State of Karnataka vs Pradeep

Mohan M. Shantana Goudar, J—The judgment and order of acquittal, dated 28.10.2011, acquitting the respondent for the offences punishable under Sections 448, 376 and 506 of IPC, passed by the Sessions Court, Udupi, in SC. No. 88/2010 is appealed against, by the State.

The victim-prosecutrix (PW. 2) was aged about 14-15 years at the time of incident; the accused, who is known to the family of the victim, committed sexual assault on her for about three months prior to 16.2.2010; the victim became 3 1/2 months� pregnant; thereafter she told about the aforementioned facts before her mother (PW. 3); in turn PW. 3 took the victim to the Government Hospital, Hebri on 16.2.2010, wherein it was detected that the victim became pregnant; after few days, mother of the victim (PW. 3) lodged the complaint as per Ex. P4 before Hebri Police Station, which came to be registered in Crime No. 11/2010 for the offences punishable under Sections 376 and 506 of IPC.

The charges came to be levelled against the accused for the offences punishable under Sections 448, 376 and 506 of IPC.

In order to prove its case, the prosecution in all has examined 12 witnesses and got marked 14 exhibits. On behalf of the defence, no evidence is adduced. The trial Court on evaluation of the material on record, acquitted the accused.

As aforementioned, PW. 2 is the prosecutrix. Complaint came to be lodged by PW. 3 (mother of prosecutrix) as per Ex. P4.

PW. 1 is the doctor who examined the victim at the first instance on 16.2.2010. Ex. P3 is the certificate issued by the said doctor; it discloses that the victim approached the doctor with a complaint of amenorrhea of three months. On examination of the abdomen of the victim, PW. 1 found mass of 16 to 18 weeks and her urine pregnancy test was positive. Victim was referred to the hospital called MCH at Udupi for further management. The evidence of PW. 1 would clearly reveal that the victim had become pregnant of about 4 months as on 16.2.2010.

PW. 4 is doctor attached to Government Maternity and Children Hospital, Udupi. She is the Senior Specialist in the said hospital. She examined the victim on 1.4.2010. The victim was brought by Smt. Prameela Shetty, Junior Health Assistant, Child Welfare Committee and Marina, Social Worker, Udupi for medical examination. The victim approached the said doctor with a history of alleged rape by one Pradeep (accused). On examination, PW. 4 found that the victim was aged about 13 years and moderately built and nourished; anemia absent; there were no injury marks over the breast; secretion from the nipple present. Pre-abdominal examination disclosed the size of uterus was 26 to 28 weeks of gestation; foetal movements positive. The sum and substance of the evidence of the doctor-PW. 4 is that the victim was six months� pregnant. PW. 4 has further admitted that the victim was examined by Orthopedic Surgeon and Dentist for determination of her age.

PW. 8 is the Orthopedic Surgeon and PW. 9 is the Dentist. They examined the victim for determination of her age and they have given the report that the victim was aged about 15 years at that point of time.

The evidence of PWs. 2 and 3 would reveal that the victim gave birth to a child and the said child is left by her in an ashrama. The child is now living in the said ashrama; since the relatives and friends told the victim not to take the child along with her, she left the child in ashrama. Even prior to the delivery, the victim was in the very ashrama for taking rest.

From the aforementioned facts, it is prima facie clear that the victim became pregnant because of the sexual assault on her; by then, she was not married; she was minor in age; she delivered a baby and the said baby is left in ashrama by the victim and her family members.

The oral evidence of PWs. 2 and 3 would prima facie reveal that it is the accused who was the cause for the pregnancy of the victim. However, the defence of the accused is that a false case is foisted against him inasmuch as his father was out-casted from koraga community. The people of koraga community wanted to take action against the family members of the accused and therefore false complaint is lodged against the him. It is further defence of the accused that the brother-in-law of the victim, namely, Suresh is the cause for pregnancy of the victim. Thus, according to the defence, the accused is innocent and is falsely implicated in the crime.

In order to prove that the accused is innocent, he filed an application before the trial Court requesting the trial Court to get the DNA test done in order to find out as to whether the child born to the victim is as a result of the sexual assault by the accused or not. The said application came to be allowed by the trial Court on 20.7.2011. However, before the order could be signed, the trial Court recalled the said order on the ground that the prosecution is not ready to spend the amount for conducting the DNA test and it is for the accused to test conducted at his costs. The advocate appearing on behalf of the accused did not agree for spending money for conducting the DNA test. In effect, the DNA test was not conducted though the trial Court wanted to get the said test conducted and though the accused himself had made such a request by filing an application.

In our considered opinion, the trial Court was not justified in imposing condition on the accused to spend money for getting the DNA test done. It is for the prosecution to prove its case and therefore the trial Court ought to have directed the said DNA test done at the expenses of the State particularly when the material on records may require corroboration.

Be that as it may, since we find that the DNA test needs to be conducted to find out as to whether the prosecution has proved its case beyond reasonable doubt or not, we deem it just and proper to remand the matter to the trial Court with a direction to get DNA test of the child along with the accused and the victim done at the cost of the State, as per law.

We also find that the trial Court has not assigned any reasons for coming to the conclusion. The trial Court should have assigned adequate reasons while passing the impugned judgment. Within one paragraph, the Trial Court has completed its reasoning. Since we are remanding the matter, we do not propose to comment anything further. In view of the above, following order is made:-

i) Impugned judgment and order dated 28.10.2011 passed by the Sessions Court, Udupi, in SC. No. 88/2010, stands set aside and the matter is remitted to the Sessions Court, Udupi.

ii) SC. No. 88/2010 shall revive on its original file before the Court below.

iii) The Court below is directed to get the DNA test conducted to find out the actual role of the accused in the crime in question.

iv) After getting the report of the DNA test, it is open for the prosecution as well as for the defence to adduce additional evidence, if any, in respect of DNA test.

v) It is needless to observe that the statement of the accused under Section 313 of Cr.P.C. needs to be recorded by putting additional questions which come on record due to recording of additional evidence. Thereafter opportunity shall be given to the accused to lead additional evidence, if any, both oral and documentary. Thereafter judgment shall be passed after hearing both sides.

The entire aforementioned exercise shall be done by the trial Court within six months from the date of receipt of the records.

Registry is directed to send back the lower Court records as well as the copy of this judgment within a period of eight days from today.

Appeal is allowed accordingly and the matter is remanded back to the Court below.