STATE OF KARNATAKA Vs. P A BIDDAPA

JUDGEMENT

(1.) WE have heard the learned Addl. SPP on merits, because, there is an application for condonation of delay, for which we would be required to issue notice to the respondent accused. As a matter of caution this Court considers its responsibility in appeals against acquittal where the accused have been through the trauma of lengthy trial, that the Court must first satisfy itself that the main appeal on merits entails strong enough material on record to sustain a conviction as other wise, the entire exercise of issuing notice for condonation of delay, admission of the appeal and final hearing would be an in fructuous exercise. Apart from the accumulation of arrears and considerable waste of judicial time the more important aspect is that the accused is at the receiving end for no reason at all. If could possibly be that the State is aggrieved by the order of acquittal and is entitled to file an appeal, but it is essential for the Court to hear the learned counsel who represents the State in the first instance and satisfy itself that the record is good enough to sustain conviction. One also needs to bear in mind the fact that there are instances when for varied reasons and invariably because of the faults of the investigating authority, the evidence before the trail Court is either weak or feeble or not acceptable and the authorities may have some serious grievance for which reason the State files an appeal against the acquittal.

(2.) IN this appeal the learned Addl. SPP submits that the offence of rape is necessarily one of very clandestine nature, that in this class of cases there are no witnesses, and secondly that the very nature of the offence is such that the victim is too shocked and traumatised to recount the unpalatable details and to complain immediately, as a result of which when she does so at a later point of time, some of the major heads of evidence may even disappear. He has drawn our attention to law dealing with this class of cases wherein even the Supreme Court has held that where the uncorroborated evidence of the victim if found 100% reliable that it can form the sole basis for a conviction. We do not, for a moment dispute this legal position and in this background he submitted that the victim in this case has very clearly deposed to the effect that the accused, though he was her own father, had committed rape on her. He also brought it to our notice that the girl was shocked and states that she was threatened, and further more that she was in a state of fright and that this is the reason why she has not disclosed the incident to her mother until the next day. The learned counsel submits that under these circumstances, the evidence of the commission of rape, such as, the injuries on the genital area, the finding of spermatozoa, etc. , are incidentally not available, but his submission is that where the victim has supported the prosecution that the trial Court was in error in having acquitted the accused. He has also relied on several other supportive heads of evidence in order to re-inforce his submission that this is a case where a conviction is sustainable.

(3.) WHILE we accept the position that having regard to the special features of the offence of rape that the Courts are advisedly required to take cognizance of with whatever available material is forth coming at that time, we also need to bear in mind the fact that the minors evidence is predominant in this class of cases. The Court has really taken the trouble to find out the probability of the father howsoever bad a human being he may be, of sexually assaulting his own daughter, which would normally be remote, unless the person is a pervert. In the given instance, the background suggests the normal family set up of a husband, wife and three children, there is nothing brought on record with regard to the background of the accused or behavior pattern that would suggest deviancy. Starting from this position we need to examine the other head of evidence which the trail Court has relied on heavily, namely, the fact that there appears to be a serious matrimonial dispute/discord between the father and mother, that she had lived away from his in Kerala, that she had thereafter come back and that apparently this was for the purpose of bringing about a final settlement between the parties, because it was at her instance that the accused was made to sell the estate and there were disputes with regard to the proceeds. In this background of hostility, the learned trial Judge has held that it would not be farfetched to hold that the accused had been falsely implicated for ulterior motive by the wife with the collusion of the daughter in order to take charge of what was realised from the sale of the estate. This aspect of the matter casts grave doubt on the prosecution case.