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
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
