3. _ By Paijagada Police IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 10"" DAY OF NOVEMBER BEFORE THE HONBLE MRJUSTICE E CRIMINAL APPEAL BEE WEEN: Gopinaika S / o Sevya Naika Aged about 34 Years ._ I Lambani, Shepherd V R / o Jajurayan_a}'ia1i*i. 1 Pavagada Taiuk .3 in ._ . A V Tumkur Disi'tric7f';'.T"""'--V._ b ...APPELLANT [By Sri.S§ AND: 0 V 0 1' State ofuKarf1'atgika. TL1m'}*;1,ir i-DiVst'r..ict. 3' 'E ...RESPONDEi\IT Majage, HCGP) is filed under Section 374(2) Cr.P.C flagainsi;..1:he judgment dated 10.12.2003 passed by the 'A n T Addi-tionai Sessions Judge, Tumkur in - é »S;C.N'o,26/ 1997 convicting the appeiiantwaccused for an 3' ,offe'm:e' punishable under section 376 IPC and ___""se1i;tenci13g him to undergo 10 Years RI. and pay fine of _ ..'_"Rs-;010,000/~, in defauit, to undergo SI. for 8 months, 'the substantive sentences shah run ooncurrentiy. This appeai coming on for hearing this day, the Court delivered the following: J U of GKMNE N T The appellant [hereinafter referred to as accused) was tried and convicted for offences punishable under Sections 376 and 341 I.P.C. Therefore, he has filecijthpis appeal. 2. I have heard Sri.S.K.Venkata H Counsel for appellantaccusedizii iv Majage -- learned Government Ifleaderrfor thefétated} if if if 3. The inter se re1at1'on._si1i_p of--- s:o'rr1e:?§of the prosecution wi'tr;.es»s'es_"and----_the ease of prosecution may be statedéthéuisj . p _ : ,ji~3'»1z.1 V--"AriithaV'Bai is the daughter of PW.7 -- and PW.8« Shalibai. PWs.3 to 6 are related accused. The accused is the cousin _ brother of The father of PW.1 and the father of :_acc:.i.sed""are direct brothers. At the relevant time, they "residents of Jajurayanahaili, Pavagada Taluk, T Tumkur District. g\J.--~,:_/1 . I 4. It is the case of prosecution that during the year 1995, PW.1 was aged about 12 years and sheVp'p"Was grazing the sheep. On 29.12.1995, PW.1 PW.4~ Lalu Naik and one Gopi were grazing.,t1t1eir:s1i4eep'"1 1 in a land near Jajurayanahalli. p.m., Gopi S/0 Gyananaika,-s__.PW.4._V_'%" Lalu' /to Kunte Ramanna returned to viiiage to take V'}At that time, PW.1 and accused_i2E~'ere_ sheep near a place called Govinakatte: Vaceused PW. 1 on the pretext of fruits. The accusedvddciinihed treewavnd plucked tamarind fruits and 'g-a\Vre- The accused suddenly fe11ed_.'PW.andfcorniriitted rape on PW.1 despite 1'it"prot'e--s:ts:,,"by" somehow managed to escape ifronfi of accused and proceeded towards her 1 Village. way, she met one Pujari Naik and Lalu and: informed them about the incident. They a._q'ue'stioned the accused, the accused did not express it 1*egrets for What he had done, on the other hand he told it that he would not leave any woman except his own sister. PW} reached the house, her father; P'.V.7 -- T\}": :1. *»---CK. L 4 Sevya Nayaka and mother PW.8 -- Shalibai were not in the house and she informed the matter to some oiithe elders of Village. 5. On the following day, ie., on about 4.30 p.m., first information got": some person and the same was ll'odgetdl5 the jurisdictional police station (Paikafiadpa Po1ic_eStati;on], on the basis of which \i_Ias_Vregist"ered against the accused. PW.l was se.nt.._for Veiépamination and she was pW..l;;i}ai;shm1 Rajyam who noticedllithefol_loi'_ring:~ ' l '*-'t'fI'l1e 'condition of the patient was normal. V Pulse' is" also normal. No external "~injt1'1iies ._oVertl*iel face, breast and thighs and l * .V:gVe--niteria. On P.V.examination (for * A H 'vaginaflp:«examination admit one finger). Lower '"part'oft'he hymen is torn and reddish. Service pnomrial and pubic hair, vaginal swabs and it 'smears collected and sent for chemical examiner's report. Clothes are also preserved and sent for chemical examiners report." ?l\3' _. V ,.L,. C'/\ LL46)' ' 6. The Investigating Officer Visited the place of occurrence and recorded statements of un'tnesses'f:a'nd submitted charge sheet against accused punishable under Sections 341 and 376 V l l '7. During trial, PWs.1 to documents as per Exs.Pl Material Object viz., tamarindlVi4l'fr;uit.s_ ',_l<l§1ried.l:'f.flowers were collectively marked_._a"3_ 1' if if 8. The defence of total denial. 9.:':_Th.e Judge on appreciation of evidence and ovnl"hear1'ng; learned counsel for parties, _._heldv. t'accuse'dw:g_uilty of offences punishable under 341 I.P.C. Therefore, accused is before this .Court.A7fj l appeal following points would arise for it ' ' d,ete1*rnination: r.1]'A.v_V"w'-Vhether the prosecution has proved that on 29.12.1995 at about 4.00 p.m., when PW.l was grazing sheep near a place called Govinakatte of J\'}. Crxx-«J1; . 6 Jajurayanahalii Village, accused induced PW.1 to pluck tamarind fruits and thereby accused took her near Halia and feii on her on the ground and committed rape on her against her will, thereby committed an offence punishable under secti,o'n-. 1.
p.c.? W ”
2] Whether the learned Trial Judge _.has=.::’_proper1y1. ” if
appreciated evidence on record? A if if ” if
3) Whether the impugned. judghient
interference?
4) What order ‘?
11. ‘ examined by the
prosecution,”-«.materia}’~.V\X7itnesses are PW.1 {victim} her
fath€§pr§”iPW;7:_ Seyyaél-ayaka and mother PW.8- Shaiibai.
he “othe_ri .,4″witnesses are either post occurrence
witr:esses_ or’iWiVtnesses for spot inspection conducted by
Investigating Officer, they have not supported the
A prosecution. The medical evidence is given by
10 — Dr.Lakshrni Rajyam.
12. As per evidence of PW.i and her parents,
PW.I was aged about 11-12 years at the time of
. w-._c.. fl/\_/L I
occurrence. PW.l had not gone to school and there
were no school records in proof of her date of birth.__ The
parents of PW.1 are shepherds by occupation. They”‘–are
illiterate persons. The mother of Victim has
age of victim as 11-12 years at the time of
The report given by the Radiologist
Bangalore, indicates that PW.1_ {victim} llaljout
15-16 years at the time of occvdurrenpcef facts are
not disputed and therefozre’it–l_lca;1 held that the victim
was less than 16..yearsA.of.,age at occurrence.
The PW.1 is the cousin
sister oiuthe other words, the father of
victim.PW.7l””—_:SexfyaA”Nail{a and the father of accused
1. “namely S-avi’ya direct brothers.
v , has deposed that, on the date of
occ.urrence.V–“s_h.evlhad gone for grazing sheep along with
lv.co-villlagerslnaniely Lalu Naik, Gopi, S/o Gyananaika,
Naik, S/0 Kunte Ramanna and Pujari
Mfiilflainumanaika and the accused. Around 2.30 p.m., the
Tabove two persons namely Lalu Naik and another
returned to the Village to take food. At that time,
gm. CW \ .
22
accused and PW.1 were grazing sheep in a land near
Govinakatte. There were tamarind trees nearby. The
accused took PW.1 to pluck tamarind fruits. ___The
accused climbed tamarind tree and plucked
fruits, PWT1 picked up the same.
of the sheep ran towards the
towards Halla to get back the
accused ran towards PW.i aI1:d”~~forcibl3r ‘fell and
committed rape on her-.._. PWJI has’l’d.eposled”‘ab’out the
acts committed by accused act of forcible
penetration.” T. .V
During lcrossf<e;i'am1n:ation, PW.1 has admitted
that she sufferedvi1'ijuries"'when she tried to escape from
lllllthe "clut(:ehes_of accused. She has admitted that her
lelothels lst:ai.ned with blood and there was bleeding
frorr:–..4__l\Iag,§i1*3ap,l'..- PW.1 has deposed; when she returned
.l""'-__lhompe, father was not in the house, therefore, PW}
a.land*»-her mother informed the matter to the elders of the
it village who advised them to lodge a complaint against
it accused. On the following day, PW.1 and her parents
went to Pavagada RS. and got the Complaint written by
4- 3,," L –
In the mean’while;Cone’-i ‘
.H’ali.aA Eil_I1dLllF’».l:7,\/r4.1lll l
at ,
some person and PW.1 affixed her LTM and lodged the
complaint. PW.1 was sent for medical examinationda-nd
she was examined by PW.1O —
LMO.
14. The post occurrence:v”iii}it11ess.es
supported the case of T it
witnesses, who had uritnessedi:.V:VVspot the
Police S11b–ins;)ector{I-7?/”£>,_). V V’ V ‘A it
15. The mother of!’ – Shalibai
has deposiede:…:edurii.f1″g evening of day of incident.
PW.1 was told PW.8 that accused
committed rape ‘or: contacted some of the
the v111;ig”e’;as her husband was not in the
‘1viliage;i’ ‘thVe.v:’f01lowing day, they came to Pavagada
police stiationn’ and lodged the first information. Similar
the xrersion of the father of Victim girl.
During cross–exaII1ir1at1’on, PW.7 and PW.8
adrnitted that there was enemity between accused on
it one side and PW 7 and PW 8 on the other side. They
were fa.cing sessions trial for an offence punishable
5\_}£ c.’.”:.’¢£\ -~..,.{‘/\ -‘1.,.-‘W
under Section 302 i.P.C., on the allegation that they
had committed the murder of junior aunt of
however, PW.1 has clarified that alleged
murder occurred after the incident of ll
further clarified that alleged incident…’
which the parents of PW.1 Were.__arrajre_dl’ as
place several days after the has
denied suggestion thatlvgiie implicated the
accused due to pre_.exis.tintg the parents
of PW.1 and
16l’–:.__ PW ‘Rajyam — LMO who had
examined vPVi’7l'(‘vic'”t-irrl) on 30.12.1995 [on the
._.V.3.°ollo\2sri§A1:’l1<lg day of o–cclurr<:=:nce) at about 4.00 p.m., noticed
0": "~ . __
'ltfiiherellllwere no external injuries on the
'face..,_"bi*elast and thighs and external beneteria.
A jOn" examination (for vaginal examination
one finger) Lower part of the hymen is
torn and reddish. Services normal and public
hair vaginal swabs and smears collected and
sent for chemical examiners report. Her
/A?
W ~ i
clothes were collected and sent for chemical
examination.”
Ex.P8 is the Forensic Science Laboratory”‘:reficrrtv..
wherein the test of seminal stains on —
vaginal swab was found to be°MnegatiVoe..;<
presence of seminal stains was not'dete_eted file 'V
coat of the Victim. After recei}'5"r»F'SL renorth;-I has
opined that the case to be avirajae.
17. The V evider1_ce._ PW.1 1 —
Dr.V.K.Chovvdi_ari to of accused and
his capiabi1.itynVt;o” .pe_rforrn_:sexu1ai intercourse. PW.11 had
examined”accuse’d_ at about 7.30 p.rn.,
andmfjourid thlatlavccused was capable of performing
sexual i,nte1’course. There are no documents in proof of
agedhof’ could be seen from the charge sheet
Iand other documents, accused was aged about 21 years
A Catt’ t’1″eAtirne of occurrence.
9′ “A18. Sri.S.K.Venkata Reddy ~»~ learned counsei for
accused referring to the evidence of PWs.l, 7, 8 and 9
has made following subrnissions:-
F
.4
I. The evidence of Victim that accused committed
rape on her does not find corroboration from
medical evidence. The Victim had not suffered
external injuries nor there were injuries
private parts to indicate that she ”
subjected to rape.
II. There was pre existing enmity_..tl1e
members of victim farnily ‘ of
accused. In fa(:t,~.__the.vr”parei?tse’.._of l3lW”;1″”name1y
PWs”‘7’lfacinglpsessions trial for an
Section 302 I.P.C., on
the alltegationh.’-that had committed the murder
1.
unexplained delay of 24 hours in
A first information. The immediate post
it occurrence Witnesses have not supported the case
V of prosecution.
In View of positive opinion furnished by PW.1O
that it is not a case of rape, the trial court should
am . :3» “ix x 1″/x–
not have held the accused guilty of an offence
punishable under Section 376 I.P.C.
V. The learned Trial Judge without noticing “the
material discrepancies and lack of
evidence in support of evidence of ~
convicted the accused for ll
under Section 376 I.P.C.
judgment cannot be l ‘A is l
19. The learned HCGP submit Atizat.-niedical
evidencel§iV’en1vf,byllll?f’Vw’. that hymen of PW.1
was torrikandlthe”Vl’ovg}er.:lP’§r–t of Vagina was reddish in
colour, _Whici1V_:Vcle.a;–rl3}’». indicates that PW.1 had been
‘l is “s1ibj’estei;i’A tg» tape. A V” lllll ” by
I is learned counsel for accused has relied on
2 _ a decision .Vlo’fAlBombay High Court reported in 1998
3l68 (in the case of Shivraj Chandrappa Yadav
‘State of Maharashtra and another} and a decision of
it :l.4:”Orissa High Court, reported in 1991 cr1.L.J.1594
A’ (Basudev Naik Vs. State]. L
I
am. a’–»f9*’\. ca.
“ha 4
PW.l had no motives to falsely implicate accused
in a case of rape that too when accused is nonehother
than her paternal cousin brother. an
unmarried girl and she had no reasons..,to~V.Vcolncoct. 2
case of rape against accused
her honour but also effect tic-r_.mariA’:a’l’ V
During cross–eXamination, lilfiadmitted
that her father and sessions trial for
an offence puni.shable’- l.P.C. on the
allegation._th§at murder of her junior
atint.h;l°W.’1lAtliat alleged incident occurred
several’ date of incident of rape.
Th.c;ijefore, asuon ltflhedate of incident of instant case and
‘l,o’dgi1i«g”0fe.fi1*st information, PW.1 had no reasons to
falselylvinipliciate the accused. PW.1 is a humble rustic
villagerzand shepherd by occupation and she had not
A even attended the school. From the evidence of PW.8~»
mother of victim and PW.7–father of victim, I find that
they did not have any motive to falsely implicate
accused. Their evidence does not suggest that they had
any enmity against accused to concoct. a case of rape
N _ 0’\i_’k
against accused that too, by staking modesty of their
daughter. The evidence of PW.1 cannot be discarded on
the ground that there was enernity between the parents
of PW.1 and the parents of accused.
the occurrence. PW.l had narrated to her i
what had happened. They had
to the elders of the village. It appears,’
available after the incident. surrendered
before the Trial court abscondance
of accused is also a str’ongfcircu_Iristanc,eagainst him.
Thou gh “the ‘eifidencel completely positive
about sexua.l evidence of PW.1O that
on examination’ ofl-3W’;_1 10 found that lower part of
‘l of PW.1 wasftorn and it was reddish in colour
ll’wou_eld * version of PW.i that she was
sexdu-allyi by the accused.
” During crossmexamination, PW.lO was
ilsuggetsted that partial tearing of hymen and reddish
colour of hymen could be due to selfwinflicted injuries.
it It was suggested to PW.lO that such an injury could be
caused if one were to insert knails into the Vagina.
fl’: . \« £’»*\ -\ x
17
These suggestions do not fall within the realm of
investigation. The defence of accused that PW.1 had
inflicted injuries on her vagina by inserting knaiis to
concoct a story of rape against accused is far
and it cannot be accepted, particu1.a’f’iyvfhifi’
background of parties and their-admitted
24. I find from the report (Forensic ,
Laboratory that test for pr’esence of..semfii1aI’–,fstains on’
vaginal swab and presence”of’s_perinatozoa”onVthe petty
coat of Victim was found.’negfati;Ve,..:_ffA.t juncture, it is
re1eva.nt._to jtiaatvrifagiiial swab which was collected
on the “”fo1ioVwii1gRfefdaj””_.»e.i.4e., on 30.12.1995 had been
reta.ine’d by uftheLuiniiestigating Officer til} 25.1.96 and
Vthereafter’.,_f”they were sent to Forensic Science
“Laboratorj,f.fp’.I=f’f’he report of Forensic Science Laboratory
is 93.9.1996. The test was conducted about few
idays prior to preparing the report. If the test was
conducted after such a long time, it would not be
impossible to find the presence of seminal stains and
presence of spermatozoa on vaginal swab and petty coat
of PW.}. Therefore. these lapses on the part of
Investigating Officer would not eriure to the benefit of
accused or there cannot be grounds to discard evidence
of PW.1.
25. The cross~eXamination of PW.1
indicate that she had other reasons
injuries noticed by the Medical Qfi’icer. nu
examination of PW. 1, it is not estab1is:he’d
reasons to faiseiy implicate’ none
other than her pE£’£€I’I’k8;1.zCOu$i’1’i’ Breather thAat”too;: at the
risk of exposing her chastity i~aund Therefore,
I do fi_ndgvVa’i.;y,_prea’svons__ to suspect the evidence of
PW.1. Though “flied-icdaievidence does not completely
support the version of:PW.1, the evidence of PW.1O and
oi”‘2vo1i_nd certificate indicating that iower part
was torn and it was reddish in colour,
flgwouiud .. support evidence of PW.} that accused
it ‘v.:tcoArntrn.itted rape on her. Therefore, the submission of
.___”‘i’.’iea;r’ned counsel for accused that there is lack of medical
fl’veviden_ce and the prosecution has failed to prove the
essential ingredients of rape to attract an offence
punishabie under Section 376 IPC cannot. be ac Eepted.
26. In a decision of the Bombay High Court,
reported in 1998 Crl.L.J. 3168 (in the case of
Chandrappa Yadav Vs. State of _
another] the accused was tried ‘*
under sections 354 and 342 I.P.Cl.’-._p if if f
In a decision of Orissal””i:l:”lig’h’ in
1991 Crl.L.J.1594 (Basgu-dev_”‘il.\laiA1fil:YslW.State]lithe Court
having regard time of
occurrence of an offence
punishable and 324 i.p.c.
Therefore, »held afore stated decisions
is not applicable case.
[In the case, PW. I has given the details
cf;”sexLial.i’assault committed on her, which would
constitultellessential ingredients of offence of rape. In the
‘,circumsta.nces, I do not find any reasons to suspect the
if li~lleniidence of PW.1. The learned Trial Judge on proper
appreciation of evidence held the accused guilty of an
offence punishable under Section 376 I.P.C.
imprisonment for a period of Ten years. In View ofupthe
sentence passed for an offence under Section 376:
there is no need to pass a separate S’
offence under Section 342
is essentially involved in an
Section 376 I.P.C. The does any
criminal antecedents. V to r’efo”rrr1″.v:
31. Therefore, whiie judgment of
conviction, I and pass the
followinvgpiVSA–.,,,F__ff it ‘ it it if S V
44
The appeaiis. accepted in part. The conviction of
..accus}ed;»_’for V.o.ffenxce’s*”under Sections 376 and 341 I.P.C.,
“=is”‘co’nfiTrnied’§ accused is sentenced to undergo
simple imprisonment for a period of 7 years for an
f”=~v.___offence”punishable under Section 376 I.P.C. The fine by
.Trial Court for an offence under Section 376 I.P.C.,
S'”v..i_s_.;confirrned. The sentence imposed for an offence
“Sunder Section 341 {PC is set aside. The benefit
extended under Section 4-228 Cr.P.C. is confirmed. Office
T\). N £;,«e.–.,
is directed to send back records along with a copy of
this judgment. The learned trial Judge shall s:a e(:1,1:’e
accused to implement the sentence.
L~Mfi. ‘.1.
a
%;:+ {free
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