STATE OF KARNATAKA Vs F.NATARAJ
Bench: PINAKI CHANDRA GHOSE,R.K. AGRAWAL
Case number: Crl.A. No.-001439-001439 / 2011
Diary number: 21250 / 2010
Advocates: ANITHA SHENOY Vs
Page 1
1
NON REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1439 OF 2011
STATE OF KARNATAKA ….. APPELLANT
:VERSUS:
F. NATARAJ ….. RESPONDENT
J U D G M E N T
Pinaki Chandra Ghose, J.
1. This appeal by special leave has been directed against the
judgment and order dated 9.11.2009 passed by the High Court
of Karnataka at Bangalore in Criminal Appeal No.1576 of 2007,
whereby the High Court allowed the criminal appeal filed by
the respondent herein and acquitted him of the offence under
Section 376 of the Indian Penal Code, 1860 (hereinafter
referred to as “IPC”).
Page 2
2
2. The brief facts necessary to dispose of this appeal are that the
prosecutrix (PW1), daughter of one Lakshmana (PW2), aged
about 14 years, was studying in 8th standard in Swami
Vivekanand School at Hiriyur Town, District Chitradurga. The
respondent F. Nataraj was a teacher in the said school and the
prosecutrix fell in love with him. When she expressed this
before him, he told her that she is a minor and should
concentrate on her studies. The prosecutrix threatened the
accused respondent that if he would not consent to marry her,
she would kill herself. In view of this threat, he agreed to marry
her. The relationship between them continued for about three
months. When the prosecutrix came to know that her parents
were about to get her married to somebody else, she started
pressurizing the accused to marry with her by giving him
threats again. Ultimately, the accused-respondent and the
prosecutrix fled away from Hiriyur Town in the early morning
of 26.10.2003 and reached Bangalore. There the accused took
her to Nallur Village near Whitefield and they stayed in the
house of aunt of the accused - Kaveramma for about 20 days.
The accused-respondent brought one readymade Mangalya
Page 3
3
(thaali) and tied it to the prosecutrix at about 3:00 p.m. on that
date in the said house and they got married to each other. The
accused then started visiting factories in search of job. During
the period from 26.10.2003 to 15.11.2003, the prosecutrix and
the accused lived together and led a conjugal married life.
Finally, the Police of Hiriyur Police Station reached the said
house on 15.11.2003 at about 12:15 p.m., and the accused
and the prosecutrix were taken to the Hiriyur Police Station by
the evening. Thereafter, statement of the prosecutrix was
recorded as Ex.P-1 on 15.11.2003 at Hiriyur Police Station.
Based on this statement (Ex.P-1), investigation was taken up.
The father of the prosecutrix (Lakshmana) had already filed a
missing complaint (Ex.P-2) on 26.10.2003, stating that his
daughter had gone out to attend nature’s call on 26.10.2003 at
about 3:00 A.M. and thereafter she could not be traced despite
all efforts. On 11.11.2003, Lakshmana filed another complaint
(Ex.P-3) at the Hiriyur Police Station stating that he suspected
that the respondent might have kidnapped his daughter.
Page 4
4
3. On the basis of the evidences collected by the police during the
investigation, charge-sheet was filed against the accused
respondent under Sections 366A and 376 of the IPC. The case
was committed to the Court of Sessions. Since no material was
found to frame a charge for the offence punishable under
Section 366A of IPC, therefore, only the charge for the offence
punishable under Section 376 of IPC was framed against the
accused to which he pleaded not guilty and claimed to be tried.
4. The Trial Court by its judgment and order dated 21.9.2007,
convicted the respondent F. Nataraj for the offence punishable
under Section 376 of the IPC and sentenced him to rigorous
imprisonment for five years and to pay a fine of Rs.1,000/-,
and in default of payment of fine, further simple imprisonment
for three months was awarded. Being aggrieved by the
aforesaid judgment and order of the Trial Court, the
accused-respondent filed an appeal before the High Court of
Karnataka at Bangalore, being Criminal Appeal No.1576 of
2007. The High Court by the impugned judgment and order
allowed this appeal on the ground that though the prosecutrix
Page 5
5
herein was less than 16 years of age and her consent would be
of no relevance if there was sexual intercourse between her and
the accused, since the factum of sexual intercourse itself was
not proved beyond reasonable doubt in view of the inconsistent
evidence of the prosecutrix which could not be solely relied
upon.
5. The Appellant - State has challenged before us the judgment of
acquittal passed by the High Court. Learned counsel for the
State of Karnataka has, inter alia, made the following
submissions. Firstly, that the age of the prosecutrix was less
than 16 years at the time the offence was committed. The age
was proved to be 13 ½ years on the date of incident by
Ex.P-11, the birth certificate issued by PW7 (headmaster of
Swami Vivekananda School) based on entries in the Admission
Register, wherein her date of birth was specified as 8.3.1990.
Secondly, the factum of sexual intercourse between the
accused and the prosecutrix has been contended to be proved
beyond reasonable doubt by the statement of PW1 (prosecutrix)
Page 6
6
and corroborated by the medical officer’s (Dr. Latha-PW5)
testimony.
6. The learned counsel for the accused-respondent has not
disputed the age of the prosecutrix as has been admitted by
the High Court in the impugned judgment that the prosecutrix
was aged between 13-14 years and hence less than 16 years.
But the arguments advanced by the Appellant State regarding
the factum of sexual intercourse have been rebutted by putting
his weight on the decision arrived at by the High Court. It is
submitted that the testimony of the prosecutrix is inconsistent,
uncorroborated by the medical evidence which is vague and
fails to establish clearly that the sexual intercourse took place
and hence not reliable.
7. The Trial Court convicted the accused respondent on the basis
of the testimony of the prosecutrix as being supported by the
statement of the medical officer. The High Court also dealt with
the issue and held that the Trial Court failed to appreciate the
discrepancies occurring in the evidences. The High Court has
Page 7
7
examined at length the record of the case and reversed the
finding of the Trial Court.
8. We have heard the learned counsel on both sides and perused
the judgments of the Trial Court as also the High Court. The
question of age of the prosecutrix is not disputed. Hence, the
only issue that remains before us is whether the factum of
sexual intercourse is established or not?
9. To arrive at a conclusion as to whether actual sexual
intercourse took place or not, the statements of the prosecutrix
(PW1) and medical officer (PW5) need to be examined in detail.
As per the averments made by the prosecutrix in the complaint
(Ex.P-1) filed by her on 15.11.2003, she was in love with the
respondent and it is because of her coercion that the accused
took her to Bangalore where they got married and led life like a
married couple for a period of 20 days. She mentioned that
their marriage had consummated as well. However, the
evidence in examination-in-chief of the prosecutrix (PW1), is
totally inconsistent with the averments in the complaint
Page 8
8
(Ex.P-1). In her testimony made before the Court she has
stated that in the early morning of 26.10.2003, when she came
out of her house to ease herself, the accused met her and
forcibly took her to Bangalore saying that he loved her and
would marry her. She further stated that she was made to stay
in the house of Kaveramma (aunt of the accused) for about 20
days and they lived there as husband and wife. But in her
examination-in-chief she also mentioned that she did not lodge
any complaint or make any statement and the document
Ex.P-1 though has her sign, was not read over to her by the
Police. After being treated as hostile, when the Public
Prosecutor cross-examined her, she admitted that after they
came to Bangalore, the accused brought a ready-made Thaali
and tied it to her neck and they got married and sexual
intercourse took place between them. But she vehemently and
categorically denied the suggestion that the averments made in
Ex.P-1 are true and correct and that the complaint came to be
written at her instance. In cross-examination by the advocate
for the accused, she categorically stated that she was well
aware of the meaning of the word “intercourse” and that it was
Page 9
9
painful and she felt like screaming when the accused had
intercourse with her for the first time.
10.The statements of the prosecutrix are highly inconsistent. The
statement made by her to the police has been categorically
denied and the statements made by her before the Court seem
to be tutored. At the time when her statement was recorded as
PW1, the age of the prosecutrix was about 17 years and it is
quite natural for a girl of that age to know as to what is “sexual
intercourse”. Also, the aunt of the accused i.e. Kaveramma, at
whose house at Bangalore the prosecutrix and the accused
stayed after fleeing from Hiriyur Town, has not been examined.
Further, the fact that the prosecutrix did not raise any alarm
when the accused tried to kidnap her, seems to be quite
unnatural. The testimony of the prosecutrix when read as a
whole, is full of discrepancies and does not inspire confidence.
11.The medical examination of the prosecutrix took place on
16.11.2003 and she was examined by Dr. M. Latha (PW5) who
was the Lady Medical Officer at the Government Hospital,
Page 10
10
Hiryur. Her deposition was that upon examination, no injury
was found on the private parts of the prosecutrix and her
hymen was intact. She also stated that there were no signs of
recent sexual intercourse as the prosecutrix was not subjected
to sexual intercourse during the past seven days from the date
of her medical examination and she issued a certificate
Ext.P-7 to this effect. But she could not say clearly as to
whether the prosecutrix was subjected to sexual intercourse
previously or not.
12.It is not elicited by the evidence of PW5 as to what was the
nature of the hymen that was found intact in the person of the
prosecutrix. Though it may be true that the rupture of the
hymen may not occur in all cases of sexual intercourse, but it
is the burden of the prosecution to extract from the medical
examiner examining a rape victim, that the nature of the
hymen was such that it could remain intact despite there being
intercourse with the girl on several occasions within a period of
15 to 20 days. The medical examiner has merely mentioned
that there were no signs of recent sexual intercourse which is
Page 11
11
inadequate to establish that sexual intercourse took place
before that at all.
13.The appellant State relied upon the case of Madan Gopal
Kakkad v. Naval Dubey, (1992) 3 SCC 204, wherein this
Court has held that even the slightest penetration of penis into
vagina without rupturing the hymen would constitute rape.
The appellant contended that the fact that the hymen of the
prosecutrix was not ruptured does not lead to the inference
that there was no sexual intercourse. But we do not find any
weight in this submission as there is no medical evidence even
to suggest the slightest of penetration.
14.Learned counsel for the respondent relied upon the case of
Radhu v. State of M.P., (2007) 12 SCC 57, wherein this Court
had laid down the principle that a conviction of rape can be
based on the uncorroborated testimony of the prosecutrix and
even the absence of injuries on the private parts of the victim
will not falsify the case of rape, but at the same time, the
Courts must bear in mind that the question whether there was
Page 12
12
rape or not would depend ultimately on the facts and
circumstances of each case.
15.Learned counsel for the respondent further relied upon Mohd.
Ali v. State of U.P., (2015) 7 SCC 272, wherein this Court
recently held as follows:
“30. True it is, the grammar of law permits that the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony…”
16.In the present case, the gaps in the evidences of the
prosecutrix and the medical officer make it highly improbable
that sexual intercourse took place. It would be erroneous to
rely upon such discrepant testimonies and convict the
accused. It can thus be stated with certitude that the solitary
evidence of the prosecutrix, in absence of any corroboration by
the medical evidence, is not of such quality which can be relied
Page 13
13
upon. The accused-respondent is, therefore, entitled to benefit
of doubt.
17.Thus, in the light of the above discussion, we are of the view
that the present appeal is devoid of merits, and we find no
grounds to interfere with the judgment passed by the High
Court. The appeal is, accordingly, dismissed.
…....................................J
(Pinaki Chandra Ghose)
…...................................J
(R.K. Agrawal)
New Delhi
October 07, 2015