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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”).

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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

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(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.

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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

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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)

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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

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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

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(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

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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,

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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

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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

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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

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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