Ravi @ Ravikumar vs The State Of Karnataka on 24 October, 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 24TH DAY OF OCTOBER 2017

BEFORE

THE HON’BLE MR. JUSTICE BUDIHAL. R.B

CRIMINAL APPEAL NO.1135/2013

BETWEEN:

Ravi @ Ravikumar
S/o Late Natraj
Aged about 26 years
Bovi Jananga
Stone Cutter
R/o D.No.89, Mogarahalli
Kallumanti Village
Belagola Hobli
Srirangapatna Taluk
District-Mandya
Pincode-571 401. .. APPELLANT

(By Sri Pratheep K C, Adv.)

AND:

The State of Karnataka
Through K.R. Sagar Police
C.P.I., Srirangapatna Circle
Srirangapatna-571 438. ..RESPONDENT

(By Sri S Vishwamurthy, HCGP)

This Criminal Appeal is filed under Section 374(2)
CR.P.C. praying to set aside the judgment and order of
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conviction and sentence dated 30.09.2013 passed by the III
Addl. Dist and S.J., Mandya (Sitting at Srirangapatna) in
S.C.No.191/2012 – convicting the appellant/accused for the
offences punishable under sections 376, 506 of IPC.

This Criminal Appeal coming on for Final Hearing this
day, the Court delivered the following:

JUDGMENT

This is the appeal preferred by the

appellant/accused filed under section 374(2) of Cr.P.C.,

being aggrieved by the judgment and order of the

conviction and sentence passed by the III Additional

District and Sessions Judge, Mandya (sitting at

Srirangapatna) dated 30.09.2013 in Sessions Case

No.191/2013. By the said judgment and order of

conviction, the appellant/accused was convicted for the

offence punishable under section 376 and 506 of IPC

and he was sentenced to undergo rigorous

imprisonment for 7 years and to pay a fine of

Rs.30,000/-, in default to pay the fine amount, he shall
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undergo simple imprisonment for period of 6 months for

the offence punishable under section 376 of IPC.

Further, the appellant/accused is sentenced to pay a

fine of Rs.2,000/-, in default of the payment of fine

amount, he shall undergo simple imprisonment for a

period of 1 month for the offence punishable under

section 506 of IPC. Being aggrieved by the same and

challenging the legality and correctness of the judgment

and order of conviction and also sentence imposed by

the trial Court, the appellant/accused is before this

Court on the grounds as mentioned in the appeal

memorandum at ground Nos.1 to 24.

2. The brief facts of the prosecution case as per

the Ex.P1-complaint averments that the victim girl is

the complainant. She lodged the complaint stating that

she is staying along with her father and mother at

Mogarahalli and was studying in 7th standard on
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Mogarahalli government High School. On 11.04.2012

as there was a festival in their village, she went and sat

nearby Mariyamma temple at night about 8.00 p.m. At

that time, Ravi-appellant/accused herein who was

standing at a little distance called the victim girl and

when she went to him, he told the victim girl to bring

7up cool drink, she asked him to pay amount. At that

time, the appellant/accused told that he will also

accompanying her up to the shop and he took the victim

girl to the shop of one Shivanna. There, the

appellant/accused gave Rs.100/- to Shivanna and

asked him to gave 7up cool drink. The said Shivanna

gave 7up cool drink to the hands of the

appellant/accused so also changes were given to him.

Then, the victim girl told him that she will go to her

house. At that time, the accused person told her that

she can have 7up along with him, stating so, he took
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her to some distance. At that time, the victim girl,

because of the fear again told that she will go to the

house. At that time, all of a sudden, the appellant/

accused caught hold her hand and forcibly dragging her

stating that she should come with him and he took her

nearby Tati tree, which was near grave yard. When he

was dragged her to the said place, though she

screamed, even then nobody come for her help, as it

was night at 8.00 p.m, the person already closed their

doors of the houses. The appellant/accused dragged

the victim girl nearby Tati tree, there he removed her

clothes by tearing them and also removed her paijama

and undergarment and he also removed his pant and

undergarment and forcibly he made her to lie on the

ground and forcibly committed sexual intercourse with

her. Thereafter, the appellant/accused gave her cloths

and told to the victim girl that tomorrow at 9.00 p.m.,
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she should come near the Tati tree, if she did not dome,

he will kill her, stating so, he threatened her. Then he

told her to go to the house. After coming to the house,

she informed about the incident to her parents. The

parents told her that as it was night, morning they will

go to the police station and can give complaint.

Therefore, she come to the police station on the next

day of the incident i.e., on 12.04.2012 and requested

the police to take legal action against the

appellant/accused who has committed forcible sexual

intercourse on her.

3. On the basis of the said complaint, FIR came

to be registered as against the appellant/accused as per

Ex.P2 for the offence punishable under sections 376

and 506 of IPC.

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4. After conducting and completing

investigation, the police have filed charge sheet against

the appellant/accused herein for the said offences.

5. After hearing both sides and as the accused

pleaded not guilty and claims to be tried, the trial Court

framed the charges against the appellant/accused for

the said offences and posted the mater for trial.

6. In order to prove its case, the prosecution in

all examined 17 witnesses at PWs.1 to 17 and got

marked documents as per Exs.P1 to 12 and also

marked the material objects at M.Os.1 and 2 and closed

its side. On the side of the defence, no witnesses

examined nor any document got marked.

7. After hearing the arguments of both sides

and after considering the materials placed both oral and

documentary, the trial Court comes to the conclusion
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that the prosecution has proved its case beyond all

reasonable doubt and convicted the accused for both

the charges i.e., for the offence punishable under

sections 376 and 506 of IPC. Hence, the

appellant/accused is before this Court.

8. Heard the argument of the learned counsel

appearing for the appellant/accused and also argument

of learned HCGP for the respondent-State.

9. Learned counsel appearing for the

appellant/ accused made submission that looking into

the prosecution witnesses i.e., victim girl, her mother

and other witnesses, there is no consistency in the

evidence of prosecution witnesses. Learned counsel

submitted that looking into the evidence of these

witnesses, it cannot be said that the prosecution has

proved its case beyond all reasonable doubt. It is also
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his submission that as far as age proof of the victim girl

is concerned, except the school certificate, there is no

other document produced in support of the same.

Learned counsel further submitted that even looking

into the evidence of Head Mistress of the said school

during the course of cross-examination, she admitted

that whatever the date mentioned by the parents of the

victim, they have mentioned the said date as date of

birth of the victim girl. Hence, he submitted that the

said certificate cannot be taken to be in proof of date of

birth of the victim girl. It is also his submission that as

far as injuries aspect is concerned, the medical record

goes to show that there are no external injuries present

on the victim girl, so also no injuries to the private part

of the victim girl. Learned counsel submitted that when

it is the case of the prosecution that forcible sexual

intercourse is taken place on the victim girl and when
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the place of incident as per oral evidence of the

prosecution witnesses itself, it was hard surface,

naturally there will be injuries like abrasion-injuries on

the back of the victim girl, if really such incident took

place that too for the minor girl as projected by the

prosecution. It is also his contention that the victim girl

herself deposed before the Court that she has not

changed the cloths nor she has washed cloths and she

has not taken bath and on the next day of the incident,

she was sent to medical examination. Even looking into

the medical examination report also, there is no

material supporting the case of the prosecution. Hence,

he made submission that the medical examination

conducted by the prosecution also will not comes to the

aid and assistance of the prosecution case in proving

the charge. Learned counsel also made submission that

totally 8 articles were sent to the FSL for examination
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and looking into the FSL report, there is a negative

opinion form the FSL authorities. Hence, it is his

contention that looking into all these materials,

absolutely there is no material placed on record, both

oral and documentary to show the commission of the

alleged offence by the appellant/accused. Learned

counsel submitted that looking into the prosecution

material itself, reasonable doubt arises in the mind of

the Court and the benefit of the reasonable doubt may

be given to the appellant/accused. Learned counsel

submitted that the trial Court wrongly comes to the

conclusion that the prosecution has proved its case

beyond all reasonable doubts. He has also made

submission that the findings and reasons of the order

by the trial Judge are not in accordance with law and

materials placed on record. Hence, learned counsel

prayed to allow the appeal and set aside the judgment
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and order of conviction passed by the trial Court and

acquit the appellant/accused from all the charges.

10. Alternatively, learned counsel for the

appellant/ accused also made submission that in case,

if the honorable Court still holds that there is offence

committed by the appellant/accused, it cannot be rape

itself. He made submission that in that event, the

punishment will be half of the punishment as

prescribed for the main offence. Learned counsel

submitted that the appellant/ accused already in

judicial custody for the period of 5 years 9 months 20

days. Hence, he made submission that considering the

length of period of the custody and if it is admitted that

the accused has committed rape if at all as held by this

Court, whatever the sentence undergone by the

appellant/accused is sufficient and it can be an order

for release of the appellant/accused immediately. In
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support of his contention, learned counsel appearing for

the appellant/accused relied upon the decisions of this

Court and honorable Supreme Court, which he has filed

along with memo dated 23.10.2017.

11. Per contra, learned HCGP who appearing for

the respondent-State made submission that age of the

victim girl is 14 years. It is also his submission that her

oral evidence is sufficient and it does not require any

corroboration from any other independent witnesses.

Learned HCGP further made submission that looking

into the medical record, doctor who conducted the

medical examination of the victim girl mentioned as far

as hyman it was not intact. Therefore, he made

submission that itself is sufficient to hold that there was

evidence of rape. Learned HCGP further made

submission that the doctor also mentioned that vegina

admits one finger easily. He also made submission that
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the evidence of the mother and aunt of the victim and

other prosecution witnesses also support the case of the

prosecution. Hence, he submitted that if there is no

such incident, there was no reason for the victim girl to

tell these things before her parents to lodge this

complaint. Hence, he submitted that all these aspects

were properly appreciated and considered by the trial

Judge and he rightly comes to the conclusion holding

that the appellant/accused is guilty of the offence

punishable under section 376 and 506 of IPC.

Therefore, he made submission that no illegality has

been committed by the trial Court nor there is perverse

and capricious were taken in coming to such

conclusion. He further submitted that the decisions

relied upon by the learned counsel appearing for the

appellant/accused are not come to the aid and

assistance of the appellant/accused. Hence, he
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submitted that there are no valid and justifiable

grounds to this Court to interfere into the judgment and

order of conviction passed so also sentenced imposed by

the trial Court. Lastly, he made submission that as

there is no merit in this appeal, the same may be

dismissed and confirm the judgment and order of

conviction passed by the trial Court.

12. I have perused the grounds urged in the

appeal memorandum, judgment and order of conviction

passed by the trial Court, evidence of prosecution

witnesses P.Ws.1 to 17, documents Exs.P1 to P12 and

considered the oral submissions made by learned

counsel on both sides at the bar and also the decisions

relied upon by the learned counsel for the appellant,

referred to above.

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13. To constitute an offence under Section 376 of

IPC, if the evidence of prosecutrix is trustworthy and

cogent, it does not require any corroboration from other

witnesses. But the evidence adduced in a particular

case and facts and circumstances involved in such case

are to be looked into by the Court to ascertain whether

such offence has been committed or not.

14. Victim girl is the complainant in this case. She

has lodged the complaint as per Ex.P1. She has been

examined before the Court as P.W.1. It is her

contention in the complaint that on 11.4.2012 there

was festival of Mariyamma diety in their village. She

had been to the said temple along with other family

members at 7.30 p.m. The other family members

returned home, but the victim remained there itself. At

that time, the appellant-accused who was standing
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there called the victim and asked her to bring 7UP.

When she told him that she want to go home, he held

her hand and dragged her forcibly to accompany him

and took her near the thati tree situated near the

graveyard and committed forcible sexual intercourse on

her. The alleged offence is said to have been committed

at about 8.30 p.m. on 11.4.2012. But the complaint

came to be filed on the next day morning. Hence, let me

refer to the prosecution material whether there are

cogent and sufficient reasons for the delay in filing the

complaint.

15. P.W.1, the victim girl has mentioned in the

complaint that after the incident she came to the house

and informed the same to her parents and her parents

in turn told her that as it was night they would go to the

police station on the next day to lodge the complaint.
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16. P.W.2, the mother of the victim has stated that

as her daughter did not return to the house, they went

in search of her and saw her coming weeping near the

graveyard and when asked, she narrated about the

incident before her mother and other relatives who came

to the said place. It is also mentioned that her aunt

asked her as to where she had gone and stating so, she

slapped on her cheeks. However, P.W.1 has deposed in

her evidence that after the incident she went to the

house along with her aunt and her aunt informed about

the incident to the parents of the victim girl. Looking to

this material it is seen that there is no consistency in

the evidence of P.W.1 and contents of the complaint, so

also, in the evidence of P.Ws.2 and 3 regarding delay in

lodging the complaint.

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17. So far as the alleged incident is concerned,

P.W.1, the victim girl has deposed that appellant took

her to the nearby thati tree near the graveyard and

forcibly made her to lie on the ground, removed her

clothes, he also removed his clothes and committed

forcible sexual intercourse on her. On the next day i.e.,

on 12.4.2012, when she went to the police station to

lodge the complaint, after receiving the compliant police

referred her to the medical officer for examination. It is

her evidence that she had not changed her clothes and

also not taken bath when her medical examination was

conducted. She has deposed that her clothes were not

went but inner garment was wet. Clothes of the victim

girl were seized and totally 10 articles were sent for the

forensic laboratory for examination and report. The FSL

report is produced as per Ex.P9. In Ex.P9, in the result

of analysis column in respect of item Nos.4 to 8 it is
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mentioned as ‘notstained’. The opinion column at

Sl.Nos.1 to 4 shows, (1) Presence of seminal stain was

not detected in item Nos.1, 4, 5, 6, 7, 8 and 10. (2)

Presence of spermatozoa was not detected in Article

Nos.2 and 3 (3) Presence of blood was not detected in

item Nos.4, 5, 6, 7 and 8, (4) (wrongly mentioned as

Sl.No.3) No hairs were detected in item Nos.4,5,6,7 and

8. In the FSL report there is a negative finding so far as

the alleged offence under Section 376 of IPC is

concerned. Apart from that, the medical officer who

examined the victim girl gave his report as per Ex.P11.

In column No.26 of the said report he has mentioned

that hymen not intact. The opinion of the Doctor was

kept pending till the receipt of FSL report.

18. Dr.Vijay has been examined before the Court

as P.W.17. He has deposed in the examination-in-chief
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that on 12.4.2012 at 6.20 p.m. in the presence of

Dr.Sanjay and women staff nurse, he examined the

victim girl Vinodini and stated that he has not noticed

any external injuries and that Dr.Sanjay, the

Gynecologist who examined the victim girl has

mentioned all the details in the medical report. They

collected the clothes for the purpose of sending them to

chemical examination. Totally 8 articles were sealed for

sending to FSL. He issued the certificate as per Ex.P11.

He has stated that at the time of examination of

Vinodini, the hymen was torn and one finger could be

easily inserted into private part of Vinodini. The FSL

report is as per Ex.P12.

During the course of cross-examination he

deposed that as Vinodini was 11 years old, her vagina

was small in size and looking to her body condition it is

difficult for a male person to have sexual intercourse
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with her. If a person had sexual intercourse on her

there will be swelling in the vagina and hymen and

would become reddish colour and ruptures and bruises

will also be seen. If there is a forcible sexual

intercourse there will be pain in the abdominal portion

and in the liver portion and also while walking. The said

symptoms were not at all noticed at the time of

examination of Vinodini. These materials do not

support the prosecution case regarding the allegation of

rape.

19. So far as the place of incident is concerned, it

is stated by the victim girl that incident has occurred

nearby thati tree situated near the graveyard. Oral

evidence of the prosecution witnesses shows that the

surface of the said place was hard and was uneven.

When it is the case of the prosecution that appellant
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forcibly made the victim to lie on the ground and

committed forcible sexual intercourse on her, naturally

there will be some injuries on the back of the victim girl.

But no such injuries were found on the person of the

victim girl.

20. I have perused Ex.P2, the spot mahazar. Even

in the spot mahazar there is no mention that there were

struggle marks on the ground. It is simply mentioned

that victim girl has shown the place and accordingly, in

the presence of panchas, panchanama was drawn.

21. P.W.2, the mother of the victim girl, has stated

in her examination-in-chief that since there was festival

of Mariyamma diety they went to the temple at 7.30

p.m. Since the victim girl insisted to stay at the temple

along with other children, they left her in the temple

and returned home. At about 7.45 p.m. since there was
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no power supply, all the children returned back but the

victim girl did not return. Hence, they went towards the

temple in search of her and she was not traced near the

temple. Therefore, they were in a perplexed mood and

herself, her husband, Lakshmamma, Mani made search

in the village. When she was not traced, in order to

ascertain whether she had gone to nature call near the

graveyard they went towards the said place and saw

their daughter coming weeping.

This evidence of P.W.2 is again contrary to the

evidence of P.W.1. P.W.1 has deposed that after the

incident she came to the house and she herself

informed her parents about the incident.

22. As regards the delay in lodging the complaint

is concerned, P.W.2 has stated that during the night

they went to the house of the accused to enquire about
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the incident and there was discussion and since it was

late night and there was no vehicle facility to go to the

police station they went on the next day to lodge the

complaint.

The reason assigned by P.W.2 is again contrary to

what is deposed by P.W.1, so also, what is mentioned in

the complaint Ex.P1.

23. The place of incident is said to be near the

Maariyamma Temple. As per the prosecution witnesses

nearby the temple and also the shop of Shivanna there

are residential houses. So also, near the thati tree there

are RCC houses and people are residing there. As per

their evidence since it was the last day of the festival the

function went on till 10.30 p.m. and people were

present near the temple. When that is so, the evidence

of P.W.1 that when the appellant held her hand and
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dragged her towards the thati tree, she made cries and

nobody came to her rescue and that since it was 8.00

p.m. people had closed the doors of their houses and

had slept cannot be accepted at all. The evidence of the

prosecutrix is totally contrary to the evidence of

prosecution witnesses i.e., P.Ws.2, 3 and 4. When the

people were present at the temple and even there are

houses nearby the thati tree and people are residing

there, it is very difficult for this Court to accept the

contention of P.W.1 that though she made hue and cry

nobody came to her rescue. Apart from that, looking to

the prosecution material and as I have already observed

above, except the oral say of P.W.1 that the appellant

took her to the said place and committed forcible sexual

intercourse on her, there is no supporting material like

injuries on her body. Even as per the medical records

there were no external injuries. As per the Doctor’s
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opinion no injuries were found even on the private part

of the victim girl. It is no doubt true that the Doctor

who has examined the victim girl has mentioned that

the hymen was not intact. But only on this ground

when all other materials suggests totally inconsistent

facts against the prosecution case and also when it is

not the opinion of the Doctor hymen was recently

ruptured, , it is not possible for the Court to come to the

conclusion that there was rape committed on the victim

girl by the appellant, as alleged by the prosecution.

24. Even it has come on record that when P.W.2

and other witnesses have enquired about the victim girl

they were informed that till there was power supply they

have seen the victim girl, but when there was stoppage

of power, they have not seen the victim girl. This aspect

shows that on that day during night there was failure of
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power supply also. At what time there was stoppage of

power is not clarified by the prosecution during the

course of examination of prosecution witnesses.

25. P.W.3, Maniyamma, aunt of victim girl has

deposed that when she saw the victim girl there were

injuries on her lips and cheeks. Even in the cross-

examination she has deposed that when she saw

Vinodini there were injuries on the lips and also on the

cheeks. This evidence is totally contrary to the medical

evidence. The Doctor who examined the victim girl

never noticed such injuries on the person of the victim

girl, but on the contrary, it is mentioned that no

external injuries were seen on the person of the victim

girl.

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26. The trial Court has not taken these aspects

into consideration and has not properly read the oral

and documentary evidence on record. It has come to

the wrong conclusion in convicting the accused for the

said offences. There is perversity on the part of the trial

Court in appreciating the prosecution evidence. The

opinion and the findings of the trial Court are not in

accordance with law. The trial Court, only on the basis

that the hymen of the victim girl was not intact, as

mentioned by the doctor, has accepted the entire

version of the prosecution without examining the

material carefully. It has wrongly come to the

conclusion in holding that prosecution has proved its

case beyond all reasonable doubt.

27. Perusing both oral and documentary evidence,

I am of the opinion that prosecution has not proved its
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case beyond all reasonable doubt. Reasonable doubt

arises in the mind of the Court so far as the case of the

prosecution and the manner in which the alleged

incident said to have taken place. The appellant has

made out a case that the judgment and order of

conviction passed by the trial Court is not sustainable

in law. There are valid and justifiable grounds for this

Court to interfere into the judgment and order of the

trial Court.

28. Accordingly, appeal is allowed. The judgment

and order of conviction passed by the Court below is

hereby set aside and accused is acquired of all the

offences charged. He shall be released forthwith, if he is

not required in any other case.

Since the main appeal itself is disposed of,

consideration of I.A.No.2/2017 filed seeking suspension
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of sentence does not arise at all. Accordingly, it is

disposed of.

Sd/-

JUDGE

DL/bkp

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