Dr. Arijit Pasayat, J.
1. State of Karnataka is in appeal
against the judgment of the learned Single Judge of the Karnataka High
Court directing acquittal of the respondents who were charged for
commission of offence punishable under Section 376 of the Indian Penal
Code (in short the `IPC').
2. Background facts as projected
by prosecution in a nutshell are as follows:
P.W.1 and PW2 were residing alongwith their respective parents at
Madenadu and they were working as coolies in the coffee estate of
Pudiyenda Palangappa, Appellant No.2 (accused no. 2) is a tailor by
profession having his tailoring shop at Aatekere, On 16-9-1989 at about
9.00 a.m., PWs, 1 & 2 went to the tailoring shop of A-2 and requested
him to stitch their blouses. At that time they gave two blouses of
theirs for the purpose of measurement along with new clothes. It is
alleged that A-2 asked them to come on the following day to take
delivery of the blouses if they were stitched. Accordingly, on 17.9.1989
they both went to the tailoring shop to take delivery of the clothes
when A-2 informed them that the stitching was not over, upon which both
of them asked him to return the blouses given for measurement. In
response to that, A-2 asked them to go to his house as the blouses were
left in his house. Accordingly, both of them accompanied by A- 1 & A-2
went to the house which was nearby. A-1 & A-2 went inside the house and
as they did not come out of the house for about 15 minutes, both PWs. 1
& 2 who were waiting outside entered the house. As soon as they entered
the house, A-2 bolted the door and held P.W.2 and A-1 also held PW-l.
They were taken to separate rooms
and A-1 committed rape on P.W.1 and A-2 committed rape on PW2,
Thereafter, they threatened both of them that they would be murdered if
the incident was revealed to anyone, Therefore, they kept quiet,
On18-9-1989 they went to Madikeri to the house of Chandrakala (P.W.14).
Having stayed in the house of Chandrakala on that night, they went to
Sulia to the house of the uncle of P.W.2. As the PWs 1 & 2 were not
found in their houses, parents of PWs. 1 & 2 sent Seshappa (PW17) who is
the elder brother of PW 2 to his maternal uncle's house at Sulia.
Accordingly, he went to the house at Sulia and found both of them and
brought them back to Madenadu, Thereafter, they went to Madikeri Rural
Police Station on 21- 9-1989 and presented a written complaint Ex-P-l
signed by P.W.1 which was received by P.W.26 at 6.45 p.m. On that day,
PW 26 registered a case in Madikeri Rural Police Station in Cr,
No.233/89 and submitted FIR as per Ex-P.33. On the next day he sent them
for medical examination to the District Hospital, Madikeri. PWs. 1 & 2
also produced clothes which they were wearing at the time of incident
which were seized. P.W.26 went to the scene of occurrence which is the
house of A-2 where the alleged rape was committed on PWs. 1 & 2, He drew
up mahazar Ex-P4 in the house of PW2 in the presence of panchas and
seized broken bangles MOs. 8 & 9, He also drew mahazar in the shop of
A-2 as per Ex-P3 and seized the clothes given for stitching by PWs. 1 &
2. On 23-9-1989 A-1 was arrested. PW-26 recorded the statement of A-1
who led them to his house where he drew a mahazar as per Ex-P.33.
Thereafter, further investigation
was taken up by P.W.24, the Circle Inspector of Police. On 13-11-1989
A-2 appeared before him with order of anticipatory bail. His statement
was recorded after arresting him. He also produced clothes that he was
wearing at the time of incident from his house which were seized as per
Ex-P.29. Both A-1 & A-2 were subjected to medical examination, Dr. G.
Marulasiddappa (P.W 25) issued certificate of A-1 as per Ex-P.27 and Dr.
Suryakumar (PW-3) issued certificate of A-2 as per Ex P.6. After receipt
of the FSL report, he filed a charge sheet. Thereafter, the case was
committed to the Court of Sessions, as the offence alleged against these
accused persons is in respect of offence punishable under Section 376
exclusively triable by the Court of Sessions. On receipt of this
committal order, the Court of Sessions, Kodagu District, registered a
case (S.C. No.45/90) and framed charges against the accused for the
offence punishable under Sec. 376 IPC, and both the appellants denied
the charges and claimed to be tried. To substantiate the case of the
prosecution, it examined 27 witnesses and got marked Exs-P1 to P.34 and
also MOs. 1 to 24.
3. The case of the respondents was
that in view of some property dispute, PWs. l & 2 filed a false case
against them and they are innocent.
4. The trial Court found with
reference to the evidence on record, more particularly the documents
exhibited by the teacher of the school (PW 16) that the age of the
victims in each case was less than 16 years. Therefore the trial Court
held that the question of consent was irrelevant and immaterial. In
appeal, the High Court held that the age was more than 16 years and
there was consent and accordingly directed acquittal.
5. Learned counsel for the
appellant-State submitted that the High Court has fallen into grave
error by holding that the age of each of the victims was more than 16
years. Further there was no plea regarding consent and therefore the
High Court on its own could not have made out a case of consent.
6. Learned counsel for the
respondents on the other hand submitted that the factual scenario
clearly shows consent and the High Court's conclusion about the age and
consent cannot be faulted.
7. It is to be noted that the
teacher-PW 16 referred to the certificates which indicated that the date
of birth of PW 1 was 5.3.1974 and the date of birth of PW2 was 1.2.1974.
Exhibits P.16 & P.17 are the certificates. The High Court referred to
the evidence of the lady doctor PW 24 with reference to the X- Ray
report which indicated that the age of PWs. 1 & 2 fell between 14 to 16
years. The High Court observed that there was possibility of two years
variation and therefore it was to be taken that the victims were more
than 16 years of age. The High Court accepted that there was sexual
intercourse and rejected the plea of false implication. Thereafter it
went on to examine the question of consent. So far as the reasonings of
the High Court are concerned they border on absurdity. All types of
surmises and conjectures have been arrived at. Strangely, it was
observed that PW16 the Head Master's evidence was to be discarded on the
ground that the date of birth may not have been recorded on the basis of
any medical certificate or other documentary evidence to show that these
two girls were born on the date as mentioned. The High Court's
conclusions in this regard are not only fallacious but contrary to the
evidence on record. The High Court recorded a further finding that the
two certificates may not relate to the victims though it specifically
recorded that there was no such challenge raised by the accused.
Additionally, merely because the doctor's evidence showed that the
victims belong to the age group of 14 and 16, to conclude that the two
years age has to be added to the upper age limit is without any
foundation. There was no basis for coming to such a conclusion. In any
event, the accused persons did not take the stand that there was any
consent. On the contrary, they pleaded that they were falsely
implicated. In State of H.P. v.
Shree Kant Shekari [2004 (8) SCC 153] it was observed as follows:
"The factors which seem to have
weighed with the High Court are (i) the age of the victim, which
according to the High Court was more than 16 years; (ii) no evidence has
been placed by the prosecution to show that the victim had not consented
to the act; and (iii) the time of alleged rape as given by the victim
and her mother was improbabilised by the medical evidence. A particular
reference was made to the fact that a child was born on 10.4.1979 and if
the alleged rape has been committed during the period indicated by the
victim and her mother the same would have been altogether different
periods. The delay in lodging the first information report was also
highlighted to attach vulnerability to the prosecution case.
We shall first deal with the
question of age. The radiological test indicated age of the victim
between 15 to 16= years. The school records were produced to establish
that her date of birth was 10.4.1979. The relevant documents are
Ex.PW6/A to PW6/C. The High Court was of the view that these documents
were not sufficient to establish age of the victim because there was
another document Ex.PW7/A which according to the High Court did not
relate to the victim. Merely because one document which was produced by
the prosecution did not, according to the High Court relate to the
victim that was not sufficient to ignore the evidentiary value of
Ex.PW6/A to Ex.PW6/C. These were records regarding admission of the
victim to the school and her period of study. These documents unerringly
prove that the date of birth of the victim as per official records was
10.4.1979. Therefore, on the date of occurrence and even when the FIR
was lodged on 20.11.1993 she was about 14 years of age. Therefore, the
question of consent was really of no consequence.
Even otherwise the High Court seems
to have fallen in grave error in coming to the conclusion that the
victim has not shown that the act was not done with her consent. It was
not for the victim to show that there was no consent. Factually also the
conclusion is erroneous right from the beginning that is from the stage
when the FIR was lodged and in her evidence there was a categorical
statement that the rape was forcibly done notwithstanding protest by the
victim. The High Court was therefore wrong in putting burden on the
victim to show that there was no consent. The question of consent is
really a matter of defence by the accused and it was for him to place
materials to show that there was consent. It is significant to note that
during cross examination and the statement recorded under Section 313 of
the Code of Criminal Procedure, 1973 (in short the `Code') plea of
consent was not taken or pleaded. In fact in the statement under Section
313 of the Code the plea was complete denial and false implication."
8. Above being the position,
judgment of the High Court is clearly unsustainable and set aside. The
judgment of the trial Court is restored. The respondents shall surrender
to custody to suffer remainder of sentence, if any.
9. Appeal is allowed.
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