STATE OF KARNATAKA Vs. VITHAL SAHADEV KOLEKAR

JUDGEMENT

(1.) ONE Kumari Pavitra - P.W. 3 (victim of rape) is aged about 3 years 7 months. P.W. 2 is the mother of P.W. 3. P.W. 1 is the grand-mother of P.W. 3. The case of the prosecution that on 26-7-1999 around 6.00 p.m. P.Ws. 1 and 2 were sitting at their house. P.W. 3 was playing in the cattle shed nearby to their house. P.Ws. 1 and 2 heard the scream and cry of P.W. 3 from the cattle shed. P.Ws. 1 and 2 rushed to the spot, found that the accused was committing act of rape on P.W. 3. The accused on seeing P.Ws. 1 and 2 ran away from the scene. P.W. 3 was taken to P.W. 6 a private doctor in the village immediately some time after the incident. P.W. 3 was taken to Government Hospital at Saundatti on the next day. P.W. 6-the doctor at Saundatti hospital examined her and found "the surrounding area was red oedematous and painful. The vagina admits only tip of thumb There was no hymen". P.W. 3 was referred to the District Hospital, Belgaum. P.Ws. 7 and 8rthe senior specialists at District Hospital. Belgaum examined P.W. 3. The certificate of P.W. 7 discloses that, "no hymen seen, surrounding area was red, oedematous and painful. It (in-troitus) admits tip of thumb". The clothing of the victim and the accused were seized and sent to FSL for examination. The investigating officer on completion of investigation and receipt of the reports from the FSL and the concerned doctors, filed the charge-sheet against the accused for committing the offence punishable under Section 376(2)(f) read with Section 511 of the Indian Penal Code, 1860.

(2.) THE P.Ws. 1 and 2 are supposed to be the eye-witnesses to the incident have turned hostile and do not depose against the accused. Both the witnesses in their evidence say that on hearing the cry they went to the cattle shed and found, there was bleeding from the private part of P.W. 3 and there was nobody present at the scene. Even in the cross-examination of public prosecutor nothing is elicited to corroborate the prosecution case. P.W. 3 is a child witness, has given evasive answers to all the material questions. P.W. 3 does not incriminate the accused in any manner.

(3.) IT is pointed out that in the cross-examination of P.W. 3 it, is elicited that she was influenced by P.Ws. 1 and 2 to give evidence. The said statement of P.W. 3 cannot be of any consequence for the prosecution to prove the guilt. P.Ws. 1 to 3 have not implicated the accused in any manner. The FSL report also does not corroborate the prosecution case. The evidence of P.W. 7 cannot be a basis for conviction under Section 376(2)(f) read with Section 511 of IPC. Since the evidence also discloses that the injury could be for the reason of accidental fall.