The State of Karnataka vs G. Raghunath

Mohan M. Shantana Goudar, J.—The Judgment & Order of acquittal dated 4th October 2011 passed by the Fast Track Court, Tiptur in S.C. No. 24/2010 is called in question in this appeal.

By the impugned judgment, the trial Court has acquitted the accused for the offences punishable under Sections 376, 420 and 506 of IPC.

Case of the prosecution in brief is that about six months prior to 18.3.2008, the accused committed sexual assault on Kariyamma/complainant in her house situated in Mallenahalli, Tandya, Chikkanayakanahalli taluk; accused made the prosecutrix to believe that he would marry her; he had forcible sexual intercourse with her; the victim became six months pregnant; the accused threatened the complainant with dire consequences, if she tells anybody about the incident in question.

After the incident, the accused married the victim; victim has delivered a still born baby; first information came to be lodged by Kariyamma on 18.3.2008 before the PSI of Handanakere Police Station, which came to be registered in Crime No. 23/2008 for the offences punishable under Sections 376, 420 and 506 of IPC. Subsequently, after delivery of the still born child, intimation was given by the complainant to the concerned Police, which came to be registered on 29.6.2008 in UDR No. 7/2008 under Section 174 of Cr.P.C.

In order to prove its case, the prosecution in all examined 14 witnesses and got marked 24 Exhibits. On behalf of the defence, no witness is examined. As aforementioned, the trial court acquitted the accused holding that it is a case of consensual sex and not the case of having sexual intercourse by cheating.

Sri Keshavamurthy, learned SPP-II taking us through the material on record submits that the Court below has erred in acquitting the accused, more particularly when the expert''s opinion relating to DNA test is against the accused; the still born child is proved to be born to the prosecutrix because of cohabitation with the accused. He further submits that the evidence of the prosecutrix (P.W. 1) coupled with the expert''s opinion prove the case of the prosecution beyond reasonable doubt.

Sri Chetan, learned advocate appearing on behalf of the respondent argued in support of the Judgment of the Court below.

P.W. 1 is the prosecutrix. She lodged the complaint as per Ex. P21 on 18.3.2008, based on which Crime came to be registered.

P.W. 2 is father of the victim. He has deposed that the accused used to visit his house and talk with the prosecutrix; that the victim became pregnant, but the accused did not agree to marry the victim though panchayat was held.

P.W. 3 is brother of the complainant. He has also deposed on par with the evidence of P.W. 2.

P.W. 4 is the doctor who examined the complainant immediately after submitting the first information report. He has deposed that the victim was pregnant and she was advised medical treatment; the foetus aged about 28 weeks was in the womb of the victim; there was no injury on the body of the victim; certain materials were collected from the body of the victim and were sent for Forensic Science Laboratory for examination. Opinion of the said doctor is at Ex. P10 and FSL report is at Ex. P9.

Doctor (P.W. 4) has also deposed that the blood of the prosecutrix was drawn on 20.10.2008 in the chambers of the JMFC, Chikkanayakanahalli and the same was collected in the bottle and handed over the same to Sri Raviprakash, the Inspector of Police as per the order of the Magistrate.

In the cross-examination, P.W. 4 has stated that she had taken syringe while going to the Chambers of the Magistrate; she was not informed as to how blood should be drawn for the DNA test and as to how it should be preserved; she has volunteered to depose that the Police Officer took the bottle of the blood immediately after drawing the blood; she does not know as to how the blood should be collected for DNA test and as to how it should be stored; she has signed on the blood bottle and put the seal of the hospital, but however she has not put any other seal.

In the further cross-examination, doctor (P.W. 4) has deposed that she has collected the blood of the accused also on 20.10.2008 in the chambers of the Magistrate, Chikkanayakana Halli. The Test Tube containing the blood drawn from the body of the accused was handed over to the concerned Inspector. She has not even deposed that the Test Tube was closed safely and it was sealed. In the cross-examination, she has admitted that she collected the blood for DNA test for the first time; she did not get any guidance from the FSL as to how the blood should be drawn and how the blood should be stored. She has further admitted that in Ex. P11 she has not mentioned as to whether the blood is drawn from male or female. So also in Ex. P8 she has not mentioned as to whether the blood collected by her is from male or female. So also in Ex. P8 she has not mentioned as to whether the blood collected by her is from male or female.

P.W. 5 is the doctor who examined the accused and suggested for DNA test. She has given the opinion as per Ex. P13. She suggested to do DNA test by drawing the blood of the accused. Based on the FSL report received by her on 5.10.2009 as per Ex. P12, she has given the opinion as per Ex. P13 that the accused and the victim are parents of still born child.

P.W. 6 knew both the victim and the accused and he participated in the panchayath which was held in the village after the victim became pregnant.

P.W. 7 is uncle of the complainant. He is also a witness for panchayath held in the village.

P.W. 8 is the Scientific Officer of the FSL. She has deposed about conducting FSL examination and she issued the report as per Ex. P9.

P.W. 9 is the Child Development Project Officer. She issued the Date of Birth certificate of the victim as per Ex. P16. The same discloses that the Date of Birth of the victim was 14.8.1974, which means during the relevant point of time, the victim was aged about 34 years.

P.W. 10 is another doctor. He collected femur bone and other parts of the body from the still born child and sent for DNA test. He conducted post-mortem examination and his report is at Ex. P17.

In the cross-examination, P.W. 10 has deposed that he was not informed by the FSL as to how the femur bone and other material should be collected from the body of the still born child; He himself studied the Forensic Science book and executed his work; This was the first case wherein he (P.W. 10) had collected the femur bone from the dead body of the still born child; The three bottles prepared by him after drawing femur bone etc., were not sent by him in an ice box.

P.W. 11 is the Inspector of Police. He conducted part of the investigation.

P.W. 12 is the officer of the FSL. He conducted DNA test and issued the report as per Ex. P12.

P.W. 13 is the Inspector of Police, who completed the investigation and laid the charge sheet.

P.W. 14 is the witness for inquest mahazar Ex. p22.

Case of the prosecution mainly depends upon the evidence of P.W. 1 (prosecutrix) coupled with the medical and scientific evidence.

As mentioned supra, the first information is lodged by the victim on 18.3.2008 at 10.30 a.m. in the police station as per Ex-P21. The same discloses that the accused is member of Grama Panchayath and that the victim was working in Anganwadi centre; the accused used to visit Anganwadi center regularly and he used to tell the victim that he would marry her; the accused allegedly told the victim that he would make false propaganda against her, in case, if she does not agree to marry him; since the accused and the victim are from the very community, the victim agreed to marry the accused; thereafter the accused started visiting the house of the victim frequently; he used to talk to the victim with love and affection; the victim also started living with the accused affectionately and very freely; only after she became six months pregnant, she intimated about the same to the accused and thereafter she took treatment in the hospital. On 10.2.2008, the victim started pressurizing the accused to marry her, but the accused refused to marry her, panchayaths were convened on various dates including on 14.2.2008, on which date, the accused flatly told the victim that he would not marry her. A complaint came to be lodged on 18.3.2008.

Almost the same version as found in the complaint as per Ex-P21 is reiterated in the evidence of P.W. -1.

In the examination-in-chief, P.W. -1 has deposed that the accused and victim knew each other since 20 years; from the year 2006, the accused started loving her and telling that he would be marrying her; in the year 2008, the victim became pregnant; in the month of August/September, the accused refused to marry her and thereafter panchayaths were held and she approached the police station by lodging a complaint as per Ex-P21. It is further deposed by the victim that she gave birth to still born baby and that the doctors drew the blood of the victim as well as collected blood from the heart of still born baby. In the cross-examination, she has admitted that she studied upto S.S.L.C. i.e., 10th standard; she has joined for duties as anganawadi worker about 20 years prior to her deposition; she was born on 14.8.1974 and she was aged about 37 years during the relevant point of time; she was knowing the accused, became friendly with him only after he became Grama Panchayath member; in the village of the accused and the victim, 56 houses are there and that the victim knew inmates of each of the 56 houses; she came to know the accused only when he came to her house; the factum of love between the accused and the victim was not known to the family members of the victim; after 1 1/2 years of sexual relationship between the accused and the victim, the family members of the victim came to know about the same; in the house of the victim, alongwith her, her parents, her elder brother, her sister-in-law and two children of her brother were living and the house has got only two rooms. The accused used to visit the house of the victim everyday and accused left the company of the victim only when he came to know about the victim becoming six months'' pregnant and only thereafter, the villagers as well as family members of the victim came to know about the relationship between the accused and the victim. Further in the cross examination, P.W. -1 has admitted, the accused is younger to her; when he was studying in 8th standard, the accused was studying in 7th standard, they were studying in same school, nobody objected for the aforementioned relationship between the accused and the victim; they used to meet in the farm house of the accused as well as the house of the victim. She has also admitted that the accused has married another lady.

Perusal of the aforementioned evidence coupled with the version as found in the complaint Ex-P21, prima-facie it is clear that it was love affair between the accused and the victim since a long time; they were knowing each other from the school days; they were moving freely, they used to have sexual cohabitation in the house of the victim as well as in the farm house of the accused. Even according to the victim, the accused himself was pressurizing the victim to marry him, which means, the accused had got intention to marry at earlier point of time and that he willingly loved the victim and therefore, both of them had consensual sex since a long time prior to lodging of the complaint; even though six persons were living with the victim including her parents and elder brother, the accused used to go to the house of the victim and had consensual intercourse with her everyday. Nowhere, it is found from the evidence of P.W. -1 that accused had got intention to cheat the victim at any point of time till panchayaths were held. Such relationship continued more than three to four years. The material on record is not sufficient to conclude that the accused in order to cheat the victim, made the victim to believe that the accused would marry her and had intercourse with her. On the other hand, the material on record discloses that both the accused and the victim had consensual sex for more than three to four years. Such relationship continued even when the victim became pregnant after six months.

P.W. -2 the father of the victim has deposed that the accused used to come to his house and talk with the victim frequently and as accused did not agree later for marrying the victim, the panchayaths were convened, but, no useful purpose was served. In the cross-examination, the father of the victim has admitted that the victim and the accused were loving each other for about 3 to 4 years; he came to know about the pregnancy of his daughter-victim in the year 2008; it is clearly admitted by P.W. -2-father of the victim that the custom in their community is that the boy and the girl to be married would live together, as if they are married and as if they are husband and wife. He further admits that accused had got physical relationship with the victim since two years prior to the victim becoming pregnant; the evidence of P.W. -3-brother of the victim is almost similar to the evidence of P.W. -2. From the evidence of P.W. -2, it is amply clear that the custom prevailed in their community for the boy and the girl to live as husband and wife even prior to the marriage. Thus accordingly, the accused must have lived with the victim as her husband and had sexual relationship with her. Virtually, it is nothing but ''live-in relationship''. Thus it is more than clear, it is case of consensual sex and not a case of rape.

It is no doubt true that the evidence of P.W. s-4, 5, 8 and 10 would reveal that the still born child was born out of the relationship between the victim and accused. Thus, it is clear that the still born child born is born out of consensual relationship between the victim and the accused. The still born child was born when the deceased and the accused were having ''live-in relationship'' prior to the marriage.

The Apex Court has observed in the case of UDAY v. STATE OF KARNATAKA reported in 2003 (2) KCCR 1297 that Consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. There is not strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts to which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

In the instant case, it was held that the prosecutrix freely, voluntarily and consciously consented to having sexual intercourse with the appellant/accused, and her consent was not in consequence of any misconception of fact. No evidence is available to prove conclusively that the appellant/accused never intended to marry her.

Since the material on record is clear that the victim and the accused had consensual sex and lived as husband and wife even prior to the marriage, in our considered opinion, the trial court is justified in acquitting the accused for the offences with which he was charged.

Even on re-appreciation of material, it is not a fit case to convict the accused for the offence of rape and for other offences with which he was charged.

Accordingly, appeal fails and the same stands dismissed.