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Judgment
N. Ananda, J.—The appellant (accused) was tried for offences punishable under Sections 323, 324, 376 r/w 511 IPC and also for an offence punishable u/s 3(1)(xii) of SC/ST (Prevention of Atrocities) Act, 1989. The learned trial judge has convicted the accused for an offence punishable u/s 376 r/w 511 IPC and also for an offence punishable u/s 324 IPC. Therefore, the accused is before this court.
I have heard Sri. S. Shivakumar, learned counsel for accused and the State Public Prosecutor for the State.
It is the case of prosecution that on 26.02.2002 between 5.00 to 9.00 p.m., near Haridasanahalli village of Turuvekere Taluk, the accused took two minor girls aged about 6 years and 9 years and attempted to commit rape on them and in the course of same transaction accused used criminal force and assaulted them. The accused not being a member of Scheduled Caste or Scheduled Tribe by holding any dominating position over the minor girls had used his position and exploited the victims who are members of SC/ST (for sexual enjoyment) and thus committed an offence punishable u/s 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act, 1989.
The case of prosecution is based on the following:
1) Direct Evidence
2) Medical Evidence and
3) Circumstantial Evidence
The direct evidence of incident is given by the victims (minor girls) examined as P.W. 16 and P.W. 17.
P.W. 16 has deposed; that at the relevant time, she was studying in 2nd Standard in Higher Primary School of Haridasanahalli. P.W. 17 (another victim) was her classmate. P.W. 16 has deposed; that on the date of incident, after 4.00 p.m., they returned to their houses. After returning home, she changed her uniform and visited the house of P.W. 17 to play with her. At that time, the mother of P.W. 17 sent them to throw the waste into a manure pit. There is a bridge near the pit. The accused was sitting there. The accused called P.W. 16 and P.W. 17 and gave them a sum of Rs. 10/- and asked them to bring biscuits. P.W. 16 and 17 went to the shop of P.W. 9-Sadananda and purchased two packets of biscuits. They brought two packets of biscuits and gave them to accused. Thereafter, accused saying that he would give them biscuits took P.W. 16 and 17 into a Halla (dried stream) which was at a secluded place. The accused stripped of the clothes of P.W. 16 and 17 and also stripped of his clothes. The accused scratched on the chest of P.W. 16 and also on the chest of P.W. 17. The accused tried to penetrate his penis into private part of P.W. 16; later he inserted his finger to the genital part of P.W. 16 and caused bleeding injuries; P.W. 16 started screaming for help, the accused hit on the head of P.W. 16 with a stone and P.W. 16 suffered injuries. The accused made P.W. 16 and 17 to remain with him for 30 minutes.
P.W.16 has identified her blood stained clothes and also blood stained clothes of P.W. 17. After sometime the villagers came in search of P.W. 16 & 17 and after seeing the torch light, the accused ran away from that place. After reaching the house, P.W. 16 informed her grand mother about what was done to her by a stranger (accused). After One and a half months after the date of incident, P.W. 16 was taken to Taluk office where the accused was present along with other persons. When P.W. 16 identified the accused, police officials were not there. P.W. 16 identified the accused as the person who had committed rape on her and also assaulted P.W. 17.
During cross-examination of P.W. 16, the defence has made an unsuccessful attempt that P.W. 16 is a tutored witness and she had not identified the accused. It was suggested to P.W. 16 that P.W. 16 and 17 had suffered injuries while playing. P.W. 16 has denied the suggestion. It is true that P.W. 16 has admitted that her mother had brought her to court to give evidence. It is true that P.W. 16 has admitted that her mother had told her to give evidence. When P.W. 16 was examined before the court, she was aged about 10 years. It is obvious that her mother had brought her to the court. It is probable that her mother had told P.W. 16 to give evidence before the court. It is difficult to conceive a situation child witnesses like P.W. 16 & 17 would attend the court on their own without being brought by their parents or elders to the court. In the circumstances, it cannot be said that P.W. 16 had been tutored by her mother. The evidence of P.W. 16 regarding identification of accused and sexual assault by accused does not suffer from discrepancy. The accused was a stranger to P.W. 16. Considering her age and background of incident, it is not possible to accept the defence version that P.W. 16 has falsely implicated the accused.
P.W. 17 is another victim. Her evidence is similar to the evidence of P.W. 16. P.W. 17 had identified the accused before the court and also in the test identification parade held by the Tahsildar.
P.W.17 has deposed; when P.W. 16 & 17 had been to throw waste into a manure pit; the accused was sitting on a bridge; the accused gave them a sum of Rs. 10/- to bring biscuits; after they brought biscuits, he took them to a secluded place near Halla (dried stream); the accused removed his clothes; he also removed the clothes of P.W. 16 and 17; the accused scratched on the chest of P.W. 16 and. also on the chest of P.W. 17; the accused inserted his fingers to the place of urination and caused bleeding injuries; the accused also inserted his penis to the place of urination; she suffered injuries and she was screaming; the accused took a stone and hit on the head of P.W. 17 and P.W. 17 suffered bleeding injury. The accused had detained P.W. 16 and 17 with him for half an hour. The villagers of P.W. 16 and 17 came in search of them. After seeing the torchlight, the accused ran away from that place. The villagers and parents of P.W. 16 & 17 found them in a Halla and took them to their houses. P.W. 17 informed the matter to her mother. P.W. 16 and 17 were examined by the Doctors in Government Hospital at Turuvekere. After two months from the date of incident, P.W. 17 found the accused in an office. At that time, the accused was standing along with others. P.W. 17 identified the accused.
During cross-examination, P.W. 17 has deposed; after the incident she had been taken to hospital. She did not reveal the incident in the hospital. She has deposed; that her mother had brought her to the court. P.W. 17 has denied the suggestion that her father had told her to identify the accused in the office of Tahsildar. She has denied the suggestion that P.W. 16 and 17 had suffered injuries while playing Kunte bille. She has denied the suggestion that at the instance of her parents she has given false evidence against the accused. P.W. 17 was aged about 10 years when she was examined before the court below. The accused was a total stranger to her. Neither P.W. 17 nor her parents had any grudge against the accused to falsely implicate him.
The evidence of P.W. 17 regarding identification of accused before the court does not suffer from any discrepancy. The contention of defence that P.W. 17 was tutored by her parents cannot be accepted. They have nothing to gain by tutoring their child and exposing their child to ignominy. It is difficult to conceive that parents of P.W. 17 had foisted a false case against the accused by exposing their child as victim of sexual assault. It is relevant to state that these types of incidents on the children of tender age will have long bearing effect on their future. These incidents may turn out to be nightmares for the victims. Therefore, it is difficult to accept the contention of accused that he was falsely implicated by P.Ws. 16 and 17 and their parents.
The medical evidence in proof of injuries suffered by P.Ws. 16 and 17 is given by P.W. 4-Dr. Sreelatha.
At the relevant time, P.W. 4-Dr. Sreelatha was working as a Lady Medical Officer at Government Hospital at Turuvekere. P.W. 4 has deposed; that on 26.02.2003, she examined P.W. 17 aged about 7 years and found the following injuries:
1) Lacerated injury on either side of libiamimora measuring 1/2 cms. x 1/2 cms.
2) Lacerated injury on the posterior vaginal wall measuring 2 cms. x 1/2 cms.
3) Small abrasion over the right side of head measuring 2 cms. x 1/4 cms.
4) Abrasion below the right side of eye measuring 1/2 cms. x 1/2 cms.
5) Multiple abrasions over the chest, 4-5 in numbers measuring 1/4 cms. x 1/2 cms.
P.W.4 has stated that injury no. 3 could be cause if a person is assaulted with a stone; injuries no. 4 and 5 could be caused if a person scratches with nail; Injury Nos. 1,2, 4 & 5 could be caused if a person attempts rape.
P.W. 4 has deposed; that on the same day, she had examined P.W. 16 and found following injuries:
1) Abrasion over the chest region 2-3 in numbers, measuring 5 mm x 5 mm
2) Abrasion over both mammary region 2-3 in numbers, measuring 1/4 x 1/4 cms.
3) Lacerated injury over the posterior vaginal wall measuring 2 cms. x 1/2 cms. with fresh bleeding.
4) Pain in the lower abdomen.
P.W.4 has deposed that injury no. 1 and 2 could be caused by scratching with nails while attempting to commit rape and injury no. 3 could happen when a person try to insert his finger to the genital part in an attempt to commit rape and injury no. 4 could be caused if a person lays down on a tender aged girl.
During cross-examination of P.W. 4 certain hypothetical suggestions are made, which we would often come across in the cases of this nature. Apart from this, nothing is elicited from P.W. 4 to discredit her evidence. The medical evidence given by P.W. 4 and wound certificates issued by P.W. 4 would lend substantial corroboration to the evidence of P.W. 16 and 17.
The prosecution has relied on other circumstances. The accused was found near the school of Haridasanahalli. The accused had also gone to the shop of P.W. 9- N.M. Sadananda.
The prosecution has relied on the evidence of P.W. 7-P. Ramappa, the then Tahsildar of Turuvekere Taluk to prove identification of accused by P.W. 16 and 17 during test identification parade.
The prosecution has relied on the evidence of P.W. 5-Dr. Padmaja who was working as Senior Specialist in District Hospital at Tumkur. She has given evidence relating to the injury suffered by P.W. 16 and 17. At this stage, it is relevant to state that P.W. 16 and 17 had been referred to Gynecologist.
P.W. 7-P. Ramappa was working as the Tahsildar of Turuvekere Taluk. He has deposed that on 17.04.2003, he conducted identification parade as per the instructions of Dy. S.P., Kunigal. He has deposed about formalities of test identification parade and identification of accused by P.Ws. 16 and 17 in the test identification parade.
The evidence of P.W. 7 is corroborated by contemporaneous records prepared by him. The evidence of P.W. 7 that accused was identified by P.W. 16 and 17 in the test identification parade does not suffer from discrepancies.
P.W. 9-N.M. Sadananda has deposed about the presence of accused in Haridasanahalli village prior to the time of incident. P.W. 9 has deposed; that he was running a petty shop in Haridasanahalli village. On the date of incident, around 3.00 or 4.00 p.m., the accused came to his shop and purchased a packet of Beedi. The accused enquired P.W. 9, if he could get work in any of the agricultural farms. The accused sat in front of the shop of P.W. 9 for ten minutes and left that place. After one hour two girls (P.W. 16 & 17) came to his shop and purchased two packets of Biscuits and paid Rs. 10/-. After sometime, the mother of the victims came and searched for victims. All the villagers searched for the victims. On that day at about 9 or 10.00 p.m., the victims (P.W. 16 & 17) were traced.
The evidence of P.W. 9 is in the nature of circumstantial evidence. It would lend corroboration to the evidence of P.W. 16 and 17 that accused had given them a sum of Rs. 10/- to purchase biscuits and they had purchased two packets of biscuits from the shop of P.W. 9 by paying Rs. 10/-.
P.W. 10- Chandraiah is the father of P.W. 17. P.W. 10 has deposed; that on the date of incident P.W. 16 and 17 were missing from the house. The villagers searched for them. He had also lodged a missing complaint. P.W. 16 & 17 were traced at about 9.00 p.m., they had suffered injuries on their persons and on their private parts. P.W. 16 and 17 narrated the entire incident to P.W. 10. The victims (P.W. 16 and P.W. 17) told P.W. 10 that they were assaulted by a stranger (accused). P.W. 10 lodged the first information as per Ex.P12. P.W''s. 16 & 17 were examined by Lady Medical Officer of Government Hospital at Turuvekere and later in District. Hospital at Tumkur. P.W. 10 has denied the suggestion that he had foisted a false case in order to get compensation from the State. It is true that accused was tried for an offence punishable u/s 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act, 1989.
In my opinion, the accused was a total stranger. It was hardly possible for him to know that P.W. 16 & 17 belong to Scheduled Caste or Scheduled Tribe. The accused had sexually assaulted P.W. 16 & 17. The caste of P.W. 16 and ''P.W.17 had no nexus to the acts committed by the accused. In the circumstances, the suggestions put to P.W. 10 that he had projected his daughter as victim of sexual assault to get compensation from the State looks untenable.
P.W. 11-Mahadevama is the Grand Mother of P.W. 16. Her evidence is more or less similar to the evidence of P.W. 10.
P.W. 1-Nanjappa has deposed; that on the date of incident at about 3.00 or 3.30 p.m., the accused had met him and asked him whether lands are available for cultivation. P.W. 1 told the accused that no lands are available and asked him to enquire elsewhere. The accused was standing near the school which is adjacent to bus stand. The accused was going towards the school.
The evidence of P.W. 1 regarding presence of accused near the school would lend corroboration to the case of prosecution.
P.W. 2-Rajanna has deposed; that on the date of incident, at about 5.30 p.m., he was grazing his sheep in his land. At that time, he had seen the stranger taking two children with him. He thought that stranger was related to children and he did not suspect any foul play. Later he came to know that children were missing. He informed the villagers of what he had seen. They searched for the victims. They saw the victims crying and coming in Turuvekere road and they had suffered injures on their persons and injuries on their vital parts.
During cross-examination, he has deposed; that he did not question the accused as to why he was taking the children (victims) who were hardly aged about 8-10 years. It is probable that P.W. 2 had thought that they are related to the accused. Considering the age of accused and children (victims) P.W. 2 could have hardly anticipated that accused was taking them to sexually assault them. Therefore, there is nothing strange in the conduct of P.W. 2.
P.W. 3-Kamalamma was working as Teacher in Higher Primary School at Haridasanahalli. P.W. 16 and 17 were studying in 2nd Standard. P.W. 3 has deposed; that on 26.02.2003 at about 3.30 p.m., the school children were playing in the school compound. She saw the accused calling some school children. When she questioned the school children, they told that they do not know the accused. P.W. 3 told the accused to go away from that place and the accused left that place. On the following day, she came to know that P.W. 16 and 17 had been sexually assaulted.
The accused is a native of Kyathanahalli, Pandavapura Taluk, Mandya District. He had no legitimate business to go near the Higher Primary School of Haridasanahalli, Turuvekere Taluk, Tumkur District. Even before the incident, movements of accused were suspicious. It appears the accused was waiting near the school to trap the girls of tender age. It is unfortunate that P.W. 16 and 17 had fallen to the trap laid by accused.
The accused by offering biscuits to P.W. 16 & 17 had taken them to a secluded place and attempted to commit rape on them. The evidence of victims is supported by medical evidence. The circumstantial evidence led by prosecution in proof of presence of accused and suspicious movements of accused in the village and around the school would lend corroboration to the direct evidence adduced by prosecution. At this juncture, it is relevant to state that private witnesses examined by the prosecution had no grudge against the accused to falsely implicate him. Therefore, the defence theory that accused was falsely implicated is not tenable.
The learned trail judge having regard to facts and circumstances of the case and acts committed by the accused has rightly held the accused guilty of offences punishable under Sections 324, 376 r/w 511 IPC. The learned trial judge has sentenced the accused to undergo rigorous imprisonment for a period of 5 years and pay fine of Rs. 20,000/- with default sentence for an offence punishable u/s 376 r/w 511 IPC in order to compensate the victims of offence. In my considered opinion, the sentence is not severe. There are no reasons to interfere with the impugned judgment. The appeal is dismissed.