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CASE NO.:

Appeal (crl.) 1911 of 1996

PETITIONER:

STATE OF KARNATAKA

RESPONDENT:

MANJANNA

DATE OF JUDGMENT: 04/05/2000

BENCH:

A.S. ANAND CJ D.P. WADHWA RUMA PAL

JUDGMENT:

JUDGMENT

2000 (3) SCR 1007

The Judgment of the Court was delivered

This appeal has been preferred from the decision of the Karnataka High

Court reversing the conviction and sentencing of the respondent under

Section 376(1) of the India Penal Code (IPC). The case of the prosecution

was that prosecutrix, a school girl, was raped by respondent on 6th April,

1988 at about 12 noon. Prosecutrix (PW 1) was residing with her parents at

Hosabatti. The school was at Belagur. She had taken the IXth standard

examination in March 1988. The results were to be announced in April, 1988.

During the Ist week of April, 1988 there was Jatra at a Village called

Kabbala. Prosecutrix's mother, Gowramma (PW 10), her tather Ramaiah (PW 12)

and her brother had opened a shop in that Jatra. On 6th April 1988,

prosecutrix and her sister Shardamma (PW 11) were in their house at

Hosahatti. At about 12 noon, prosecutrix left Hosahatti to go to Kabbala so

as to get her bus fare from her parents because she wanted to go to Belagur

to ascertain her examination results. While she was on the road from

Hosahatti to Kabbala, the accused staited following her. Suddenly, the

accused caught hold of prosecutrix's left shoulder and dragged her into a

ditch next to the road. The ditch was situated on the right side of the

road. The accused threw prosecutrix down, gagged her with his towel, raised

her lehnga and raped her. When she struggled to release herself, the

accused slapped her on her cheeks and tried to throttle her. She sustained

scratches on the right cheek, on her chin and on her buttocks. After raping

her the accused removed the towel from prosecutrix's mouth. She immediately

screamed loudly. Yellabovi (PW 16) was going along the road when he heard

the screaming of prosecutrix. He went to the spot and found the accused on

top of prosecutrix in the ditch. He raised a hue and cry and the accused

ran away from the spot. Yellabovi took prosecutrix out of the ditch and

made her sit under a tamarind tree. There was a cactus like bush locally

called "antarikey mullu" in the ditch. The thorns from the bush had caught

in the hair of prosecutrix. Yellabovi started removing the thorns from her

hair. B y this time Kumara (PW 4) was returning from the Jatra at Kabbala

and was on his way to Hosahatti. Kumara saw Yellabovi removing the thorns

from the hair of the prosecutrix and asked him what had happened. Yellabovi

told him what had happened but that he did not know who the girl was.

Prosecutrix who was weeping raised her head, Kumara recognized her as

prosecutrix. Kumara told Yellabovi that prosecutrix's father had opened a

shop in the Jatra at Kabbala and asked him to inform her parents. Yellabovi

went to Kabbala. Prosecutrix's father (PW 12) was not available. Yellabovi

however, informed Gowramma and her son about the incident. Gowramma and her

son went to the place described by Yellabovi and found prosecutrix sitting

under a tamarind tree. They brought prosecutrix to the shop in the Kabbala

Jatra. Gowramma did not question prosecutrix about the incident then. It

was only when her husband (PW 12) returned in the evening that she asked

prosecutrix what had happened. Prosecutrix narrated the incident to her.

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The accused was known to the victim and her family as he used to come to

their shop at Kabbala. Gowramma immediately told her husband what

prosecutrix had said. The parents debated as to what they should do as

prosecutrix was unmarried and the question of her reputation was involved.

On the next day, i.e. 7th April 1988, their elder daughter, Shardamma (PW

9) and her husband came to Kabbala in the morning. Prosecutrix again told

her sister about the incident naming the accused. Prosecutrix's father

decided to inform the Pradhan, Govindappa (PW 14) of Belagur Mandal

Panchayat and asked Shardamma and her husband to take prosecutrix to him.

At about 9 or 10 A.M. Shardamma and her husband took prosecutrix to

Govindappa. Prosecutrix again told Govindappa about the entire incident.

Govindappa took them to the Belagur hospital where prosecutrix was seen by

Dr. Chidananda (PW 2) the medical officer. Prosecutrix narrated the

incident to Dr. Chidananda. Dr. Chidananda asked the staff nurse, Sheela

Meri (PW 3) to enquire into the matter. The staff nurse asked prosecutrix

what had happened. Prosecutrix narrated the incident again to her. This was

re-counted by the staff nurse to Dr. Chidananda. As there was no lady

medical officer at Belagur Hospital. Dr. Chidananda referred prosecutrix to

the lady Medical Officer at Hosadurga Hospital. Shardamma and her husband

took prosecutrix to Hosadurga Hos-pital and gave Dr. Chidananda's letter to

Dr. Thripulamba (PW 5). Dr. Thripulamba however declined to examine

prosecutrix because she had not been referred by the police. shardamma, her

husband and prosecutrix then returned to Hosahatti and intormed Ramaiah of

Dr. Thripularnba's refusal to examine prosecutrix. The next day, on 8th

April 1988, PW 12 took his daughter to Srirampura Police Station.

Prosecutrix's oral complaint to the SHO (PW 8) of the Sri Rampura Police

Station was recorded in writing (Ext. P-l). The writing was affirmed by

prosecutrix by signing it. A case was registered against the accused under

Section 376 IPC and the FIR (Ext. P-5) was sent through a constable (PW 9)

to the Magistrate at 8.00 P.M. After dispatching the FIR PW 8 sent

prosecutrix to Hosadurga Hospital escorted by police constable. But the

lady medical officer at Hosadurga Hospital was on leave. Prosecutrix was

brought back. Whereupon the Circle Inspector (PW 18) sent prosecutrix to

the Lady Medical Officer of the District Hospital at Chitradurga escorted

by the same constable. Prosecutrix was ultimately examined by Dr. Shantabai

(PW 13) and a report (Ext. P-6) was prepared in which it was stated that

prosecutrix had a 1/2 inch abrasion on the left side of her face, a 1/2

inch abrasion over the right side of her chin and a 2-1/ 2 inch abrasion

over the right side of her right hip. It was also recorded :

"I conducted Pelvic examination and found white discharge. No external

injuries were seen around the external genitalia. No injuries over the

thighs. The vaginal Orifice admits one finger easily. Tender-ness was

present in lower abdomen. Vagina is wann and tender."

The final opinion was withheld until the chemical analysis report was

obtained of the clothes of prosecutrix. Prosecutrix's clothes were

chemically examined (Ext. P-7) and it was found that the lehnga worn by

prosecutrix during the incident had semen stains. Dr. Shantabai gave her

opinion in a separate report (P 8) in which she opined that after examining

prosecutrix internally that prosecutrix had sexual intercourse about four

days prior to her examination. On the next day the Investigating Officer

(PW 18) visited the place of occurrence as indicated by Yellabovi (PW 16)

and prepared a spot inuhazar (Ext.P-9) in the presence of Panchayatdars.

The accused could not be found till 29.4.1988 when he was produced before

the Investigating Officer. This accused was thereupon arrested. The accused

produced his clothes from his house. These were seized (Ext. P-3). The

accused himself was referred to Dr. Neminatha (PW 17) of Srirampura

Hospital. Dr. Neminatha after examining the accused found that the accused

was capable of sexual intercourse (Ext. P-11). After this, as the accused

had obtained anticipatory bail, he was released. His clothes which had

seized were sent to the Chemical Examiner, Bangalore. The Chemical

Examiner's report (Ext.P-7) was to the effect that no bloodstains or semen

were found on the clothes sent.

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In the meantime, the chargesheet was filed. The accused in his state-ment

under Section 313 of the Code of Criminal Pocedure (Cr.P.C.) denied hires

involvement and said that he had been falsely implicated because there was

a quarrel between the accused and the father of prosecutrix over setting up

of the shop at the Kabbala jatra.

In f

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nding the accused guilty under Section 376(1) IPC, the Trial Court in

a carefully reasoned judgment found that there was no reason to disbelieve

the evidence of the prosecutrix. The enmity alleged by the accused for

falsely implicating him was rejected, in our view correctly, on the ground

that given the present social ethos in this country, it was improbable that

either the girl or her parents would set up such a case. Additionally, the

evidence given by prosecutrix was not only cooperated by the several

prosecution witnesses but also by the medical evidence. Prosecutrix herself

has stated that she had sustained scratches on the right side of her

cheeks, on her chin and on the left side of the hip which was svvollen. Her

mother (PW 10) also said that prosecutrix had scratches on her cheeks and

on her buttocks. These statements are corroborated not only by Exits. P7

and P8 but also by the oral testimony of PW 13, Dr. K.M. Shantabai.

According to PW 13, the injuries found on prosecutrix's face could be

caused while she was struggling to extricate herself from the clutches of

the person committing rape and the injury to her hip when she was forcibly

thrown on the ground.

The Chemical Examiner's report (Ext. 7) to the effect that there were

seminal stains on the blue lehanga worn by prosecutrix also supported by

the prosecution case. The lack of semen stains on the clothes of the

accused is natural when the accused was examined more than 23 days after

the incident. The narration of the incident to so many independent

witnesses without any discrepancy soon after the incident was also, in oui

view correctly, admitted by the Trial Court under Section 157 of the

Evidence Act as corroborative of prosecutrix' s testimony.

The Sessions Judge, Chitradurga negatived the submission on behalf of the

accused that the prosecution had not proved that prosecutrix was below 16

years of age when the offence was committed on the ground that prosecutrix

had stated in her evidence her date of birth as 8.10.72, an assertion which

was not in her cross-examination. There was also no chal-lenge to to

Ramaiah's statement that his daughter was aged 15 years at the time of the

incident. The Sections Judge noted that the X-ray report to the effect that

prosecutrix was aged above 16 years and below 18 years was given by Dr.

Shantabai who admitted that she was not a specialist in Radiology and that

only a Radiologist would be able to fumish the approximate age.

Having held the accused guilty under Section 376(1) IPC, because the

accused had committed rape on a girl below the age of 16 years the learned

Sessions Judge sentenced the accused to rigorous imprisonment for seven

years and also to pay a fine of Rs. 1,000 in default to undergo simple

imprisonment for three months.

On appeal, a leanied Single Judge of the High Court of Karnataka reversed

the findings of Sessions Judge. The High Court disbelieved prosecutrix's

testimony on the following grounds :

1. "If" PW l was subjected to the rape by the appellant in a ditch full of

thorns certainly there would be injuries on the person of PW l and on the

private part of PW l. But such injuries were not found in this

case................It is significant to note here that the evidence of PW

l is to the effect that her legs had come in contact with thorns but PW 13

had deposed that there were no injuries around the external genitalia and

on the thighs."

2............. "It looks highly improbable that a culprit will choose such

a place for committing the rape on a woman and if a rape is committed at

such a place the persons walking on that road which was situated just at a

distance of 15 feet would be attracted to the spot due to the screaming".

3. "In the wound certificate issued by this witness at Ex P6 there is no

mention of the rupture of the hymen."

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4. "PW 13 has made a material improvement in her evidence by stating that

there was a rupture of hymen. It will not be safe to act upon this version

as she has not mentioned in Ex. P6. For the reasons best known to her she

has lied on this point and her evidence that there was rupture of hymen

will have to be excluded from consideration".

5......."The very conduct of the PWs l, 10, 11, 12 and 14 appears to be

highly improbable and unnatural........The natural reaction of mother is to

find out what had happened to the girl and as to what were the injuries

sustained by her. None of these things had been done by PW 10...........

The conduct of PW l in not telling her mother immediately on seeing her

when she came near the tamarind tree under while she was sitting, PW 10,

the mother not enquiring as to what had happened on that day and keeping

quiet till late evening."

6. "PW l has given her date of birth as 8.10.1972. Even if this date of

birth is taken as correct, she will be 16 years of age on the date of the

offence..............."The evidence of P W 13 goes to show that she was

aged 16 years and below 18 years and the birth certificate alleged to have

been produced by PW l before the police has not been produced".

7. "There is inordinate delay in tiling the complaint. The offence had

taken place on the 6.4.1988 at 12 noon. But, the complaint is filed by PW l

on 8.4.1988."

We find the reasoning of the High Court entirely unacceptable. The first

ground mentions a 'ditch full of thoms' where the incident took place.

There was no evidence that the ditch was full of thoms. The evidence was

that the ditch had sand and thorns which got entangled in PW l's hair. PW

15, a witness to the Site Mazahar (PW 9) had said that the ditch was 7 feet

deep and 15 feet wide. To have drawn an inference from this that the entire

ditch was gathered by thoms was fallacious. The "contradiction" between the

evidence of Dr. Shantabai, PW 13, with regard to the thoms coming into

contact with her legs shows a singular lack of anatomical knowledge.

The second ground for rejecting the evidence of the victim is equally

unacceptable. According to the I.O. (PW 18), the site had been identified

by Yellabovi (PW 16). It was never put to prosecutrix by the defence that

the place of the occurrence was not what she had described. In saying that

the victim's screams would have attracted attention, the High Court ignored

the tact that the accused had gagged the victim with his towel while raping

her.

The third ground for rejection of the Trial Court's findings ignores Ext.

P8 altogether where it was specifically mentioned that the victim had been

subjected to sexual intercourse. To have concluded that the Doctor, PW 13

had lied without at all confronting her with any alleged contradiction with

Ext. P8 was wholly erroneous.

In holding that the High Court has also ignored the unshaken unassailed

evidence of lady Doctor M.S. Thripulamba (PW 5) the Staff Nurse (PW 3),

Gowramma (PW 19), Ramaiah (PW 11), Sharadamma (PW 12) and the I.O. (PW 18)

all of whom independently gave evidence of steps taken by the parents of

the victim after they came to know of the incident.

On what basis the High Court came to the conclusion about what the natural

reaction of a rape victim and her mother would be is not explained. This

finding as well as the finding regarding the delay in lodging the the FIR

apart from being contrary to the evidence has taken no account of the

nature of the offence in the social context of this country. This aspect of

the matter has been dealt with by this Court in State of Punjab v. Gurmit

Singh and Other, [1996] 2 SCC 384 :

In our opinion, there was no delay in the lodging of the FIR either and if

at all there was some delay, the same has not only been properly explained

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by the prosecution but in the facts and circumstances of the ease was also

natural. The courts cannot overlook the tact that in sexual offences delay

in the lodging of the FIR can be due to variety of reasons particularly the

reluctance of the prosecutrix or her family members to go to the police and

complain about the incident which concems the reputation of the prosecutrix

and the honour of her family. H is only after giving it a cool thought that

a complaint of the sexual intercourse offence is generally

lodged..............The conduct of the prosecutrix in this regard appears

to us to be most natural. The trial court overlooked that a girl, in a

tradition-bound non-permissive society in India, would be extremely

reluctant even to admit that any incident which is likely to reflect upon

her chastity had occurred, being conscious of the danger of being

ostracized by the society or being looked down, by the society. Her not

informing the teachers or her friends at the examination centre under the

circumstances cannot detract from her reliability. In the normal course of

human conduct, this unmarried minor girl, would not like to give publicity

to the traumatic experience she had undergone and would feel terribly

embarrassed in relation to the incident to narrate it to her teachers and

others overpowered by a feeling of shame and her natural inclination would

be to avoid talking it to anyone, lest the family name and honour is

brought into controversy."

On the question of prosecutrix's date of birth, the High Court ignored the

admission by PW 13 herself that she was not competent to determine the age

of the victim from the X-ray report nor did the High Court give any reason

for disbelieving the express statement of the victim as to the date of her

birth particularly in the absence of any challenge to the same in her

cross-examination. Besides the High Court has made an error in calculation

when it held that if the date of birth was taken as 8.10.72, she would be

16 years old at the time of the incident. The incident took place on

6.4.88. This would mean that the victim was 15 and a half years old when

she was raped.

In the circumstances, we allow the appeal of the State, set aside the order

of the High Court and restore the conviction and sentence as imposed by the

Sessions Judge. If the accused is on bail, he shall surrender to serve out

the sentence. Before parting with the case, we wish to put on record our

disapproval of the retu'ai or some Government hospital doctors,

particularly in mral areas, where hospitals are few and far between, to

conduct any medical examination of a rape victim unless the case of rape is

referred to them by the police. Such a refusal to conduct the medical

examination necessarily results in a delay in the ultimate examination of

the victim, by which time the evidence of the rape may have been washed

away by the complainant herself or be otherwise lost. It is expected that

the State/appellant will ensure that such situation does not recur in

future.