Karnataka High Court
Khaja Hussain S/O Ladle Sab Biradar vs The State Of Karnataka on 5 November, 2024
Author: S. Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
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CRL.A No. 200109 of 2014
R
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO. 200109 OF 2014
BETWEEN:
1. KHAJA HUSSAIN
S/O LADLE SAB BIRADAR
AGE:25 YEARS,
OCC: AGRICULTURE
R/O LONI B.K. TQ:INDI
DIST: BIJAPUR
...APPELLANT
(BY SRI R.S. LAGALI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ZALAKI POLICE STATION
Digitally signed DIS: BIJAPUR
by VIJAYA P ...RESPONDENT
Location:
HIGH COURT (BY SRI SIDDALING P. PATIL, ADDL. SPP)
OF
KARNATAKA
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CRIMINAL PROCEDURE CODE, PRAYING TO CALL FOR RECORDS OF
THE COURTS BELOW AND SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION AND SENTENCE DATED 22.09.2014 PASSED BY THE
SPECIAL JUDGE AND II ADDL. SESSIONS JUDGE BIJAPUR IN SPL.
CASE NO.1/2010 AND ACQUIT THE APPELLANT, IN THE INTEREST OF
JUSTICE.
THIS APPEAL PERTAINING TO KALABURAGI BENCH HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 02.09.2024 AND
COMING ON FOR PRONOUNCEMENT OF JUDGMENT AT PRINCIPAL
BENCH, BENGALURU THROUGH VIDEO CONFERENCING, THIS DAY,
S. SUNIL DUTT YADAV J., DELIVERED THE FOLLOWING:
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CRL.A No. 200109 of 2014
CORAM: HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV)
This judgment has been divided into the following
Sections to facilitate analysis:
I. Brief Facts 3-5
II. Trial Court Observations 6-9
III. Contentions 9-12
IV. Analysis:
12-13
A. Re: Offence under Atrocities Act 14-22
B. Re: Offence under Indian Penal Code 22-28
(i) Act of Sexual Intercourse
28-31
(ii) Determination of age of victim 31-38
(iii) Contradictions in the testimony of the
Victim 38-41
(iv) Prosecution has failed to discharge its
Burden 41-45
(v) No obligation on the accused to lead
Evidence 45-49
C. Re: Trial Court observations 49-52
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I. BRIEF FACTS
The present appeal is filed by the sole accused
seeking for setting aside of the judgment of conviction and
order of sentence passed in Special Case No. 1/2010. The
accused was convicted for the offences punishable under
Sections 447, 366(A), 376, 506 of the Indian Penal Code
and Section 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989
[hereinafter referred to as 'the Atrocities Act']. The
accused was sentenced to undergo simple imprisonment of
three months for the offence under Section 447 of IPC,
further sentenced to undergo rigorous imprisonment for
ten years and to pay a fine of Rs. 5000/- for the offence
under Section 366(A) of IPC and in default of payment of
fine, to undergo simple imprisonment of three months. As
regards the offence under Section 376 of IPC, the accused
was sentenced to undergo rigorous imprisonment for ten
years and to pay a fine of Rs.1,00,000/- and in default of
payment of fine, would undergo simple imprisonment of
one year. The accused was further sentenced to undergo
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rigorous imprisonment for two years for offence under
Section 506 of IPC. As regards the offence under Section
3(2)(v) of the Atrocities Act, sentence of life-imprisonment
with fine of Rs.50,000/- and in default of payment of fine,
was sentenced to undergo simple imprisonment for six
months. On deposit of fine amount, a sum of
Rs.1,50,000/- was ordered to be paid to the victim.
2. The facts made out by the prosecution was that
on 21.10.2009, at about 12:00 am at midnight/early hours
of the next day, when complainant and other family
members were sleeping in the farmhouse, the accused
trespassed into the house, threatened the victim of doing
away with her life if she opened her mouth, kidnapped her
on a motor-cycle, took her to the farmhouse of C.W. 13 -
Boramma W/o Siddappa Alur and confined her from
21.10.2009 till the midnight of 25.10.2009. It was alleged
that during that period the accused forcibly raped her
while threatening her with the knowledge that she was a
minor and belonged to Scheduled Caste. Accordingly, it
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was alleged that the accused had committed the offences
punishable under Sections 447, 366(A), 376, 443, 506 of
IPC and Section 3(2)(v) of the Atrocities Act.
3. Charge-sheet was filed, cognizance of the
offence was taken and after hearing counsel for accused
and prosecution, charges were framed. Prosecution has
examined P.W.1 to P.W.16, got marked Exhibits P1 to P23
and M.O. 1 to 3 and closed M.O. 1 to 3. Exhibit D - series
have also been marked as Exhibits D1 to D11. Exhibits D1
to D5 have been marked in the cross-examination of
P.W.3 and Exhibits D6 to D3(b) have been marked during
the cross-examination of P.W.4, Exhibits D7 and D8 have
been marked in the cross-examination of P.W.7 and
Exhibits D9 to D11 have been marked in the cross-
examination of P.W.8. Under Section 313 of the Code of
Criminal Procedure, statement of accused was recorded in
which as regards all incriminating material, the accused
has denied and has not chosen to lead any defence
evidence.
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II. TRIAL COURT OBSERVATIONS
4. The trial Court has framed points for
consideration and answered the same in the affirmative.
The trial Court as regards the age of the victim, has
noticed that the complainant P.W.4 had herself given her
age as 16 years while P.W.2 - her grandmother had given
the age of the victim as 14 years and P.W.3 - her mother
had deposed that her daughter (victim) was studying in
10th Standard. The trial Court also took note of the
statement of the victim that her date of birth was
03.04.1994. It took note of the evidence of P.W.12 -
Headmaster of Sri Siddeshwar High School who deposed
that the date of birth of the victim was 04.07.1994. Copy
of the extract of the birth certificate at exhibit P10 and
transfer certificate at exhibit P11 was taken note of as
tallying with the version of the victim as regards her age.
Taking note of the above, the trial Court concluded that as
on the date of the offence on 21.10.2009, the victim was
less than 16 years, i.e., 15 years 03 months and 07 days.
The Court also took note of the age as revealed by the
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radiologist's report at Exhibit P8 by way of corroboration in
coming to the above conclusion.
5. The trial Court after appreciating the evidence
of P.W.2 - Laxmibai (grandmother of the victim), P.W.3 -
Prabhavati (mother of the victim) and P.W.8 - Yallamma
(sister of the victim), concludes that as on 21.10.2009,
they along with victim were at the farmhouse. The trial
Court has accepted their version that all of them went to
sleep and when they woke up, they came to know that
P.W.4 (victim) was not to be found.
6. While noticing the discrepancy in the evidence
of the witnesses as regards in which portion of the house
they were sleeping, the trial Court was of the view that
such contradictions were insignificant and did not affect
the testimony as regards the vital aspects.
7. The trial Court also took note of the deposition
of P.W.4 (victim) regarding her being kidnapped on a
motor-cycle and taking her to the house where she was
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illegally confined and forcibly raped and thereafter brought
and left near a canal by the accused. The trial Court
noticed the further say of P.W.4 regarding her having
lodged a complaint as per Exhibit P2 and having written it
in her own handwriting. The court noted that this version
of P.W.4 stood corroborated by the evidence of P.W.2 -
Laxmibai (grandmother of victim), P.W.3 - Prabhavati
(mother of victim), P.W.7 - Iranna (brother of victim) as
well as P.W.8 - Yellamma (sister of victim).
8. The trial Court observed that P.W.4 has staked
her honour and honour of her family in coming forward to
make out a complaint and was of the opinion that the
evidence of P.W.4 was corroborated by evidence of her
grandmother, brother, mother and sister and no reason
was made out to doubt her evidence.
9. The trial Court also took note of medical
evidence of P.W.10 (Doctor) as well as certificate at
Exhibit P7 and opined that the ingredients of the offence
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under Section 376 of IPC stood proved and accordingly,
has passed a judgment of conviction.
III. CONTENTIONS
10. The learned counsel for the appellant has
contended that insofar as the finding of the trial Court that
the victim was below sixteen years and accordingly,
consent was irrelevant in terms of IPC Section 375 sixthly
(reference to provision prior to it being substituted by Act
No.13 of 2013), the burden of proof was on the
prosecution to demonstrate that victim was below sixteen
years was not established. It was contended that
documents contemplated under Rule 12 of the Juvenile
Justice (Care and Protection of Children) Rules, 2007
[hereinafter referred to as the 'Juvenile Justice Rules'] not
having been produced, reliance on transfer certificate was
legally impermissible to establish age of the victim to be
below sixteen years.
11. It was further contended that the absence of
consent was to be established by the prosecution. That in
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the present case, the sole testimony of the victim was not
consistent from the beginning till the end and that the
very version in the complaint at Exhibit P2 regarding role
of accomplices, viz., Chand Basha, Godappa Sayappa
Honalli and Basavaraj Sayappa Honalli was retracted in the
further statement at Exhibit D6 (d).
12. It was contended that there were contradictions
amongst the witnesses who were the family members,
viz., P.W.2 - Laxmibai (grandmother of victim), P.W.3 -
Prabhavati (mother of victim), P.W.7 - Iranna (brother of
victim) and P.W.8 - Yellamma (sister of victim). While
P.W.4, the victim narrates that she was sleeping in the
yard of the house at night, the other witnesses state she
(victim) was sleeping inside the house along with them. It
is further contended that the version of the victim that she
was kidnapped at night without disturbing the others was
simply not believable.
13. It was argued that the version of the
prosecution that the victim was confined for four days in a
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house during which period she was sexually assaulted, has
not been proved by the prosecution. It is submitted that
though the victim refers to Smt. Boramma, in whose
house she was confined, the said witness being an
important witness has not been examined as regards
which adverse inference requires to be drawn against the
prosecution. Accordingly, it is submitted that the
prosecution has not proved and not discharged the burden
cast.
14. Insofar as the offence under the Atrocities Act,
it is contended that the offence must have been
committed on the ground that the victim belongs to a
particular community and mere knowledge of her
community was by itself not sufficient under the provisions
of the said Act as it stood prior to its amendment for
conviction.
15. The Additional SPP - Sri. Siddaling P. Patil, on
the other hand, would contend that absence of consent
was evidenced by injuries on body of PW.4 (victim), that
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the victim was below sixteen years as is evidenced from
the transfer certificate at Exhibit P11. It is contended that
once the prosecutrix has asserted that there was no
consent, it was a burden on the accused to have proved
that there was consent.
IV. ANALYSIS
16. Heard both sides.
17. In light of the above, the following points arise
for consideration:
(i) Whether the judgment of conviction and
order on sentence regarding offence under
Section 3(2) (v) of the Atrocities Act, passed by
the trial Court requires to be affirmed?
(ii) Whether the judgment of conviction and
order of sentence as regards the offences under
Sections 447, 366(A), 376, 506 of the Indian
Penal Code, passed by the trial Court requires to
be affirmed?
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18. At the outset, it must be noticed that the Court
sitting in appeal is required to re-appreciate the entirety of
the evidence and may set aside the order of conviction
upon such re-appreciation though such order must be
passed with due care and caution while taking note of
benefit that the trial Judge has of noticing the demeanor of
the witnesses. Further, mere possibility of arriving at
different conclusion on the basis of the same material may
not by itself be sufficient to set aside the order of trial
Court to arrive at a different conclusion as per the view of
the appellate Court.
19. It needs to be kept in mind that the offence was
committed on 21.10.2009 and the provisions of the
Atrocities Act as well as Sections 375, 376 of IPC and
114A of the Indian Evidence Act, 1872, as on such date
prior to the subsequent amendments is required to be
taken note of and applied.
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A. RE: OFFENCE UNDER ATROCITIES ACT
As regards the conviction for the offence under
Section 3(2)(v) of the Atrocities Act, the trial Court has
convicted the accused while observing that the accused
took advantage of the victim belonging to oppressed class
and misutilised such status in commission of the offence.
20. The fact that the accused belongs to Muslim
religion while the victim belongs to the Scheduled Caste is
not in dispute. The charge framed as regards the offence
under the said Act is to the effect that the accused
knowing fully well that the complainant belongs to
Scheduled Caste, committed the offence punishable above
ten years and thereby committed an offence under Section
3(2)(v) of the Atrocities Act.
21. Section 3(2)(v) of the Atrocities Act prior to its
amendment by Act 1 of 2016 reads as follows:
"Commits any offence under the Indian
Penal Code (45 of 1860) punishable with
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imprisonment for a term of ten years or
more against a person or property on the
ground that such person is a member of a
Scheduled Caste or a Scheduled Tribe or
such property belongs to such member,
shall be punishable with imprisonment for
life and with fine"
(emphasis supplied)
22. Subsequent to amendment by Act 1 of 2016,
the provision reads as follows:
"(v) commits any offence under the Indian
Penal Code (45 of 1860) punishable with
imprisonment for a term of ten years or
more against a person or property knowing
that such person is a member of a
Scheduled Caste or a Scheduled Tribe or
such property belongs to such member,
shall be punishable with imprisonment for
life and with fine;"
(emphasis supplied)
23. Prior to the amendment, the act complained of,
if was committed on the ground that such person belong
to the Scheduled Caste or Scheduled Tribe, offence was
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committed, while post the amendment it is an offence if
the committing an act which is punishable under law if the
accused knew that such a person belongs to the Scheduled
Caste or Scheduled Tribe. Thus subsequent to the
amendment, mere knowledge that the victim belongs to
Scheduled Caste or Scheduled Tribe is sufficient to attract
the offence under Section 3(2)(v) of the Atrocities Act.
24. The observation made by the Apex Court in
Asharfi v. State of Uttar Pradesh1 which highlights the
difference between the earlier provision and amended
provision are of relevance and relevant extracts are as
follows:
"6 [Ed.: Para 6 corrected vide Official
Corrigendum No. F.3/Ed.B.J./110/2017 dated
12-2-2018.]. In respect of the offence under
Section 3(2)(v) of the SC/ST Prevention of
Atrocities Act, the appellant had been
sentenced to life imprisonment. The gravamen
of Section 3(2)(v) of the SC/ST Prevention of
Atrocities Act is that any offence, envisaged
(2018) 1 SCC 742
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under the Penal Code punishable with
imprisonment for a term of ten years or more,
against a person belonging to Scheduled
Caste/Scheduled Tribe, should have been
committed on the ground that "such person is
a member of a Scheduled Caste or a
Scheduled Tribe or such property belongs to
such member". Prior to the Amendment Act 1
of 2016, the words used in Section 3(2)(v) of
the SC/ST Prevention of Atrocities Act are
"... on the ground that such person is a
member of a Scheduled Caste or a Scheduled
Tribe."
7. Section 3(2)(v) of the SC/ST Prevention of
Atrocities Act has now been amended by virtue
of Amendment Act 1 of 2016. By way of this
amendment, the words "... on the ground that
such person is a member of a Scheduled Caste
or a Scheduled Tribe" have been substituted
with the words "... knowing that such person is
a member of a Scheduled Caste or Scheduled
Tribe". Therefore, if subsequent to 26-1-2016
(i.e. the day on which the amendment came
into effect), an offence under the Penal Code
which is punishable with imprisonment for a
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term of ten years or more, is committed upon
a victim who belongs to SC/ST community and
the accused person has knowledge that such
victim belongs to SC/ST community, then the
charge of Section 3(2)(v) of the SC/ST
Prevention of Atrocities Act is attracted. Thus,
after the amendment, mere knowledge of the
accused that the person upon whom the
offence is committed belongs to SC/ST
community suffices to bring home the charge
under Section 3(2)(v) of the SC/ST Prevention
of Atrocities Act.
8. In the present case, unamended Section
3(2)(v) of the SC/ST Prevention of Atrocities
Act is applicable as the occurrence was on the
night of 8-12-1995/9-12-1995. From the
unamended provisions of Section 3(2)(v) of
the SC/ST Prevention of Atrocities Act, it is
clear that the statute laid stress on the
intention of the accused in committing such
offence in order to belittle the person as
he/she belongs to Scheduled Caste or
Scheduled Tribe community.
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9. The evidence and materials on record do
not show that the appellant had committed
rape on the victim on the ground that she
belonged to Scheduled Caste. Section 3(2)(v)
of the SC/ST Prevention of Atrocities Act can
be pressed into service only if it is proved that
the rape has been committed on the ground
that PW 3 Phoola Devi belonged to Scheduled
Caste community. In the absence of evidence
proving intention of the appellant in
committing the offence upon PW 3 Phoola Devi
only because she belongs to Scheduled Caste
community, the conviction of the appellant
under Section 3(2)(v) of the SC/ST Prevention
of Atrocities Act cannot be sustained."
25. In the present case, it must be noticed that the
charge framed by the trial Court reads as follows:
"Lastly, that you accused by kidnapping and
committing rape on Scheduled Caste minor girl
(complainant), you committed the offence
punishable with more than ten (10) years on
Scheduled Caste girl knowing full well that, the
minor girl (complainant) belongs to Scheduled
Caste, and thereby you committed an offence
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U/s.3(2) (v) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, and within the cognizance of this Court"
26. The charge itself is based on the premise of
knowledge while committing an offence punishable beyond
ten (10) years on a Scheduled Caste girl. The charge itself
is faulty and reflects the position post amendment Act 1 of
2016.
27. Though there are repeated statements made
that the complainant belongs to Scheduled Caste while
accused belongs to a Muslim community, the requirement
that offence itself was committed taking advantage and to
humiliate the victim as belonging to a certain community,
as required under the un-amended provision, has not been
proved. Prior to Amendment Act 1 of 2016, the
commission of offence is "... on the ground that such
person is a member of Scheduled Caste or Scheduled
Tribe", there is no evidence to demonstrate that the
offence was committed primarily on the ground that the
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victim belongs to Scheduled Caste. Unless the above is
satisfied, the prosecution cannot make out a case under
Section 3(2)(v) of the Atrocities Act. The trial Judge has
recorded at para 35 as follows:
"35. ...Therefore, from oral reading of the
entire evidence on record, it is clear that
accused being a Muslim having access to the
house of victim girl, he being a classmate of
P.W-7 Iranna, brother of victim, took
advantage of the same and the fact that they
belonged to oppressed class, mis-utilised their
status to appease them knowing fully well that
they belonged to scheduled caste community
and dishonoured them and the victim girl by
mis-using the access given to him to the house
being friend of P.W-7 Iranna. He could not
have thought of that access to do this criminal
act by coming in the odd hours of the night,
thereby it amounts to criminal trespass as
provided U/s 447 of IPC."
28. The finding by the trial Court lays emphasis
regarding knowledge that the victim belongs to Scheduled
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Caste community, that by itself was insufficient as under
the un-amended provision, offence must have been
committed with intention to belittle the victim as belonging
to the Scheduled Caste and also taking advantage of such
oppressed status.
29. In the present case, the alleged offence of
kidnapping and rape as is purported to have been
committed taking advantage of pre-existing acquaintance
of the accused being the friend of the victim's brother and
has nothing to do with the social status of the victim.
There is no evidence that the offence was committed
taking advantage of her caste and accordingly, the
judgment of the trial Court on such count does not stand
legal scrutiny. Accordingly, it cannot be stated that the
offence under Section 3(2)(v) of the Atrocities Act has
been made out.
[
B. RE: OFFENCE UNDER INDIAN PENAL CODE
30. Insofar as the offence under Section 376 of IPC
is concerned, the provision of Section 375 and 376 prior to
its substitution by Act 13 of 2013, reads as follows:
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"375. Rape.--A man is said to commit
"rape" who, except in the case hereinafter
excepted, has sexual intercourse with a
woman under circumstances falling under
any of the six following descriptions:--
First.--Against her will.
Secondly.--Without her consent.
Thirdly.--With her consent, when her
consent has been obtained by putting her or
any person in whom she is interested in fear
of death or of hurt.
Fourthly.--With her consent, when the
man knows that he is not her husband, and
that her consent is given because she
believes that he is another man to whom
she is or believes herself to be lawfully
married.
Fifthly.--With her consent, when, at the
time of giving such consent, by reason of
unsoundness of mind or intoxication or the
administration by him personally or through
another of any stupefying or unwholesome
substance, she is unable to understand the
nature and consequences of that to which
she gives consent.
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Sixthly.--With or without her consent,
when she is under sixteen years of age.
Explanation.--Penetration is sufficient to
constitute the sexual intercourse necessary
to the offence of rape.
Exception.--Sexual intercourse by a man
with his own wife, the wife not being under
fifteen years of age, is not rape."
"376. Punishment for rape.--(1)
Whoever, except in the cases provided for
by sub-section (2), commits rape shall be
punished with imprisonment of either
description for a term which shall not be less
than seven years but which may be for life
or for a term which may extend to ten years
and shall also be liable to fine unless the
woman raped is his own wife and is not
under twelve years of age, in which cases,
he shall be punished with imprisonment of
either description for a term which may
extend to two years or with fine or with
both:
Provided that the court may, for adequate
and special reasons to be mentioned in the
judgment, impose a sentence of
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imprisonment for a term of less than seven
years.
(2) Whoever,--
(a) being a police officer commits rape--
(i) within the limits of the police station to
which he is appointed; or
(ii) in the premises of any station house
whether or not situated in the police station
to which he is appointed; or
(iii) on a woman in his custody or in the
custody of a police officer subordinate to
him; or
(b) being a public servant, takes advantage of
his official position and commits rape on a
woman in his custody as such public servant
or in the custody of a public servant
subordinate to him; or
(c) being on the management or on the staff of
a jail, remand home or other place of
custody established by or under any law for
the time being in force or of a women's or
children's institution takes advantage of his
official position and commits rape on any
inmate of such jail, remand home, place or
institution; or
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(d) being on the management or on the staff of
a hospital, takes advantage of his official
position and commits rape on a woman in
that hospital; or
(e) commits rape on a woman knowing her to
be pregnant; or
(f) commits rape on a woman when she is
under twelve years of age; or
(g) commits gang rape,
shall be punished with rigorous
imprisonment for a term which shall not be
less than ten years but which may be for life
and shall also be liable to fine."
31. Further provision under Section 114A of Indian
Evidence Act, 1872 prior to substitution by Act 13 of 2013
also reads as follows:
"114A. Presumption as to absence of
consent in certain prosecutions for
rape.--In a prosecution for rape under
clause (a) or clause (b) or clause (c) or
clause (d) or clause (e) or clause (g) of sub-
section (2) of Section 376 of the Indian
Penal Code (45 of 1860), where sexual
intercourse by the accused is proved and the
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question is whether it was without the
consent of the woman alleged to have been
raped and she states in her evidence before
the Court that she did not consent, the
Court shall presume that she did not
consent."
32. In terms of the ingredients of the offence of
rape under section 375 of IPC prior to amendment, an
essential element is that a man is said to commit rape who
has sexual intercourse with a woman; "firstly - against her
will; secondly - without her consent; thirdly.--with her
consent, when her consent has been obtained by putting
her or any person in whom she is interested in fear of
death or of hurt ...; sixthly - with or without her consent
when she is under sixteen years of age;".
In light of the offence pertaining to the period of time
in the year 2009, reference is made to the provision of
Sections 375, 376 of IPC prior to amendment made to the
provision by the Act 13 of 2013.
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33. The concept of consent assumes importance as
it is provided that sexual intercourse with a woman must
be against her will, without her consent. However, if the
victim is under sixteen years of age, consent would be
immaterial and mere sexual intercourse would be sufficient
to make out the offence of rape.
34. Accordingly, the age of the victim would be of
relevance while interpreting the aspect of consent.
(i) ACT OF SEXUAL INTERCOURSE
35. However, the first ingredient of the offence as
regards having had sexual intercourse with a woman
under the un-amended provision of section 375 of IPC
explanation, provides penetration is sufficient to constitute
sexual intercourse necessary for the offence of rape.
36. The evidence in the present case at Exhibit P7
records the opinion as "... 2. Recent signs of sexual
intercourse - present in the form of injuries". The findings
during the examination under the heading genital
examination records as "hymen - ruptured; vagina -
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edges are reddish brown and tender touch; vagina - admit
two fingers with pain". In terms of Exhibit P9, the opinion
of the doctor after examination of the accused is that
"... 4. On examination of Kaja Husain there is nothing to
suggest that he is incapable of performing sexual
intercourse".
The evidence of the doctor i.e., P.W.10, who had
examined the victim has reiterated the findings referred to
above. It was also observed that the victim had stated
that she had taken bath and changed clothes every day
after the date of incident which perhaps explains the
absence of seminal and stains.
Insofar as the lack of semen stain on the clothes, it
must be noticed that the medical reports at Exhibits P6
and P7 read with the evidence of the doctors at P.W.10
and P.W.11 are by itself sufficient and the lack of positive
report in the FSL test is due to the explanation by P.W.10
who states in the cross examination "I have asked the
victim to produce the clothes worn by her on the date of
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incident but she has stated that she has changed the
clothes and washed". Accordingly, negative report of
seminal stains would not take away weight that is to be
attached to the reports at Exhibits P6 and P7.
Nothing damaging has been elicited during cross-
examination. Similarly, P.W.11 is the doctor who
examined the accused and has reiterated the findings of
the medical report referred to above while withstanding
the cross-examination. The above records and evidence
when read in its entirety do make out material for arriving
at the conclusion that there was sexual intercourse. The
conclusion by the trial Court on such aspect requires to be
accepted.
37. The allied question is as to whether such
intercourse was against her will and without her consent.
38. The invocation of presumption under un-
amended Section 114A of Indian Evidence Act would arise
only where the relationship between the accused and the
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victim is as contemplated under un-amended Section
376(2) of IPC under particular sub-section clauses (a), (b),
(c), (d), (e) and (g). Under such circumstances, a
presumption is raised that the victim did not consent if she
states in her evidence before the Court that she did not
consent. In the present case, no factual ground is made
out for invocation of such presumption.
39. At the outset, as pointed out earlier, under IPC
Section 375 - sixthly, if the victim is under sixteen years
of age, consent would be immaterial.
(ii) DETERMINATION OF AGE OF VICTIM
40. As regards the age of the victim, it is the
settled position of law that the same test of juvenility vis -
a-vis an accused who seeks benefit of being a juvenile
would be sufficient test to determine age of the victim.
The Apex Court in Jarnail Singh v. State of Haryana2,
at para 23 has observed as follows:
(2013) 7 SCC 263
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"23. Even though Rule 12 is strictly
applicable only to determine the age of a
child in conflict with law, we are of the view
that the aforesaid statutory provision
should be the basis for determining age,
even of a child who is a victim of crime.
For, in our view, there is hardly any
difference insofar as the issue of minority is
concerned, between a child in conflict with
law, and a child who is a victim of crime.
Therefore, in our considered opinion, it
would be just and appropriate to apply Rule
12 of the 2007 Rules, to determine the age
of the prosecutrix VW, PW 6. The manner
of determining age conclusively has been
expressed in sub-rule (3) of Rule 12
extracted above. Under the aforesaid
provision, the age of a child is ascertained
by adopting the first available basis out of a
number of options postulated in Rule 12(3).
If, in the scheme of options under Rule
12(3), an option is expressed in a
preceding clause, it has overriding effect
over an option expressed in a subsequent
clause. The highest rated option available
would conclusively determine the age of a
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minor. In the scheme of Rule 12(3),
matriculation (or equivalent) certificate of
the child concerned is the highest rated
option. In case, the said certificate is
available, no other evidence can be relied
upon. Only in the absence of the said
certificate, Rule 12(3) envisages
consideration of the date of birth entered in
the school first attended by the child. In
case such an entry of date of birth is
available, the date of birth depicted therein
is liable to be treated as final and
conclusive, and no other material is to be
relied upon. Only in the absence of such
entry, Rule 12(3) postulates reliance on a
birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet
again, if such a certificate is available, then
no other material whatsoever is to be taken
into consideration for determining the age
of the child concerned, as the said
certificate would conclusively determine the
age of the child. It is only in the absence of
any of the aforesaid, that Rule 12(3)
postulates the determination of age of the
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child concerned, on the basis of medical
opinion."
41. Under Rule 12 of Juvenile Justice Rules, the
documents that could be relied for the determination of
the age are as follows:
"12. Procedure to be followed in
determination of Age.--
xxx
(3) In every case concerning a child or juvenile
in conflict with law, the age determination
inquiry shall be conducted by the court or the
Board or, as the case may be, the Committee
by seeking evidence by obtaining--
(a)(i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and
in the absence whereof;
(iii) the birth certificate given by a corporation
or a municipal authority or a panchayat;"
42. In the present case, the two documents relied
on by the prosecution are Exhibit P10 which is a certificate
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issued by Shri Siddheshwar High School to the effect that
the victim (P.W.4) was born on 04.07.1994. The said
information is based on the reference to the school records
and register. Exhibit P11 is the transfer certificate of the
same school viz., Shri Siddheshwar High School, which
shows the date of birth as 04.07.1994. The date of
admission is shown as 01.06.2006 and date of leaving as
16.03.2009.
43. In Exhibit P11, Column - 8 details the 'last
school attended' where it is mentioned as 'Government
High School, Manankalgi, Indi Taluk'. Accordingly, it is
clear that the document at Exhibit P10 and P11 relates to
a declaration of age by a school which however is not the
'school first attended' as contemplated under Rule 12(3)
(a) (ii) of the Juvenile Justice Rules. Exhibit P11 is a
transfer certificate, such document also does not fall
within the documents contemplated under Rule 12(3) (a)
(i), (ii) & (iii). If that were to be so, both the documents
cannot be relied upon and in the absence of any other
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document, it can be stated that the prosecution has failed
to prove that the age of the victim is below sixteen years
so as to avail the benefit of absence of consent in case the
victim is below sixteen years.
44. The Apex Court in P Yuvaprakash v. State
represented by Inspector of Police 3 has observed as
regards reliance on transfer certificate as follows:
"14. ...Since it did not answer to the
description of any class of documents
mentioned in section 94(2) (i) as it was a
mere transfer certificate, Ex C-1 could not
have been relied upon to hold that M was
below eighteen years at the time of
commission of offence."
45. Accordingly, the documents at Exhibit P10 and
P11 falling outside the categories of documents
contemplated under Rule 12 of the Juvenile Justice Rules
and hence could not have been relied upon for the purpose
of determination of age. In the absence of the stipulated
2023 SCC Online SC 846
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documents, the prosecution could have moved the Court
to make out necessary direction to the Medical Board for
evidence regarding age of the victim as contemplated
under Rule 12(3)(b) of Juvenile Justice Rules, which reads
as follows:
"(b) and only in the absence of either (i), (ii)
or (iii) of clause (a) above, the medical opinion
will be sought from a duly constituted Medical
Board, which will declare the age of the
juvenile or child. In case exact assessment of
the age cannot be done, the Court or the
Board or, as the case may be, the Committee,
for the reasons to be recorded by them, may,
if considered necessary, give benefit to the
child or juvenile by considering his/her age on
lower side within the margin of one year."
46. Without having the benefit of the opinion of the
Medical Board, the prosecution has failed to prove that the
age of the victim is below sixteen years and thereby
cannot have the benefit of un-amended Section 375 -
Sixthly of IPC which renders 'consent' inconsequential.
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47. The offence of rape consists of sexual
intercourse which should be against her will and without
her consent. Insofar as the aspect of consent is concerned,
many a time as in the present case, the prosecutrix has
asserted that her consent has been obtained by putting
her in fear of death or hurt. Nevertheless, the burden
initially is cast upon the prosecutrix to assert absence of
consent.
(iii) CONTRADICTIONS IN THE TESTIMONY OF THE VICTIM
48. No doubt the sole testimony of the prosecutrix
if is consistent and admits of no contradictions, may be
sufficient and be relied upon for the purpose of conviction
as well. However, where there are not mere
inconsistencies but contradictions which create doubt as to
the version of the prosecutrix, depending on the entirety
of the facts and attendant circumstances, prudence may
require corroboration.
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49. In the present case, the evidence of the
prosecutrix is itself riddled with contradictions and her
version itself is not consistent. It must be noticed that in
terms of the complaint at Exhibit P2, the complainant
(P.W.4) who is also the victim, has initially taken the stand
that Chand Basha, Godappa Sayappa Honalli and
Basavaraj Sayappa Honalli were also involved initially in
taking her away from the house forcibly. The said
complaint was made on 25.10.2009 as regards the
incident on 21.10.2009. This version is sought to be
retracted by further statement of the complainant at
Exhibit D6 dated 27.10.2009, where she states that Chand
Pasha, Godappa and Basavaraj have no connection with
respect to the incident.
50. In her evidence when she was subjected to
cross-examination and confronted with he further
statement, at one point she states that as the accused
Kaja Hussain had violated her modesty, and only out of
anger, she had mentioned the names of Chand Basha,
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Godappa Sayappa Honalli and Basavaraj Sayappa Honalli.
The inconsistencies that emerge are further highlighted
when she denies the portion of retraction marked as
D6-(d) in Exhibit D6.
51. Her stand of giving up the case against the
accomplices has cast a doubt regarding her version in light
of direct contradiction for which no explanation is
forthcoming. The prosecution could have examined the
alleged accomplices, which could have helped unravel the
true facts.
52. The victim (P.W.4) having initially mentioned
that the accused took her away with the help of other
accomplices viz., Chand Basha, Godappa Sayappa Honalli
and Basavaraj Sayappa Honalli, as mentioned in the
complaint at Exhibit P2, has subsequently in her further
statement marked as Exhibit D6, has taken her stand that
the accomplices did not have any role and were not
connected with the incident. If that were to be so, whether
the accused alone could have taken the victim from her
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house without alerting the others raises a serious doubt as
to the very alleged incident of kidnapping and may
otherwise suggest the probability of the victim having
voluntarily gone with her brother's friend who is the
accused.
53. The absence of consent is not unequivocal. The
injuries that are made out of abrasion on the victim at
Exhibit P6 are insignificant and noticing that there was no
such external injuries on the accused in terms of Exhibit
P7, the theory of resisting the accused also stands on
weak footing.
(iv) PROSECUTION HAS FAILED TO DISCHARGE ITS BURDEN
54. The investigating officer (P.W.16) in his
evidence has stated that the statement of C.W.13 - Smt.
Boramma was recorded. Smt. Boramma is the person in
whose house the victim (P.W.4) was illegal confined by the
accused. In the cross-examination of PW4, she admits that
the accused had taken her to Smt. Boramma's hut where
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during the time she was illegally confined and she was
raped.
55. Though C.W.13 was the person who would have
been an important witness to shed light on the version of
the prosecution and perhaps depose regarding what
happened during the four days of illegal confinement, as to
whether there was opportunity to P.W.4 to run away,
C.W.13 has not been examined. The reason for non-
examining is not forthcoming. The evidence of
Smt.Boramma would have been of relevance to indicate
regarding consent or its absence. The prosecution by not
examining the said witness and not explaining reasons for
not examining such a vital witness, an adverse inference is
required to be drawn against the prosecution.
56. The fact that the victim knew the accused who
was her brother's friend and was visiting the victim's
house is a significant fact. The starting point of chain of
crime was the allegation of kidnapping of the victim by the
accused and three other accomplices. It must be noticed
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that in the version of P.W.4 that she was sleeping inside
the house while the victim's grandmother (P.W.2) has
asserted that the victim's mother and other daughter were
sleeping outside the house but the victim was sleeping
inside the house. The victim's mother (P.W.3) states that
her daughters and her mother (P.W.2) were all sleeping
along with the victim outside the house.
57. There is no consistency regarding where the
victim was sleeping as it has bearing on the facts as to
how the victim could have been taken away at night
without alerting the other family members. It is not
believable that P.W.4 could have been taken away forcibly
by the accused without alerting the others.
58. These contradictions and doubts in the
prosecution's case accompanied with the absence of the
prosecution in summoning C.W.13 - Smt. Boramma, who
would have unravelled the happening on those crucial
days when she was kept under illegal confinement, have
rendered the case of the prosecution doubtful.
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59. The question of lack of consent which is
necessary for the offence of rape itself is in serious doubt.
If that were to be so, it can be stated that the prosecution
has not proved the case beyond reasonable doubt.
60. Once it is concluded that the alleged offence
does not qualify under un-amended Section 375-sixthly, it
is to be examined as to whether Section 375-secondly
which states that "A man is said to commit rape who, has
sexual intercourse with a woman without her consent" is
applicable in the present case. It is also to be noticed
under Section 375-thirdly, it would be possible to construe
absence of consent where consent has been obtained by
putting her in fear of death or hurt.
61. In the present case, the stand in the complaint
that she was kidnapped has been disbelieved by virtue of
the discussion supra at Paras 56 to 58. As regards her
illegal confinement in the house of C.W.13, C.W.13 - Smt.
Boramma is not examined.
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The injury on the victim's body being insignificant
and the absence of injury on the accused if taken into
consideration, with other circumstances, the version that
her consent was obtained by putting her into fear of death
or hurt becomes doubtful.
(v) NO OBLIGATION ON THE ACCUSED TO LEAD EVIDENCE
62. Though it can be contended that the accused
has not taken up any defence of consent and the response
to the Cr.P.C. Section 313 statement is merely one of
denial, it is to be noticed that the right of the accused to
remain silent by itself may have the effect of casting the
burden on the prosecution to prove that the sexual
intercourse was one without consent.
63. It must be noticed that for invocation of
presumption under Section 114A of the Indian Evidence
Act, it is necessary that the offender and circumstances
must fall within four corners of Section 376(2) of IPC as it
stood prior to its substitution by Act 13 of 2013. It is not
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the case of the prosecution that offence falls within the
category of Section 376(2). If that were to be so, the
absence of presumption under Section 114A of Indian
Evidence Act would lead to placing the burden on the
prosecution to establish absence of consent which is
necessary to prove the offence of rape under Section 375
of IPC. Once such burden is fastened on the prosecution
and the prosecution fails to discharge such burden, the
case of the prosecution would fall on its own weight. There
is no corresponding obligation on the accused to prove
that there was consent which would result in fastening an
onerous burden on the accused to prove that he was
innocent which is contrary to the premise of presumption
of innocence of the accused. There is no duty of the
accused to prove a defence and his exercise of his right to
remain silent would be sufficient where the prosecution
itself is unable to prove its case.
64. Once such burden of the prosecution has not
been discharged, then the accused is entitled for acquittal
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as a result of the prosecution failing to discharge its
burden beyond reasonable doubt. The right to remain
silent would obviate the necessity of the accused to take a
positive stand that there was consent. There was no legal
obligation to set up the defence of consent by the accused.
Accordingly, even without accused taking a stand
regarding consent, the inherent contradictions regarding
absence of consent that is required to be asserted by the
prosecution may result in failure of the case of the
prosecution to prove beyond reasonable doubt, leading to
accused getting the benefit of doubt. The observations of
the Apex Court in Pankaj Singh Appellant(S) Versus
The State Of Haryana Respondent(S)4 in the present
context are relevant and reads as follows:
10. The condition precedent for applicability of
Section 114A of the Evidence Act is that the
prosecution must be for the offence of rape under
various clauses set out therein under sub-Section
(2) of Section 376 of the IPC. Clause (f) of sub-
Section (2) of Section 376 of the IPC reads thus:
2024 Scc Online SC 474
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"376. PUNISHMENT FOR RAPE.--(1)***
(2) Whoever,-
...
(f) being a relative, guardian or teacher of, or a
person in a position of trust or authority towards
the woman, commits rape on such woman; or
............"
11. In this case, no charge was framed against
the appellant-accused for the offence punishable
under clause (f) of sub-Section (2) of Section 376
of the IPC. A perusal of clause (f) of sub-Section
(2) of Section 376 shows that the punishment for
the offence covered by sub-Section (2) of Section
376 is more stringent than the punishment for the
offence under sub-Section (1) of Section 376. In
the absence of the charge framed at any stage
against the appellant-accused for the offence
punishable under clause (f) of sub-Section (2) of
Section 376 of the IPC, now, at this stage, neither
the prosecution nor the victim can contend that
clause (f) of sub-Section (2) of Section 376 of the
IPC was applicable. Another important aspect
which goes to the root of the matter is that in his
examination under Section 313 of the Cr. P.C., the
case that he was in a position of trust to the
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victim, was not put to him. In any event, the
contention of the learned counsel appearing for
the Prosecutrix that the appellant-accused was a
person in a position of trust as far as the
Prosecutrix is concerned is completely erroneous.
There was no fiduciary relationship between the
appellant-accused and the Prosecutrix, which will
be apparent when we examine the Prosecutrix's
evidence. Therefore, on the face of it, the
presumption under Section 114A of the Evidence
Act will not apply, and, therefore, the burden will
be on the prosecution to prove that the sexual
intercourse was without the consent of the
Prosecutrix. We may also add here that in our
jurisprudence unless there is a specific legislative
provision which puts a negative burden on the
accused, there is no burden on the accused to lead
evidence for proving his innocence. The accused
may have some burden to discharge in case of a
statutory prescription, such as Section 114A of the
Evidence Act. In this case, the burden was on the
prosecution to lead evidence to prove the guilt of
the accused beyond a reasonable doubt."
C. RE: TRIAL COURT OBSERVATIONS
66. It would be necessary to also point out the
infirmities in the order of the trial Court as this Court in its
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appellate jurisdiction is also considering validity of order of
the trial Court. Though the Appellate Court is to re-
appreciate the evidence which the Court has done as is
evidenced in the discussion supra, it would also be
necessary to deal with the legal infirmities of the order of
the trial Court.
67. The conclusion of the trial Court as regards age
of the victim has direct correlation with the aspect of
consent in light of Section 375 sixthly of IPC which
provides that the consent of the victim below 16 years
would be of no relevance. The trial Court has concluded
that the age of the victim was below 16 years referring to
various documents without taking note of the legal
mandate under Rule 12 of the Juvenile Justice Rules.
68. The trial Court has disregarded the
contradictions in the evidence of P.W.2, P.W.3, P.W.8 and
P.W.4 as regards where P.W.4 was sleeping at night.
Though the trial Court has opined that these discrepancies
are insignificant, however, as discussed supra at Paras 49
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to 59 if the discrepancies are considered alongwith the
statement of retraction at D-6(d) the conclusion legally
permissible is entirely different. Accordingly, the
appreciation of evidence by the trial Court is faulty.
69. The conclusion of the Court regarding consent
of P.W.4 (victim) also requires to be differed with as the
trial Court has heavily relied on the evidence of the
Prosecutrix without noticing contradictions and
inconsistencies as detailed supra.
69. Accordingly, the following:
ORDER
(i) The points for consideration are answered in the
negative and the appeal is allowed.
(ii) The judgment dated 20.09.2014 in Spl.Case No.
1/2010 on the file of the Court of Special Judge and
II Additional Sessions Judge, Bijapur, is set aside and
the accused / appellant is acquitted of the charges for
offence punishable under Sections 447, 366(A), 376,
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506 of the Indian Penal Code and Section 3(2)(v) of
the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
(iii) Consequently, bail bond and sureties if any
executed by the accused shall stand discharged.
(iv) The fine amount, if any deposited by the
accused shall be refunded to him.
(v) Registry to communicate this judgment to the
trial Court for information and necessary compliance.
Sd/-
(S. SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAMACHANDRA D. HUDDAR)
JUDGE
VP/VGR
