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CASE NO.: Appeal (crl.)  205 of 2001

PETITIONER: B. C. Deva @ Dyava

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 25/07/2007

BENCH: R. V. Raveendran & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

Lokeshwar Singh Panta, J.

1.      The appellant has filed this appeal against the judgment  dated 01.03.2000 passed by the learned Single Judge of the  High Court of Karnataka at Bangalore in Criminal Appeal  No.334/96, confirming the conviction and sentence of 7 years  R.I. imposed upon the appellant in respect of the offence  punishable under Section 376 of the Indian Penal Code [for  short "IPC"] and to pay a fine of Rs. 5,000/- with default  stipulation for six months R.I. awarded by the learned  Principal Sessions Judge, Madikeri, on 11.04.1996 in Sessions  Case No. 32/93. 2.      Brief facts, which led to the trial of the appellant, are as  follows: 3.      In the year 1991, the prosecutrix (PW-2), her mother  Jayanthi (PW-3) and father Raju (PW-13) were working in  Athoor Coffee Estate.  They were living in the labour colony of  the estate.  B. C. Deva @ Dyava - accused herein, was also  working as Mistry in the same Coffee Estate.  On 28.03.1991,  the prosecutrix and her mother had gone to the Coffee Estate  for picking up coffee seeds whereas the father joined his  routine duty of driving the tractor.  During lunch time, the  prosecutrix had gone to her house for taking mid-day meal.   When after lunch break, the prosecutrix was returning to the  Coffee Estate carrying lunch box for her mother, the accused  suddenly came behind her, held and dragged her to a distance  of about 10 feet inside the coffee garden.  The accused shut  the mouth of the prosecutrix with his left hand and laid her on  the ground underneath the coffee plants.  According to the  prosecution version, the accused committed forcible sexual  assault on the prosecutrix and then ran away from the spot of  occurrence.  The prosecutrix immediately informed her mother  (PW-3) about the incident.  The prosecutrix decided to commit  suicide as she was unable to bear the dishonour and disgrace  caused to her reputation by the act of the accused and she felt  that after this incident no suitable boy will offer to marry her.   The prosecutrix eventually jumped into nearby water tank  located in the Coffee Estate.  Shashappa (PW-4), Yashodhara  (PW-5), one Babu and Vishwanath, who were doing repair  work on the pump house near the water tank, heard the  sound from the water tank side.  They rushed to the water  tank and found the prosecutrix struggling in the water.  She  was eventually pulled out of the water tank by PW-4 with the  help of his associates.  On being questioned, the prosecutrix  disclosed to PW-4 that she wanted to commit suicide as she  was sexually assaulted by the accused.  PW-5 went and

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informed PW-3, the mother of the prosecutrix, about the  incident.  Both PW-3-the mother and PW-13-the father of the  prosecutrix took the prosecutrix to Peryase (PW-6)-Estate  Writer of the Coffee Estate and informed him about the  incident.  PW-6 advised them to lodge police report in the  Police Station.  Accordingly, the prosecutrix along with her  parents went to Police Station, Suntikoppa and lodged a  complaint (Ex.P-2) to Naga (PW-14), PSI of the Police Station.   On the basis of the said complaint, PW-14 registered a case  Crime No.35/91 and submitted First Information Report  (Ex.P-6) to the Ilakka Magistrate.  PW-14 sent the victim to  Madikeri Government Hospital for medical examination.  Dr.  Nagendramurthy (PW-15), a Deputy Surgeon in the District  Hospital, examined the prosecutrix at about 9.15 p.m. and  referred her to a Gynaecologist for further examination and  opinion.  On the same day, Dr. Sachidananda, Gynaecologist,  examined the prosecutrix and furnished his opinion.  On  29.03.1991, PW-14, the Investigating Officer, went to the place  of incident and held the necessary spot mahazer (Ex. P-4) in  the presence of PWs-2 and 8 Changappa.  Head Constable  Revanna (PW-9) arrested the accused at Suntikoppa market  and produced him before PW-14, who seized the underwear of  the accused vide mahazer (Ex.P-5) prepared in the presence of  panch witnesses.  The accused was sent for medical  examination.  Dr. Shivaram Naik (PW-16) examined the  accused and furnished Certificate (Ex. P-10).  Further  investigation of this case was taken over by Dy.S.P.  Sathyanarayana Rao (PW-17).  After completion of the  investigation, a charge sheet was filed before CJM, Madikeri  against the accused for an offence punishable under Section  376, IPC.  The learned CJM committed the case to the  Sessions Court. 4.      The learned Sessions Judge, having found prima facie  case against the accused, framed the charge under Section  376, IPC.  The accused pleaded not guilty to the charge and  claimed to be tried. 5.      The prosecution examined as many as 17 witnesses in  support of its case.  In his statement under Section 313, Cr.  P.C., the accused denied his involvement in the crime.  He  pleaded that a false case has been lodged against him and he  claimed to be innocent.  However, no witness in defence has  been examined by the accused.  6.      The Trial Court, after considering the entire evidence on  record, recorded conviction and imposed sentence as aforesaid  upon the accused. 7.      The High Court, on reappraisal and re-appreciation of the  entire evidence on record, confirmed the conviction and  sentence.  Hence by special leave, this appeal has been  preferred by the accused. 8.      Mr. Naresh Kaushik, learned counsel appearing on behalf  of the accused, challenged the judgment of the High Court  inter alia contending that the prosecution has failed to  examine any independent witness to prove the guilt of the  accused beyond reasonable doubt and as per the medical  opinion of the Doctors, no physical injury was found on any  part of the person of the prosecutrix, which fact would clearly  belie the version of the prosecutrix in regard to the sexual  assault upon her by the accused.  He submitted that on the  facts appearing on record the Trial Court as well as the High  Court have seriously erred in relying upon the sole testimony  of the prosecutrix whose evidence cannot be found to be  believable and reliable without independent corroboration.  He  lastly contended that both the courts below have held the  accused guilty simply on surmises and conjecture, therefore,  the accused deserves to be acquitted.

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9.      Mr. Anil Mishra, learned counsel for the State, on the  other hand, submitted that the prosecution has clearly  established the guilt of the accused and no exceptions can be  taken to the reasons indicated by the Trial Court under the  well-reasoned judgment.  The evidence has also been analysed  in great detail by the High Court and, therefore, no question of  any interference is called for with the conviction recorded in  the impugned judgment of the High Court. 10.     We have independently analysed the entire oral and  documentary evidence appearing on record in order to  appreciate the respective contentions of the learned counsel  for the parties.  The prosecutrix in her deposition clearly and  unequivocally stated that on the morning of 28.03.1991 she  along with her mother (PW-3) went to the Coffee Estate of  Athoor Village for attending to their routine work of picking of  coffee seeds and at about 2.00 p.m., she had gone home to  take mid-day meals.  After taking meals, she returned to the  work-site taking meals for her mother in a tiffin box, when on  the way the accused, who is known to her, suddenly came  behind her, held her body with force and then dragged her to  some distance in the Coffee Estate in spite of her resistance  and request to the accused to release her.  The accused  snatched the tiffin box from her hand and put his one hand on  her mouth and thereafter laid her on the ground.  He lifted her  saree and petticoat, opened the zip of his trouser and removed  his underwear and then committed forcible sexual assault  upon her.  After committing the crime, the accused fled away  from the scene of occurrence.  She stated that she picked up  the tiffin box and proceeded to the place where her mother  was working.  She was weeping and narrated the entire  incident to her mother.  She told her mother that she felt  ashamed of the incident and if other workers working in the  Coffee Estate would come to know about the incident, she  would feel disgraced and a girl of bad reputation in their  estimation as the accused had spoiled her honour and now  she will not get a respectable boy to marry her.  The  prosecutrix decided to commit suicide and suddenly jumped  into a nearby water tank.  She was rescued from drowning by  PW-4 -Shashappa, PW-5-Yashodhara and two other witnesses,  namely, Babu and Vishwanath, who were working at pump  house near the water tank.  She also informed PW-6, the  Manager of the Coffee Estate, about the incident and on his  advice, she went to Suntikoppa Police Station at about 7.00  p.m. and lodged a complaint to the police official.  She was  medically examined on the same day.  On the following day,  she produced her petticoat which was seized under mahazer  (Ex. P-3) drawn by the Police.  She has been put to lengthy  cross-examination by the defence, but her testimony has not  been shattered on material aspect.   She stated in the cross- examination that after the accused laid her on the ground, she  on two or three occasions pushed him aside but she could not  succeed to release her from his clutches.  It is clear from the  testimony of the prosecutrix that the incident took place at a  secluded place, which was not noticed by anyone else.  The  suggestion of the accused that a false case has been lodged  against him because of enmity between his family members  and the prosecutrix’s family has been categorically denied by  her.  The accused has not placed on record any material to  substantiate his defence of enmity between the family  members of the parties and, therefore, this plea cannot be  accepted in the teeth of the overwhelming trustworthy versions  of the prosecutrix and other material witnesses.  11.     On scrutiny of the evidence of the prosecutrix, it appears  to us that the defence tried to build up a case that the  prosecutrix is a consenting party to the sexual intercourse as

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she did not make any attempt to resist the accused from  committing the offence nor the Doctors noticed any mark of  injury on any part of her body.  This plea of the accused, in  our view, is wholly unfounded and baseless and it is falsified  by the subsequent conduct of the prosecutrix, who as noticed  above after the incident rushed to her mother and disclosed  the entire episode to her and the prosecutrix emotionally and  mentally felt so depressed and humiliated that she could not  bear the insult and disrepute imprinted on her character and  moral conduct by the cruel act of the accused.  The  prosecutrix took the extreme step of ending her life by jumping  in a water tank.    Further, the incident was disclosed to PW  Shashappa, PW Yashodhara, Babu and Vishwanath, who  eventually pulled out the prosecutrix out of the water tank and  rescued her life.  The incident was also disclosed to PW-6  Estate Writer, who advised the prosecutrix and her parents to  lodge a report in the Police Station, which step was promptly  taken by the prosecutrix on the same night. 12.     Having carefully gone through the evidence of the  prosecutrix, we find no plausible and justifiable reasons  whatsoever to disbelieve and discard her testimony.  The  prosecutrix is a trust-worthy witness and her evidence cannot  be brushed aside on the above-noted flimsy plea raised by the  accused. 13.     The evidence of the prosecutrix finds full support and  corroboration from the testimony of PW-3, the mother of the  prosecutrix.  It is the evidence of PW-3 that on the day of the  incident after lunch break, the prosecutrix came weeping to  her and narrated the entire incident to her and also disclosed  that the prosecutrix had no intention to live further in this  world as no good and prudent boy will extend an offer of  marrying her on hearing about the unfortunate incident.  It is  also the evidence of this witness that the prosecutrix rushed  towards a nearby water tank with clear intention of commiting  suicide by jumping into the water tank and eventually she was  rescued from drowning by PW-4 Shashappa, PW-5  Yashodhara, Babu and Vishwanath.   It is the evidence of PW- 4 that in the afternoon of the day of incident when he was  working in the pump house near the water tank, he heard  slight sound of somebody falling into the tank.  He along with  Babu, Vishwanath and PW-5 Yashodhara immediately rushed  to the water tank and noticed the prosecutrix drowning in the  water.  He stated that the prosecutrix was pulled out of the  water tank by them and when he asked her about the cause of  her committing suicide, the prosecutrix disclosed that she was  forcibly raped by the accused in the afternoon on the day of  occurrence.  This witness was cross-examined at length, but  nothing could be elicited from his evidence to establish that  the witness has given evidence to implicate the accused in a  false case or the witness is, in any way, related to the  prosecutrix and therefore, tried to help her.   Yashodara (PW- 5) has testified and corroborated the testimony of the  prosecutrix and PW-4 in its entirety.  The proseuctrix has  given graphic narration of the occurrence in complaint Ex. P-2  lodged against the accused at 7.00 p.m. in the Police Station.    The name of the accused, who was also working as a Mistry in  the same Coffee Estate where the prosecutrix and her parents  (PWs-2 and 13), besides PWs-4, 5 and other persons were  working has been categorically mentioned as an offender of the  crime.  Thus, the entire incident narrated in the complaint  (Ex.P-2) stands corroborated by the oral testimony of the  prosecutrix, her mother (PW-3), her father (PW-13) and  independent witnesses (PWs-4 and 5).  The plea that no marks  of injuries were found either on the person of the accused or  the person of the prosecutrix, does not lead to any inference

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that the accused has not committed forcible sexual  intercourse on the prosecutrix.  Though, the report of the  Gynaecologist pertaining to the medical examination of the  prosecutrix does not disclose any evidence of sexual  intercourse, yet even in the absence of any corroboration of  medical evidence, the oral testimony of the prosecutrix, which  is found to be cogent, reliable, convincing and trustworthy has  to be accepted.  Though, the FSL Report marked as Ex.C-1  pertaining to the undergarments of the accused and the victim  did not contain any seminal stains, yet the said report cannot  be given any importance because the underwear of the  accused was taken into possession by the police on the next  day of the incident when he was arrested.  There is no  evidence brought on record to show that the accused handed  over the same under wear to the police, which he was wearing  on the day of incident or he had handed over some other  underwear which was seized under mahazer (Ex.P-5) by the  police.  The possibility of absence of seminal stains on  petticoat of the prosecutrix which she was wearing at the time  of the incident, could not be ruled out due to the fact that the  petticoat got drenched in the water and the seminal stains  might have been washed away.   14.     The Trial Court as well as the High Court have recorded  the finding of guilt of the accused based upon proper  appreciation of the evidence led by the prosecution in this  case.  In view of the aforesaid discussion, we do not find any  justified and justifiable ground to interfere with the conviction  and sentence awarded by the Trial Court and confirmed by the  High Court.  The appeal is, therefore, dismissed. 15.       The accused is on bail.  He is directed to surrender  before the Trial Court forthwith and to suffer the remaining  period of sentence.