Karnataka High Court

The State Of Karnataka vs Sannadurukundayya S/O Dodda ... on 11 August, 2022

Bench: Dr. H.B.Prabhakara Sastry, C.M. Poonacha

          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 11TH DAY OF AUGUST 2022

                           PRESENT

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                              AND

       THE HON'BLE MR. JUSTICE C.M. POONACHA

          CRIMINAL APPEAL No.200074/2014

BETWEEN:

The State of Karnataka
Through CPI, Manvi Police Station
Reptd. by its Addl. State Public Prosecutor
                                                    ... Appellant
(By Sri Prakash Yeli, Addl. SPP)

AND:

1.     Sannad Urukundayya S/o Dodda Ayyappa
       Age: 25 years
       R/o Korvi village, Tq. Manvi
       Dist. Raichur

2.     Hanumantha S/o Dodda Ayyappa
       Kambaladinni
       Age: 27 years
       R/o Korvi village, Tq. Manvi
       Dist. Raichur
                                                 ... Respondents
(By Sri J. Augustin, Advocate)


      This Criminal Appeal is filed under Section 378 (1) and (3)
of the Code of Criminal Procedure, 1973, praying to grant leave
                                                Crl.A.No.200074/2014
                                  2




to appeal against the judgment and order dated 01.02.2014
passed by the I Additional Sessions Judge, Raichur, in Sessions
Case No.138/2010, to set aside the aforesaid judgment and
order of acquittal dated 01.02.2014 passed by the I Additional
Sessions Judge, Raichur, in Sessions Case No.138/2010 thereby
acquitting the respondents-accused for the offences punishable
under Sections 448, 376, 504 and 506 read with Section 34 of
IPC and to convict and sentence the respondents/accused for
the offences under Sections 448, 376, 504 and 506 read with
Section 34 of IPC.

      This Criminal Appeal having been heard through Physical
Hearing/Video Conferencing Hearing and reserved for judgment
on 01.08.2022, coming on for pronouncement this day,
Dr.H.B. Prabhakara Sastry J. delivered the following:

                            JUDGMENT

The State has filed this appeal under Section 378 (1)

& (3) of the Code of Criminal Procedure, 1973 challenging

the judgment of acquittal dated 01.02.2014 passed by the

learned Additional Sessions Judge, Raichur (hereinafter for

brevity referred to as the 'Sessions Judge's Court') in

S.C.No.138/2010, acquitting the accused of the offences

charged against them.

2. The summary of the case of the prosecution in

the Sessions Judge's Court was that on 09.09.2009 at

about 2.00 p.m. in the house of PW-3 (henceforth called as

'victim girl') in Koravi village, within the limits of Crl.A.No.200074/2014

complainant police station, the accused No.1 confirming

that there was nobody in the house of the victim girl,

except the victim girl, criminally trespassed into the said

house and committed rape upon the victim girl. He also

put life threat to her stating that if she discloses the said

act to anybody, he would kill her. Apart from these acts,

the accused No.1 subsequently also, up to the date

26-02-2010, was visiting the house of the victim girl when

there was none other in the said house and committed

rape upon her. This act continued up to 26.02.2010.

Thereafter, PW-6 - Eramma the mother of the victim came

to know about the incident through her daughter i.e., the

victim girl and joined by her relatives, went to the house of

the accused to question them about the act committed by

accused No.1. However, accused Nos.1 to 4 who were the

members of the same family, abused PW-6 and other

persons accompanying her. A complaint given by PW-6 in

that regard was registered against four accused in the

appellant - station Crime No.74/2010 for the offences

punishable under Sections 376, 504, 323, 506 read with Crl.A.No.200074/2014

Section 34 of the Indian Penal Code, 1860 (hereinafter for

brevity referred to as the 'IPC'). However, after

investigation, charge sheet was filed against accused

Nos.1 and 4 in the complaint for the offences punishable

under Sections 448, 376, 504, 506 read with Section 34

of IPC. However, the charges were framed against

accused No.1 in the Sessions Judge's Court for the

offences punishable under Sections 451, 376 of IPC.

Accused No.4 (also referred as accused No.2 at

some places in the Sessions Judge's Court's Judgment)

along with accused No.1 was charged for the offences

punishable under Sections 504, 506 read with Section 34

of IPC.

3. In order to prove the guilt against the accused,

prosecution got examined sixteen (16) witnesses as PW-1

to PW-16 and got marked documents from Exs.P-1 to Crl.A.No.200074/2014

P-14. From the accused's side, neither any witness was

examined nor any documents were marked as exhibits.

After hearing both side, the learned Sessions Judge's

Court, by its judgment dated 01.02.2014, acquitted the

accused of the offences punishable under Sections 451,

376, 506, 504 read with Section 34 of IPC. Challenging

the same, the State has preferred the present appeal.

4. The respondents/accused are being represented

by their learned counsel.

5. The Sessions Judge's Court records were called

for and the same are placed before this Court.

6. Heard the arguments from both side. Perused

the materials placed before this Court including the

memorandum of appeal, impugned judgment and the

Sessions Judge's Court records.

7. For the sake of convenience, the parties would

be henceforth referred to as per their rankings before the

learned Sessions Judge's Court.

Crl.A.No.200074/2014

8. The points that arise for our consideration in

this appeal are:

(i) Whether the prosecution proves beyond all reasonable doubt that on 09.09.2009 at about 14.00 hours and on 26.02.2010 at about 13.00 hours accused No.1 committed criminal trespass into the house of complainant the 'victim girl' situated in Korvi village and thus committed an offence punishable under Section 451 of IPC?

(ii) Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place accused No.1 committed rape on the 'victim girl' a minor girl and thus committed an offence punishable under Section 376 of IPC?

(iii) Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place accused No.1 committed criminal intimidation against the 'victim girl' and thus committed an offence punishable under Section 506 read with Section 34 of IPC?

(iv) Whether the prosecution proves beyond all reasonable doubt that on 14.03.2010 at about 8.00 hours accused Nos.1 and 4 in front of their house, in furtherance of their common intention, insulted the 'victim girl' and her mother Eramma by abusing them in filthy language and also committed criminal intimidation thus committed offences punishable under Section 504, 506 read with Section 34 of IPC?

Crl.A.No.200074/2014

(v) Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?

9. Learned Additional State Public Prosecutor for

the appellant, in his argument, submitted that PW-3, PW-6

and PW-7 have fully supported the case of the prosecution.

The evidence of these witnesses, more particularly, the

evidence of the victim girl cannot be doubted or suspected

since the same has come in a natural form and in a

trustworthy manner. Stating that mere absence of the

supporting medical evidence would not take away the

evidentiary value of PW-3, the learned Additional State

Public Prosecutor relied upon a judgment of the Hon'ble

Apex Court in Motilal vs. State of Madhya Pradesh

reported in (2008) 11 SCC 20 in his support. Further,

submitting that minor contradictions or insignificant

discrepancies in the statement of prosecutrix should not be

a ground for throwing out an otherwise reliable prosecution

case and that the testimony of the victim of a sexual

assault is vital, the learned Additional State Public Crl.A.No.200074/2014

Prosecutor also relied upon a judgment of the Hon'ble

Apex Court in State of Punjab vs. Gurmit Singh and

others reported in (1996) 2 SCC 384 in his support.

While concluding, he also submitted that even if it is taken

that PW-3 the victim girl was a consenting party, still a

minor's consent is not a valid consent in the eye of law.

The learned Additional State Public Prosecutor submitted

that the Sessions Judge's Court has ignored all these

aspects and not properly appreciated the evidence placed

before it, which has resulted in it passing the judgment of

acquittal.

10. Learned counsel for the respondents/accused,

in his argument, submitted that the prosecution has failed

to prove that the alleged victim girl was minor in her age.

On the contrary, the very statements made by the alleged

victim girl i.e., PW-3 in her cross-examination shows that

she had attained the age of majority as on the date of the

alleged incident. He also submitted that there is no

support from medical evidence with respect to alleged act Crl.A.No.200074/2014

of rape. Thus, the Sessions Judge's Court has rightly

acquitted the accused of the alleged offences.

11. Among the sixteen witnesses examined by the

prosecution, the important witnesses who speak about the

alleged incident are mainly PW-3 (CW-1), the alleged

victim girl and PW-6 (CW-4) Smt. Eramma the mother of

the alleged victim girl.

12. PW-3 (CW-1) the victim girl has stated that

both the accused who are resident of her village Koravi are

known to her. They are residing very near to her

residence in the said village. She was residing in her

house along with her mother i.e., PW-6 (CW-4) Eramma.

Accused No.1 had a sheep-pen near her house and used to

sleep every night in the said sheep-pen after pooling the

sheep inside. About the incident the victim has stated that

on 09.09.2009 her mother i.e., PW-6 (CW-4) had been to

her coolie work. As such, she was alone in her house. On

that afternoon at about one o' clock, while she was sitting

outside her house, the accused No.1 approached her and Crl.A.No.200074/2014

holding her hand, took her inside the house, after closing

the door, he took her to an inner room and making her to

fall on the ground, he spoiled her. Even though she wept,

he did not leave her. Further, he threatened her that in

case if she reveals of his act of spoiling, to anyone, he

would kill her. The witness further stated that after the

said incident, once in ten or fifteen days the accused used

to visit her in her house in the absence of her mother and

used to spoil her. One day her mother asked her as to

why the accused was visiting their house, then she

revealed the incident before her mother. It is thereafter

her mother took her to police station and a complaint was

lodged against the accused, which this witness has

identified as Ex.P-2. She also stated that as on the date of

her evidence which was on 22.06.2011, she was aged 15

years. In her cross-examination, she stated that after her

complaint to the police, she was sent to a hospital where

two doctors examined her. She gave more description

about the location of her house and the sheep-pen. She

made it clear that what she meant by she was spoiled was Crl.A.No.200074/2014

the accused committing rape upon her. She also gave

further description as to what injuries she sustained when

the accused, for the first time, committed rape upon her

and how long the event took place in the first incident and

on subsequent repetition of the incident.

13. PW-6 (CW-4) Eramma the mother of PW-3 - the

victim girl, has stated that as on the date of the incident

her daughter was 15 years old. She stated that

accused No.1 has got a sheep-pen near their house and

accused No.2 - Hanumantha is the elder brother of

accused No.1. About the incident, the witness has stated

that on the date of the first incident she had been to a

place called Manvi for marketing (shandy), at that time her

daughter (PW-3) was alone in the house. When she

returned in the evening, she saw the accused No.1 was

present in her house along with her daughter. After seeing

her, the accused went out of the house. She questioned

her daughter about the presence of the accused No.1 in

their house and advised that it was not better to allow Crl.A.No.200074/2014

accused No.1 to their house. The witness further stated

that her daughter informed her that accused No.1 had

sexual intercourse with her promising that he would marry

her and also that he had threatened her to her life stating

that if she discloses the matter before anyone, he would

kill her. The witness stated that on the next day in the

morning she along with her daughter, CW-5, CW-6 and

CW-7 went to the house of accused No.1 and at that time

the accused Nos.1 and 4 and their parents were present in

the house. She informed about the incident to them.

However, they started abusing in filthy language and also

threatened her. It is only after three days thereafter she

took her daughter to police station and lodged the

complaint. Even though she was subjected to a detailed

cross-examination, she adhered to her original version.

14. The next set of witnesses whom the prosecution

examined, projecting them as the witnesses knowing about

the incident are, PW-4 (CW-8) Sri Hanumanth S/o Crl.A.No.200074/2014

Ayyappa, PW-7 (CW-5) Sri Arolli Malleshi, PW-11 (CW-7)

Sri Venkatesh and PW-12 (CW-6) Sri Meti Earanna.

15. According to prosecution, PW-4 was expected to

speak about he coming to know about the incident through

the mother of the victim girl i.e., PW-6 and has given a

statement before the police as per Ex.P-3. However, this

witness did not support the case of prosecution. Even

after treating him as hostile, the prosecution could not get

any support from this witness. PW-7, PW-11 and PW-12

are the relatives of PW-6. Among them, PW-7 was

residing near to the house of PW-3 the victim girl, PW-12

is the resident of the same village Koravi where PW-3 was

residing and PW-11 is the maternal uncle of PW-3 and he

was residing in a village called Umali Pannur. All these

three witnesses have uniformly stated that they came to

know about the incident through PW-6 Eramma. They got

it confirmed from the victim girl also about the incident.

Therefore, they came to know that accused No.1 who was

a resident nearby to the house of PW-3 has committed Crl.A.No.200074/2014

rape on the victim girl. Thereafter, all these three

witnesses joined by PW-3 and her mother i.e., PW-6 went

to the house of accused No.1 and informed the parents of

accused No.1 i.e., original accused Nos.2 and 3 about the

incident.

16. PW-7 stated that the father of accused No.1

admitted the incident stating that the mistake has taken

place. However, the other accused Hanumantha abused

them all, more particularly, PW-3 and PW-6 calling them as

prostitutes and asked them to do whatever they want to

do. It is thereafter they returned back and PW-3 and

PW-6 proceeded to lodge a police complaint against the

accused. PW-7 has further stated that during the

pendency of the trial, feeling humiliated and insulted, PW-3

committed suicide by hanging. All these three witnesses in

their cross-examination, adhered to their original version.

Though these three witnesses are hearsay witnesses

about the alleged incident,but they are the primary witnesses

with respect to the alleged act of PW-3, PW-6 accompanied Crl.A.No.200074/2014

by these witnesses going to the house of the accused and

informing them about the incident and also returning back

after being abused and threatened by them. The evidence

of PW-7, PW-11 and PW-12 given in their examination-in-

chief could not be shaken in their cross-examination.

17. The evidence of the above witnesses that

accused No.1 had a sheep-pen near the house of PW-3 the

victim girl, which according to PW-3 was only at a distance

of 10 feet away and the house of the accused was also

very near to their house is not denied in their cross-

examination. As such, it stands an undisputed fact that

accused No.1 and the complainant family were known to

each other. They were residing in the very same village as

residents of nearby houses. Accused No.1 had a sheep-

pen very near to the house of PW-3 and PW-6 and accused

No.1 used to sleep in the said sheep-pen every night.

PW-3 and PW-6 were residing in their house and there

were no other members in their family in the said house.

Crl.A.No.200074/2014

18. About the incident, PW-3 has stated that first

time on the date 09.09.2009 when her mother was away

from home, the accused came to her house and asked her

to come with him, when she questioned him as to why she

should come, he forcibly took her inside her house and

after closing the door, pulled her to a room inside and

making her to fall on the ground, committed rape upon

her. The witness also stated that he had put her into life

threat and threatened that she should not disclose about

the incident to anyone. According to PW-3 the said act of

the accused having sexual intercourse with her continued

till 26.02.2010. Once in ten or fifteen days he used to

come to her house, after confirming that her mother was

not at home and was subjecting PW-3 to rape.

19. The said evidence of PW-3 is further

corroborated by the evidence of none else than her mother

i.e., PW-6. She too has given the evidence on the same

lines as that of PW-3. However, admittedly, she is a

hearsay witness who claims to have heard about the Crl.A.No.200074/2014

incident from none else than her daughter said to be the

victim. In the cross-examination of both these witnesses,

attempts were made to elicit that the victim girl was major

in her age at the time of the alleged incident. In that

regard, in the cross-examination of PW-3 statement was

elicited to the effect that she was residing at a village

called Kambaladinni for about 10 years and since about six

years she has been in Koravi village. She also stated that

in the very same year when she came to Koravi village,

she was admitted to school by her mother.

20. It is relying upon the said evidence of PW-3,

learned counsel for the respondents, in his argument

submitted that the said detail of residence given by PW-3

go to show that prior to coming to Koravi village, for 10

years she was in Kambaladinni village and according to the

evidence of the Headmaster of the school, i.e., PW-5, she

was admitted to school in the year 2001, thus, as on the

year 2001 she was 10 years old. Incident is alleged to

have taken place in the year 2009, as such, as on the date Crl.A.No.200074/2014

of incident, the victim girl should have been 18 years old.

With this, he submitted that this evidence of PW-3 is

suspectable and alleged repeated act of sex go to show

that she was a consenting party and therefore, it cannot

be a rape as alleged by the prosecution.

21. With respect to the age of the alleged victim

girl, the evidences are there from PW-3, PW-6 and PW-5.

PW-3 the alleged victim girl as on the date of her evidence

which was recorded on 22.06.2011 has stated that her age

is 15 years. In her examination-in-chief she has stated

that her age is 15 years. Therefore, according to her, who

claims to have gone to school up to 5th standard, her age

was 15 years as in the year 2011.

According to PW-6 the mother of PW-3, as on the

date of lodging the complaint with the police, age of her

daughter was 15 years. In her cross-examination, PW-6

has stated that her marriage had taken place about 20

years back (to the date of her evidence). Within one year

of her marriage, the first issue was born. After about 5 Crl.A.No.200074/2014

years of the birth of her son, her daughter (victim girl) was

born. She further stated that after about five years of

coming over to village Koravi from village Kammaladinni of

Andhra Pradesh, PW-3 (victim girl) was born. She also

stated that her daughter (PW-3) matured about two years

one month back to the date of her evidence.

The said oral evidence given by PW-6, who is none

else than the mother of the victim girl, regarding the age

of her daughter has not been specifically denied in her

further cross-examination, except making the suggestion

that as on the date of her evidence the age of the victim

girl was 22 years. However, the witness has not admitted

the said suggestion as true.

22. Regarding the sequence of birth of the children,

the mothers would be in a better position to tell, than their

minor children. Though PW-3 has stated

in her cross-examination that she was in Kambaladinni for

ten years and for the past six years she was in Koravi

village, however, she has not stated as to in which year Crl.A.No.200074/2014

they came to Koravi village and prior to that from which

year to which year they were in Kambaladinni village.

More importantly, when PW-3 is said to be a girl having

attended schooling up to 5th standard, she could have been

in a better position to give her date of birth. However, no

attempt was made from either side to elicit the date of

birth from the mouth of the witness. Still, the said witness

had more than one place stated that in the year 2011 i.e.,

the date of recording of evidence she was 15 years old.

Therefore, if we believe her statement that she was 15

years old as on her date of evidence i.e., 22.06.2011, her

statement that for 10 years she was in Kambaladinni

village and over the past six years she has been in Koravi

village becomes a false statement. On the contrary, if her

statement that for 10 years she was in Kambaladinni

village and thereafter since six years she is in Koravi

village is believed, then her statement that she was 15

years old as on the date of her evidence also becomes an

incorrect statement. Therefore, regarding her age the Crl.A.No.200074/2014

better witness who could speak clearly is her mother i.e.,

PW-6 and victim girl's educational records, if any.

As observed above, PW-6 the mother of the victim

girl has stated that as on the date of her evidence i.e., in

September, 2012 the age of PW-3 was 17 years. The

alleged incident is said to have taken place in the year

September 2009 up to February, 2010. As such, as on the

date of alleged offence, the age of PW-3 would come at

about 14 to 15 years. The sequence of PW-6 coming to

Koravi village and birth of her children as analysed above

would also go to show that after her marriage, which took

place about 20 years prior to the date of her evidence,

within one year their first issue was born. After about five

years after birth of their son, PW-3 the daughter was

born. Therefore, from the year of their marriage till the

year of birth of PW-3, there was a gap of nearly six years.

Thus, the age of the daughter (PW-3) would be 14 years.

The witness has further stated that after about 5 years of

she coming to village Koravi from their village

Kammaladinni, PW-3 was born. This also go to show that Crl.A.No.200074/2014

after the birth of her son, when that boy was about 4 years

old, she came to Koravi village and PW-3 was born to her

in Koravi village. Therefore, the said undisputed statement

of PW-6 gives more clear picture about the year of birth of

PW-3.

23. Apart from PW-3 and PW-6, the witnesses who

speak about the age of PW-3 the victim girl, more

specifically is, PW-5 (CW-9) Hanumanthappa, the

Headmaster of Higher Primary School at Koravi. He has

identified the certificate at Ex.P-4 regarding date of birth

said to have been issued by him to the Investigating

Officer, based upon the entries made in the school

admission register. The said certificate at Ex.P-4 shows

that date of birth of PW-3 who is daughter of Bheemappa

Kambaladinni as entered in their school record is

05.06.1995. The said certificate also shows that from the

year 2001-02 up to the year 2005-06, the said girl studied

in their school from 1st standard to 5th standard.

Crl.A.No.200074/2014

24. Several attempts were made in the cross-

examination of PW-5 suggesting to the witness that the

date of birth given at the time of admission of a child to

the school in several cases would be imaginary and would

not be an accurate one. The witness has not admitted

those suggestions as true. Thus, the evidence of PW-6,

who is none else than the mother of the victim girl and the

evidence of PW-5, the Headmaster of the school and the

document at Ex.P-4 shows that the age of PW-3, as on the

date of the alleged offence, was 14 completed years.

25. Apart from PW-3, PW-5 and PW-6, it is PW-14

Dr. Jawahar Babu, the Orthopedic Surgeon, then working

in RIMS Hospital, Raichur has also stated that he too has

examined the alleged victim girl about her age. According

to him the age of the said girl was between 14 to 16 years

as on the date of her examination i.e., 17.03.2010. He

had identified the Dentist and Radiologist reports at

Exs.P-12 and P-13 and X-rays of the girl at Ex.P-14. The

Radiological report has revealed the skeletal age based on Crl.A.No.200074/2014

X-rays of PW-3 as between 14 and 16 years as on

02.06.2010. The hospital OPD card at Ex.P-13 records her

age as 15 years. The case sheet which is also the part of

Ex.P-13 shows the medical opinion of the age of the girl as

between 14 to 16 years. The Dental Department's opinion

which is also part of the medical report at Ex.P-13 has

assessed the age of the girl between 15 to 16 years. Thus,

both the oral evidence of PW-5 and PW-6 corroborated by

Exs.P-4, P-12, P-13 and P-14 and the medical opinion of

PW-14 proves that PW-3, the alleged victim girl was minor

in her age somewhere between 14 to 15 years as on the

date of the alleged offence. Furthermore, the finding of

the Sessions Judge's Court in its impugned judgment that

the alleged victim girl was minor as on the date of alleged

incident has also not been challenged by the accused.

Thus, the argument of the learned counsel for the

respondents that the victim girl was major in her age as on

the date of the alleged incident is not acceptable. On the

other hand, it is established that said girl was minor in her

age.

Crl.A.No.200074/2014

26. As analysed above, the alleged victim girl i.e.,

PW-3 herself has clearly stated that accused No.1 has

committed rape upon her for more than once. The said

evidence is further corroborated by the evidence of none

else than her mother i.e., PW-6. No doubt, the evidence of

PW-3 go to show that though in the first alleged act of the

sexual intercourse, which according to her had taken place

on 09.09.2009 and she was said to have put to life threat

by accused No.1, but she has not specifically stated that

accused in his subsequent similar acts of sexual

intercourse with her was also putting her to life threat.

From this, though it can be said that PW-3 might have

given her consent or not resisted for the subsequent

alleged act of accused No.1 of subjecting her to repeated

sexual intercourse, but when she is minor in her age, her

consent for such sexual act would be insignificant and it

cannot be a consent at all in the eye of law.

Further, she being the neighbour of the accused No.1

and being acquainted with him and also being threatened

by accused No.1 is the reason of not disclosing about the Crl.A.No.200074/2014

incident to her mother immediately after the incident.

However, when her mother noticed her acquaintance with

accused No.1 and questioned her, she revealed the entire

details about the previous acts of sexual intercourse by

accused No.1 upon her. The mother, after knowing from

her daughter about the incident, has called her relatives

i.e., PW-7, PW-11 and PW-12 and informed them about

the incident and took them to the house of the accused.

All those three witnesses have spoken about PW-6

and PW-3 revealing to them about PW-3 being subjected

to repeated acts of rape by accused No.1 and that they

accompanying PW-3 and PW-6 to the house of the

accused. Among those witnesses, PW-7 has also stated

that father of the accused No.1 i.e., original accused No.2

admitted that his son has committed the mistake. The

said evidence is not denied in his cross-examination.

Thus, the uniform and trustworthy evidence of PW-7, PW-

11 and PW-12 further go to show that after hearing about

the incident, they had been to the house of the accused.

However, they were made to return being scolded and Crl.A.No.200074/2014

threatened by them. These witnesses have also stated

that the accused, including accused No.4 (at some places

also called as accused No.2) called PW-3 and PW-6 as

prostitutes. Thus, the evidence of PW-7, PW-11 and

PW-12 further corroborates the evidence of PW-3 and

PW-6 that it is because accused No.1 had committed rape

upon PW-3, all of them had been to the house of the

accused.

27. It is also the contention of the respondents,

which the learned Additional State Public Prosecutor also

concedes that there is no medical evidence regarding the

rape.

PW-13 (CW-14) Dr. Vijayraj has stated in his

evidence as a Medical Officer, Taluk Hospital at Manvi that

on 22.03.2010 he has examined the accused No.1 who

was brought by the complainant Police Constable. By his

examination of the accused, he has given his opinion that

he is capable of performing the sexual act. Certificate

issued by him in that regard has been identified by him as Crl.A.No.200074/2014

Ex.P-6. Thus, the evidence of PW-13 go to show that

accused No.1 was capable of having sexual act.

28. PW-14 (CW-15) Dr. Jawahar Babu in his

examination-in-chief has stated that while working as

Orthopedic Surgeon at RIMS Hospital, Raichur, as

requested by the complainant police, on 17.03.2010,

based upon a request from the complainant police has

referred the alleged victim girl to Gynecologist. The said

Gynecologist medically examined the girl and collected

pubic hairs, vaginal swab from the victim and sent to FSL.

He obtained the final report from FSL and sent the report

to the police which was identified at Ex.P-9. He has stated

that according to his opinion which is based on FSL report,

there was no signs of recent vaginal penetration.

29. Admittedly, this doctor has not medically or

clinically examined the victim girl towards the alleged

commission of rape upon the girl. Even as per this

evidence, he has only referred the victim to a Gynecologist.

Crl.A.No.200074/2014

As stated by him, his opinion as per Ex.P-9 is purely based

upon FSL report. The said FSL report which is at Ex.P-8

and not disputed from either side, shows that the

laboratory has received pubic hairs, vaginal swab, hair

head, swab from glans and prepuse and chemically

examined them. It neither noticed seminal stains nor

blood stains on the items. Nowhere it whispers about the

signs of any vaginal penetration, because the same has to

be ascertained by the medical doctor who clinically and

medically examined the alleged victim. However, PW-14

looking at the absence of seminal stains in pubic hair,

vaginal swab and swab from glans and prepuse stated that

there is no signs of recent vaginal penetration. The

progress note-cum-doctor's order which is part of Ex.P-13

shows in its note dated 19.03.2010 that there are no signs

of recent vaginal penetration. The very same opinion

which was given by RIMS hospital, even before receiving

FSL report, was copied by PW-14 in Ex.P-9. Therefore,

there is non-application of mind and no medical reasoning Crl.A.No.200074/2014

given by PW-14 for arriving the opinion about the absence

of sign of recent vaginal penetration.

30. In Gurmit Singh's case (supra), the Hon'ble

Apex Court while dealing with Sections 376, 363, 366 and

368 of IPC was pleased to observe in para-8 of its

judgment as below:

"8. .......The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a Crl.A.No.200074/2014

victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the Crl.A.No.200074/2014

victim of sex crime strikes the judicial mind as probable. ......"

In Motilal's case (supra), in cases involving the

offences punishable under Sections 375, 376 and 450 of

IPC, wherein also the question of conviction on the sole

testimony of prosecutrix for the alleged offence was

involved and the medical evidence was not helpful to the

prosecution, the Hon'ble Apex Court, in para-12 of its

judgment reiterated its observation made in its previous

judgment in Om Prakash vs. State of Uttar Pradesh

reported in (2006) 9 SCC 787, wherein it was observed

that, it is settled law that the victim of sexual assault is not

treated as accomplice and as such, her evidence does not

require corroboration from any other evidence, including

the evidence of a doctor. In a given case, even if the

doctor who examined the victim does not find sign of rape,

it is no ground to disbelieve the sole testimony of the

prosecutrix. In a normal course, a victim of sexual assault

does not like to disclose such offence even before her

family members, much less, before public or before the Crl.A.No.200074/2014

police. The Indian women has a tendency to conceal such

offence because it involves her prestige as well as prestige

of her family.

31. In the instant case, as analysed above, the

victim girl who was minor in her age was threatened by

the accused No.1 of killing her in case if she discloses

about the act before anybody. Moreover, the accused was

her neighbour and as such a known boy to whom she used

to see day in and day out. Moreover, according to her,

there was a proposal from her family to give her in

marriage to accused No.1. Therefore, her evidence that

accused No.1 initially for the first time on 09.09.2009

subjected her to rape and subsequently on few more

occasions up to 26.02.2010 had sexual intercourse with

her cannot be disbelieved. As analysed above, the

evidence of PW-6, who is none else than the mother of the

victim and the evidence of PW-7, PW-11 and PW-12 who

had accompanied PW-3 and PW-6 to the house of the

accused after the incident to enquire with the family of the Crl.A.No.200074/2014

accused, also go to show that there was no reason for

them to falsely make an accusation against the accused

and for no reason to go to their home and question them

about the act of the accused No.1. Further, the un-denied

evidence of PW-7 that father of the accused No.1 i.e.,

original accused No.2 stated that his son had committed a

mistake, also go to show that the family of the accused

also do not deny that accused No.1 had committed rape on

PW-3.

Though from the accused's side defence was taken

that since the marriage proposal given by PW-6 to give her

daughter (PW-3) in marriage to accused No.1 was not

accepted by the family of the accused, a false case has

been hoisted against them, but except suggestions made

to PW-3, PW-6 and PW-7 in their cross-examination, there

is no other material corroborating the said defence. All

those three witnesses to whom the suggestion was made,

have denied the said suggestion. Therefore, the defence

taken by the accused also won't stand. On the other hand,

the evidence of none else than the victim girl i.e., PW-3, Crl.A.No.200074/2014

which evidence further gains support from the evidence of

PW-6, PW-7, PW-11 and PW-12 go to show that on the

alleged date of incident i.e., on 09.09.2009 and

subsequently on few more occasions up to 26.02.2010, the

accused No.1 had committed rape on PW-3.

At this juncture, it also cannot be ignored of the fact

that even the medical opinion at Ex.P-9 also only speaks

about the absence of signs of recent vaginal penetration.

According to prosecution, the last sexual act between

accused No.1 and PW-3 was on 26.02.2010. However, the

examination of the victim girl by the doctor, as analysed

above, and also as per Ex.P-13, was on 19.03.2010 to

arrive at such conclusion. The medical opinion does not

say that there are no signs of sexual act or vaginal

penetration. But it says that there was no signs of

"recent" vaginal penetration. Therefore, the doctor had

seen only for the signs of a recent vaginal penetration. A

sexual act of vaginal penetration of not less than nineteen

days old would not be a "recent act". As such also it

cannot be called that medical evidence is against the Crl.A.No.200074/2014

prosecution. On the other hand, as analysed above, the

evidence of PW-3 which has gained support from the

evidence of PW-6, PW-7, PW-11 and PW-12, proves the

acts of rape committed by accused No.1 against PW-3.

32. No doubt, there is some delay in lodging the

complaint with the police by PW-3 and PW-6. However,

the complainant (PW-3) in her complaint itself has stated

that she disclosed about the incident before her mother

only on 14.03.2010. Thereafter, all of them including

PW-7, PW-11 and PW-12 went to the house of the accused

to enquire them, however, the accused abused them in

filthy language, threatening them of dire consequences.

As such, at the advice of the elders in the village, they

decided to give a police complaint, thus, the delay was.

The evidence of PW-7, PW-11 and PW-12 also shows that

of late the mother of PW-3 came to know about the

incident, then all of them went to the house of the

accused. It is only after the accused threatened them of

dire consequences and abused them, PW-3 and PW-6 Crl.A.No.200074/2014

decided to lodge the complaint. Thus, the complaint came

to be lodged on 17.03.2010. Thus, the delay has been

properly explained by the prosecution. Therefore, the only

conclusion that should have come in the case by the

Sessions Judge's Court was that the accused No.1 has

committed the offences punishable under Sections 451,

376, 504 and 506 of IPC and that accused No.4 -

Hanumantha S/o Dodda Ayyappa Kambaladinni (also

shown as accused No.2 at some places) has committed the

offences punishable under Sections 504 and 506 read with

Section 34 of IPC.

33. The Sessions Judge's Court, in its judgment of

acquittal, has reasoned that, firstly the victim girl did not

protest and she did not shout and she did not even

disclose the incident to her mother immediately. On the

other hand, she further stated that the incident repeated

many times i.e., once in fifteen days. Hence, it doubted

the evidence of PW-3. The said reasoning is to be held as not

proper reasoning for the analysis made above. The Crl.A.No.200074/2014

accused No.1 was a known person to PW-3 and apart from

subjecting PW-3 to sexual assault and rape, he had

threatened her of killing her. As observed in Motilal's

case (supra), it cannot be expected that a rape victim

should disclose the act of the rape immediately to mother

or other persons in an Indian set of living. Further more,

PW-3 was also hopeful of accused No.1 marrying her since

according to her, a marriage proposal was made of PW-3

with accused No.1.

Secondly, the Sessions Judge's Court also tried to

give a reason to disbelieve the evidence of PW-3 observing

that according to PW-3, her mother had been to coolie

work on the date of first incident, whereas according to her

mother, she had been to Shandy at a place called Manvi.

The Sessions Judge's Court ought to have ignored such

variations since it was too minor and was not materially

affecting the case of prosecution.

Thirdly, the Sessions Judge's Court though observed

that there were lot of discrepancies and contradictions in Crl.A.No.200074/2014

the evidence of prosecution witnesses, but it failed to

mention what those discrepancies and contradictions are.

Fourthly, it disbelieved the evidence of PW-7, PW-11

and PW-12 only because they were distant relatives of

PW-6. On the other hand, it failed to analyse their

evidence in a proper perspective. Needless to say that

merely because the witness is a distant relative of the

injured or the victim, his evidence cannot be disbelieved or

doubted when his evidence would otherwise inspires

confidence in the Court to believe the same. As analysed

above, the evidence of PW-7, PW-11 and PW-12 was

inspiring the confidence to believe.

Fifthly, it observed that the doctor's evidence was not

supporting the prosecution. A detailed analysis in that

regard, more particularly, with respect to the evidence of

PW-14, the doctor who examined the victim and his

opinion has been shown that the doctor has spoken only

about the recent vaginal penetration, but not about

previous repeated vaginal penetrations, which was taken Crl.A.No.200074/2014

place nineteen days prior to the examination of the girl.

Furthermore, PW-14 was not a treating doctor who had

medically and clinically examined the victim for the alleged

act of rape upon her.

Lastly, the Sessions Judge's Court also expected the

detection of seminal stains in item Nos.1, 2, 3 and 5.

Needless to say that admittedly those clothes were

collected several days after the alleged incident. Thus, in

the said process, the girl taking bath and washing and

changing her cloth would naturally makes it not possible to

show the presence of seminal stain in pubic hairs, vaginal

swab, swab from glans and prepuse. Since these aspects

were not properly appreciated by the learned Sessions

Judge's Court, rather a reading of the learned Sessions

Judge's judgment in its entirety go to show that it has only

concentrated on minor variations and also has failed to

give proper reasoning, which ultimately resulted in it

pronouncing the judgment of acquittal, the said

judgment is now proved to be erroneous, warranting Crl.A.No.200074/2014

interference at the hands of this Court holding that, it has

been established that accused No.1 and accused No.4

Hanumanth S/o Dodda Ayyappa (at some places also

called as accused No.2) are guilty of the offences charged

against them. Accordingly, we proceed to pass the

following:

ORDER

[i] The Criminal Appeal No.200074/2014 stands

allowed;

[ii] The judgment in S.C.No.138/2010 dated

01.02.2014 passed by the Additional Sessions Judge,

Raichur acquitting accused No.1 and accused No.2

(accused No.4) of the offences punishable under Sections

451, 376, 504, 506 read with Section 34 of Indian Penal

Code, 1860 stands set aside;

[iii] Accused No.1 (Sannad Urukundayya S/o Dodda

Ayyappa, R/o Korvi village, Taluk Manvi, District Raichur)

is convicted for the offences punishable under Sections

451, 376, 506 of Indian Penal Code, 1860;

Crl.A.No.200074/2014

[iv] Accused No.1 - Sannad Urukundayya S/o Dodda

Ayyappa, R/o Korvi village, Taluk Manvi, District Raichur

and accused No.4 (also shown as accused No.2 in some

places) - Hanumantha S/o Dodda Ayyappa Kambaladinni,

R/o Korvi village, Taluk Manvi, District Raichur are

convicted for the offences punishable under Sections 504

and 506 read with Section 34 of Indian Penal Code, 1860.

To hear on sentence, the matter is passed over.

Sd/-

JUDGE

Sd/-

JUDGE

swk Crl.A.No.200074/2014

HEARING ON SENTENCE

Heard on sentence from both side.

Learned counsel for the accused/respondents

submitted that accused are very young persons of aged 32

years and 34 years respectively. Both of them have family

members including wife and small children as dependants.

Both the accused are poor agriculturists. With this, he

prays to take a lenient view in the matter.

Learned Additional State Public Prosecutor submits

that the offence committed by accused No.1 is very

heinous, as such, the maximum punishment be awarded to

the accused for the proven guilt.

It is the sentencing policy that the sentence ordered

must be proportionate to the gravity of the proven guilt. It

shall be neither exorbitant nor for the name-sake.

Among the four offences proved against the accused

No.1, the heinous offence is one punishable under Section

376 of Indian Penal Code, 1860, for which, the punishment Crl.A.No.200074/2014

is minimum ten years rigorous imprisonment, which can be

extended up to life imprisonment and also with fine.

However, considering the facts and circumstances of the

case, the age of the accused, their necessity in the family

and also considering the surrounding circumstances, we

proceed to pass the following:

ORDER ON SENTENCE

[1] The accused No.1 (Sannad

Urukundayya S/o Dodda Ayyappa, R/o Korvi

village, Taluk Manvi, District Raichur) is

sentenced to undergo simple imprisonment for

one year and to pay a fine of `2,000/- (Rupees

Two Thousand Only), in default of payment of

fine, to undergo simple imprisonment for thirty

days, for the offence punishable under Section

451 of Indian Penal Code, 1860.

[2] The accused No.1 (Sannad

Urukundayya S/o Dodda Ayyappa, R/o Korvi Crl.A.No.200074/2014

village, Taluk Manvi, District Raichur) is also

sentenced to undergo rigorous imprisonment for

a period of ten years and to pay a fine of

`6,000/- (Rupees Six Thousand Only), in default

of payment of fine, to undergo further simple

imprisonment for a period of ninety days for the

offence punishable under Section 376 of the

Indian Penal Code, 1860.

       [3]   Both      accused      No.1      (Sannad

Urukundayya      S/o   Dodda   Ayyappa,    R/o Korvi

village, Taluk Manvi, District Raichur) and accused

No.4 (also referred as accused No.2)

(Hanumantha S/o Dodda Ayyappa Kambaladinni,

R/o Korvi village, Taluk Manvi, District Raichur)

are ordered to undergo simple imprisonment for a

period of six months for the offence punishable

under Section 504 read with Section 34 of the

Indian Penal Code, 1860.

Crl.A.No.200074/2014

[4] Accused No.1 (Sannad Urukundayya

S/o Dodda Ayyappa, R/o Korvi village, Taluk

Manvi, District Raichur) and accused No.4 (also

referred as accused No.2) (Hanumantha S/o

Dodda Ayyappa Kambaladinni, R/o Korvi village,

Taluk Manvi, District Raichur) are sentenced to

undergo simple imprisonment for a period of two

years for the offence punishable under Section

506 read with Section 34 of the Indian Penal

Code, 1860.

All the sentences shall run concurrently.