DILAWARSAB ALISAB JAKATI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS appeal is by the accused assailing the Judgment of conviction for the offence under Section 376 (2) (f) IPC in S. C. No. 47/2000 by the learned Principal Sessions Judge, Belgaum, dated 28-2-2003 sentencing him to undergo R. I. for a period of 10 years and to pay a fine of Rs. 5,000-00, in default to undergo S. I. for a period of 3 months.

(2.) THE brief facts of the case of the prosecution is as under: the accused Dilawarsab, s/o Alisab was charge-sheeted for the offence under Section 376 I. P. C on the allegation that on 26-9-1999 at about 12. 00 noon, committed rape on his cousin sister PW. 13 in the land of PW. 1-Dadesab at Teggihal village. The prosecutrix-P. W. 13 is the daughter of P. W. 1-Dadesab and he is residing in his lands at Teggihal village along with his wife-Bibijan, sons viz. , P. W. 3-Husseinsab, Hazarathsab and Moulasab. The brother of P. W. 1-Aslisab was also residing nearby with his wife and son-Dilawarsab (accused ). On the said date and time, while PW. 1 was returning towards his hut saw the accused committing rape on his daughter-P. W. 13, aged 10 years. He noticed his daughter was struggling at the hands of the accused. When he rushed towards the accused to catch, he ran away with his cloths. Then P. W. 1 Dadesab took his daughter to his wife and informed about the sexual act committed by the accused. Thereafter, the victim girl was treated by P. W. 2-Bibijan by applying turmeric and made her to bath. She also washed the cloths which was stained with the blood. She noticed blood from the private part of the girl and there was swelling. After sometime, P. W. 1 approached his brother Alisab with the villagers viz. , P. W. 7-Adiveppagouda and P. W. 15-Tukaram to work out the course of action to be taken. But, the accused's father Alisab did not say anything. Therefore, P. Ws. 7 and 15 advised P. W. 1 to approach the police for action. Thereafter, P. W. 1 approached P. W. 5-Dalapathi-Pandurang Basanaik Patil. After preparing the complaint by PW. 5, he proceeded to Saundatti Police Station and filed the complaint as per Ex. P1. The Sub Inspector of Police P. W. 17-Nagaraj registered a case in Crime No-233/1999 for the offence under Section 376 I. P. C. , prepared the F. I. R. as per Ex. P19 and forwarded to the learned Magistrate along with the report Ex. P20. Thereafter, he sent the victim-P. W. 13 to hospital for medical examination with a requisition Ex. P9. The Circle Inspector of Police P. W. 18-P. R. Hiregoudar took-over the further investigation on 28-9-1999 and verified the investigation. He proceeded to the place of incident at Teggihal Village, secured the photographer-Sanjiv Kumar C. W. 11 as well as panch-witnesses and in the presence of them and the complainant, prepared spot-mahazar as per Ex. P4 and seized M. O. 1 bangle pieces. Photographs were taken as per Ex. P2. He recorded the statement of the witnesses and deputed his staff to apprehend the accused. The accused was arrested on 9-10-1999 and was subjected to medical examination to confirm his potency. After securing the medical reports of the prosecutrix-PW. 13 and the accused, filed charge sheet for the offence under Section 376 I. P. C. The learned Sessions Judge secured the presence of the accused, framed the charges for the offence under Section 376 (2) (f) I. P. C. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined P. Ws. 1 to 18, marked Exs. P1 to P23 and produced M. Os. 1 to 3. The statement of the accused was recorded under Section 313 Cr. P. C. The defence is one of total denial. The accused did not choose to lead any defence evidence. The learned Sessions Judge for the reasons stated in his Judgment, recorded a finding of guilt and convicted for the offence under Section 376 IPC and sentenced him to undergo R. I. for a period of 10 years and to pay a fine of Rs. 5,000-00, in default to undergo S. I. for a period of 3 months. It is this Judgment of conviction and sentence, which is questioned in the present appeal.

(3.) LEARNED counsel Sri Anant K. Navalgimat submitted that there is considerable delay of more than 24 hours in lodging the complaint. The prosecution witnesses viz. , P. W. 1-Dadesab, P. W. 2-Bibijan are the husband and wife, whereas the prosecutrix-P. W. 13 and P. W. 3-Husseinsab are the daughter and son of P. W. 1 respectively. It has come in the evidence that there has been a dispute between P. W. 1 and his brother-Alisab and that they were not in talking terms. Therefore, their testimony cannot be relied and acted. Further submitted that it is clear from the evidence of P. W. 13 that she has been tutored to depose falsely at the instance of P. Ws. 1 and 2. That apart, the medical evidence of P. W. 8 Dr. S. M. Hulamani, P. W. 9-Dr. T. L. Shrinivas as well as the evidence of RW. 16-Dr. Usha establishes it he fact that they did not find any injury or signs of Rape. When the medical evidence is so clear that rape has not taken place, the learned Sessions Judge by relying, on the evidence of P. Ws. 1 and 2, erroneously convicted the accused which is not sustainable and the evidence on record has not been properly appreciated. Further submitted that the accused is none-else than the cousin of the prosecutrix P. W. 13. Therefore, there were no chance of the accused committing rape, as such and the accused has been falsely implicated on account of dispute over the land between P. W. 1 and his brother Alisab-father of the accused. Learned counsel further submitted that even if the evidence of PWs. 1 and 2 were to be accepted to some extent, in view of the medical evidence, it does not constitute an offence under Section 376 IPC. At the most, it attracts Section 511 IPC. Lastly submitted that the accused was arrested on 9-10-1999 and he has been in custody till now. Thereby, he has completed imprisonment for more than 5 years. It is also submitted that the evidence of prosecutive P. W. 13 is of no evidence in the eye of law as the oath was not administered to the translator in accordance with Sections 4 and 5 of the Oaths Act. If according to the evidence of P. W. 13, if the rape were to have taken place, definitely there would have been rapture and tear of vagina that too when the accused is aged of 22 or 23 years, using force in the act of intercourse. But, no such symptoms of rape are found. Therefore, the evidence of P. Ws. 1, 2 and 13 are false and prayed to set aside the Judgment of conviction and sentence passed for the offence under Section 376 (2) (f) IPC and to allow the appeal by acquitting the accused.