Karnataka High Court

Sri Mansoor @ Ismail vs State Of Karnataka on 2 May, 2025

Author: H.P.Sandesh

Bench: H.P.Sandesh

                            1

                                                             R
       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 2ND DAY OF MAY, 2025

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

               CRIMINAL APPEAL NO.577/2013

BETWEEN:

1.     SRI. MANSOOR @ ISMAIL
       AGED ABOUT 35 YEARS,
       S/O UMMARABBA
       R/AT H.NO.1-156,
       KALAVARU GUDDE HOUSE
       KURSUGUDDE,
       KALAVARU VILLAGE
       MANGALURU TALUK-574 214.              ... APPELLANT

             (BY SRI. VINOD GOWDA, ADVOCATE)
AND:

1.     STATE OF KARNATAKA
       REPRESENTED BY STATE PUBLIC PROSECUTOR,
       HIGH COURT BUILDINGS,
       BENGALURU-560 001.                 ... RESPONDENT

            (BY SMT. RASHMI JADHAV, ADDL. SPP)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF   CONVICTION   DATED   02.05.2013   PASSED   BY   THE   III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAKSHINA
KANNADA, MANGALURU IN S.C.NO.136/2011 - CONVICTING
                                  2



THE APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 376 AND 506 OF IPC.


     THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT      ON    22.04.2025       THIS   DAY,   THE    COURT
PRONOUNCED THE FOLLOWING:


CORAM:    HON'BLE MR. JUSTICE H.P.SANDESH

                       CAV JUDGMENT

Heard learned counsel for the appellant and learned

Additional SPP for the respondent-State.

2. The factual matrix of the case of the prosecution is

that the victim girl is daughter of P.Ws.2 and 3 and this

appellant is known to family of the victim and residing in nearby

locality. The victim was studying in 9th standard and is a minor.

On 09.07.2011 at 1.30 p.m., victim returned to her house after

the school and her parents and brothers were not in the house

and she was alone. At about 1.45 p.m., the appellant came to

her house and knocked the door and when she opened the door,

accused returned the machete which he had taken from her

father and came inside the house and embraced and kissed her

and then he caught hold her hand and took her to bed room and

gagged her mouth by putting cloth and made her to lie on the

ground and committed forcible sexual intercourse against her

will and without her consent. On 21.07.2011 night, victim was

weeping and later, the parents of the victim came to know about

the incident and on the next day, they lodged the complaint.

The police registered the case in Crime No.155/2011,

investigated the matter and filed the charge-sheet for the

offence under Sections 376 and 506 IPC.

3. The accused was arrested and he was remanded to

judicial custody and subsequently, he was released on bail. The

accused did not plead guilty. Hence, the prosecution examined

the witnesses as P.Ws.1 to 21 and got marked the documents as

Exs.P1 to P18 and M.Os.1 to 6. On behalf of the defence also,

four witnesses were examined as D.Ws.1 to 4 and got marked

the documents as Exs.D1 to D7.

4. The Trial Court having considered the material

available on record, convicted the accused and sentenced the

accused for a period of ten years with fine of Rs.15,000/- for the

offence under Section 376 IPC and sentenced to undergo

imprisonment for a period of one year for the offence under

Section 506 IPC. Being aggrieved by the judgment of conviction

and sentence, the present criminal appeal is filed before this

Court.

5. The main contention of learned counsel for the

appellant is that Trial Court failed to consider the material on

record and there are serious material irregularities and

illegalities in appreciating the material evidence available on

record. It is contended that evidence placed on record by the

prosecution suffers from contradictions, improvements and

omissions and the Trial Court ought to have given benefit of

doubt in favour of the appellant. It is also contended that the

Trial Court has failed to consider that there was ill-will between

the parties of the victim and some of the muslim people with

regard to the place where the victim and her parents were

residing. It is contended that it is a sexual act, but no injuries

was caused to her and no injuries on the accused and medical

evidence is also very clear that no sign of subjecting her for

sexual act and inspite of it, the Trial Court committed an error in

convicting the accused. It is also contended that on the date of

the alleged incident, he was attending the work and also

produced Ex.D6-certificate issued by Offshore Infrastructure,

wherein the appellant was working and plea of alibi was taken

and examined the witness and the Trial Court committed an

error in convicting the accused solely on the evidence of

prosecutrix, her mother and brother, when other material on

record clearly shows that appellant is an innocent. It is further

contended that prosecution has failed to prove the age of the

victim, though examined the Head Mistress and the same has

not been proved and the deposition of the victim is very clear

that victim was not studying in Pejavara High School. From the

evidence of Doctor, it is very clear that the victim was aged

about 16 to 17 years at the time of examination.

6. The counsel also contend that the evidence of

prosecution is very clear that accused was arrested and present

in the police station when P.W.1 and her mother had gone to the

police station on 22.07.2011 to give complaint. The defence

theory that the entire episode was a creation of Louis Corea and

a false complaint has been filed at his instance is probabalised,

considering the evidence of P.Ws.1 and 2. D.W.3 also stated that

he had seen the accused in the police station on 22.07.2011. It

is contended that date of incident was on 09.07.2011 and upto

22.07.2011, the victim girl has not informed about the incident

either to her mother or anybody else. From the deposition of

P.W.1 also, it could be said that she had not resisted the

appellant's act and that she was normal after the incident also.

Learned counsel also reiterated the grounds which have been

urged in the appeal memo in the oral arguments. Learned

counsel would contend that except the interested witnesses, all

other witnesses have turned hostile. The evidence of P.Ws.15

and 16 is also very clear that no case was made out. The

evidence of Doctor is also very clear that no injury and no sign of

forcible sexual act. It is also brought to notice of this Court that

one Louis Corea was having grudge against the accused hence,

the appellant is falsely implicated in the case and there is a delay

of 13 days and there was dispute between the community leader

and mother was also working with the community leader Louis

Corea and all these material creates doubt in the case of the

prosecution. The accused was arrested on 22.07.2011, but the

Investigating Officer says that the accused was arrested on

24.07.2011. Hence, the case of the prosecution is doubtful and it

requires interference of this Court.

7. Learned counsel for the appellant in support of his

argument, relied upon the judgment of the Apex Court in

RAHIM BEG VS. THE STATE OF U.P. reported in AIR 1973 SC

343 and brought to notice of this Court discussion made in

paragraph No.26 that rape alleged to have been committed by a

fully developed man on a girl of 10 or 12 years who was virgin

and whose hymen was intact and absence of injuries on the male

organ of accused would point to his innocence.

8. The counsel also relied upon the judgment of the

Apex Court in SUNIL VS. STATE OF HARYANA reported in

(2010) 1 SCC 742 and brought to notice of this Court

paragraph Nos.25, 26 and 27, wherein discussion was made with

regard to School Leaving Certificate and not proved the same

and P.W.8, the father of the prosecutrix has also not been able

to give correct date of birth of the prosecutrix. In his statement

he clearly stated that he is giving an approximate date without

any basis or record. In a criminal case, the conviction of the

appellant cannot be based on an approximate date which is not

supported by any record. It would be quite unsafe to base

conviction on an approximate date and criminal prosecution

cannot be based on appropriate date which is not supported by

any record, when there are so many infirmities, holes and

lacunae in the prosecution version and appellant is entitled to

benefit of doubt.

9. The counsel also relied upon the judgment of the

Apex Court in BHAGWAN CHARAN MATE VS. STATE OF

MAHARASHTRA reported in 2006 CRI.L.J.579, wherein the

Apex Court held that in a case of rape, medical evidence, no

injuries on private parts, Doctor's opinion that no sexual

intercourse committed and further Chemical Analyser's report

not corroborative, conviction is liable to be set aside. Learned

counsel referring this judgment would contend that this principle

is applicable to the case on hand, as there is no such material.

10. The counsel also relied upon the judgment in JOGI

DAN AND OTHERS VS. STATE OF RAJASTHAN reported in

2004 CRI.L.J. 1726, wherein it is held that in the case of rape,

in the absence of injuries on person of prosecutrix, how an

inference has to be drawn is stated. The absence of injuries

either on the accused or on the prosecutrix shows that the

prosecutrix did not resist but absence of injuries is not by itself

sufficient to hold that the prosecutrix was a consenting party.

Non production of witnesses gathered after hearing cries of

prosecutrix, conviction cannot be based on unreliable solitary

statement of prosecutrix.

11. The counsel also relied upon the judgment of the

Apex Court in RAMDHAN VS. STATE OF RAJASTHAN reported

in 2010 CRI.L.J. 2652, wherein the Apex Court held that when

the charge of rape is alleged, testimony of prosecutrix and

statements of prosecutrix not found to be trustworthy and

worthy of credence, presence of witnesses is also found to be

doubtful on scene of occurrence, conviction of accused solely on

evidence of prosecutrix is not proper.

12. Per contra, learned Additional SPP for the

respondent-State would vehemently contend that nothing is

elicited in the cross-examination of witnesses that there was an

enmity between the complainant's family and the accused and

plea of alibi is also not proved. She would contend that Ex.D6

which is marked in the evidence of D.W.4 is very clear that they

only take signature while entering the office and also while

returning from the office and in between, they can go and come

back. She would vehemently contend that no material that there

is land dispute between the community leader and the accused

family. She would further contend that no mother will spoil the

life of a daughter and at the instance of Louis Corea, the

complaint was not given. The medical report is very clear that

hymen is intact and complaint was given after 13 days, since the

accused had caused life threat and injury might have healed in

between long gap of incident and examination of victim. She

would contend that the evidence of victim clearly states the

manner in which she was subjected to sexual act and to prove

the fact that mother of the victim was an employee of Louis

Corea, no material is placed before the Court.

13. In reply to the argument of learned Additional SPP

for the respondent-State, learned counsel for the appellant

would vehemently contend that in the absence of any

documentary evidence that victim was subjected to sexual act,

since there is no medical evidence and FSL report is also

negative, question of convicting the accused does not arise. The

Trial Court committed an error in relying only upon the evidence

of prosecutrix i.e., mother, brother and interested witnesses.

14. Having heard learned counsel for the appellant,

learned Additional SPP for the respondent-State and also

principles laid down in the judgments referred (supra) by learned

counsel for the appellant, this Court has to re-analyze the

material on record and having re-analyzed the same, the points

that would arise for consideration of this Court are:

(1) Whether the Trial Court committed an error in

convicting the accused for the offence under

Sections 376 and 506 IPC and whether this

Court can exercise appellate jurisdiction and

extend benefit of doubt in favour of the

appellant/accused?

(2) What order?

Point No.(1)

15. Having heard learned counsel for the appellant and

learned Additional SPP for the respondent-State and also

principles laid down in the judgments referred (supra) by learned

counsel for the appellant, this Court has to re-appreciate the

material on record. The very documentary evidence which sets

the law in motion is Ex.P1, wherein it is stated that victim was

subjected to sexual act on 09.07.2011 and it was a forceful rape

on her and the accused has also caused life threat not to disclose

the same. However, on 21.07.2011, when she was weeping,

mother has enquired and then she revealed the incident and

took her to the police station and lodged the complaint and case

was registered, spot mahazar was conducted in terms of Ex.P2

and seizure mahazar was conducted in terms of Ex.P3. The

prosecution also relied upon wound certificate Ex.P9, wherein the

Doctor has opined that radiological evidence of age of victim is

16 to 17 years and there is no external injuries, but hymen is

not intact and there is no injuries over genital area and presence

of seminal stain was not detected in FSL report. The accused was

also subjected to examination and certificate was issued in terms

of Ex.P11 which examination shows that no external injuries

seen over the genitals or nearby and no definite evidence

regarding rape and there is nothing to suggest that he is not fit

for sexual act.

16. Having considered these documentary evidence, this

Court has to consider oral evidence. No doubt, P.W.1 reiterates

the contents of complaint in her chief evidence that she was

subjected to sexual act and caused life threat and complaint is

also marked as Ex.P1 and M.Os.1 to 4 are identified by her. This

witness was subjected to cross-examination. In the cross-

examination, she admits that Louis Corea was leader of the

community and it is also elicited that in the compound of her

father, there are 8 tenements and also on the left side of her

house, there is a road and on the left and right of said road,

there are 5 houses and there is also a mud road on the left side

and there were 5 houses in the said road and there are number

of houses belonging to the muslims. It is submitted that on the

date of incident, there was a mehendi programme in the houe of

in respect of Nazeer i.e., C.W.10. It is suggested that she went

to said mehendi by wearing M.Os.1 and 2 and the same was

denied. But she admits that her younger brother Clefon attended

the same. It is elicited in the cross-examination regarding

incident is concerned and she did not made any attempt to

assault the accused when machete was given to her by the

accused. While taking her climbing the steps from bedroom, she

did not scream and after making her to lie on the ground, she

started screaming and told she was made to lie on the ground,

her clothes were in the same position and claims that accused

himself removed the clothes and she resisted the incident. But

she has not sustained any injuries and she resisted for about two

minutes and she did not get any pain in her private part and

nothing is discharged in penis. It is also elicited that first her

mother came to house and after arrival of her mother also, she

was not crying and she also says that on the next day also, she

went to church alone and she went to school on 21.07.2011

after the incident. But she claims that she disclosed the same to

her friend one Shameena, who is her neighbourer. It is elicited

that that when they went to police station, at that time, C.W.11

Louis Corea was present in the police station and accused was in

the police station and he was sitting on the cement bench and

also Louis Corea, who is in the police station took her signature.

She also says that after her arrival, accused was not secured. It

is suggested that she was not subjected to any sexual act and

the same was denied. It is elicited that visit made to police

station along with her mother was not known to her brother and

mother and they came to know about the same on the next date

and she also visited the police station on the next day also. It is

suggested that there was dispute between Muslims and Christian

community in connection with church area and the same was

denied that says that she is not aware of the same. It is

suggested that complaint was given at the instance of Louis

Corea and the same was denied and it was not thought to her

mind not to disclose the same either to Mary or her daughter

Shanthi or to any other person. But, she claims that often she

was crying and having witnessed the same, her parents enquired

her, but she did not disclose the same from 09.07.2011 to

22.07.2011, except stating the same to her mother on

21.07.2011. But, she did not sustain any injury to her private

part, but she was having pain and she did not disclose the same

to her mother also. It is suggested that Ex.P1 was prepared by

Louis Corea and she put her signature and the same was denied.

17. The other witness is P.W.2-mother and she reiterates

the evidence of P.W.1 as to how the incident has occurred. The

said incident was first informed to Louis Corea and then

complaint was given to police and before informing the same to

Louis Corea, she brought the same to her husband's notice. After

lodging the complaint, she was taken to hospital. On the date of

the incident also, there was a function near her house. On that

day, she came to house at around 4.00 p.m. and husband also

came at around 5.00 p.m. and her son had been to work after

attending the college and another son had been to her mother's

house. She was subjected to cross-examination. In the cross-

examination, she says that on 21.07.2011, before her arrival to

house at 4.00 p.m. on 21.07.2011, her children were there in

house and her daughter disclosed the incident at 10.00 p.m. and

the same was brought to her husband's notice and police took

her signature and also daughter's signature and on the next day

morning at 10.00 a.m., they went to police station. But before

going to police station, she went to house of Louis Corea and

Louis Corea was not there in the police station and she says that

for the first time, she is deposing before the Court that before

going to police station, she had been to house of Louis Corea

and admits that, she did not make any statement that accused

came to return the machete which was confronted and marked

as Ex.D1. It is admitted that house of neighbourer Mary and

their house are adjacent to each other and if anyone bells the

house of Mary or their house, they used to go and see and if

anything happens in the house, they also come to know about

the same. It is suggested that she also attended school on

22.07.2011 and complaint was lodged at the instance of Louis

Corea and the same was denied. She admits that there are 8

tenements in their house and also admits in connection with

rentals, talks were held between her husband and there was no

quarrel.

18. The other witness is P.W.3, the father of the victim

girl. He also reiterated about the incident and states that he

came to know about the incident when her daughter revealed

him about the same. In the cross-examination, he admits as to

how the incident was revealed to him by his wife and he reveaed

the same before the Court. It is suggested that he is deposing

before the Court at the instance of Louis Corea and the same

was denied. But, he admits that on 21.07.2011, her daughter

P.W.1 was not crying and she was not in bad mood.

19. P.W.4 is the neighbourer. She says that P.W.2 is a

maid servant of P.W.7-Louis Corea. But, she says accused went

to the house of victim at 2.00 p.m. and P.W.2 came and

informed about the rape. This witness is a hearsay witness. In

the cross-examination, she admits that this information was not

informed to anybody else, except before the Court and also

admits that in between her house and also house of P.Ws.1 to 3,

there are 20 to 25 tenanted premises and she did not enquire

with P.W.1 that accused came to her house and also she did not

go to house of P.W.1 on 09.07.2011 and she admits that on

09.07.2011, she was alone in the house was not stated before

the police in terms of Ex.D3 and also has not stated that when

she went to shop and came back, she did not make any

statement before the police in terms of Exs.D4 about the

information given by P.W.1 before the police.

20. P.W.5 is the witness, who has turned hostile. P.W.6

is mahazar witness and not a relevant witness and he only

speaks about drawing of mahazar. P.W.7 also turned hostile.

P.W.8 says that police only called to house of P.W.3 and also to

police station and turned hostile. P.W.9 is FSL witness, who

speaks about subjecting the seized articles for examination and

states that he did not find any seminal stains in the articles.

P.W.10 is the Head Mistress for marking of document Ex.P5. This

witness was cross-examined and suggestion was made that Date

of Birth was got typed at the instance of the complainant and the

same was denied. P.W.11 is the witness, who has given Ex.P6

regarding the document maintained in the panchayath. P.W.12 is

the person, who prepared the spot sketch in terms of Ex.P7.

P.W.13 speaks about the mehendi programme. P.W.14 speaks

that there was a mehendri programme and also they kept the

generator.

21. P.W.15 is the Doctor, who conducted the medical

examination and says that as per x-ray, the age of the victim is

about 16 to 17 years and no injuries were found and hymen was

not intact and not found any seminal stains and no injuries on

the private part and issued certificate in terms of Ex.P9. In the

cross-examination, it is suggested that in terms of Ex.P9, there

were no injuries and she was matured and also answer is elicited

that if a girl raids the cycle and plays football, there is a chance

of tearing hymen. It is elicited that if a woman and men involves

in sexual act, it may take 5 to 10 minutes for discharge. It is

also elicited that, if private part of a girl is smaller in size, if a

person, who is grown indulges in sexual act, there are chances

of injuries to the private part of a woman and male also get

injuries and there are chances of sustaining injuries, if it is a

forcible act and the woman will get injuries on the back portion

and also injuries to her body and the same was not found on

examination of P.W.1.

22. The other witness is P.W.16 Senior Specialist,

Government Hospital Wenlock, Mangaluru, who conducted

medical examination of the accused and he says that no injuries

were found and also not found any sign of subjecting the victim

for sexual act and gives the certificate in terms of Ex.P11 and

serological test is also marked as Exs.P13 to P15.

23. P.W.17 is the Police Constable, who took FIR to the

office of the Court. P.W.18 is Women Police Constable, who took

the vaginal slab. P.W.19 is the official who took seized article to

FSL and P.W.20 is the Sub-inspector of Police, who received the

complaint, registered the case and issued FIR in terms of Ex.P16

and accused was arrested and given to custody of Investigating

Officer. P.W.21 is the Police Circle Inspector, who conducted

further investigation in the matter and seizure of clothes and he

states that accused was produced before him and he recorded

his statement in terms of Ex.P17 and also did other formalities of

sending the seized articles to FSL and obtained the report. In the

cross-examination, he admits that he secured the document of

Ex.P18 from the staff of Head Mistress and he cannot tell

whether they have used printed form or Xerox and obtained the

same after filing of the charge-sheet. It is suggested that P.W.1

is aged more than 17 years and the same was denied. He admits

that in terms of Ex.P9 to P15, the documentary evidence

discloses that she was not subjected to any sexual act.

24. Having heard learned counsel for the appellant and

learned Additional SPP for the respondent-State and also on re-

analyzing the material on record, though P.W.1 reiterated the

contents of the complaint Ex.P1, the Court has to take note of

the material on record. P.W.1 categorically admits that Louis

Corea belongs to their community and leader of their community

and says that he was there in the police station and obtained her

signature in the police station. Though, she claims that she

screamed at the spot, when incident took place while taking her

to bedroom, she did not scream, but when she was made to lie

down on the ground, she started screaming and she has not

sustained any scratch marks and though she claims that she was

having pain in her private part, the same was not found in the

medical evidence and she has got no injuries. However the Court

has to take note of conduct of P.W.1 and though she says that

she was subjected to sexual act, when her mother first visited

the house, she did not complain about the same and on the next

day, the victim also attended the church and school and from

the date of incident till 21.07.2011, she did not disclose the

same to anyone, except her friend i.e., neighbourer one

Sameena and the said neighbourer is not examined before the

Court. Though P.W.1 says that Louis Corea and accused was also

there in the police station, according to the police, he was

arrested on 24.07.2011, but she went to police station on

22.07.2011 itself. But, after she went to police station, the police

did not secure the accused and prior to that the accused was

there in the police and he was sitting on the cement bench.

25. It is also important to note that she admits that

when she went to police station, same was not known to her

father and brother, but evidence of P.W.2 is contrary and she

states that the same was brought to the notice of her husband

immediately. But, according to P.W.1, father and brother were

not aware and they came to know about the same through

P.W.2 on the next day. But, P.W.2 says that before coming to

police station, she went to house of Louis Corea and there is a

material contradiction in the evidence of P.Ws.1 and 2 for having

lodged the complaint and about the presence of Louis Corea. It

is the case of the accused also that Louis Corea was having

grudge against him and complaint was given at the instance of

Louis Corea. But evidence of P.Ws.1 and 2 is not consistent

regarding presence of Louis Corea. P.W.1 says that before she

went to the police station, he was already there in the police

station. But, P.W.2 says that she only went to house of Louis

Corea prior to lodging of complaint, but P.W.2 says immediately

after P.W.1 revealed the incident, she brought the same to the

notice of her husband P.W.3. But P.W.1 says her father and

brother came to know about lodging of the complaint on the next

day. But, it is the specific case of P.W.2 that Louis Corea was not

there in the police station when they went to police station and

also confronted the statement of P.W.2 as Exs.D1 and D2 and

also it is the specific case of the prosecution witness that there

were tenanted premises surrounding the house of P.W.1 and

P.W.1 house is also located near the house of P.W.4-shanthi and

if anything happens in both the houses, the same is audible to

both the houses. But, it is the case of P.W.1 that she screamed

at the spot, but none heard anything. P.W.4 neighbourer says

that she came to know about the incident only through P.W.2-

mother, but she claims that she saw the accused going to the

house of P.W.1. But, the same is not stated before the police

and also she did not go and question P.W.1 that why accused

came to her house and the statement also confronted to this

witness in terms of Exs.D3 and D4 and she categorically says

that she did not make such statement in terms of the same.

26. Having considered the evidence of P.Ws.1 to 4,

relevant witnesses are P.Ws.1 to 3. P.Ws.3 and 4 depose that

based on the information revealed by P.W.2, they came to know

about the incident. But the very conduct of P.W.1 is doubtful and

she says that she attended the school and church next day after

the incident and only on the night of 21.07.2011, when she was

weeping, the same came to the knowledge of her mother. But

from 09.07.2011 to 21.07.2011, she was normal and attended

the church and school and this creates doubt in the mind of the

Court. Apart from that the FSL report is also not positive and

witnesses have clearly deposed that they have taken seminal

stains. The evidence of P.W.9 is very clear and also P.W.15,

Doctor, who conducted examination of P.W.1 says that victim

would be aged about 16 to 17 years, but in the complaint, age is

mentioned as 13 years and evidence of the Doctor is based on x-

ray examination and she was matured and not found any sign of

subjecting her for sexual act. The very contention of learned

Additional SPP is that that there was long gap between the

incident and medical examination and the wound would have

been healed and nothing is spoken about the same by the Doctor

and the evidence of P.W.15 is very clear, if any men who is aged

35 years subjects a girl, who is aged below 12 years or above 12

years, if any such act is committed forcibly, there will be an

injury on both of them and no such injuries found and P.W.16 is

the Doctor, who examined the accused and states that there is

no sign of sexual act on examination of accused. Having

considered the entire evidence available on record, the same

does not inspire the confidence of the Court, to come to a

conclusion that P.W.1 was subjected to sexual act.

27. The principles laid down in the judgment relied upon

by the learned counsel for the appellant is aptly applicable to the

case on hand. No doubt, if prosecutrix evidence is consistent and

the same alone is sufficient to convict the accused for the

offence under Section 376 IPC, but the evidence of prosecutrix is

not credible and doubtful with regard to the very scene of

occurrence. The Court has to take note of conduct of P.W.1 and

immediately after the incident, nothing is revealed and apart

from that, no injuries are found on the victim. In the judgment

of JOGI DAN's case, it is held that, in case of rape, in the

absence of injuries either on the accused or on the prosecutrix

shows that the prosecutrix did not resist but absence of injuries

is not by itself sufficient to hold that the prosecutrix was a

consenting party. Non production of witnesses gathered after

hearing cries of prosecutrix, conviction cannot be based on

unreliable solitary statement of prosecutrix.

28. In the case of BHAGWAN CHARAN MATE's case, it

is held that in a case of rape, if there is no medical evidence and

no injuries on private parts, Doctor's opinion that no sexual

intercourse committed and further Chemical Analyser's report

not corroborative, conviction is liable to be set aside. In this

case, both medical as well as FSL report not supports the case of

the prosecution. In the other judgment in RAHIM BEG's case,

when rape alleged to have been committed by a fully developed

man on a girl of 10 or 12 years who was virgin and whose

hymen was intact and absence of injuries on the male organ of

accused would point to his innocence. But in the case on hand,

though hymen is not intact, but in the cross-examination, it is

also elicited that if a girl raids cycle and plays football match,

there is a chance of hymen not in tact.

29. In the case on hand, medical evidence and FSL

report goes against the prosecution and Trial Judge committed

an error in coming to the conclusion that no mother will lodge

the complaint and spoil the life of a daughter and the same

cannot be a ground to come to such a conclusion that the

accused committed sexual act on the victim. But, in the evidence

of P.Ws.1 and 2, there is a clear contradiction with regard to the

incident and the very conduct of P.W.1 after the incident

allegedly taken place was normal, but material disclose that on

disclosure of the incident to the mother, she was taken to the

police station and hospital. The very case of the defence is also

that when Louis Corea was having grudge against the accused

and there was dispute with regard to the church property and

also admittedly, he was a leader of community as admitted by

P.W.1 and P.W.4 categorically say that P.W.2 was working under

Louis Corea in his house. It is also important to note that first

she went to house of Louis Corea before lodging the complaint

and thereafter, complaint was lodged and P.W.1 says father and

brother were not aware of the same, but came to know about

the same through her mother and P.W.1 also categorically says

that Louis Corea was very much present in the police station

when they went to lodge the complaint. The evidence of P.W.2 is

contrary and P.W.1 categorically says that her signature was

taken by Louis Corea when she went to police station. But

according to the prosecution, he was arrested on 24th and P.W.1

says accused was there in the police station on 22nd itself and

there are material contradictions in the evidence of prosecution

witnesses and the same has not been properly appreciated by

the Trial Court and merely because the victim deposed before

the Court that she was subjected to sexual act and when the

same is not trustworthy and credible, accused cannot be

convicted for the said accusation and medical evidence and FSL

evidence is contrary to the case of the prosecution and these are

the discrepancies which are not taken note of by the Trial Court

while convicting the accused. Hence, it requires interference of

this Court by setting aside the judgment of the Trial Court by

exercising the appellate jurisdiction. Accordingly, I answer point

(1) as 'affirmative'.

Point No.(2)

30. In view of the discussion made above, I pass the

following:

ORDER

(i) The criminal appeal is allowed.

(ii) The impugned judgment of conviction and sentence is set aside. Consequently, the

accused is acquitted for the offence under Sections 376 and 506 IPC.