Yashin vs State of Karnataka

Jawad Rahim, J.—Petitioner is in judicial custody facing charge for the offences punishable under Sections 376 and 366-A, I.P.C., in Crime No. 83/12 on the file of (sic) police station. The State has opposed grant of bail.

Records show that Thippanna Madar lodged a complaint on 22.5.2012 alleging his daughter, Annapurna and he had gone to the vegetable market in Ilkal town. While he was purchasing vegetables, Annapurna was with him. Soon thereafter. Mallappa Madar and Mahantesh Madar informed him that the petitioner had kidnapped his daughter. He searched for her in vain, and being unable to trace her, lodged report which is registered in Crime No. 83/12.

During investigation, the investigating officer arrested the petitioner and took the girl also into custody who was in his company. Further investigation revealed petitioner had kidnapped her while she was with her father and kept her at an unknown destination and raped her.

The girl was questioned, who narrated what transpired. According to her version, the petitioner kidnapped her and confined her in a farmhouse where he ravished her against her consent.

Learned counsel for the petitioner would contend the allegations are false; Annapurna was in love with the boy consequent to which both had gone together. He disputed prosecution theory that she was a minor. According to him, she had completed 18 years and therefore, no offence is made out for the offence punishable u/s 376, I.P.C., as she was in the company of the accused on her own volition.

Mr. V.M. Banakar learned Addl. SPP seriously disputes all these contentions, pointing out to the statement of the victim who has alleged molestation by the accused against her consent.

As the charge against the petitioner is for the offence u/s 376, I.P.C., necessarily the Court has to take into consideration medical evidence. Learned Addl. SPP was directed to secure the report of medical examination of the victim in response to which he has filed the so-called medical report which reads thus:

OPINION

dated 29.5.2012

Ref: Ilkal PS. Crime No. 83/12 366(A)

PSI (L&O) Ilkal PS.

Name: Annapurna Tippanna Madar

(1) The approximate age: 17 to 18 yrs.

(2) Hymen membrane is absent. H/o intercourse is present.''

As could be seen, what he has produced could be described as ''opinion'' without details of examination of the victim. Learned Addl. SPP was also directed to secure the MLC (Medico-legal case) register maintained at the hospital as also the report from the doctor, in response to which he has produced the medical certificate which contains the following details:

KARNATAKA HEALTH SERVICES DEPARTMENT GENERAL HOSPITAL, ILKAL WOUND CERTIFICATE

Wounds or injuries found on the person of Annapurna Tippanna Madar calling herself inhabitant of Ilkal. Tq: Hungund. Dist: Bagalkot who was sent with WPC-1473. PC-474 from PSI-Ilkal and accompanied by ______for reports as to certain injuries and to be due to Medical examination on 29.5.2012 at 11.30 a.m.

Identification Marks: 1) Black mole present just above clavicle.

The injured persons was first seen by the undersigned at 11.30 a.m. on the 29.5.2012. The examination was commenced at 11.30 a.m. on the 29.5.2012 when the following injuries were found.

Pt gives h/o intercourse two times c Yasin Nabisab Lokampalli.

MENSTRUAL HISTORY: Attained monarch 14 Yrs. Lmp-5 days, back

It is pertinent to note, there is another ''Wound Certificate'' in the printed format in which without filling the relevant particulars like name, age. etc., the following observation is written by the same doctor:

EXTERNAL GENITAL EXAMINATION:

When the register was examined. It was found it does not tally with the medical certificate produced before Court by the medical officer. It needs no mention that medical certificates are issued based on the report in the MLC register. Therefore, the register is the basis for recording entries in the normal course as prescribed by the medical manual. Any discrepancy in the entries and subsequent medical certificates require answer from the medical officer concerned.

Hence, the medical officer in this case who has examined the victim was summoned. In his presence, the register was examined and it shows after the entry relating to examination of the patient on 27.5.2012, another entry relating to examination of the petitioner and the accused is made by Dr. Shreeshail Gururaj showing as if it was done and they were examined on 29.5.2012. On further scrutiny of the register, it is seen after the entry regarding examination of the petitioner, there are entries showing examination of patients on 28.12.2012, clearly indicating that on pages between entries made on 27.5.2012 and 28.5.2012, examination of the victim has been interpolated. Therefore, this calls for explanation in response to which the medical officer has filed his explanation which, on perusal, shows he has, despite Court''s direction, except reiterating that he has not interpolated, failed to explain why the entries in the MLC register are not tallying with the medical certificate produced. He reiterates he has examined the victim as per professional requirement. But as could be seen, he has failed to examine the genitals of the victim who was raped. Except stating it is normal, no probe on examination of the victim was done, whereas the medical certificate which he has produced in the printed form, contains details of examination. It would only show these entries are made by him subsequent to examination of the victim without physically examining her.

Since this amounts to falsification of material relating to commission of the crime under investigation, no liberal approach is warranted.

Law requires due credence to be given to medical evidence when the charge is for the offence punishable u/s 376. I.P.C. and/or relating to physical harm to victims. In this view, medical records were called for but the doctor does not support his statement that he had examined the victim.

Be that as it may, the fact that hymen was found absent in the victim who is around 17 years speaks of the fact that it could only be the result of sexual intercourse. The victim has explained it is due to the act of the accused and therefore, at this juncture sufficient material is available to hold that the petitioner may be the person who has ravished her.

Since the victim is shown to be under 18 years and kidnapping is also the charge, no liberal approach is warranted. Hence, the petition for bail is rejected.

So far as the conduct of the medical officer is concerned, while investigating into the case against the petitioner, the investigating officer shall investigate into interpolation in the MLC register and pin the responsibility on the person found to be guilty.

A copy of this order shall be marked to the District Health Officer, Bagalkot, for taking note of the conduct of the medical officer and for appropriate action against the concerned. Also mark a copy of the order to the said medical officer. The Additional Registrar General. High Court of Karnataka. Dharwad Circuit Bench, is directed to obtain xerox copies of the pages in the MLC register beginning from 25.5.2012 to 31.5.2012, certify it retain it in the file and return the original to Mr. V.M. Banakar. He is also directed to retain copy of the case sheet and O.P. slip produced by the medical officer and forward its copy to the District Health Officer. Bagalkot, for necessary orders.