S KRISHNA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS pair of appeals arises out of judgment and order dated 26-7-1991 in Sessions Case No. 60/88. The appellant in the first of the appeals is the original accused who stood charged with having committed an offence punishable under Section 376, I. P. C. , in so far as on 14-6-1987 at about 9 a. m. , he is alleged to have enticed Kum, J. Padmavathy, hereinafter referred to as the victim, to a lonely place where he had taken her on a bicycle on the false pretext that he would procure a certain form for her and it is alleged that he had overpowered the girl at that spot and that he had committed an act of rape. The girl had thereafter come back crying and P. W. 8 Ankamma, who is her grand-mother, was informed by her that she had sustained injuries on her genitals. Ankamma waited until P. W. 1 Madaiah, who is the father, and P. W. 11 Mahadevamma, who is the mother, came back to their home and she informed them about what had happened. Since the victim was in considerable pain and discomfort and was also crying, her mother initially told her to wash herself with cold water and thereafter, took her to the local hospital for medical attention. The Doctor Rajarathnam, who is P. W. 3, was the medical officer who ascertained the case history from the girl. The victim disclosed the nature of the incident as also the name of the accused, Krishna, being the person who had sexually asssaulted her. The Doctor conducted a physical examination and also took a swab test and sent the swab for chemical analysis. The Doctor came to the conclusion that there were injuries to the external genitals and the surrounding area and that this was a case of rape and he therefore, directed the parents to take the girl to the police authorities. The complaint of the father was thereafter recorded and the investigation commenced, the accused was arrested and subsequently came to be chargesheeted and put up for trial. The learned Sessions Judge, after a detailed evaluation of the evidence on record, came to the conclusion that the charge had been proved, but for a variety of reasons that have been recorded in the judgment, particularly, the fact that the accused was a young man, the Court imposed a sentence of 15 months R. I. Against this order, the accused has preferred Criminal Appeal No. 487/91 and the State of Karnataka has preferred Criminal Appeal No. 540/91 for enhancement of sentence. Both the appeals have been heard together. The learned S. P. P. has argued the matter in considerable detail and so as the learned counsel who represented the accused.

(2.) ON behalf of the State, the learned S. P. P. has taken us through the entire evidence and he has pointed out that undoubtedly there was some delay in the lodging of the complaint before the police, but that there was a valid reason for it in so far as the parents had complained about the matter to the elders of the village who in turn, decided that the Village Council or the Panchayath must meet on the very next day and evolve a suitable solution. The accused and his parents were present at this meeting and the record indicates that he is alleged to have admitted what had happened between him and the victim and the decision given by the Panchayath was that since the girl was aged about 10 years and at that time, that the accused must undertake through an agreement executed on stamp paper to marry her on her attaining majority after a period of 8 years. The document in question was executed, but it is contended that shortly thereafter, the brother of the accused arrived at the village and created a scene stating that whatever happened, his family would never agree to the terms of the settlement. In view of this development, the father P. W. 1 went to the police and lodged his complaint. The learned S. P. P. submits that in this background, the delay that would otherwise have been perhaps detrimental to the prosecution case, cannot at all be held against the prosecuting authority or the victim. He has also sought to rely strongly on the observations of the Supreme Court in the latest decision on the point reported in 1996 Criminal Law Journal 1728 : (AIR 1996 SC 1393) in the case of State of Punjab v. Gurmit Singh. We are in agreement with the submission canvassed by the learned S. P. P. because the Courts are more than conscicus of the hesitation which is principally because of sociological consequences and many other pressures that have the effect of deterring the victims in rape cases from approaching the law enforcement authorities at the earliest point of time. Unlike in the case of other serious offences, therefore, the delay alone cannot ipso facto be treated as being fatal to the prosecution if it is validly explained and more importantly because, the Courts have always taken cognizance of the fact that often times, an effort is made to secure corrective action as has happened in the present case during the interim period. We specifically referred to this aspect of the matter because, the learned counsel who represented the accused, submitted that the accused was economically better-off than the family of the victim and that this was virtually a blackmail attempt to force him to marry the girl at some future point of time and that the Court must discard and discredit the evidence of the victim and her parents the moment it is shown that they were desirious of the decision of the Panchayath being given effect to and were not interested in even approaching the police earlier. We do not accept this submission because it is clear to us from the record that the parents, as any parents would have done, tried to avoid the distasteful consequences to the victim girl by choosing a course of action that woud give a garb of respectability to the problem irrespective of the background and if, only on the breakdown of that arrangement, they approached the police authorities, they were perfectly justified in doing so. We do not see any reason why the evidence should be construed as being tainted on this ground.

(3.) THE learned S. P. P. has taken us through the evidence of the victim Padmavathi, who is P. W. 12. She has, irrespective of her young age, very clearly and cogently described the incident. She knew the accused from childhood and he was obviously a friend of hers and he had enticed her to come with him on the bycicle on that morning on the pretext that he would secure a form for her. She has indicated how he took her to a lonely place, how he held her mouth and committed a sexual assault on her. Unlike as happens in many such cases, she has described in no uncertain terms as to what precisely happened and the learned trial Judge has accepted her evidence which has been virtually unshaken in cross-examination, and has based the conviction essentially on this. The learned S. P. P. submits that this was an absolutely correct appraisal, whereas his colleague on the other side has seriously attacked the evidence. He states that the victim is a child and that she had been heavily tutored by her parents and his submission is that in all cases of rape, the evidence of the victim can only be relied upon provided there is unimpeachable medical and forensic evidence. The learned counsel points out to us that in cases where force is used against a woman, that there are invariably other injuries on the body which take place because of her resistance, and that strangely enough, no such injuries were found on the person of the victim in this case. As regards this argument, it is well-settled law that in a large number of such instances, the victim is either overruled or traumatised as a result of which, the victim is unable to resist or does not put up a resistance and the mere absence of the injuries would not necessarily mean that the victim has either consented or that the incident has not taken place. We take note of the fact that the accused was much older than the victim who was only about 10 years of age, that obviously he was physically much stronger than her and that when he overpowered her at a lonely place, that there was very little resistance that she could have at all put up. The absence of other injuries on her body therefore, would not avail the accused at all.