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Judgment
This appeal is preferred by the accused No.1 by assailing the Judgment of conviction passed by Additional District and Sessions Judge and Presiding Officer Fast Tract Court-I, Raichur in SC No.121/2010 dated 22.07.2011.
The brief matrix of the case of the prosecution in nutshell are that on: 21.4.2009 at about 8:00 PM in Ganjalli village, when the complainant- victim was returning after completion of her coolie work in the land of C.W.11 Bhaskar Reddy, accused No.1 asked her to come and sleep with him. Thereafter, dragged her to the land Survey No.388 and caused voluntarily hurt and committed forcible rape on her. It is further alleged that, thereafter accused No.1 used to continuously have a sexual intercourse with the victim whenever she used to come for coolie work in the land of Bhaskar Reddy and also in her house in the absence of her mother. It is the further case of the complainant that when the victim''s mother Maremma came to know that her daughter has become pregnant, made an enquiry with her as to who is responsible for the said pregnancy, at that time victim revealed the name of accused No.1 and told his repeated sexual intercourse with her.
Thereafter, on 25.1.2010 at about 7:00 PM, mother of the victim along with victim went to the house of accused No.1 Chand Pasha and requested him to marry her, as she has become pregnant because of his act. It is further alleged that, at that time, accused No.1 and 2 refused to marry and thereafter abused them in filthy language and threatened with dire consequences. It is further alleged that accused No.1 and 2 assaulted mother of the victim by holding her neck and pushed her. It is further case of the complainant that, accused No.1 used to have intercourse with victim by assuring her that, he would look after her since her husband has deserted and thereby cheated her and also sexually assaulted her. Since the complaint was not received by the police, by taking the aid of an advocate, victim- complainant filed a private complaint before JMFC-III Court, Raichur, the same was registered in PC No.7/2010 and the matter was referred under Section 156 (3) of Cr.P.C. to the C.P.I., who registered the case in Cr.No.19/2010 and thereafter after investigation the charge sheet was came to be filed.
After filing the charge sheet the JMFC-III court on following the procedure laid down under Sec. 207 of Cr.P.C committed the case to the Sessions Court. The Sessions Court after taking the cognizance secured the accused Nos.1 and 2, after hearing them about the charge, charge came to be framed. Since, accused denied the charges and claim to be tried, as such the trial was fixed.
In order to prove the case, the prosecution got examined P.Ws.1 to 16 and also got marked Exs.P-1 to 19. Thereafter, the statement of the accused were recorded under Sec.313 of Cr.P.C. by putting the incriminating materials as against them which they denied and they have not led any evidence on their behalf.
Thereafter on hearing the arguments of both the counsels, the impugned judgment came to be passed where under accused No.1 was convicted under Section 417 of IPC. Assailing the said judgment and order, the accused No.1 is before this Court.
Heard the learned counsel for the appellant and the learned High Court Govt. Pleader on behalf of the State.
During the course of argument, the learned counsel for the appellant vehemently argued and contended that, the accused person is in no way concerned to the alleged crime, only with an ill motive, he has been falsely implicated in this case and trial Court failed to take note of the said fact. He would also further contended that, there is substantial and inordinate delay in lodging the complaint only with an intention to harass the accused - appellant and to de-grade him in the society, the complainant has filed a false case. He would also further contend that the DNA test of appellant has not been conducted in the absence of such test, the pregnancy of complainant cannot be attributed to the appellant. The trial Court only on presumption and assumption has convicted the accused
- appellant which is illegal and perverse. He would also further contended that though there is no material, the trial Court has convicted the accused under Section 417 I.P.C., though the accused - appellant has not promised nor he has cheated the complainant. The trial Court ignoring all the aspects has convicted the accused. He would also further contended that the impugned order is based only on the interested testimony of P.Ws.1 and 4 and as such it is arbitrary, perverse and needs interference at the hands of this Court. On these grounds he prayed for allowing the appeal by setting aside the impugned order.
Per contra, the learned High Court Government Pleader vehemently argued and contended that the complainant has clearly stated before the Court that the accused has promised her that he will look after and repeatedly he had a sexual intercourse with her and as a result of the same she became pregnant and has delivered the baby. The Court can rely upon the sole testimony of the victim and can convict the accused. He would also further contend that there is a corroboration in the evidence of P.Ws.1 and 4. He would also further contended that merely because the witnesses are interested there testimony cannot be discarded. He would also further contended that, the trial court after considering all the evidence has rightly convicted the accused appellant. The accused appellant has not made any good grounds so as to interfere with the order of the trial Court and the order of the Trial Court deserves to be confirmed. On these grounds he prayed for dismissal of the appeal.
On hearing the parties to the lis and on careful consideration of the material on record, the only point which arises for consideration is :-
"Whether the accused - appellant has made out a case so as to interfere with the order of the trial Court ?"
In order to prove the case of the prosecution, the prosecution has examined 16 witnesses as P.Ws.1 to 16. P.W.1 is the victim-complainant, P.W.2 is the spot mahazar pancha to Ex.P-2 to Ex.P-4. P.W.3 is the PDO who issued Ex.P-5 to show that the accused is having the landed property. P.W.4 is the mother of the complainant who heard the complainant about the sexual assault committed by the accused, then, they went and asked the accused about his act to which the accused reacted. P.W.5 is the witness who introduced the advocate to the complainant to file a private complaint. P.Ws.6 and 7 are the persons - residents in front of the house of the accused who saw the parents of the victim came and asked the accused as to whether he is going to marry the victim - complainant. P.W.8 is the mother of the accused to whom, the mother of the complainant, informed about the accused raping the victim. P.Ws.6 to 8 have not supported the case of the prosecution, they have been treated as hostile. P.W.9 is a panch witness to Ex.P-2 to Ex.P-4. P.W.10 is the son of P.W.4 to whom P.W.4 informed about the sexual assault committed by the accused. P.W.11 is the owner of the kirana shop who saw the quarrel between the mother of the victim and the accused, he has not supported the case of the prosecution, he has been treated as hostile. P.W.12 is the owner of the land where victim used to go for coolie work and he told about the incident, he has not supported the case of the prosecution, he has been treated as hostile. P.W.13 is the Doctor who examined the victim and issued Ex.P-11 and Ex.P-12. P.W.14 is the Assistant Professor of RIMS Hospital who has given the report as per Ex.P-15. P.W.15 is the PSI who registered the case on the basis of the information received from the Court. P.W.16 is the Investigating Officer, who investigated the case and filed the charge sheet as against the accused.
On perusal of the evidence of P.W.1 - the complainant, she has categorically deposed that when she was returning from the garden land, at that time, the accused has sexually assaulted her and thereafter he has also continuously sexually assaulted her. She has also further deposed that, he assured her that, he will put a hut and maintain her and as such she kept quite. She has also further deposed that, because of the sexual assault, she became pregnant and has given birth to a male child. During the course of the cross examination of this witness, nothing has been elicited to discard her evidence.
P.W.4 - the mother of the victim, has also deposed that P.W.1 used to go for coolie work and subsequently she noticed that, her daughter is carrying and on enquiry she disclosed that, the accused had outraged her modesty by retaining her and thereafter she went to the house of the accused and made enquiry and at that time the accused assaulted her. Even accused tried her to throttle her neck. She has further deposed that, herself and her daughter went to Raichur Rural Police Station to lodge the complaint as the police did not take the complaint. With the assistance of her brother - Iranna, they consulted the advocate at Raichur and got filed the complaint before the Court. During the course of cross examination, it has been elicited that her daughter got married and thereafter she started residing with her as her husband started ill-treating her. It is also further elicited that, she tried to bring re-conciliation between her daughter and her husband but she did not agree at the instigation of accused Chand Pasha. Further it has been also elicited that she did not inform the elders of the village about the incident at the first time but later on informed them. Except this, nothing has been elicited from the mouth of this witness.
P.W.5 is a witness who introduced an advocate to the complainant to file a complaint. During the course of cross examination, he has deposed that he is the President of Waddar community. P.Ws.6 and 7 are the residents who are residing in front of the house of the accused and saw the parents of the victim and asked the accused when he is going to marry the victim as she has became pregnant. P.W.8 is the witness who has let her shed to P.W.4 for a rental of Rs.100/- and to whom P.W.4 informed that her daughter has been raped by the accused in the land of Bhaskar reddy. P.Ws.6 to 8 have not supported the case of the prosecution and they have been treated as hostile.
P.W.9 is the pancha witness to Ex.P-2, Ex.P-3 and Ex.P-4 about the spot mahazars where the victim has been raped. During the course of cross examination, nothing has been elicited so as to discard the evidence of this witness.
P.W.10 is the son of P.W.4 to whom P.W.4 informed about the accused assaulting her and for having raped his sister in the land of Bhaskar Reddy. During the course of the cross examination, he has admitted that his sister and mother were driven out from Mamidadoddi due to bad character. Further he has deposed that after this incident villagers of Ganjalli are not respecting his mother and sister and not that villagers in Mamidadoddi driven them out.
P.W.11 is the Kirana shop owner, who saw the quarrel between the mother of the victim and the accused. P.W.12 is the land owner where the victim used to go for coolie work and where she has been raped and he told about the incident. P.Ws.11 and 12 have not supported the case of the prosecution and they have been treated as hostile.
P.W.13 is the Doctor, who examined the victim. He has deposed that, on examination he has given the report regarding Gynecology and Age Estimation as per Ex.P-11 and Ex.P-12. He ha also given the report as per Ex.P-13.
P.W.14 is the Assistant Professor working in RIMS who examined the samples and issued the report as per Ex.P-15.
P.W.15 is the PSI who registered the case on the basis of the private complaint information received from the Court.
P.W.16 is the CPI who investigated the case and filed the charge sheet against the accused persons.
From the above evidence, let me consider whether the prosecution has proved the guilt of the accused beyond all reasonable doubt ?
It is the specific contention of the learned counsel for the appellant that, there is a delay in filing of the complaint and even though the accused/appellant has not involved and without there being any DNA test the trial Court has convicted the accused/appellant under Section 417 of IPC. As could be seen from the evidence of P.W.1, she has categorically deposed that, she has left her husband and leaving with her mother and she used to go to coolie work in the garden land of one Bhaskar reddy and about one year back when she was returning after attending the coolie work, at that time, accused raped her and thereafter he has also used to have sexual intercourse with her even in the house when her mother was not there, by promising that, he will put a hut to her and he will also maintain her. It is an admitted fact that, the complainant - victim has given birth to a male child and it is the specific version of the complainant that, the accused is the main cause for the said birth of the child. The complainant has also deposed that accused continued to had the sexual intercourse with her and as such she became pregnant. The positive evidence of P.W.1 clearly attributes that, it is the accused who is the cause for her pregnancy because of the intercourse with her on many occasions. P.W.4 the mother of the victim has also deposed that after coming to know that P.W.1 - her daughter has became pregnant, she made enquiry''s and at that time P.W.1 told that it is the accused who has caused the pregnancy and thereafter she went to the house of the accused to ask about the said act of the accused and at that time the accused scolded her and assaulted her. When the mother of the victim also went and asked the accused about the pregnancy, then, under such circumstances, though P.Ws.1 and 4 are related witnesses merely because, they are related, their testimony cannot be discarded. Keeping in view the above said facts by giving anxious consideration to the submission made by the learned counsel for the accused, no doubt, in the case on hand, no DNA test has been conducted to ascertain the paternity of the child but it is the specific case of the complainant that because of the sexual intercourse with the accused, she became pregnant and the child is that of the accused. No doubt, the close relatives will give some exaggerated and improved version to falsely implicate the accused but on careful scrutiny of the evidence, it clearly indicates that, it is the accused who is responsible for the pregnancy and giving birth to a child by the complainant. It is well established principle of law that the Court must make an attempt to separate the grain from the chaff and the truth from the falsehood. This proposition of law has been laid down in the case of RANJIT SINGH .VS. STATE OF PUNJAB AND OTHERS., reported in (2013) PART 16 SCC P-752. Keeping in view of the above ratio, if the entire evidence of P.Ws.1 and 4, if it is forensically scrutinized, then under such circumstances, it clearly points out that it is the accused who is responsible for the pregnancy of P.W.1. Accused has promised her that, he will put a hut and also look after, as the husband of the victim complainant has deserted her. Under such circumstances, believing the words of the accused, she might have given the consent for sex.
Though the learned counsel for the accused contended that the DNA test has not been conducted by the investigating agency, but, when the prosecution has made out a definite case as against the accused, then under such circumstances, the DNA test is not necessary. If at all, the accused is of the opinion that the said child is not borne to him, then under such circumstances, he could have made an application for DNA test. During the course of cross examination of P.Ws.1, 4 and 10, it has been tried to bring on record that, the complainant and P.W.4 are the loose charactered women, but in order to substantiate the said fact, no corroborative evidence has been placed on record. Under the circumstances, the said contention of the learned counsel for the appellant does not hold any water.
It is the contention of the learned counsel for the appellant that there is inordinate delay in filing the complaint. As could be seen from Ex.P-17 along with the copy of complaint, the complaint was filed on 28.1.2010 before the JMFC Court. In the said complaint, all the allegations are also there and she has also deposed that when they went to lodge a complaint before the police station, the said police refused to register the complaint and as such they filed the private complaint before the Court.
Be that as it may, when the women has been sexually assaulted by the accused and immediately they will not go and lodge the complaint as the reputation and prestige of the family is also involved. Even the evidence of P.W.4 clearly indicates that she has also gone to the house of the accused and requested him to look after his daughter P.W.1. Under the circumstances, if any delay occurred in filing the complaint, that will not be considered to be a deliberate delay or that the delay has been caused only with an intention to falsely implicate the accused. Though the independent witnesses who have seen the mother of the complainant quarrelling with the accused they have not supported and they have been treated as hostile. Even though they have not supported but the evidence of P.Ws.1 and 4 is cogent and acceptable.
As could be seen from the evidence of P.W.1 and the conduct of the accused, it clearly indicates that only because of the promise made by the accused, P.W.1 allowed the accused to had intercourse and developed love and affection towards him and thereafter she conceived because of the repeated act of intercourse by the accused and even after she conceived she continued the said pregnancy only because of the promise made by the accused. No women will carry the pregnancy, if she is a loose charactered women that too under the present scientifically developed society. When she has surrendered voluntarily, then under such circumstances it will not amount to forceful intercourse but only because the accused promised and subsequently he fall back upon the say and thereby he deceived her from going away from his promise. By taking into consideration the said facts and after satisfying, the trial Court has convicted the accused under Section 417 of IPC and has acquitted the accused for the other offences. Admittedly, the State has not preferred any appeal for having acquitted the accused for other offences. Keeping in view the above said facts and circumstances of the case, there is material to show that the accused had a sexual intercourse with P.W.1 and deceived the complainant by giving a false promise that he will look after her and build a hut and as such the conviction under Section 417 of IPC is sustainable in law.
I have gone through the judgment and order of the trial Court, there are no illegality or the said order is neither erroneous nor capricious so as to interfere with the said order. The said order is liable to be confirmed. Hence, I pass the following Order :-
The appeal is dismissed.