IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD Dated this the 4tfl day of November 2011 Present THE HONBLE MRJUSTICE SUBHASH BADI and THE HONBLE MRJUSTICE KNKESHAVANARAYANA eat No2504/2008 BETWEEN: State of Karnataka, Through Kittur PoIice Appetiant (By Sri, V,M,Banakar, AddL SPP) AND: Shankar Shivaji Hiraki, Age: 23 years, 0cc: Agriculture, Resident of Nayitegur, Tatuk: Baiihongal, District: Belgaum. This criminal appeal is flied under Sections 378(1) & (3) of’ 0r,P,C by the State PP. for the State praying that this cc Co c’ oepse’ e e aa,rs k 0 oa c ne ogeo ao re or a 033300 :2: by the learned II Additional Sessions Judge, Belgaum in S.C.No.79/2006 dated 17.01.2008, acquitting the respondent- accused of the offence punishable under Section 376 and 506 of IPC; set aside the aforesaid judgment and order of acquittal of respondent passed by the court below by allowing this criminal appeal; and convict and sentence the respondent- accused for the offences with which he was charged in accordance with law. This appeal coming on for hearing this day, Subhash B.Adi, J, delivered the following: JUDGMENT This appeal is by the State against the judgment of acquittal passed in S.C.No.79/2006 dated 17.01.2008 on the file of II Additional Sessions Judge, Belgaum. 2. Accused Shankar Shivaji Hiraki was charge-sheeted and tried for the offence punishable under Sections 376 and 506 of the Indian Penal Code. The Trial Court, on consideration of the evidence on record, found that the prosecution has failed to prove that accused had committed the offence punishable under Section 376 and 506 of IPC and accordingly it acquitted the accused. 3 3 The case of prosecution is that P W I Savant Parasappa Pagad is the father of the P W 2-Rajashree the victim P W 3 Bhimarayappa Parasappa Pagad is the elder brother of the victim-P W 2 Out of the wedlock with the first wife P W. I had son P W 3 and daughter-RW 2 the victim After the death of first wife P W I had married second time Nagawwa 4 On 20 th March 2005 as P W 2 was not keeping well, P W I took her to a Private Hospital where she was treated by RW 6-Dr Venkatesh Dattaraya Unkalkar who informed P W I that victim-P W 2 is pregnant by eight months On enquiry P W I came to know that P W 2 while going to seeme hola through a pathway by the side of the land accused called her and when the i ctim asked as to why he s cal ing ne or b y dragged vie a d omm tted ape vi t or F A ho etalj ad a h at t dire vi eque e e id vi t a se any r e an j at t e i tan dcl f t a :4: that the accused had committed rape. Based on the written complaint filed by PWi, PWi2PSl registered a case in Crime No,47/2005. PW.9 conducted part of the investigation and the remaining part of the investigation was conducted by the PW1O. PWiO after completion of the investigation filed the charge sheet. 5. On committal. the Trial Court framed the following charges: oertd nD Oo73 edd dc C s or 10 rio t3ri ec a5n cy nd ic reñ CL eij cio,1o. VO 376 C 2) D) - Q aO e ez33 oer1 o i5nddja ec er1 2dOO )O 506 6. To prove charges, prosecution examined PWsi to 14. marked Exs.P.1 to P15. No material objects were produced No defence evidence was led. The trial Court, after recording the say of the accused under Section 313 of CrPC. and hearing parties, acquitted the accused by the judgment In appeal. 7. We have heard the learned Addition State Pubhc Prosecutor for the State and Shri. ARPatil, for the accused. 8 From amongst the witnesses examined by the rosecution. PW2 is t.he victim.. In her evidence, she has stated that accused had threa-tened her and warned not . :6: inform anyone, and after eight months she was not keeping well and was taken to the hospital of P.W.6 and only on examination by P.W.6, she came to know that she was pregnant. Thereafter, she was taken to Belgaum Government District Hospital. She also admits that she gave birth to a female child on the very next day of filing of the complaint In the cross-examination, P.W.2 has stated that in their custom a girl or a women, during their menstrual period, do not enter the temple room and before she was pregnant she used to have routine menstrual period, however, after eight months she did not have menstrual period. She had informed her mother that her abdomen is bulging and only when she was taken to the Kitoor Hospital she came to know that she was pregnant. P.W.1 father of P.W.2 has stated that victim is a mentally retarded, she does not understand and she also limps and leans and it is on account of the same. P.W.1 did not know the incident till P.W.2 was examined by P.W.6-doctor. :7: 9. To prove the mental condition of the victim-P.W.2, P.W.14-Dr.Prabhavati Shankargouda Patil, the doctor who had examined the victim had referred her to Psychiatrist and in her cross-examination, the doctor has stated that Psychiatrist, after examination of P.W.2 has opined that P.W.2 is of average intelligence. Ex.P.15 is the case sheet of the Govt. District Hospital, Belgaum, wherein the opinion of the Psychiatrist is referred and it shows that the patient is co operative for assessment and make simple calculation, gives all information regarding herself, oriented to time, place and person, and psychometrically no evidence of mental retardness. 10. The main evidence led by the prosecution in this case is of P.Ws.1, 2 and 14-doctor. It is not in dispute that victim was pregnant and she delivered a girl baby. During the course of investigation, P.W.8-ASI had taken P.W.2, her child and the accused for DNA test to the Centre for DNA Fingerprinting and Diagnostics at Hyderabad. On examination of the accused, victim and the child, as per ar 1 < :8: Ex.P.1O opinion is given to the effect that the victim and accused are the biological mother and father of the female child born to P.W.2. 11. P.W.13 has been examined to prove Ex.P.1O and in his evidence, he has stated that on the basis of the examination it is found that the child is born out of the relationship between accused and P.W.2. The evidence proves that the accused had sexual intercourse with P.W.2. It also proves that out of the said relationship a female child is born. Further, it is also clear from the evidence that though P.W.2 is stated to be of average intelligence, as per the opinion of the Psychiatrist, P.W.2 is not mentally retarded person and she understands simple calculation, gives all information regarding herself oriented to time, place, person etc. It cannot be said that the victim was not knowing as to what act she had undergone. The evidence of P.W.2 also shows that she knew that her menstrual process has been stopped for eight months; it also shows that her abdomen had bulged; she had admitted that she had informed her :9: mother. P.W.6-doctor who first examined P.W.2 has also opined that when she was brought to the hospital she had eight months pregnancy. There is no explanation by P.W.2 or P.W.1 as to why no complaint was filed Immediately after the incident or within a reasonable time. By the time complaint was filed, the victim was more than 9 month pregnant. The complaint was filed only on 03.04.2005 and on the very next day a child was born. 12. The Trial Court, while appreciating the entire evidence though has found that there was a sexual relationship between P.W.2 and the accused, holds that it does not amount to rape as the victim was aged about 25 years when the accident occurred. However there is no evidence of accused committing rape. Further the evidence shows that even at the time of incident the victim PW.2 did not raise any hue and cry. The doctor who examined the PW2 has opined that there were no external injuries on the F body of P.W.2. 10: 13. Undoubtedly, in this case, victim has been subjected to sexual intercourse, but she was a major and the evidence also indicates that she was a consenting party to the act. No doubt, the prosecution tried to make out a case of mental retardedness and physical handicap, but Ex.P.15 opinion of Psychiatrist does not show that she was mentally retarded and incapable of communicating. It is also in the evidence that she had not raised any hue and cry when the incident took place. These circumstances have been considered by the Trial Court and held that the evidence do not prove the case of offence under Sections 376 and 506 of IPC. However, the trial Court holds that the accused and victim are the biological father and mother of the girl baby born to P.W.2. 14. No doubt, the evidence does not prove the offence, but nevertheless what we find is that accused is the biological father of the child, having regard to the same, learned counsel appearing for the accused submitted that the interest of PW2 and child requires to be protected, as 11: otherwise, it would be great injustice and he had pursuaded his client, the accused, to deposit Rs.2 lakhs towards compensation to the victim and the child. Learned counsel for the accused respondent has filed a memo inter alia stating that respondentlaccused will deposit Rs.2 lakhs on or before 01 .01 .2012. The said memo is taken on record. 15. Since we do not find any evidence to prove the offence punishable under Sections 376 and 506 of IPC, we find that the Trial Court on proper appreciation of the evidence has acquitted the accused. We find that the finding of the Thai Court are sound and based on proper appreciation of the evidence. 16. Since the trial Court has found that P.W.2 and accused are biological mother and father the child should not suffer and, as such, we find that ends of justice would be met if P.W.2 and the child are compensated. It is in this context, without any prejudice to any right that may accrue to P.W.2 under the law, we direct the respondent/accused, as 12: undertaken by him, to deposit Rs.1 lakh in the name of child named as ‘Baby’ and Rs.1 lakh in the name P.W.2 in the fixed deposit on or before 01.01.2012. P.W.2 is entitled to withdraw interest accrued on the fixed deposit made in her name and the child name. However, the judgment of acquittal passed by the trial Court stands confirmed subject to the above observation. Sd/a JUDGE Sd/a flIDGE Kms