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CASE NO.: Appeal (crl.)  457 of 1994

PETITIONER: THE STATE OF KARNATAKA   

RESPONDENT: MAPILLA P.P. SOOPI                       

DATE OF JUDGMENT: 23/09/2003

BENCH: N. SANTOSH HEGDE & B.P. SINGH.

JUDGMENT: J U D G M E N T

SANTOSH HEGDE, J.

       The respondent herein was convicted by the Sessions  Judge, Kodagu, Madikeri in Sessions Case No.30 of 1982 for  offences punishable under Sections 448 and 376 IPC, and was  sentenced to undergo RI for one year under Section 448 and 4  years under Section 376 IPC with a fine of Rs.500/-. The above  conviction was based on the prosecution case that the  respondent committed the rape of Fathima, PW-3 on 23.9.1981.  The High Court in appeal reversed the judgment and conviction  on re-appreciation of facts. It came to the conclusion that the  prosecution has failed to establish the fact that PW-3 was a  minor at the time of the incident as also the  factum of rape by  the respondent of the said prosecutrix. The main evidence led  by the prosecution in support of its case was that of the  victim  herself who was examined as PW-3 and that of her father PW-4  and mother PW-7. The prosecution also relied on the medical  evidence as spoken to by doctor PW-1. The High Court having  come to the conclusion that PW-3 was not below the age of 16  years at the time of the incident, also did not accept her  evidence because if really the incident had taken place, as  narrated by her, the  neighbours and others who were in the  close proximity of the place where the incident had taken place,  could have reached the place of incident to see the act of rape  because of her cries.   Since there is no such evidence led by the  prosecution, the High Court held that PW-3’s evidence without  further corroboration cannot be accepted. It also rejected the  medical evidence as to the factum of rape since the prosecution  had failed to produce the original medical report. The High  Court did not accept the evidence of the parents of the victim on  the ground that though they came to know of the incident on  23.9.1981 itself, the Police complaint was lodged only on the  next day evening and the explanation given by the prosecution  for the delay was unacceptable. The two witnesses who were  neighbours of the victim who were examined by the  prosecution, having not supported the prosecution case, the  High Court found it difficult to base a conviction on the  respondent, hence, allowed the appeal.  We have heard learned counsel for the parties and are of  the opinion that the High Court was justified in coming to the  conclusion that the prosecution has failed to prove that the  respondent had committed either the house trespass or rape of  PW-3. This is primarily because of the fact that though PW-1  had examined PW-3 on 24.9.1981, the prosecution has not  produced any medical report in regard to the said examination  of PW-3. As a matter of fact, there is no evidence whatsoever

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produced by the prosecution to show that the doctor did prepare  a medical report in regard to the condition of the victim as  examined by him on 24.9.1981. On the contrary, what was  produced by the prosecution were certain clarifications given by  PW-1 in response to the questions asked by the I.O. on  25.9.1981. These clarifications in our opinion, are too general  in nature and do not indicate the possibility of a  rape of PW-3.  The clarifications do not indicate any injury on the person of  PW-3.  Though PW-1 in the said clarificatory note has stated  that PW-3 had recent signs of forcible sexual intercourse, he  has not indicated what were those signs. In the absence of a  medical report regarding the observation of  the doctor when he  examined PW-3 on 24.9.1981, it will be very difficult to accept  the subsequent clarification given by the doctor in reply to  certain queries raised by the I.O. It is also pertinent to mention  that though PW-3 had stated in her evidence that she suffered  certain other bodily injuries, the same is not supported by the   evidence of PW-1. In such circumstances in our opinion, the  High Court was justified in holding that the medical evidence  has not established the case of rape.

       Coming to the evidence of PW-3 prosecutrix as noted by  the High Court, we see that she has stated that immediately  after the respondent entered her house, she raised an alarm but  from the material produced by the prosecution, even though  there were children and other adults near-about the house of the  victim, none responded to the said alarm though witnesses  examined by the prosecution show they heard the alarm and by  the time they went to the place of incident, they could only see  the accused walking away. This indicates that if at all PW-3  raised an alarm it was only after the respondent went away from  her house. This coupled with the fact that there were no injuries  on the body of PW-3 to indicate any forceful assault on her, we  are in agreement with the finding of the High Court that the  prosecution has failed to establish its case.

Undue delay in lodging the complaint without acceptable  evidence has also contributed to the doubt in the prosecution  case. Hence the High Court was justified in allowing the  appeal.

       For the reasons stated above this appeal fails and the  same is dismissed.