BASAVARAJ NAIKA @ KARIA Vs. STATE

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor.

(2.) The appellant was the accused before the trial court, in the following circumstances:

(3.) The learned counsel for the appellant would firstly point out that the circumstances under which the incident is said to have occurred, does not evoke confidence as to the veracity of the very complaint. It is admitted that there was a fair in relation to the procession of the deity, Netkal Basaveswara Swamy in the village and that the entire village was participating in the same. The incident is said to have occurred at 10.30 p.m., when the victim was on her way to fetch her uncle, who was participating in the fair. Therefore, the allegation that she was grabbed from behind and after gagging her, the appellant had committed rape on her in a lane next to dwelling houses, is difficult to accept and there was ample scope for the victim to have raised an alarm either before or after the commission of the rape. As it is not the case of the prosecution that she had been restrained in any manner or she was left gagged at the spot. Hence, the absence of any passersby noticing her or she taking assistance of any passers by, when the village was busy with the said fair at that point of time, does not ring true. There is also no explanation forthcoming as to whether the family members of the victim did not find it odd that she had not returned home even after several hours after leaving the house at 10.30 p.m. Further, it is pointed out that according to the victim she had stayed frozen at the spot till 4.00 a.m., for well over six hours. It is only when one of the occupants of the dwelling house next to the lane, namely, Somachari who had come out of the house to ease himself and on his enquiry, the victim having come out of the shock to narrate the incident and thereafter, the said person having brought her home, is not a natural sequence that can be accepted. The further confounding circumstance of the complainant not having chosen to lodge the complaint forthwith, atleast after day break, but having chosen to await the so called "settlement", is beyond comprehension. It is not explained as to what the settlement was to be and complaint having ultimately been lodged at 2.30 p.m., on the next day is after substantial delay, which would be fatal to the case of the prosecution. Further there was no medical evidence of any injury or other sexual activity as found from the examination of the victim, by the medical practitioner. Though there was a suggestion that there were semen stains to be found on the petticoat of the victim, the same had been sent to the Forensic Science Laboratory for its report and when it was noticed that such a report was not available, the further cross-examination of the concerned medical practitioner was deferred. But, even after lapse of time, no such report was made available to the Court. It is in the face of the above circumstances that the court below has proceeded to accept the case of the prosecution that there was rape committed by the appellant. The learned counsel would therefore, take this Court through the evidence of the witnesses to establish that the victim was a grown woman and not a helpless child and that there was no restraint as to her physical action after she was alleged to have been grabbed from behind, gagged and raped by the appellant and having left there without any further restraint of movement, she was free to have atleast sought the help of passers-by or to have raised an alarm. The claim that she had remained rooted to the spot even after several hours and on a day when the village was awake on account of the fair and procession as already stated, is not capable of acceptance in the absence of any physical evidence of force or injury having been caused to the victim and in the absence of any eye-witness. It is pointed that the only evidence that is tendered is through PW5 who is the sister of the victim. PW7 the foster father and uncle of the victim, Shanthamallappa and Somachari, who are residents of the village. Somachari was the owner of the house next to which in the lane the victim claims to have been raped. These witnesses have all turned hostile. There is no substance at all in the case of the prosecution, except that PW5 has stood by her statements. There was no sustenance that could be drawn from the evidence of the said witnesses, insofar as the charge brought against the accused are concerned. Therefore, the learned counsel would submit that the mere testimony of the victim by itself is not sufficient to bring home the charge. It is also elicited during the course of cross-examination that there was a dispute as regards use of water, for their lands, between the family of the accused and the complainant and it is in order to harass the appellant that a false case had been foisted against him. It was further suggested the appellant and the victim were well acquainted with each other and since there was a proposal for the appellant to be married to someone else, it was intended that the victim and the appellant should marry. It is to prevent the marriage and on account of sheer vengeance that a case had been lodged against the appellant. The court below having noticed these suggestions has indicated the same and has proceeded to hold that the prosecution had established its case beyond all reasonable doubt. Thus, the learned counsel for the appellant would submit that it is unfair that on the mere testimony of the victim without corroboration by medical and other witnesses, the trial court had convicted the appellant and seeks that the appeal be allowed and the accused be acquitted.