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State Of Karnataka vs Wasim Pasha @ Abbu on 20 August, 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
ON THE 20TH DAY OF AUGUST, 2019

BEFORE

THE HON’BLE MR. JUSTICE RAVI MALIMATH

AND

THE HON’BLE MR. JUSTICE H.P.SANDESH

CRIMINAL APPEAL NO.574 OF 2013

BETWEEN:

STATE OF KARNATAKA
REPRESENTED BY
KOTHANUR POLICE STATION
BENGALURU CITY. … APPELLANT

(BY SRI. I.S. PRAMOD CHANDRA, STATE PUBLIC
PROSECUTOR)

AND:

WASIM PASHA @ ABBU
SON OF LATE ANWAR PASHA
AGED ABOUT 24 YEARS
RESIDING AT NO.414, 1ST CROSS
HEGADENAGAR, SHIVARAM
KARANTH LAYOUT POST
BENGALURU-77. … RESPONDENT

(BY SRI. MADANGOUDA N. PATIL, ADVOCATE FOR
SRI. R. KOTHWAL AND ASSOCIATES)

THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS
378(1) AND (3) OF CRIMINAL PROCEDURE CODE PRAYING
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TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
AND ORDER OF ACQUITTAL DATED 30.06.2012 PASSED
BY THE PRESIDING OFFICER, FAST TRACK COURT-XIII,
BENGALURU IN SESSIONS CASE NO.655/2011 –
ACQUITTING THE RESPONDENT/ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 363, 506 READ
WITH SECTION 34 OF INDIAN PENAL CODE AND SECTION
376 OF INDIAN PENAL CODE.

THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 02.07.2019 COMING ON THIS DAY,
H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-

JUDGMENT

This appeal filed by the State challenging the

judgment of acquittal dated 30.06.2012 passed in

SC No.665/2011 on the file of Fast Track Court – XIII,

Bengaluru City, for the offences punishable under Sections

363, Section366-A, Section376 and Section506 of Indian Penal Code.

2. The factual matrix of the case is that; the

accused on 18.03.2011 kidnapped the minor girl who is

P.W.4, at about 6.30 p.m., when the victim girl P.W.4 and

her sister P.W.3 were coming back to home. The accused

who is working in a welding shop nearby the house of

P.W.1 came in a red color Maruthi Car driven by other
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accused, called the victim and when the victim came near

the accused, held her hand, forcibly pulled her inside the

car and closed the window glass and instructed the driver

to move immediately. When P.W.4 started screaming, the

accused closed her mouth with his hands and threatened

her that if she again makes any noise, he would kill her

and thereafter, victim girl was taken to lodge by name Shri

Comfort Lodge situate on the Kanakapura Main Road and

committed rape on her in room No.101.

3. It is the case of the prosecution that P.W.3 who

along with victim – P.W.4, came and told about the

incident and immediately, P.W.1 had lodged complaint with

the police and drew the mahazar. Thereafter, Police, who

were deputed, apprehended the accused and the victim

girl on the next day near Nagavara Ring Road signal and

produced them before the police in the Station. They were

subjected to medical examination and obtained the report.

After collecting the date of birth of the victim girl from the

school, statements of witnesses were recorded. After
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completion of the investigation, the police have filed the

charge sheet for the above offences.

4. The accused did not plead guilty and claim to be

tried. Hence, the prosecution examined witnesses as

P.Ws.1 to 14 and relied upon Exs.P.1 to 10 and no material

objects have been marked. The accused did not choose to

lead evidence but filed his statement under Section 313 of

Cr.P.C. was recorded. The Court below after hearing the

prosecutrix and also defence counsel, has acquitted the

accused for the charges leveled against him.

5. Being aggrieved by the judgment of acquittal, the

State has filed this appeal contending that the very

judgment of acquittal is against the records and the trial

Judge did not appreciate the evidence in the right

perspective. The trial Judge ought not to have considered

the minor discrepancies which do not go to the very root of

the case of the prosecution. The Court should have

considered the evidence of prosecutrix and medical

evidence, to come to the conclusion that the victim girl
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was subjected to sexual act by the accused. The

prosecution also relied upon the evidence particularly

P.W.3 who was along with victim at the time of incident to

prove the fact that the accused forcibly kidnapped the

victim by pushing her inside the car and subjected her for

sexual act. The other witnesses also supported the case of

prosecution. In spite of sufficient material available before

the Court, the Court below considering the minor

discrepancies which are not fatal to the case of

prosecution, erroneously acquitted the accused.

6. Learned Additional State Public Prosecutor

Sri.I.S.Pramod Chandra, in his arguments, vehemently

contended that the trial Judge failed to consider the

evidence of the victim who has been examined as P.W.4

and also the medical evidence produced before the Court

to substantiate that she was subjected to sexual act which

is also against her wish. The injuries found on the accused

has not been explained by the accused in his 313

statement. Learned counsel also would contend that in the
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313 statement, there is nothing but total denial. Hence,

the trial Judge ought not to have acquitted the accused.

The evidence available before the Court both oral and

documentary evidence was not considered in right

perspective and hence, the very judgment of acquittal is

liable to be reversed by allowing the appeal.

7. Per contra, the learned counsel appearing for

accused/respondent would contend that the trial Judge

meticulously considered the evidence of P.Ws.1 to 14 and

found the material contradictions in the evidence of each

of the prosecution witnesses. The prosecution failed to

prove the ingredients of kidnap. The Court has observed

that according to the case of prosecution the victim was

forcibly taken to lodge. But, no material is placed on

record that she made an attempt to escape from the

clutches of the accused. The trial Judge has given a

reasoning that the victim girl might have consented to

sexual act. The documentary proof with regard to her date

of birth i.e., the School Certificate is not based on any
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birth register or any other documents produced at the time

of admission. Only approximate age has been mentioned

in the school records and she was not subjected to any

ossification test. The Court below has taken note of the

evidence of the doctor, who deposed that victim is

between the age group of 14 to 16. When there is no

documentary proof, the trial Court meticulously considered

the evidence and acquitted the accused in the absence of

prima-facie material against the accused to prove the

charges beyond reasonable doubt. Hence, there are no

grounds to interfere with the order of the trial Court.

8. Having heard the arguments of learned counsel

for appellant and also learned counsel appearing for

respondent/accused, the point that would arise for our

consideration is;

“1. Whether the Court below has committed
an error in acquitting the accused for the
offences punishable under Sections 363,
Section363-A, Section376 and Section506 of Indian Penal
Code?”

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9. Point No.1:- It is the case of the prosecution

that on 18.03.2011 at about 6.30 p.m., when the victim

girl – P.W.4 and her sister – P.W.3 were proceeding

together, the accused came in a red colour car and called

P.W.4 – victim girl and when the victim girl – P.W.4 went

near the car, accused pulled her inside the car and

instructed the driver to move immediately. Thereafter,

accused took the victim girl and subjected her for sexual

act. He has also threatened her when she refused to

accompany him. The prosecution, in order to prove the

charges levelled against the accused, examined P.Ws.1 to

14 and also relied upon Exs.P.1 to 10.

10. Now, let us consider the evidence of

prosecution witnesses. P.Ws.1 and 2 are not eye witnesses

to the incident of kidnapping P.W.4 – victim girl. The

evidence of P.Ws.1 and 2 is similar that P.W.3 came and

told that accused had kidnapped P.W.4 forcibly by pulling

her inside the car. P.W.1 came to know about the same

through P.W.3 and hence, P.W.1 had lodged the complaint.
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In the cross-examination of P.W.1, it is elicited that the

place in which she was kidnapped, is a public place. While

giving the statement, he gave statement that the name of

the relative is mentioned as Dattaram. He also admits that

he gave complaint that three persons kidnapped her. He

further admits that he has signed Ex.P.2 at the police

station. In the cross-examination of P.W.2, he admits the

relative name is Sitaram. He further admits that on the

next day, he came to know that victim girl – P.W.4 next

day morning at 8.13 a.m., was in the police station and

her mother was also in the station. She came to house on

the next day at 3.00 p.m.

11. P.W.3 is the witness, who is aged about 10

years and who was along with P.W.4. In her evidence, she

says that herself and P.W.4 went to her relative Sitaram’s

house and when they came out from the house, accused

came in a red colour car and called P.W.4. He took her in

the car. In the cross-examination, it is elicited that when

they took her in the Car, she screamed “Amma Amma”. It
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is suggested that no incident had taken place as deposed

and the said suggestion was denied.

12. P.W.4 is the victim girl. In her evidence, she

says that herself and P.W.3 were going to the house of

Sitaram. The accused came in a red colour car along with

other persons. The accused called her and she thought

there may be some work. When she went near the car, he

pulled her holding her hand inside the Car and thereafter,

took her to Hotel. In spite of her refusal, he subjected for

rape and he committed rape twice. She claimed her date

of birth is 24.06.1996. She claimed that on the next day,

herself and accused were taken to police station and

subjected to enquiry and thereafter, sent for medical

examination. She also claims that she signed the spot

mahazar – Ex.P.3 in the police station. In the cross-

examination, she admits that she left the school one

month prior to the incident since she was having

headache. In the cross-examination, she admits that while

going to the house of Sitaram, the incident has taken place
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near the temple and the said place is public place and car

was parked a little distance from the said temple. P.W.4

also admits that when the accused pulled her inside the

Car, she screamed calling the name of her sister. P.W.4

also admits that when she was walking near her house,

accused was talking to her and family members were not

liking to speak with the accused and hence, they were

scolding her. It is suggested that when she continued to

talk to him, she was forced to discontinue the education

and the said suggestion was denied. But, she claims that

she was having cell phone with her. It is elicited that after

this incident, in her uncle’s house, she fell down from

second floor and sustained injury. It is suggested that a

false case was registered against the accused, even though

she fell down from the second floor. The said suggestion

was denied. She also admits that there was a parapet wall

on the second floor. P.W.4 further admits that after

treatment, she was taken to Rajasthan and brought her to

give evidence before the Court. It is elicited that at the

first instance, the statement was recorded by the Police
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19.03.2011 and again, after 5-6 days, she was called to

police station and she was in the station on that day along

with her mother. It is further elicited that both of them

were taken to hospital and her statement was not recorded

in the hospital. She was enquired by the lady Medical

Officer. P.W.4 admits that P.W.6 used to visit the shop of

P.W.1. In the further examination, it is elicited that she

cannot tell, where the accused was sitting in the car, when

she was kidnapped. She also does not know who was

driving the car. However, she claims that she was sitting

in the back seat. P.W.4 further admits that they took half

an hour to go to hotel. The driver of the car left the

accused and the victim girl near the hotel and thereafter,

after talking to receptionist, both of them went inside the

room. On the same day, they vacated the room. They

only stayed for half an hour and thereafter, they went to

Kothanur Police Station along with other two persons. She

did not make any phone call from her cell phone and police

got changed her cloth. It is suggested that accused did

not subject her for sexual act and the said suggestion was
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denied. She cannot tell the name of the Doctor who

conducted the examination. At the time of conducting the

examination by the lady Medical Officer, no one was there.

P.W.4 admits that P.W.6 was not at the spot when she was

kidnapped.

13. P.W.5 is the room boy of the lodge. He says

along with accused one girl was there and they stayed for

a day and identifies the xerox receipt showing that the

same belongs to their hotel and also extract of hotel

register saying that the same belongs to their hotel.

In the cross-examination, he admits that the police,

though visited the lodge in the night, he cannot tell the

colour of dress of both the accused and the victim girl or

any identification. He admits that he cannot tell who had

signed the said receipt and also the handwriting on the

same. It is suggested that accused did not visit the said

lodge and the same was denied. Further suggestion was

made that the facts of the case was explained by reading

the same and the same is also denied. It is suggested that
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accused did not come to lodge along with any lady and the

same was denied.

14. P.W.6 claims he is an eye-witness. He was

subjected for cross-examination. In the cross-examination,

he says in his presence, the victim was kidnapped and the

same was informed to the police and there were fifteen

workers at the spot. But, he says that when the incident

had taken place, he did not think that it is a kidnap. He

did not go to police station on the date of incident. He

only went to police station in the month of April in order to

enquire about the status of the case. It is suggested that

he has signed the mahazar in the police station and the

same was denied.

15. P.W.7 is the High School Head Mistress and

produced Ex.P.4 – Date of Birth Certificate as 24.04.1996

and the same was given at the request of police in terms

of Ex.P.5. In the cross-examination, it is elicited that she

left the school in the year 2010 and does not know the

reason for leaving the school. Except the Certificate,
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which they have issued, there are no other documents in

the school.

16. P.W.8 is another employee of the lodge. In his

evidence, he says that in terms of records, accused took

the room on 18.03.2011 i.e., room No.101 and there was

an entry that room was taken at 9.30 p.m. He identifies

the xerox copy of the receipt claiming that an amount of

Rs.1,100/- was paid and the said receipt was given at the

time of vacating the room. He also identifies another

xerox document. Prior to giving the room to the accused,

one Yellappa was in the room and he vacated the room.

In the cross-examination, he admits that they used to take

the identification of the persons before providing the room

and he also admits that during night, police visited the

lodge and enquired, who are all in the room. He admits

that xerox documents are not in his handwriting. But, he

admits that he mentioned the date as 18.03.2011 and he

admits that bill and receipt contains the date as

19.03.2011. He further admits that when they were not in
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the reception, room boy will not be there. He identifies the

accused and also identifies P.W.4 based on the photo,

which was attached to Ex.P.1.

17. P.W. 9 is the constable who was deputed to

search the accused and the victim girl. P.W.9 says when

they went near the Nagavara Ring road signal as per the

credible information, they found accused and the victim

girl at 9.15 a.m. He produced them before the Station

House Officer and gave the report in terms of Ex.P.6. In

cross examination, it is elicited that from Thanisandra to

Nagavara ring road, the distance is about 4 kms. It

requires 15 minutes. They did not prepare the arrest

memo at the spot and did not take the assistance of public

to apprehend both of them. Both of them were taken to

the station in an auto rickshaw. It is suggested that they

have not apprehended both of them and the same has

been denied.

18. P.W.10-Woman Police Constable in her evidence

says that she took the victim girl to medical examination
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and after subjecting her to medical examination she was

produced before the Station House Officer. In the cross

examination, it is elicited that when she came to station,

she found the victim girl. She was subjected to medical

examination from 12.15 p.m. to 1:00 p.m. When they

went to medical college, the lady medical officer was not

there. It is suggested that she was not subjected to

medical examination and the said suggestion was denied.

19. P.W. 11 , Police Constable in his evidence says

that on 20.03.2011, he took the victim to medical college.

After examination, he brought her back and produced

before the Station House Officer. In the cross examination,

he admits that when he came to station, he found the

victim in the station. It is elicited that she was subjected to

medical examination from 1.00 p.m. to 2.00 p.m. He came

back to station at around 3.30 p.m. The distance between

the station and medical college is 15 kms. There was no

government hospital near the station. It is suggested that
18

he was not taken to medical examination and same was

denied.

20. P.W. 12 is the PSI. In his evidence, he says that

he deputed his staff to apprehend the victim and the

accused. The staff produced the accused and victim at

9.45 a.m. he also recorded the voluntary statement of the

accused. In his voluntary statement, he has stated that if

he is taken to Shimsha, he will show the room where he

was staying. He also says that he deputed his staff to take

them to medical college. In the cross examination, he

admits that he has prepared the request letter while

sending them to hospital for medical examination. He has

mentioned the details in the letter. He admits that he did

not take the accused to Shivanasamudra and also did not

sieze the clothes of both accused and victim. It is

suggested that he did not depute any staff to apprehend

the accused and victim. He is falsely deposing that he is

not apprehended and the said suggestion was denied.
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21. P.W. 13 is the doctor. He has deposed that on

the request of police, he has conducted the medical

examination on accused on 20.03.2011. He conducted

examination at 1.p.m. with the consent of the accused. He

noticed the injuries made from nails on the neck, chest,

right side neck, lip, right side cheek and opined that the

said injuries might have occurred while the victim refused

to sexual act. He also found the injury on the penis which

appears to be two days old. He subjected the substance

which he found on the penis for lagole iodine test and the

same was positive. He says that he gave the report in

terms of Exs.P8 and P9. He also says that the victim was

subjected to medical examination. She was subjected to x-

ray in order to ascertain the age of the victim. She found

the injuries on her private part. Hymen was ruptured. She

was having pain in her private part. She found seminal

stains. She claims that she has removed the clothes and

washed. It is also his evidence that on perusal of the x-ray

she was in between the age of 14 to 16 years. maybe 15

years old. There are signs of subjecting her to sexual
20

assault two days prior to the examination. There was no

evidence of she having been subjected to sexual act prior

to that. He identifies the signature on Ex.P.9. In the cross

examination he admits that Ambedkar Medical College

Hospital is a private hospital. The Kothnur police used to

refer the Medico Legal Cases to the hospital. He admits in

Ex.P.8 and P.9 he did not mention the timings of

examination. He also admits that in Ex.P.9 he did not

mention the name of the lady medical officer. But, she

claims that she has signed. He admits that he did not

examine the blood and seminal stains of the accused. He

admits that he found seminal stains on the private part of

the victim but he did not examine whether it belongs to

accused. He claims that it was not in his jurisdiction. He

admits that he did not furnish the x-ray to the

Investigating Officer. It is suggested that if the age is

determined through medical examination, there may be

difference of 2 years and the said suggestion was denied.

He admits that he did not find any blood stains on the

clothes of the accused. He further admits that in Ex.P.8
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and 9, he has not given separate wound certificate. It is

suggested that only in order to show that she was

subjected to rape, he has mentioned the injuries in Exs.P.8

and 9 and the said suggestion was denied.

22. P.W.14 is the Police Inspector. In his evidence,

he says that P.W.1 came and gave complaint on

18.03.2011. He registered the case and sent the First

Information Report to Court. He also identifies Ex.P.1 and

conducted spot mahazar in terms of Ex.P.2. On

20.03.2011, he recorded the statements of the victim girl,

PSI-Chandrashekar and others. He also states that he

obtained the medical report from Ambedkar Medical

College Hospital as Ex.P.8 and 9. He also collected the date

of birth certificate from school in terms of Ex.P.4. He

claims that on 13.04.2011 the victim made further

statement that she was subjected to rape at comfort lodge

near the Banashankari temple. He has drawn the mahazar

in terms of Ex.P.3. He collected the photo copies of the

receipts for the stay of accused and victim girl in the said
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lodge. He recorded the statements of Cws.7 and 9. After

completion of investigation, he has filed the charge sheet.

In the cross examination, he admits that P.W.6 did not

make any statement that he witnessed the incident of

kidnap. He further admits the place which is shown in

Ex.P.2 is a public place. He admits that he did not mention

that there were three persons at the time of kidnapping

the victim girl and no mention in Ex.P1 also that there

were three persons. It is elicited that he did not take the

accused to shimsha.

23. Keeping in view the contentions urged by both

the counsel appearing for the State and the defence

counsel, this Court has to re-appreciate the oral and

documentary evidence. This Court would like to consider

the charges levelled against the accused for the offences

punishable under Sections 363 and Section506 read with Section

34 of the Indian Penal Code which are extracted

hereunder:

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“363. Punishment for kidnapping

Whoever kidnaps any person from
[India] or from lawful guardianship, shall be
punished with imprisonment of either
description for a term which may extend to
seven years, and shall also be liable to fine.

506. Punishment for criminal
intimidation

Whoever, commits the offence of

criminal intimidation shall be punished with
imprisonment of either description for a term
which may extend to two years, or with fine, or
with both.

If threat be to cause death or grievous
hurt, etc.: And if the threat be to cause death
or grievous hurt, or to cause the destruction of
any property by fire, or to cause an offence
punishable with death or [imprisonment for
life], or with imprisonment for a term which
may extend to seven years, or to impute,
unchastity to a woman, shall be punished with
imprisonment of either description for a term
which may extend to seven years, or with fine,
or with both.”

24. The case of the prosecution is that on

18.03.2011 at about 6:30 p.m. at 5th cross, Hegdenagar,
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the appellant along with another absconded with an

intention to commit kidnap of a minor girl – P.W.4 and also

threatened her by stating that she would be killed if she

did not follow him. In order to prove these two offences,

the prosecution relied upon the witnesses, PWs.1 to 4.

25. P.W.1 is the cousin brother of the victim girl

and P.W.2 is brother of P.W.4. Both of them came to

know about kidnap through P.W.3. Hence, it is clear that

PWs.1 and 2 have not witnessed the incident and both of

them are hearsay witnesses. P.W.6 though he contends

that he also witnessed the incident, he admits that he was

not at the spot. The material witnesses are PWs.3 and 4.

26. First, we would like to consider the evidence of

P.W.3. According to her, she states that the accused came

in a red colour Car and called P.W.4 and took her in the

Car. In examination-in-chief, she did not tell anything that

P.W.4 was forcibly taken by the accused. Only in the

cross-examination, she claims that while taking her in the

Car, she screamed as ‘amma amma’. On perusal of
25

evidence of P.W.4, the victim, she claims that the accused

called her. She went near the car thinking that he may be

having work. The accused held her hand, made her to sit

in the Car and thereafter, took her to hotel. She has not

spoken anything that she was subjected to threat. In the

cross-examination, she says that when she was inside the

car, she screamed once calling her sister’s name. Both

PWs.3 and 4 gave different version. It is pertinent to note

that in the cross-examination, she categorically admits

that accused used to speak with her which was not liked

by her family members and they were scolding her.

Further, she admits that she was having cell phone with

her and she gave the cell phone to the accused. It is

further important to note that she categorically states in

the evidence that he took her to hotel, enquired with the

receptionist and both of them went inside the hotel. The

driver of the car dropped both of them near the hotel and

left. They took half an hour to go to hotel. She did not

make any phone call to anybody. Hence, it is clear that

there is no ingredient of Section 363 of the Indian Penal
26

Code to come to the conclusion that she was kidnapped

forcibly. The evidence of P.W.4 also shows that she did not

make any phone call when accused No.1 was enquiring

with the receptionist or while entering the room. Though it

is the case of the prosecution that she was threatened,

P.W.4, who is the right person to speak about the same,

did not tell anything. Hence, in the absence of any

substantive piece of evidence to attract the penal

provisions of Section 363 as well as Section 506 of the

Indian Penal Code, we are of the opinion that the

prosecution has utterly failed to prove the charges levelled

against him for the offences punishable under Sections 363

and Section506 of the Indian Penal Code.

27. Now, let us consider the evidence available

before the Court with regard to whether P.W.4 was

subjected to sexual act or not. P.W.4 categorically states

that after taking her to the lodge, in spite of her refusal,

the accused has committed rape on her twice. First, we

would like to consider the age of the victim. According to
27

her, date of birth is 24.04.1996 and in support of the said

claim, the prosecution relied upon the evidence of P.W.7 –

Head Mistress of the School. In her evidence, she states

that as per the school records, her date of birth is

24.04.1996 and was studying 9th standard for which she

has issued Ex.P5. It is elicited in her cross-examination

that the victim left studies in the year 2010. It is further

elicited that she joined the school in 2009-10 for 8th

standard on 02.06.2009. It is elicited that based on the

entries found in the school records, she has given the date

of birth certificate and no other documents were available

in the school. As on the date of the incident i.e., on

18.03.2011, she had not completed the age of 16 years

and hence she is a minor. It is important to note that she

was also subjected to medical examination and the Doctor-

P.W.13, who examined her, in his evidence states that as

per the x-ray, her age was in between 14 to 16 years,

probably 15 years. In the cross-examination of P.W.13, it

is suggested that if the age is determined through medical

examination, there may be difference of 2 years and the
28

said suggestion was denied. Further suggestion was made

that when the medical certificate was issued, normally

there would be difference of two to three years and the

said suggestion is also denied. The medical evidence is

clear that she is aged about 15 years. According to the

school certificate, her age was 15 years 10½ months and

she has not completed the age of 16 years. If the victim is

below the age of 16 years, consent is immaterial. Section

375 of the Indian Penal Code provides that if the victim

below the age of 16 years consents, the same is not at all

consent. If she is subjected to Sexual Act, it amounts to

rape. The sex with or without consent when she is under

sixteen years of age amounts to rape.

28. We would like to rely upon the judgment of the

Hon’ble Apex Court in the case of PARAG BHATI

(JUVENILE) THROUGH LEGAL GUARDIAN-MOTHER-RAJNI-

BHATI VS. STATE OF UTTAR PRADESH AND ANOTHER

reported in 2016 (12) SUPREME COURT CASES 744

wherein with regard to the juvenile offender is concerned,
29

it is settled position of law, that if matriculation or

equivalent certificates are available and there is no other

material to prove correctness of date of birth, date of birth

mentioned in the matriculation certificate has to be treated

as a conclusive proof of date of birth of accused. However,

if there is any doubt or a contradictory stand is being

taken by accused, which raises a doubt on correctness of

date of birth, then an enquiry for determination of age of

accused is permissible.

29. Having regard to the principles laid down in the

judgment referred supra, in the case on hand, it is clear

that there is no other document except the school

certificate which reveals that while admitting to School in

2009, that too for 8th standard, the date of birth is shown

as 24.04.1996. Though the learned counsel for the

accused disputes the same, he did not place any material

before the Court. Unless the contrary is proved, the Court

has to accept the evidence available on record i.e., the

school certificate. The evidence of Doctor, who has been
30

examined as P.W.13 is clear that the average age of the

victim is 15 years. In the cross-examination of P.W.13

also, nothing is elicited to contravene the same except

suggesting that there would be a difference of age of 2 to

3 years and the same has been categorically denied.

Having accepted the school certificate, which is marked as

Ex.P6, it is clear that she is a minor as on the date of the

incident.

30. Now, let us consider the material on record

whether she was subjected to sexual act or not. P.W.4 in

her evidence, categorically deposed that she was subjected

to sexual act against her wishes and when she refused, he

had forcible sexual intercourse twice. In the cross-

examination of P.W.4, it is suggested that she was not

subjected to sexual act and the same has been

categorically denied. However, it is suggested that she

was in love with the accused and since her family

members were against her love, a false case is registered

against him and the same was denied. It is suggested that
31

the accused did not take her to any place and has not

committed rape and the said suggestion is also denied.

31. The medical evidence is to be looked into in

order to connect the accused with the offence. She says

that she was taken to Ambedkar Medical College Hospital

and subjected to medical examination and the same was

done by the Lady Medical Officer, but she has not named

the Doctor. She claims that at the time of examination,

except the lady medical officer, no other persons were

there. P.W.13 – Doctor in his evidence states that the

accused was subjected to medical examination and he

found the injuries on the right side of the neck, on the

chest, on the right side below the neck, on the right side of

the cheek which are caused by nail and the same were two

days old. He further states that those injuries might have

occurred while having forcible sex. It is also the evidence

of P.W.13 that he found the injury on penis of the accused

measuring 1 cm x 0.2 cm. The same is two days old. He

collected the sperm and subjected it for Lagole-iodine test
32

and the same was positive. P.W.4 was subjected to

medical examination with lady medical officer and she

found the injuries on her private part. Hymen was

ruptured. It is elicited in the cross-examination that they

did not mention the name of the lady medical officer, but

only mentioned a lady assistant. As per his report, she

was subjected to sexual act within 48 hours and given

positive report that she was subjected to sexual act within

two days. He further admits that the sperm of the accused

were not subjected to any test. The sperm found on the

private part of the victim was not examined as to whom

the same belongs to. He volunteers that the same does

not come within his purview. It is elicited that he did not

find any blood stains on the clothes of the accused. He

further admits that he has not given any separate wound

certificate except Exs.P8 and P9. It is suggested that he

has given Exs.P8 and P9 at the instance of the Police and

the same is denied. It is to be noted that P.W.13

categorically says that he examined the accused and the

injuries. In the cross-examination of P.W.13, nowhere it is
33

suggested that the accused was not subjected to any

medical examination, but admitted that it is a private

medical hospital. He admits that he has not issued

separate wound certificate. However, Exs.P8 and P9

clearly confirm that both the accused and victim were

subjected to medical examination and found the injuries on

private part of both the victim and the accused. The

same is also not denied in the cross-examination. Hence,

it is clear that the accused subjected the victim for sexual

act and the injuries sustained by him clearly shows that

the victim refused to have sexual intercourse. It is the

specific evidence of Doctor that the injuries which are

found on the accused are nail injuries and those injuries

may be caused if sexual act has taken place with

resistance. Hence, it is clear that the accused subjected

the victim for sexual act against her wishes. The injuries

found on the victim and also on the accused clearly show

that sexual act is against wishes of the victim. P.W.4

categorically stated that he had sex twice against her

wishes and the same is supported by the medical evidence
34

of P.W.13. The evidence of the Doctor is clear that the

injuries noted on the accused are nail injuries on the neck,

chest, right side neck, lip, right side cheek and it

corroborates that the victim was subjected to sexual act

against her wishes. Medical evidence also corroborate that

he had injuries on his penis and the same are two days

old. Both of them were subjected to medical examination

within two days of the incident. The Doctor evidence is

clear that hymen was also ruptured and she was having

pain in her private part. The medical evidence and the

evidence of the victim corroborates the case of rape

committed by the accused.

32. The other circumstance proved by the

prosecution is that the accused took the victim to a lodge.

An employee of the said lodge has been examined as

P.W.5. He also identifies the accused and he categorically

states that the accused came along with one girl and they

stayed there for a day. No doubt, in the cross-

examination, it is elicited that he cannot tell any specific
35

identification as to the colour of the clothes of the accused

and the girl. In the case on hand, it is to be noted that the

original documents are not secured and only xerox copy is

shown. These lapses on the part of the investigation

cannot take away the case of the prosecution and also

cannot take away the very right of the prosecution in a

case where the victim is subjected to rape. No doubt in

the cross-examination of the Investigating Officer, it is

elicited that though accused gave the voluntary statement,

the accused did not take him to particular Shimsha lodge,

but collected the documents of Comfort Lodge. It is also

pointed out that the lodge registers are not secured and

marked. The lapse on the part of the Investigating Officer

cannot take away the case of the prosecution. The

Investigating Officer who has been examined states that

he did not take the accused to Shimsha lodge but P.W.4

later says that she was taken to comfort lodge. The

Investigating Officer ought to have collected the original

registers of the Comfort Lodge but the same is not

collected. The lapses of the prosecution are not fatal to the
36

case on hand since it is a case of rape on a minor girl and

the other evidence available on record viz., the evidence of

the victim and the medical evidence corroborates the case

of the prosecution.

33. We would like to refer to the judgment of the

Apex Court with regard to appreciating the evidence in the

case of sexual act. The Apex Court in the judgment

rendered in the case of MUKESH VS. STATE OF

CHATTISGARH reported in (2014) 10 SCC 327 held that

the sole testimony of prosecutrix is sufficient to establish

the offence of rape even in the absence of corroborative

evidence. In the case on hand, it is to be noted that we

have already pointed out that the victim supports the case

of the prosecution and medical evidence on both the victim

as well as accused is clear when both of them were

subjected to medical examination, the doctor found the

injuries on the private part of both the victim and the

accused. Hence, the medical evidence also corroborates

the case of the prosecution.

37

34. The Apex Court also in the judgment rendered

in the case of STATE OF HIMACHAL PRADESH VS. MANGA

SINGH reported in 2018 SCC Online SC 2886, in para

Nos.11 and 12 has held as under:

“11. The conviction can be sustained on the
sole testimony of the prosecutrix, if it inspires
confidence. The conviction can be based solely
on the solitary evidence of the prosecutrix and
no corroboration be required unless there are
compelling reasons which necessitate the
courts to insist for corroboration of her
statement. Corroboration of the testimony of
the prosecutrix is not a requirement of law;
but a guidance of prudence under the given
facts and circumstances. Minor contractions or
small discrepancies should not be a ground for
throwing the evidence of the prosecutrix.”

12. It is well settled by a catena of
decisions of the Supreme Court that
corroboration is not a sine qua non for
conviction in a rape case. If the evidence of
the victim does not suffer from any basic
infirmity and the ‘probabilities factor’ does not
render it unworthy of credence. As a general
38

rule, there is no reason to insist on
corroboration except from medical evidence.
However, having regard to the circumstances
of the case, medical evidence is not available.

In such cases, solitary testimony of the
prosecutrix would be sufficient to base the
conviction, if it inspires the confidence of the
Court.”

35. Referring to the judgment of State of Punjab v.

Gurmeet Singh ((1996) 2 SCC 384 p.403, the Apex Court

has observed as under:

“The testimony of the victim in such cases is
vital and unless there are compelling reasons
which necessitate looking for corroboration of
her statement, the courts should find no
difficulty to act on the testimony of a victim of
sexual assault alone to convict an accused
where her testimony inspires confidence and is
found to be reliable. Seeking corroboration of
her statement before relying upon the same,
as a rule, in such cases amounts to adding
insult to injury. Why should the evidence of a
girl or a woman who complains of rape or
39

sexual molestation, be viewed with doubt,
disbelief or suspicion?….”

36. The Apex Court considering the principles of

the judgment rendered in the case of SectionSTATE OF

RAJASTHAN V. N.K. THE ACCUSED, reported in (2000) 5

SCC 30, held as under:

“….This Court deprecated viewing evidence of
such victim with the aid of spectacles fitted
with lenses tinted with doubt, disbelief or
suspicion. We need only remind ourselves of
what this Court has said through one of us.’

37. Having considered the principles laid down in

the judgment referred above, the Apex Court restored the

judgment of the trial Court convicting the respondent

therein under Section 376 of the IPC by setting aside the

judgment of the High Court.

38. Having considered the material available on

record and also the principles laid down in the judgment

referred supra and also the facts and circumstances of the

case on hand, the evidence of P.W.4 i.e., victim and also
40

the medical evidence of P.W.13 – Doctor and also the

evidence of P.W.5, who identifies the accused that he

came to the lodge with a girl inspires the confidence of this

Court that the accused has committed a heinous offence of

rape against the wishes of the victim and hence, it is a fit

case to bring the accused within the purview of Section

376 of the Indian Penal Code. The Court below taking

note of some minor discrepancy in the evidence of the

prosecution, particularly, the evidence of P.Ws.1 to 4 has

given benefit of doubt in favour of the accused. The same

ought not to have been given in favour of the accused

when the medical evidence and the evidence of the victim

support the case of the prosecution. The Court below failed

to appreciate the Medical evidence and the evidence of the

victim. In a case of rape, the court need not necessarily

consider the corroboration, but the sole evidence of victim

is sufficient. In the case on hand not only victim evidence

but the medical evidence also corroborates. The court

below has committed an error in appreciating the evidence

available on record and gave more importance to the
41

minor discrepancies available on record. The discrepancies

cannot take away the case of prosecution. The Court below

failed to consider the gravity of offence which shocks the

conscience of the Court which is a heinous offence. The

approach of the Court below cannot be accepted.

39. The Apex Court in the case of STATE OF UTTAR

PRADESH VS. CHHOTEY LAL reported in 2011(2) SCC

(CRIMINAL) 674 while reversing the judgment of the High

Court held that it did not take into consideration crucial

evidence on record and acquitted the accused. In the case

on hand also, the trial Court acquitted the accused on

flimsy grounds taking into consideration of the evidence of

P.Ws.1 to 4. In the case of rape, when the medical

evidence and the evidence of the victim corroborates that

the accused subjected the victim for sexual act against her

wishes, minor discrepancies occur and the Court should

not give much importance to the same.

40. The evidence of the victim in a case of offence of

rape as held in the judgments referred supra, inspires the
42

confidence of the Court. The conviction can be based

solely on the solitary evidence of the prosecutrix and no

corroboration is required unless there are compelling

reasons. In the case on hand, one cannot find any

compelling reasons to come to any other conclusion.

Hence, it is a fit case to reverse the finding of the trial

Court in respect of offence punishable under Section 376

of the Indian Penal Code. However, the Court has to take

note of the factual aspects of the case whether the offence

committed requires awarding of maximum sentence or

minimum sentence. In the case on hand, the victim is

minor and she was taken in car along with accused and

both of them were apprehended on the next day in the

ring road. Hence the minimum sentence of seven years is

just and reasonable.

41. We have already held that the prosecution

failed to prove the ingredients of Sections 506 and Section363 of

the Indian Penal Code. In view of the discussions made

above, we pass the following:

43

ORDER

i) The appeal is allowed in part.

ii) The judgment dated 30.06.2012 passed by the

Fast Track Court – XIII, Bengaluru city to the

extent of acquitting the accused under Section

376 of Indian Penal Code is set aside.

iii) The accused is convicted for the offence

punishable under Section 376 of the Indian

Penal Code. He is sentenced to undergo

simple imprisonment for a period of seven

years and to pay a fine of Rs.1,00,000/-

(Rupees one lakh only) payable to P.W.4-

victim and in case of default of payment of

fine, to undergo further imprisonment for a

period of one year.

iv) The acquittal of the accused in respect of

offences punishable under Sections 363 and
Section44

Section506 read with Section 34 of the Indian Penal

Code is confirmed.

v) The Court below is directed to secure the

accused and subject him to serve sentence.

vi) Needless to state that if the accused was in

custody during the course of trial, he is entitled

for the benefit of set off under Section 428 of

Cr.P.C.

Sd/- Sd/-
JUDGE JUDGE

ST/AKC/NBM

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