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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
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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
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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
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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
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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
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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,
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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
38rule, 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
39sexual 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