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Friday, October 9, 2015

Courts must bear in mind that the question whether there was rape or not would depend ultimately on the facts and circumstances of each case. In the present case, the gaps in the evidences of the prosecutrix and the medical officer make it highly improbable that sexual intercourse took place. It would be erroneous to rely upon such discrepant testimonies and convict the accused. It can thus be stated with certitude that the solitary evidence of the prosecutrix, in absence of any corroboration by the medical evidence, is not of such quality which can be relied upon. The accused- respondent is, therefore, entitled to benefit of doubt. Thus, in the light of the above discussion, we are of the view that the present appeal is devoid of merits, and we find no grounds to interfere with the judgment passed by the High Court. The appeal is, accordingly, dismissed.

                                                              NON REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION



                      CRIMINAL APPEAL NO. 1439  OF 2011

STATE OF KARNATAKA           …..             APPELLANT

                                  :VERSUS:

F. NATARAJ                   …..             RESPONDENT







                               J U D G M E N T

Pinaki Chandra Ghose, J.

This appeal by special leave has been  directed  against  the  judgment  and
order dated 9.11.2009 passed by the High Court of Karnataka at Bangalore  in
Criminal Appeal  No.1576  of  2007,  whereby  the  High  Court  allowed  the
criminal appeal filed by the respondent herein  and  acquitted  him  of  the
offence under Section 376  of  the  Indian  Penal  Code,  1860  (hereinafter
referred to as  “IPC”).


The  brief  facts  necessary  to  dispose  of  this  appeal  are  that   the
prosecutrix (PW1), daughter of one Lakshmana (PW2),  aged  about  14  years,
was studying in 8th standard in Swami Vivekanand  School  at  Hiriyur  Town,
District Chitradurga. The respondent F. Nataraj was a teacher  in  the  said
school and the prosecutrix fell in love with him. When  she  expressed  this
before him, he told her that she is a minor and should  concentrate  on  her
studies. The prosecutrix threatened the accused respondent that if he  would
not consent to marry her, she would kill herself. In view  of  this  threat,
he agreed to marry her. The relationship between them  continued  for  about
three months. When the prosecutrix came to know that her parents were  about
to get her married to somebody else, she started  pressurizing  the  accused
to marry with her by giving him  threats  again.  Ultimately,  the  accused-
respondent and the prosecutrix fled away from  Hiriyur  Town  in  the  early
morning of 26.10.2003 and reached Bangalore. There the accused took  her  to
Nallur Village near Whitefield and they stayed in the house of aunt  of  the
accused - Kaveramma for about 20 days. The  accused-respondent  brought  one
readymade Mangalya (thaali) and tied it to the  prosecutrix  at  about  3:00
p.m. on that date in the said house and they got married to each other.  The
accused then started visiting factories in search of job. During the  period
from 26.10.2003  to  15.11.2003,  the  prosecutrix  and  the  accused  lived
together and led a conjugal married life. Finally,  the  Police  of  Hiriyur
Police Station reached the said house on 15.11.2003  at  about  12:15  p.m.,
and the accused and  the  prosecutrix  were  taken  to  the  Hiriyur  Police
Station by  the  evening.  Thereafter,  statement  of  the  prosecutrix  was
recorded as Ex.P-1 on 15.11.2003 at Hiriyur Police Station.  Based  on  this
statement  (Ex.P-1),  investigation  was  taken  up.  The  father   of   the
prosecutrix (Lakshmana) had already filed a missing  complaint  (Ex.P-2)  on
26.10.2003, stating that his daughter had gone out to attend  nature’s  call
on 26.10.2003 at about 3:00 A.M. and thereafter  she  could  not  be  traced
despite all efforts. On 11.11.2003, Lakshmana filed another complaint (Ex.P-
3) at the  Hiriyur  Police  Station  stating  that  he  suspected  that  the
respondent might have kidnapped his daughter.


On  the  basis  of  the  evidences  collected  by  the  police  during   the
investigation, charge-sheet was filed against the accused  respondent  under
Sections 366A and 376 of the IPC. The case was committed  to  the  Court  of
Sessions. Since no material was found to frame  a  charge  for  the  offence
punishable under Section 366A of IPC, therefore, only  the  charge  for  the
offence punishable under Section 376 of IPC was framed against  the  accused
to which he pleaded not guilty and claimed to be tried.

The Trial Court  by its judgment and order dated  21.9.2007,  convicted  the
respondent F. Nataraj for the offence punishable under Section  376  of  the
IPC and sentenced him to rigorous imprisonment for five years and to  pay  a
fine of Rs.1,000/-, and in  default  of  payment  of  fine,  further  simple
imprisonment for three months was awarded. Being aggrieved by the  aforesaid
judgment and order of the  Trial  Court,  the  accused-respondent  filed  an
appeal before the High Court  of  Karnataka  at  Bangalore,  being  Criminal
Appeal No.1576 of 2007. The High Court by the impugned  judgment  and  order
allowed this appeal on the ground that though  the  prosecutrix  herein  was
less than 16 years of age and her consent would be of no relevance if  there
was sexual intercourse between her and the  accused,  since  the  factum  of
sexual intercourse itself was not proved beyond reasonable doubt in view  of
the inconsistent evidence of the  prosecutrix  which  could  not  be  solely
relied upon.

The Appellant - State has challenged before us  the  judgment  of  acquittal
passed by the High Court. Learned counsel for the State  of  Karnataka  has,
inter alia, made the following submissions. Firstly, that  the  age  of  the
prosecutrix was less than 16 years at the time the  offence  was  committed.
The age was proved to be 13 ½  years on the date  of  incident  by  Ex.P-11,
the birth  certificate  issued  by  PW7  (headmaster  of  Swami  Vivekananda
School) based on entries in the Admission  Register,  wherein  her  date  of
birth was specified as 8.3.1990. Secondly, the factum of sexual  intercourse
between the accused and the prosecutrix has  been  contended  to  be  proved
beyond  reasonable  doubt  by  the  statement  of  PW1   (prosecutrix)   and
corroborated by the medical officer’s (Dr. Latha-PW5) testimony.

The learned counsel for the accused-respondent has not disputed the  age  of
the prosecutrix as has been admitted  by the  High  Court  in  the  impugned
judgment that the prosecutrix was aged between 13-14 years  and  hence  less
than 16 years. But the arguments advanced by the Appellant  State  regarding
the factum of sexual intercourse have been rebutted by  putting  his  weight
on the decision arrived at by the High  Court.  It  is  submitted  that  the
testimony of the prosecutrix is inconsistent, uncorroborated by the  medical
evidence which is vague and fails  to  establish  clearly  that  the  sexual
intercourse took place and hence not reliable.

The Trial Court convicted  the  accused  respondent  on  the  basis  of  the
testimony of the prosecutrix as being supported  by  the  statement  of  the
medical officer. The High Court also dealt with the issue and held that  the
Trial  Court  failed  to  appreciate  the  discrepancies  occurring  in  the
evidences. The High Court has examined at length the record of the case  and
reversed the finding of the Trial Court.


We have heard the learned counsel on both sides and  perused  the  judgments
of the Trial Court as also the High  Court.  The  question  of  age  of  the
prosecutrix is not disputed. Hence, the only issue that  remains  before  us
is whether the factum of sexual intercourse is established or not?


To arrive at a conclusion as  to  whether  actual  sexual  intercourse  took
place or not, the statements of the prosecutrix (PW1)  and  medical  officer
(PW5) need to be examined in detail.  As  per  the  averments  made  by  the
prosecutrix in the complaint (Ex.P-1) filed by her on  15.11.2003,  she  was
in love with the respondent and it is  because  of  her  coercion  that  the
accused took her to Bangalore where they got married and  led  life  like  a
married couple for a period of 20 days. She mentioned  that  their  marriage
had consummated as well. However, the evidence  in  examination-in-chief  of
the prosecutrix (PW1), is totally inconsistent with  the  averments  in  the
complaint (Ex.P-1). In her testimony made before the Court  she  has  stated
that in the early morning of 26.10.2003, when she came out of her  house  to
ease herself, the accused met her and forcibly took her to Bangalore  saying
that he loved her and would marry her. She further stated that she was  made
to stay in the house of Kaveramma (aunt of the accused) for  about  20  days
and they lived there as husband and wife. But  in  her  examination-in-chief
she also mentioned that  she  did  not  lodge  any  complaint  or  make  any
statement and the document Ex.P-1 though has her sign, was not read over  to
her by  the  Police.  After  being  treated  as  hostile,  when  the  Public
Prosecutor  cross-examined  her,  she  admitted  that  after  they  came  to
Bangalore, the accused brought a ready-made Thaali and tied it to  her  neck
and they got married and sexual intercourse took  place  between  them.  But
she vehemently and categorically denied the suggestion  that  the  averments
made in Ex.P-1 are true and correct  and  that  the  complaint  came  to  be
written at her instance.  In  cross-examination  by  the  advocate  for  the
accused, she categorically stated that she was well aware of the meaning  of
the word “intercourse” and that it was painful and she felt  like  screaming
when the accused had intercourse with her for the first time.

The statements of the prosecutrix are  highly  inconsistent.  The  statement
made by her to the police has been categorically denied and  the  statements
made by her before the Court seem to  be  tutored.  At  the  time  when  her
statement was recorded as PW1, the age  of  the  prosecutrix  was  about  17
years and it is quite natural for a girl of that age to know as to  what  is
“sexual intercourse”. Also, the aunt  of  the  accused  i.e.  Kaveramma,  at
whose house at Bangalore  the  prosecutrix  and  the  accused  stayed  after
fleeing from Hiriyur Town, has not been examined.  Further,  the  fact  that
the prosecutrix did not raise any alarm when the  accused  tried  to  kidnap
her, seems to be quite unnatural. The  testimony  of  the  prosecutrix  when
read as a whole, is full of discrepancies and does not inspire confidence.


The medical examination of the prosecutrix took place on 16.11.2003 and  she
was examined by Dr. M. Latha (PW5) who was the Lady Medical Officer  at  the
Government Hospital, Hiryur. Her deposition was that  upon  examination,  no
injury was found on the private parts of the prosecutrix and her  hymen  was
intact.  She  also  stated  that  there  were  no  signs  of  recent  sexual
intercourse as the prosecutrix  was  not  subjected  to  sexual  intercourse
during the past seven days from the date of her medical examination and  she
issued a certificate   Ext.P-7  to  this  effect.  But  she  could  not  say
clearly as to whether the prosecutrix was subjected  to  sexual  intercourse
previously or not.

It is not elicited by the evidence of PW5 as to what was the nature  of  the
hymen that was found intact in the person of the prosecutrix. Though it  may
be true that the rupture of the hymen may not occur in all cases  of  sexual
intercourse, but it is the burden of the prosecution  to  extract  from  the
medical examiner examining a rape victim, that the nature of the  hymen  was
such that it could remain intact despite there being  intercourse  with  the
girl on several occasions within a period of 15  to  20  days.  The  medical
examiner has merely mentioned that there were  no  signs  of  recent  sexual
intercourse which is inadequate to establish that  sexual  intercourse  took
place before that at all.

The appellant State relied upon the case of  Madan  Gopal  Kakkad  v.  Naval
Dubey, (1992) 3  SCC  204,  wherein  this  Court  has  held  that  even  the
slightest penetration of penis  into  vagina  without  rupturing  the  hymen
would constitute rape. The appellant contended that the fact that the  hymen
of the prosecutrix was not ruptured does not  lead  to  the  inference  that
there was no sexual intercourse. But we do  not  find  any  weight  in  this
submission as there is no medical evidence even to suggest the slightest  of
penetration.  

Learned counsel for the respondent relied upon the case of  Radhu  v.  State
of M.P., (2007) 12 SCC 57, wherein this Court had laid  down  the  principle
that a conviction of rape can be based on the  uncorroborated  testimony  of
the prosecutrix and even the absence of injuries on  the  private  parts  of
the victim will not falsify the case of rape, but  at  the  same  time,  the
Courts must bear in mind that the question whether there  was  rape  or  not
would depend ultimately on the facts and circumstances of each case.

Learned counsel for the respondent further relied upon Mohd.  Ali  v.  State
of  U.P., (2015) 7 SCC 272, wherein this Court recently held as follows:


“30. True it is, the  grammar  of  law  permits  that  the  testimony  of  a
prosecutrix can be  accepted  without  any  corroboration  without  material
particulars, for she has to be placed on a higher pedestal than  an  injured
witness, but, a pregnant one, when a  court,  on  studied  scrutiny  of  the
evidence finds it difficult  to  accept  the  version  of  the  prosecutrix,
because it is not unreproachable, there is requirement for  search  of  such
direct  or  circumstantial  evidence  which  would  lend  assurance  to  her
testimony…”


In the present case, the gaps in the evidences of the  prosecutrix  and  the
medical officer make it  highly  improbable  that  sexual  intercourse  took
place. It would be erroneous to rely upon such  discrepant  testimonies  and
convict the accused. It can thus be stated with certitude that the  solitary
evidence of the prosecutrix, in absence of any corroboration by the  medical
evidence, is not of such quality which can  be  relied  upon.  The  accused-
respondent is, therefore, entitled to benefit of doubt.

Thus, in the light of the above discussion, we are  of  the  view  that  the
present appeal is devoid of merits, and we  find  no  grounds  to  interfere
with the judgment passed by the High  Court.  The  appeal  is,  accordingly,
dismissed.






                                      …....................................J

                                                    (Pinaki Chandra Ghose)





                                       …...................................J

                                                     (R.K. Agrawal)

New Delhi

October  07, 2015

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