iN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 25T11 DAY OF MARCH 2011 PRESENT THE HON’BLE MR. JUSTICE SUBHASH B. ADI AND THE HON’BLE MR. JUSTICE N. ANANDA CRIMINAL APPEAL No.2198/2005 BETWEEN: STATE OF KARNATAKA BY SAUNDAITI POLICE APPELLANT (BY SHRJ.V.M.BANAKAR. ADDL.. S.P.P.) AND NEELAPPA LALAPPA HOSAMANI R/O PATTADAKAL ONI, SAUNDATTI, DIST: BELGALIM. ... RESPONDENT (BY SRI.JAGADISH PATIL) This Criminal Appeal is filed under Section 378(1) and (3) of the Code of Criminal Procedure, by the State P.R for the State to grant leave to file an appeal against the Judg ment dated 2772005 passed by the RO, FTCJ and Addl. SJ., Beigaurn in SCNo. 143/2001 acquitting the respondenU accused for an offence punishable under Sectic.n 376 of LRC. This criminal appeal coming on for final hearing this day, N.Ananda J., delivered the following: JUDGMENT The State has filed this appeal against judgment of acquittal of respondent (hereinafter referred to as accused> for an offence punishable under Section 376 of I.P.C. 2 The learned Trial Judge had framed following charge: “That on 19.03.2001 at about 3.00 p.m.. in Vakkalutanaoni in Saundatti village, within Saundatti P.S. limits you have committed rape on Kumari Reshma Hatelsab Balagar against her will and consent by force and thereby committed an offence punishable under Section 376 of the I.RC. and within the cognizance of the court of Sessions.” 3 During trial, the victim of rape (a girl aged about I I years> and her foster mother PW, I Smt,Husenbi Hatelsab Baligar, the elder sister of PW I nameh PW 2 Smt Biyamma Makbulsab Baligar, the neighbors of PW I namely PW.4 Gangappa Shiddappa Gadekar, PW.5 Mailareppa Nalappa Hosam mi and Medical Officer from General Hospital Saundat namel P 6 Di Snidr mapp C nnba ippa kol n ( Spec lis i Dis C lost ita Rd a viz ) PW7DrSubhash Neelakanth Halabhavi, the Investigating Officers namely PW8Vasudev, PW9Shrikant, PW. 1O SMNagaraj and PW. 1 1Girimalla were examined and exhibits as per ExP1 to P14 and MO’s 1 and 2 were marked. 4. The learned Trial Judge on appreciation of evidence and on hearing the learned counsel for parties, has acquitted the accused by assigning the following reasons: I The evidence of the victim (who was aged about 7 years at the time of incident> is not supported by medical evidence. II The medical evidence given by PW’s6 and 7 rules out the case of rape putforth by the prosecution. III The evidence of PWs, 1 and 2 does not inspire confidence, IV There was inordinate delay in lodging the first infbrnation, V The n..aterial objects (cloth••es worn by the victim) did not bear an•.y incriminating vidence. 4 •1• 4- m a a 8 • oa I a’ C. Eto 44> eq Wa. natn m a eq p. a I g to Ø 4 I’’ toL 0. a a a a 4 n E. ‘a 1* 0 w in 0 Wa. 0 0. to a In our considered opinion, the above observations were not only unwarranted but they are also against settled principles relating to appreciation of evidence in cases of rape, particularly rape on victims of tender age. 7. In brief, the case of prosecution is as follows: The victim (PW.3) was aged about 7 years at the time of incident. PW. 1-Smt,Husenbi Hatelsab Baligar is her foster mother and PW.2-Smt.Biyamma Makbulsab Baligar is the elder sister of PW. 1. PW’s.4 and 5 are the neighbours of PW. 1. For the reasons not apparent on record, PW. 1 had left her husband and she was living in Saundatti. PW. 1 was selling bangles for which purpose she used to visit several villages. She used to leave her house in the morning and return back in the afternoon or evening. During her absence, victim was staying in the house of accused or in the house of PW2. 8. On 19.03.2001, as usual, PW.i left her house to sell bangles. She had kept the lunch for PW.3 in tiffin career and left PW.3 in the house of accused and kept the tiffin carrier in the house of accused. When PW3 was playing in front of her house, the accused forcibly took her to his hause and fell her ( 6 -S. on the ground and committed rape on her. PW.3 had suffered bleeding injuries on her private pans. The accused had threatened PW.3 not to disclose the incident to anyone. When PW.3 came out of the house of accused, PW. 1 was returning to her house. PW.3 narrated the entire incident to P1W. 1 who in turn narrated the same to PW.2. PW. 1 found bleeding from the private parts of PW.3. She took her to a Doctor by name Murali who informed PW. 1 that PW.3 was subjected to rape. 9. On the following day, i.e., on 20.03.2001, PW.1 took PW.3 to PW.6 - Dr.Sidramappa Chanabasappa RoUi who was the Medical Officer in General Hospital at Saundati. PW.6 instead of examining the victim in detail had asked P1W. 1 to bring requisition from the police. Therefore, P1W. 1 brought back PW.3. In the meanwhile, the accused was questioned by PW. 1 and others about the illegal act committed by him, but, the accused did not care for them. PW. 1 approached the jurisdictional police but the response of jurisdictional police was totally indifferent. The jurisdictional police wanted PW. 1 to treat the entire episode as closed by receiving a sum of4 7 Rs.500/-. Therefore, PW. 1 approached the Superintendent of Police at Belgaum who gave instructions to the jurisdictional police. In that way, PW. 1 was able to lodge first information on 31.03.2001. On that day, PW.3 was examined by PW.7 — Dr.Subhash Neelkanth Halabhavi in District Hospital at Belgaum. On examination, PW.7 did not notice the external injuries or signs of rape. PW.7 opined that PW.3 was not subjected to rape. The Investigating Officer inspected the place of occurrence and collected the clothes worn by the victim, which in fact had been washed by PW. 1. The Investigating Officer after completion of formalities filed charge sheet. In the discussion made supra, we have stated the reasons assigned by the learned trial judge for acquitting the accused. 10. We have heard Sri.V.M.Banakar, Addl. State Public Prosecutor for the State and Sri.Jagadish Patil, learned counsel for respondent-accused. 11. From the evidence of PW. 1, we find that she was staying at Saundati and sustaining by selling bangles in the iN. S surrounding villages. She was residing near the house of accused. In fact, she was collecting water from the tap of house of accused by paying a sum of Rs. 10/- per month. PW. 1 was selling bangles in surrounding villages, she used to leave her house in the morning and return during afternoon or evening. During her absence, PW.3 was staying in the house of PW2 or in the house of accused. 12. PW. 1 has given consistent evidence about the incident of rape. PW. 1 has deposed; that on the date of incident, she left her house to sell bangles at 10.30 a.m. She had kept lunch for PW.3 in a tiffin carrier and had kept tiffin carrier in the house of accused. PW.3 was playing with her friends. PW.1 returned to her house at 4.00 p.m. PW.3 was sitting outside the house and she was weeping. When 1W. 1 enquired as to why she was weeping, PW.3 informed that the accused asked her to bring beetle leaves and offered some money. When PW.3 brought beetle leaves, the accused held her hand and gagged her and carried her into his house. The accused put a gunny bag on the floor and made her to lie on the gunny bag and put his penis on the private part of PW.3. 9 Thereafter, accused threatened PW.3 not to disclose the incident to anybody. PW. 1 took PW.3 to the house of PW2 and informed the incident to PW.2. Thereafter, PWs. 1 & 2 took PW.3 to the house of the accused and the matter was informed to the inmates of the house of accused but. they did not believe and told that PW.3 was uttering lie. PWs. 1 and 2 tojustifv the truth narrated by PW.3 showed to the inmates of the house of accused blood stained frock and undergarments of PW.3 and they requested them to advise the accused and convey a panchayat. Both the mother and aunt of accused did not agree for such suggestion. During that night, PW.3 was scared and was in frightened state. On the next day morning, PW. 1 told accused that she is taking PW.3 to a Doctor and she is going to lodge a complaint but, the accused did not care, Thereafter, PW. 1 took PW.3 to Government Hospital at Saundatti where PW3 was examined by PW.6- DrSiddaramappa Channabasappa Rolli, PW.6 on examination confirmed that PW,3 was subjected to rape and asked PW. i to file a complaint. Thereafter, she came to the police station and narrated evetything to the poii.ee. The 10 police recorded her statement and promised to take action against the accused but, they did not do so. She visited the police station almost for about 10 days. One Jamdar Saheb gave Rs.500/- to the hands of PW.3 and told PW. 1 that they would bring the accused to the police station and take action against him. Since the police did not take any action against the accused, PW. 1 with the help of one Basanna approached the Superintendent of Police at Belgaum. The Superintendent of Police enquired PW.3 and instructed the jurisdictional police to take action against the accused and asked PW. 1 to pproach the jurisdictional police. After receiving the first information from PW. 1, the police apprehended the accused and they also collected the clothes worn by the victim at the time of incident. P1W. 1 has deposed that she had washed the clothes worn by the victim at the time of incident. By the time the clothes were given to police, they had been washed. During cross-examination of PW. 1, apart from suggesting that there was a dispute between PW. 1 and the 77% c 4 ’tt_ $ Ii •6 accused regarding collection of water from the tap from the house of accused, nothing has been suggested to discard the evidence of PW. 1. During cross-examination, PW. 1 has admitted that she used to collect water from the tap of house of accused and she used to pay a sum of Rs. 10/- per month to collect water from the tap of the house of accused. There used to be irregular supply of water during the month of March and she had denied the suggestion that the family members of accused had told PW. 1 not to collect water from the tap of their house, therefore, there was ill will between PW. 1 and accused. PW. 1 had deposed that, her husband had visited her house about a month prior to the date of incident, she had not informed about the incident to her husband as he was not available at Belgaum. PW. 1 had deposed that when the incident was narrated by PW.3, blood was not oozing and stains were at the stage of drying and private parts of PW.3 were swollen. She had denied the suggestion that she had given false evidence to implicate the accused to extract money from the accused. NcL pt—&. 12 13. The evidence of PW.2 lends substantial corroboration to the evidence of PW. 1. PW.2 has deposed; that on the date of incident, PW. 1 came and narrated the incident to PW.2. Then, PWs. 1 and 2 questioned the mother and brother of the accused about the incident however, both of them retorted by stating that PW.3 was uttering lie. On the following day, PW. 1 took the victim to hospital. During cross-examination, she had deposed that house of PW. 1 is at a distance of 100 feet from her house. Whenever, PW. 1 used to go for selling bangles, PW.3 used to come to her house. Sometimes, PW.3 used to take food in the house of PW.3. During cross-examination, it has been suggested to PW.2 that she has given false evidence at the instance of her sister (PW. 1), she had denied the suggestion that there was ill will between the accused and PW. 1 regarding collection of water from the tap of house of accused and for that reason she had given false evidence. She had denied the suggestion li”— 1 I3 that PW, I in order to extract money from accused had filed a false complaint and PW,2 had given false evidence. 13. PW.3, the victim, was aged about 7 years at the time of incident and she was aged about 1 1 years when her evidence was recorded by the trial court. The learned trial judge after ensuring the competence of PW.3 to give evidence, permitted the public prosecutor to examine her. PW.3 had deposed; that PWs. 1 and 3 were residing in their house at Saundatti, PW. 1 used to sell bangles. The house of accused-Neelappa, is situate by the side of house of PW. 1. Apart from the accused, his parents, his wife and children were residing in their house, The accused has three daughters and a son. Whenever, PW. 1 used to go out of her house for selling bangles, she used to keep the lunch box in the house of accused, PW,3 used to go to the house of accused to take lunch, At the t.ime of incident, PW3 was not going to school, She used to stay in the house, Whenever, PW. I used to o out of the house, she used to play with her fri.ends 14 On the date of incident, during afternoon, when PW.3 was playing with her friends, the accused called her and asked her to bring beetle leaves and nuts. The accused pulled her hands and gagged her and carried her on his shoulder. The accused took her inside the room of his house and put a gunny bag on the floor. He made her to lie on the gunny bag. The accused removed her frock and pulled down the undergarments of PW3 and put his penis on the portion of her body from where she was urinating. At that time, PW3 shouted but, nobody was there in the house. She felt miserable pain (sankata). There was bleeding from her private part. She sustained injury on the part of the body from where she used to urinate. Thereafter, the accused threatened her not to inform the same to anyone, otherwise, he would kill her and throw her into a well. When she came out of the house of accused, she was weeping. Her mother PW. I was returning. When her mother questioned her as to why she was weeping, she narrated the entire incident to PW. I, At that time, the clothes worn by PW.3 were stained with blood, PW. I took her to DrMurali who exarined PW.3 15 and informed PW. 1 that PW3 had been subjected to rape. Thereafter, PW.1 took PW3 to the house of PW.2 and narrated the incident to PW.2. PW.3 had been taken to police station. The police enquired her and recorded her statement. She has identified her blood stained clothes and undergarment as MO’s 1 and 2. 14. The learned counsel for accused had directed much of cross-examination of PW3 to demonstrate that PW3 had been tutored by PW’s, 1 and 2 to give false evidence. During cross-examination, PW3 has deposed; that her mother PW, 1 had asked PW.3 to tell before the court that what had been done to her by the accused. During cross-examination, PW.3 had deposed that, on the date of incident, children of Neelappa (accused) had gone to school. The parents and wife of accused had gone to their lands. PW. 1 used to fetch water from the tap of the house of accused, PW,3 h••as denied that some galat.a had taken•• place between PW. 1 and accused regarding collection of water from the tap of the house of accused. During cross-çxamination, 16 PW3 had clarified that PW’s. 1 and 2 never told her to give answers in a particular manner if she is questioned regarding water dispute. PW.3 had deposed that it was around 2 0’ clock, when the accused carried her to his house. PW3 has deposed that, xhen she came out of the room of accused, the blood was dripping from her private part and bleeding stopped on the same day. PW.3 had deposed that, the Doctor told PW. 1 to file a complaint to the police and also told PW. 1 that rape was committed on PW.3. PW.3 had denied a suggestion that she had given false evidence at the instance of PW’s,l and 2. 15. At the relevant time. PW.6-Dr.Siddaramappa Channabasappa Rolli was working as Senior Specialist and Medical Officer at General Hospital, Saundatti PW6 has deposed: that on 2O.O32OOi at about 11.00 a.m., the victim was brought b PW.1 with the history of rape on 19.03.2001 On examination, PW.6 found that thc gneral condition of PW.2 ictim was noima] and no external iniuries were found on the externdi genitalia, stains of semen or blood .4 C ‘7 were not found over the external genitalia or thighs. PW.6 advised PW. 1 to bring police requisition for further examination of the victim. Thereafter, PW. 1 did not turn up with the police requisition. On 31.03.2001, PW. 1 came along with the victim. Since case had been registered as medico legal case, PW.6 referred PW.3 to District Hospital at Belgaum. PW.6 had deposed; that on 20.03.200 1, the victim was brought with history of rape and he tried to contact the police over phone but, since the telephone was not working, he could not contact the police to inform the case. PW.6 has deposed; he was very busy in attending other patients who were in need of immediate medical attention, he did not send any medico legal report to the police and advised PW. 1 to lodge a complaint with the police. PW.6 has deposed that, on receipt of report from the District Hospital at Belgaum, he recorded his opinion as “on (0, 18 the basis of available records in MLC register, the opinion of Senior Specialist, Belgaum, no opinion can be given.” Thus, we find that the approach of PW.6 to a medico legal case was improper and unfair. PW.6 instead of reporting the case as medico legal case to the jurisdictional police, had directed PW. 1 get requisition from the police. From the evidence of PW.6, it is not clear as to whether victim had suffered injuries on her private parts, whether there was bleeding from her private parts. The fact remains that PW.6 had not discharged his duties as a Medical Officer and his approach to a medico legal case was most improper and irresponsible. 16. At the relevant period, PW.7-Dr.Subhash was working as a Senior Specialist at District Hospital at Belgaum. PW.7 had deposed; that on 31.03.2001 at 9.55 p.m., he received a requisition from PSI, Saundatti to examine the victim (PW.3) who is alleged to have been raped on 19.03.2001. On examination, he found that the condition of the victim (PW.3) was normal, external genitalia was normal /2 ii )\.J 19 and hymen was intact. On the basis of these observations, PW.6 had opined that he could not find any evidence of rape on the victim and had given certificate as per Ex.P8. 17. The evidence given by PW’s.8 to 11 relates to the investigation of the case. 18. Before adverting to the appreciation of evidence of PW’s 1 to 3, it is necessary for us to state that neither PW. 1 nor PW.2 had grudge against the accused to falsely implicate the accused in a case of rape. PW.3 was hardly aged about 5 years. The evidence given by PW.3 rules out the possibility of PW.3 being a tutored witness. Though it has been suggested to PW’sl and 2 that there was dispute between the accused and PW. 1 regarding collection of water, we do not fmd any substance in the suggestion. PW. 1 had admitted that, she was collecting water from the tap located in the house of accused on payment of Rs. 10/- per month. PW. 1 had admitted that there was scarcity of water during summer season and water supply was irregular. We are at loss to understand as to how this arrangement could be#eated as a jb. £L C C) CD C C CD CD CD CD CD CD C CD :1) C C C CD CD 2 CD j . C) C CD Cl, CD 9 :z c CD ) Cl, vj CD r* C) C - C — (1) C < p) C CD C CD CD ) CD Cfl CD E C) Q Ci ) C) C crq C , CD CD r CD CD ) CD . CD g < ) C) Z C o a 90 C) r C) ) D ) CD C) r Cl — ) Q rt _. C) c< C) Cl) - CD a CL Cl) C/) CD CL 9, CD CD CL 9 r CD ) CD C CD 0 ‘,‘t CD 0 Q ) ) —0Q C CD CD C) r* C) ) CL CL ) C) CD CD c,) — C) < V (CD cj . 1 C CD 9 CL CD CD n (IC) C < 1 -‘ .p C r+ CD g , ( C)’ (IC) C/) CD •C)) — C)) 0 0 9) (IC) C)) 0 CD C)) -e 9 (IC) CD CD CD , CD - C/) C) CL c CD x -, CL CD CD r CL C/) C CD C () — C CD CL C)) . C)) C)) CD C)) C) CD C C)) CD 1 rf C C)) C) U) 0 C C) 0 C)) C iE C, z CD \C)) C C C cJ0 Z — c•, —, C)) 9 CD C)) CD C)) C 21 to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her, (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy, (10) The parents of an unmarried girl as also the husband and members of the husbands family of a married woman would also more often than not, A /1 22 want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for - the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved,