregnant during the relevant point of time and she was aged about 17 years. While she was staying with accused No. 1 at Anekal, she came to know that a complaint came to be lodged by her father before Tirumalashettyhalli Police Station and therefore she voluntarily came to the Police Station on 16.9.2009; PW.2-Govindappa (father of the victim) having come to know about the same, came to the Police Station; when he reached the Police Station, he was informed by her daughter (victim) that both of them were having love affair and she was with accused No. 1 since two months; however, PW.2 did not agree for such relationship and therefore he went back to his house without taking the victim along with him; consequently, she was housed in remand home during the night of 16.9.2009. On the next day, the statement as per Ex.D1 of the victim came to be recorded by the Sub-Inspector of Police-PW. 14

As mentioned supra, the victim has clearly admitted that she has given statement as per Ex.D1 before the police. She has signed the said statement. Furthermore, the Sub Inspector of Police-PW. 14 has also admitted that the victim has given statement as per Ex.D1. Ex.D1 came to be marked without any objection of anybody much less by the prosecution. It is no doubt true that the contents of Ex.D1 were not confronted to the victim during her cross-examination, but the fact remains that Ex.D1 was marked with consent and she has admitted that she has given such statement as per Ex.D1 and she has signed the same. Since the victim was educated and as she was knowing very well the contents of Ex.D1, consciously she has made the statement as per Ex.D1 and has signed the same. Even the Sub-Inspector of Police also admitted the recording of the victim as per Ex.D1.

From the above, we are of the clear opinion that the defence of accused No. 1 that the victim was having love affair with him stands proved and substantiated.

Though the victim was subjected to medical examination and during such examination certain items like petticoat, blouse, panty, saree, nail clipping, pubic hair, vaginal swabs, etc. of the victim were secured and sent to Forensic Science Laboratory, no useful purpose was served for the prosecution, inasmuch as presence of seminal stain is not detected on any of the above items.

It is not in dispute that the victim was aged 17 years at the time of the incident in question. Hence, it is clear that she was not below the age of 16 years. The records also make it clear that the victim was having love affair with accused No. 1 since 2 to 3 years. So also there is nothing on record that the victim was subjected to sexual intercourse by accused No. 1 forcibly. The FSL report is also against the case of the prosecution. Though the victim was subjected to medical examination for the purpose of her age estimation, she was not subjected to medical examination to find out as to whether the victim was subjected to sexual intercourse or not by accused

In the light of such material on record, in our considered opinion, the trial Court is justified in acquitting the accused, inasmuch as the prosecution has not proved its case beyond reasonable doubt. Even on re-appreciation of the entire material on record, we do not find any ground to interfere with the order of acquittal. We find that the view taken by the trial Court while acquitting the accused is the plausible view under the facts and circumstances.

Hence, no interference is called for. Accordingly, the appeals fail and the same stand dismissed.