STATE OF KARNATAKA Vs. KRISHNAPPA

JUDGEMENT

(1.) WE have heard the learned Addl. SPP on merits. The allegation is to the effect that on 18. 12. 1994 when the victim who was a minor girl by the name of Munivenkatamma was going back to the village to fetch a bag at the instance of her father that the accused caught hold of her and that he forcibly committed the act of rape on her. She went back to the fields and told her father and her step-mother who in turn took her to the police and then to the hospital. The medical evidence is totally and completely against the prosecution in so far as the lady doctor has deposed to the effect that in the first instance there was absolutely no evidence of sexual intercourse. There were no injuries of any type to the victim, there were no secondary stains either on her person or on her clothes and in totality, that medically there was absolutely no case of rape or attempted rape or any other form of assault.

(2.) IT was vehemently submitted on behalf of the State that the order of acquittal is unjustified because on the facts of the present case, unless some incident had taken place the victim would not have gone back, would not have levelled the allegation of rape as against the accused. What is also pointed out is that unless an incident of seriousness had taken place the parents would not have gone to the police and the police in turn would not have referred the girl to the hospital. Ultimately, the submission canvassed before us is that if the oral evidence of the victim and her parents is found to be good enough in so far as it has withstood the test of cross-examination that the accused should be convicted on the basis of the oral evidence and the medical evidence should be ignored.

(3.) THIS is undoubtedly a very interesting submission in law and the learned Addl. SPP further draws our attention to the fact that in cases of sexual assault, for a variety of reasons very often the medical and forensic evidence is not available as much as where there is delay in approaching the police or the authorities or where the victim had a bath or washed the clothes etc. , and the learned Counsel points out to us that it is well settled law that a conviction on this charge is permissible if the oral evidence is 100% trust-worthy and that it is not a requirement of law, that the oral evidence must be substantiated by the medical evidence. The learned Counsel draws our attention to the fact that irrespective of the status of the victim that there is always reluctance on the part of the victim and in most cases the parents and relations, to approach the police in the first instance because of a variety of factors which includes the consequences to the girl. In this background, the learned Counsel submits that even where the medical and forensic evidence may be forthcoming that the Courts have recorded adverse findings. We do not dispute the general correctness of these propositions but what we need to point out is something else. In the present case it is not as though there was any delay because the girl has reached the hospital within less than two hours of the incident. Secondly, she has come straight to the hospital without going to her house, without changing her clothes, without having a bath etc. The victim in this case was supposed to have been 14 years old and the doctor after examination has clearly stated that she was accustomed to sexual intercourse. This is an aspect of the case that would assume some importance but what we are recording is that this is not a case where the medical evidence was not forthcoming but this is a case where the evidence is available and the evidence goes against the prosecution. The two situations are different from each other. Where the evidence is not available for the reasons set out by us the position is radically different but in the present case where the evidence is available and it goes violently against the prosecution case, it would not be permissible as submitted by the learned Addl. SPP to ignore the medical evidence as though it were non-existent and to proceed entirely on the basis of the oral evidence. In our considered view, where that evidence is available, where it is produced by the prosecution itself and where the prosecution has not explanation as to how and why the Court should ignore that head of evidence, in our considered view, the conviction arrived at by the trial Court is correct in so far as it will have to be held that it seriously affects the credibility of the victim girl who has alleged that she was raped but whereas the medical evidence indicates that nothing of this sort has happened.