STATE OF KARNATAKA Vs. CHANDRAYYA HANUMANTHAPPA MALLAPPANAVAR

JUDGEMENT

(1.) THE State of Karnataka has assailed the correctness of the decision rendered by the Second Addl. Sessions Judge, Dharwad, in Sessions Case No. 48/1993 through the present appeal. The six accused persons who were tried by the Court were alleged to have overpowered the complainant Kusummawwa, a 14 years old village girl who had gone to wash some clothes on the bank of river Wardha. The scene of offence is situated within Arlihalli village, within the limits of Savanur Police Station. The allegation is that taking advantage of the fact that girl was alone, that three of accused persons namely accused Nos. 1, 4 and 5 virtually attacked PW 1 and that before any one could come to her rescue, accused No. 1 had committed rape on her. She also states that she was resisting and screaming for help and that hearing her cries, her mother who is PW 3 rushed to that spot. The six accused, the three of whom are alleged to be actual participants and the remaining three are supposed to be instigators and abettors, fled from that place and since they were known persons, on the matter being reported to the police, they came to be arrested and on completion of the investigation they were charge sheeted for offences punishable under S. 376 r/w. 109, I. P. C. There is also a subsidiary charge in so far as the accused are alleged to have threatened the victim that if she discloses what had happened or if she takes any action against the accused that they would burn her and finish her off and in respect of this part of the incident the accused has been charged for having committed the offences punishable under S. 506 r/w. 149 IPC. The evidence in this case consists essentially of the deposition of PW 1 Kusumawwa and of her mother Savantravva, PW 3 who came to the scene almost immediately. The supportive evidence has come from the doctors and the learned trial Judge after consideration of the material placed before the Court by the prosecution acquitted the accused. The present appeal assails the correctness of that order.

(2.) APPEARING in support of the appeal, the learned Addl. S. P. P. has advanced certain submissions which are of considerable significance particularly to this category of cases. He has first dealt with the finding of the learned trial Judge that the complaint in this case was lodged after a considerable lapse of time. This is an admitted position because the complaint was ultimately lodged after about fifteen days and the reason given for this is that the victim is a poor village girl, that the incident itself was extremely traumatic, that she and her mother had thought over the entire issue and that they really did not know what they should do. It was only after some time with the assistance of one Bhaskar that the matter was taken to the police when the Circle Inspector visited that area and the complaint came to the lodged. The learned Counsel points out to us that regardless of how serious these cases are, that the Court must take cognizance of the first very important reluctance factor which is common to this class of cases of sexual attacks on minors and women is so far as the incident is not only extremely painful but is gravely embarrassing. He points out that there is always a total reluctance to approach the police authorities for the very obvious reason particularly if the victim comes from the poor or weaker strata, that they will not receive any sympathy nor are they certain of any legal redressal. His submission therefore, is that inevitably there is a high degree of reluctance to start with when it comes to the question of even approaching the law enforcing authority. Added to this, he points out and perhaps very justifiably, that there are two other factors the first of them being that inevitably the victim will have to face a very high degree of pain and embarrassment when the proceeding is taken up for hearing before the Court. It is almost like a public enquiry into very painful and private aspects of an assault. The learned Counsel again emphasised the fact that in this class of cases invariably the defence that is taken is one of taking the offensive by alleging that the victim girl was of loose moral character, that the victim was not only a willing party to what had happened but the victim had not only induced the accused but had even encouraged them but the entire defence objective is to create as much of prejudice as possible against the victim in the mind of the Court in order to secure an advantage for the victim. His submission is that these are all well known facts but that the most serious reason why the victims and the family members hesitate to approach the law enforcing authority is because not only is there precious little redressal but in fact what happens is that in this class of cases the victim finds that they are socially ostracized or finished because of the extremely embarrassing and damaging nature of the offence. In other words, the submission proceeds around the footing that the Courts are required to take cognizance of the fact that the victims and moreso parents and relatives and perhaps even the elders and advisors are seriously concerned about the future of the victim girl particularly the marriage of the victim and that is why they allow the incident to pass rather than ask for a full fledged investigation and action according to law. What the learned Counsel submits before us is that where these factors are prevalent and predominant that the mere delay in the lodging of a complaint unlike what happen in other categories of criminal complaints should not in any way damage the prosecution nor should it in any way affect the credibility. While we are willing to accept that almost every one of these submissions is absolutely faultless, we need to add a rider that the Court is still duty bound to examine the facts and circumstances of each case and if these were the only reasons for the delay then the delay alone is not enough to damage the case of the prosecution. There may however, be instances where the delay is deliberate or where the delay comes go against the prosecution or possibly indicative of the fact that the parties were hesitating, that the parties were premeditating, or that there could be a level of involvement or false exaggeration. While the respondent learned Counsel has vehemently submitted before us that the learned trial Judge was fully justified in the present case in having virtually rejected the prosecution evidence particularly on the ground of gross delay in lodging the complaint, we do not on the present record, accept this statement and to our mind the delay in the present instance is totally and fully justified.

(3.) WE needto emphasise the fact that like all cases of violent crime or perhaps moreso in cases of sexual assault, time is of the essence and invariably with the passage of time the evidence either disappears or gets diluted and it is of paramount importance particularly as far as the medical agencies as also the forensic agencies that through and complete investigations must be carried out with the minimum amount of delay. Where a swab test is taken, where a physical examination is necessary, where evidence such as injuries, blood stains and semen stains are of crucial importance, delay in investigation could invariably be fatal to the prosecution. Even if there has been some history of delay on the part of the victim in approaching the authorities, we would like to emphasise once again the absolute need to act with a high degree of speed and efficiency at all stages thereafter.