F. Nataraja S/O Eshwarappa, Adi Karnataka by Caste Teacher Om Sri. Swamy Vivekananda Vidya Peetha Vs. the State by Hiriyur Police by Its State Public Prosecutor - Court Judgment

SooperKanoon Citationsooperkanoon.com/844403
SubjectCriminal
CourtKarnataka High Court
Decided OnNov-09-2009
Case NumberCriminal Appeal No. 1576/2007
JudgeArali Nagaraj, J.
ActsIndian Penal Code (IPC) - Sections 302, 304B, 354, 363, 376 and 498A; Code of Criminal Procedure (CrPC) , 1973 - Sections 222 and 222(2)
AppellantF. Nataraja S/O Eshwarappa, Adi Karnataka by Caste Teacher Om Sri. Swamy Vivekananda Vidya Peetha
RespondentThe State by Hiriyur Police by Its State Public Prosecutor
Appellant AdvocateY.S. Shivaprasad, Adv.
Respondent AdvocateVijaykumar Majage, HCGP
DispositionAppeal allowed
Cases ReferredShamnsaheb M. Multtam v. State of Karnataka
Excerpt:
- karnataka small causes courts act, 1964 [k.a. no. 11/1964]. sections 8 & 9: [k. ramanna, j] suit for ejection - jurisdiction of small causes court - suit for possession in respect of non-residential premises - held, small causes court has jurisdiction to pass a decree. however, a suit for possession of with mesne profits or damages would be outside the jurisdiction of small causes court. arali nagaraj, j.1. the accused in sessions case no. 75/2006 on the file of learned principal sessions judge, chitradurga (hereinafter referred to as the 'trial court' for short) has challenged in this appeal the correctness of the judgment and order of conviction and sentence dated 21st september 2007 passed in the said case convicting him for the offence under section 376 ipc and thereby sentencing him to undergo r.i. for a period of five years and also to pay fine of rs. 1,000/- with default sentence of s.l for a further period of three months.2. stated in brief, the case of the prosecution as alleged in ex.p1 complaint dated 15.11.2003 filed by pw1 prosecutrix is as under:(a) the prosecutrix viz., kum.renuka, daughter of lakshmana, aged about 14 years has been studying in 8th standard in swamy vivekananda school at hiriyur town, district chitradurga. the accused nataraj has been a teacher in the said school. the prosecutrix had been in friendly terms with the accused while studying in said school. this was opposed by her mother (pw 3 smt. eramma).(b) the prosecutrix fell in love with the accused teacher. she expressed the same before him. to that, he told her that she, being still minor, should concentrate on her studies. then the prosecutrix threatened the accused teacher that, if he did not consent to marry her, she would die. in view of this threat, he consented to marry her.(c) the affairs between the prosecutrix and the accused continued for a period of three months (prior to the said complaint). the prosecutrix heard her parents talking about her marriage with somebody else. therefore, she pressurized the accused that he should marry her. she further threatened him that if he were not to agree to marry her immediately she would die. therefore, the accused agreed to flee from hiriyur town along with the prosecutrix.(d) on 25.10.2003, the prosecutrix and the accused agreed that they should leave the town on the early morning of 26.10.2003. accordingly they together left hiriyur town at about 3 a.m. on 26.10.2003 and reached bangalore. after they reached bangalore, the accused took her to nallur village near whitefield and they stayed there in a house. the accused brought one ready made mangalya (thaali) and tied it to the prosecutrix at about 3 p.m. on that date in the said house and thus they married with each other.(e) from next day onwards the accused used to visit the factories situate around the said village in search of another job for him. on 15.11.2003 at about, 12.15 p.m. the police of hiriyur p.s. came to the said house and brought the accused and also the prosecutrix together to hiriyur police station by about. 5.30 p.m. on the same day. during the period from 26.10.2003 to 15.11.2003, the prosecutrix and the accused together led marital life as married couple. during the said period intercourse also took place. they did all that without any other's assistance.3. before the prosecutrix lodged the said complaint ex.pl on 15.11.2003, her father viz., pw2 lakshman had filed ex.p2 complaint on 26.10.2003 (which date is incorrectly mentioned in ex.p2 as 25.10.2003) stating that, during the night between 25 and 26th october 2003, his daughter (prosecutrix) went out of his house, but she did not return till 11.45 a.m. on 26.10.2003 and therefore, she should be traced out. on 11.11.2003, pw2 lakshman gave his another complaint before the p.s.i, of hiriyur p.s. stating that his daughter was found missing since early morning of 26.10.2003 and he could not find her despite his efforts and therefore, he suspected that the accused nataraj, who was working as a teacher in swamy vivekananda school where the prosecutrix was studying, might have kidnapped her.4. on appreciation of the oral evidence of pws 1 to 14, the documents at exs. p1 to p16. m.os. 1 and 2 and ex. d1, a portion of statement of pw3, the trial court, by its impugned judgment and order, found the accused guilty of the offence under section 376 ipc and convicted and sentenced him accordingly.5. i have heard the arguments of sri y.s. shivaprasad, learned counsel for the appellant - accused and sri vijayakumar majage, learned high court government pleader and perused the impugned judgment and order of conviction and sentence and also the entire material found in the original records obtained from the trial court.6. sri shivaprasad, the learned counsel for the appellant -accused, strongly contended that the trial court committed serious error in recording its finding that the prosecution proved its case against the accused for the offence under section 376 ipc inasmuch as, the evidence of pw1 prosecutrix as to the accused committing sexual intercourse on her could not have been relied upon in view of the medical evidence that the hymen of the prosecutrix was found intact and there was no further material to show that she was subjected to sexual intercourse by the accused. he further contended that the very factum of coming into existence of ex.p1 complaint as narrated by pw1 prosecutrix has not been proved by the prosecution inasmuch as the woman police constable, who is said to have recorded the said complaint - statement, has not been examined as a witness for the prosecution and the pw1 prosecutrix herself has stated in her evidence that she does not know the contents of the said complaint - statement as the same were not read over and explained to her. while submitting so, the learned counsel for the appellant - accused further contended that the very factum of the accused and the girl together fleeing from hiriyur town to bangalore and staying together at nallur during the period from 26.10.2003 to 15.11.2003 has not been proved by the prosecution beyond reasonable doubt and therefore, there could be no occasion for the accused to commit any sexual intercourse on the girl.7. per contra, the learned high court government pleader strongly contended that the evidence of prosecutrix as to the accused committing sexual intercourse on her with her consent has been clearly spoken to by the prosecutrix and admittedly the prosecutrix was below 16 years and therefore, the trial court did not commit any error in convicting the accused for the offence under section 376 ipc. he further contended that, in all cases of sexual intercourse, the hymen of the victim need not be torn and therefore, simply because the hymen of pw1 girl was found intact, it could not be said that there was no intercourse committed by the accused on the prosecutrix as stated by the prosecutrix in her evidence. he contended further that the impugned judgment and order of conviction and sentence does not call for any interference in this appeal.8. as could be seen from the averments in the complaint ex.p1 said to have been filed by the prosecutrix, it is her say that she herself fell in love with the accused, when she communicated the same to him, he told her that, she was still a minor and therefore, she should concentrate her mind on her studies, but, since herself threatened him that if he were not agreed to marry her, she would die, he agreed to marry her and therefore, as suggested by herself, he took her to bangalore and they together stayed in a house at nallur village near whitefield and, during the said period, they married and led marital life as married couple.9. however, the evidence in examination-in-chief of the prosecutrix as pw1 is inconsistent with the above averments in the complaint ex.p1. she has stated in her evidence that on 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 was loving her and he would look after her properly by marrying her and made her to stay in the house of his aunt viz., kaveramma for about 20 days and during the said period, they led marital life as married couple and that thereafter the police of hiriyur police station came to the said house and brought them together to hiriyur. she has further deposed in her examination-in-chief that she did not lodge any complaint before the police and she does not know what is written in ex.pl complaint as the same were not read over and explained to her.10. this prosecutrix has been cross-examined by the learned public prosecutor after getting her treated hostile. in her cross-examination, she has admitted that next day, after they came to bangalore, the accused brought a ready made 'thaali' (mangalya) and tied it to her neck and thus they got married themselves and the intercourse took place between herself and the accused. but she has categorically denied the suggestion that the averments made in ex.p1 complaint are true and correct and ex.p1 complaint came to be written at her instance.11. it is not in dispute that the prosecutrix was subjected to medical examination on 16.11.2003 and she was examined by pw5 dr. m. latha, the lady medical officer, government hospital, hiriyur. she has stated in her evidence that on 16.11.2003 at about 10.45 a.m., the prosecutrix was brought to her by a woman head constable of hiriyur police station for her medical examination with a history of rape on her and accordingly she examined her and found that the development in her physical body was proportionate to her age. she has further deposed that when she examined her private parts, she did not notice any injury and the hymen was found intact she has further deposed that since the prosecutrix was not subjected to sexual intercourse during the past seven days from the date of her examination, she did not find any signs of recent intercourse on her and she issued the certificate as per ex.p7 to the same effect.12. it is not in dispute that the said smt. kaveramma, in whose residential house the accused and the prosecutrix are alleged to have stayed together during the period from 26.10.2003 to 15.11.2003. though has been cited as cw8, has not been examined on the ground that her address could not be found during the trial of the case. besides this, pw2 lakshman. the father of the prosecutrix, has not stated in his evidence that, after the prosecutrix was brought from the house of smt. kaveramma along with the accused, she narrated before him as to she marrying the accused and staying with him as his married wife during the said period in the said house at nallur village. though he has stated in examination-in-chief that he filed his complaint as per ex.p3. he has further stated that he does not know its contents.13. pw3 smt. eramma, the mother of the prosecutrix has simply stated in her examination-in-chief that, when she enquired with the prosecutrix, she disclosed that the accused kidnapped and took her (prosecutrix) from hiriyur to bangalore and there, he tied thaali (mangalya) and then committed rape on her. thus it is clear that the evidence of pws 2 and 3, the parents of the prosecutrix besides being inconsistent, does not in any way establish that the prosecutrix was subjected to sexual intercourse at any time during the said period by the accused. further, the oral evidence of pws, the lady medical officer and the contents of ex.p7, the certificate issued by her also does not establish that there was intercourse with the prosecutrix in the recent past.14. in support of his contention that the hymen being intact need not necessarily lead to an inference that there was no sexual intercourse committed by the accused on the prosecutrix, the learned government pleader has placed reliance on the decision of the hon'ble supreme court in the case of madan gopal kakkad v. naval dubey and anr. reported in : (1992) 3 scc 204. in the said case before the hon'ble supreme court, the victim girl was aged about 8 years and she was alleged to have been raped by the accused, the medical evidence was to the effect that the hymen of the girl was found intact, but, there was extrajudicial confession made by the accused as to his guilt. on those facts, it was observed that, the hon'ble supreme court agreed with the high court that the extra-judicial confession made by the respondent -accused, which was not shown to have been obtained by coercion, promise of favour or false hope etc., and the said confession was made by the accused in the presence of a body of persons on two occasions and therefore, the said confession was amply corroborated by the evidence of the victim, whose testimony in turn was corroborated by as many as five prosecution witnesses and also the medical evidence. therefore, i am of the considered view that the facts in the said case before the hon'ble supreme court cannot be equated with the facts in the instant case and hence the observations of hon'ble supreme court in the said case cannot be applied to the instant case.15. learned high court government pleader has also placed reliance on the decision of the bombay high court in the case of the state of maharashtra v. savala sagu kokare and anr. reported in 1907 cri.l.j. 786 in support of his contention that even if the hymen is found intact, there could be sexual intercourse. it was found by the bombay high court in the said case that the statement of the prosecutrix as to the commission of forcible intercourse on her by the accused was corroborated by the circumstances that the torn blouse and bloodstained underwear were seized and abrasions were found on the back of the prosecutrix. therefore, the bombay high court held that though the hymen was intact, there could be penetration of the private part of the accused into that of the prosecutrix at least to some extent since the complete sexual intercourse is not the requirement of the offence under section 376 of ipc. in the instant case, it is the case of the prosecution that the prosecutrix and the accused had sexual intercourse on several occasions during the said period, but it is not the case of a stray incident, of forcible sexual intercourse on the girl, which could be an incomplete one. further, as could be seen from the evidence of pw5, the lady-medical officer, who examined the prosecutrix with a history of rape on her, it is not elicited 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 rupture of hymen need not occur in all the cases of sexual intercourse, the prosecution has to elicit from the medical officer examining the prosecutrix with a history of rape that the hymen was of such a nature as, it could remain intact despite there being intercourse with the girl on several occasions within a period of 15 to 20 days.16. learned counsel for the appellant - accused has relied upon a decision of bombay high court in the case of vishnu s/o parmeshwar yadav and ors. v. state of maharashtra reported in : 1997 cri.l.j. 1724. the prosecutrix in the said case was aged about 11 years and there was no evidence on record to corroborate the say of the prosecutrix. further, the hymen of the prosecutrix was found intact. on those facts, the bombay high court held the medical evidence was that the hymen was found intact and there were no signs of external injuries on any part of the body of the prosecutrix suggest that, there could be no sexual intercourse with the prosecutrix.17. though it is settled principle that there could be conviction of the accused for the offence under section 376 ipc solely on the basis of the uncorroborated testimony of the prosecutrix, her testimony should not suffer with any infirmity and it should conclusively suggest the sexual intercourse on her by the accused with or without her consent, having regard to the age of the prosecutrix. admittedly the prosecutrix herein is less than 14 years of age. therefore, her consent could be of no relevance if there could be sexual intercourse with her by the accused. on careful reading of the averments in ex.pl, which is said to have been recorded by the woman police constable, as narrated by the prosecutrix herself, it could be seen that though she (prosecutrix) is said to have stated that herself and the accused led marital life as married couple and there was intercourse with her by him, she has not stated as to when she was subjected to such intercourse for the first time and on how many occasions she was subjected to same. as could be seen further, from the averments in ex.pl, it is clear that the prosecutrix herself fell in love with the accused and she went to the extent of threatening him that if he were not to love and marry her, she would die. therefore, it is clear that she wanted to marry him at any cost, even without the consent of her parents. it could be seen further from the averments in ex.p1 that since her parents were thinking of giving her in marriage to some other person, she communicated the same to the accused and compelled him to take her from her house and to marry her. therefore, having regard to this conduct of the prosecutrix and all other circumstances of the case, the possibility of she stating falsely that there occurred sexual intercourse between herself and the accused so that her parents would agree to give her in marriage to the accused could not be ruled out. she has also admitted in her cross-examination made on behalf of the accused that on one occasion, when the accused had come to the trial court during the trial, her parents had requested the accused to marry her.18. as could be seen from the averments in the said complaint and also the evidence of pw1 prosecutrix, her evidence is totally inconsistent with the said averments. therefore, i am of the opinion that the evidence of prosecutrix could not have been relied upon by the trial court as to the occurrence of sexual intercourse with her by the accused. in this view of the matter, the accused deserves to be acquitted of the offence under section 376 ipc.19. learned high court government pleader contended, in the alternative, that if this court holds that the prosecution failed to prove that there was sexual intercourse between the accused and the prosecutrix, the facts that are proved against the accused, constitute an offence of kidnapping by the accused inasmuch as, the girl was taken by the accused from out of the lawful guardianship of her parents and therefore, he deserves to be convicted for the offence under section 363 ipc. in this respect, he further contended that, though charge is not framed against the accused for the offence under section 363 ipc, since the said offence could be termed as 'minor offence' as compared to the offence under section 376 ipc, the accused shall have to be convicted for the said offence invoking the provisions of section 222 cr.p.c.20. section 222(2) cr.p.c. provides that, when a person is charged with an offence and facts proved, reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it, as to the expression 'minor offence', it would be relevant to refer to the decision of the hon'ble supreme court in the case of shamnsaheb m. multtam v. state of karnataka reported in : air 2001 sc 921 head note- f and para nos. 16 & 17. head note-f reads as under:(f) criminal procedure code, 1973 - section 222(2) - 'minor offence' - meaning - where main ingredients of two cognate offences are common, one punishable with lesser sentence can be said to be minor offence - ingredients of section 304-b ipc being different from those of section 302 pc, the former cannot be regarded as minor offence - words and phrases - 'minor offence' -interpretation of statutes - internal aids;further, paras 16 and 17 read as under:para 16: what is meant by 'a minor offence' for the purpose of section 222 of the code? although the said expression is not defined in the code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. the two illustrations provided in the section would bring the above point home well. only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis--vis the other offence.para 17: the composition of the offence under section 304-b, i.p.c. is vastly different from the formation of the offence of murder under section 302, i.p.c. and hence the former cannot be regarded as minor offence vis--vis latter. however, the position would be different when the charge also contains the offence under section 498-a, i.p.c. (husband or relative of husband of a women subjecting her to cruelty). as the word 'cruelty' is explained as including inter alia 'harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.21. following the above observations of the hon'ble supreme court in the said case, i am of the considered opinion that the offence under section 363 ipc and the one under section 376 ipc cannot be held to be 'cognate offences' and therefore, the accused herein cannot be convicted for the offence under section 363 ipc in the absence of charge framed against him for the said offence. besides this, no material is placed on record by the prosecution through evidence of any of the witnesses examined for it that the accused kidnapped the prosecutrix pw 2, the father of the prosecutrix, who filed the complaint ex.p3 alleging that he suspected that the accused might have kidnapped the prosecutrix, has turned hostile and has stated in his evidence that he does not know the contents of ex.p3 complaint. therefore, the accused cannot be alternatively convicted for the offence under section 363 ipc as submitted by the learned government pleader.22. the learned high court government pleader also contended that even if the offence under section 376 ipc is held not made out against, the accused, he can be convicted for the offence under section 354 ipc. suffice it to say that this contention also does not deserve acceptance inasmuch as there is no material on record, produced by the prosecution, to show that the accused assaulted or used criminal force at any time on the prosecutrix with intent to outrage her modesty.23. for the reasons aforesaid, i am of the considered opinion that the trial court was not justified in convicting the accused - appellant for the offence under section 376 ipc. hence, the following:orderthe present appeal is hereby allowed. the judgment and order of conviction and sentence dated 21st september 2007 passed in sessions case no. 75/2006 by the learned principal sessions judge, chitradurga is hereby set aside. the accused is hereby acquitted of the offence under section 376 ipc. if the fine amount is already paid by the accused in compliance with the impugned order of sentence, the same shall be refunded to him. the bail bond of the accused - appellant shall stand cancelled.
Judgment:

Arali Nagaraj, J.

1. The accused in Sessions Case No. 75/2006 on the file of learned Principal Sessions Judge, Chitradurga (hereinafter referred to as the 'Trial Court' for short) has challenged in this appeal the correctness of the Judgment and Order of conviction and sentence dated 21st September 2007 passed in the said case convicting him for the offence under Section 376 IPC and thereby sentencing him to undergo R.I. for a period of five years and also to pay fine of Rs. 1,000/- with default sentence of S.L for a further period of three months.

2. Stated in brief, the case of the prosecution as alleged in Ex.P1 complaint dated 15.11.2003 filed by PW1 prosecutrix is as under:

(a) The prosecutrix viz., Kum.Renuka, daughter of Lakshmana, aged about 14 years has been studying in 8th standard in Swamy Vivekananda School at Hiriyur Town, District Chitradurga. The accused Nataraj has been a teacher in the said school. The prosecutrix had been in friendly terms with the accused while studying in said school. This was opposed by her mother (PW 3 Smt. Eramma).

(b) The prosecutrix fell in love with the accused teacher. She expressed the same before him. To that, he told her that she, being still minor, should concentrate on her studies. Then the prosecutrix threatened the accused teacher that, if he did not consent to marry her, she would die. In view of this threat, he consented to marry her.

(c) The affairs between the prosecutrix and the accused continued for a period of three months (prior to the said complaint). The prosecutrix heard her parents talking about her marriage with somebody else. Therefore, she pressurized the accused that he should marry her. She further threatened him that if he were not to agree to marry her immediately she would die. Therefore, the accused agreed to flee from Hiriyur Town along with the prosecutrix.

(d) On 25.10.2003, the prosecutrix and the accused agreed that they should leave the town on the early morning of 26.10.2003. Accordingly they together left Hiriyur town at about 3 a.m. on 26.10.2003 and reached Bangalore. After they reached Bangalore, the accused took her to Nallur village near Whitefield and they stayed there in a house. The accused brought one ready made Mangalya (thaali) and tied it to the prosecutrix at about 3 p.m. on that date in the said house and thus they married with each other.

(e) From next day onwards the accused used to visit the factories situate around the said village in search of another job for him. On 15.11.2003 at about, 12.15 p.m. the Police of Hiriyur P.S. came to the said house and brought the accused and also the prosecutrix together to Hiriyur Police Station by about. 5.30 p.m. on the same day. During the period from 26.10.2003 to 15.11.2003, the prosecutrix and the accused together led marital life as married couple. During the said period intercourse also took place. They did all that without any other's assistance.

3. Before the prosecutrix lodged the said complaint Ex.Pl on 15.11.2003, her father viz., PW2 Lakshman had filed Ex.P2 complaint on 26.10.2003 (which date is incorrectly mentioned in Ex.P2 as 25.10.2003) stating that, during the night between 25 and 26th October 2003, his daughter (prosecutrix) went out of his house, but she did not return till 11.45 a.m. on 26.10.2003 and therefore, she should be traced out. On 11.11.2003, PW2 Lakshman gave his another complaint before the P.S.I, of Hiriyur P.S. stating that his daughter was found missing since early morning of 26.10.2003 and he could not find her despite his efforts and therefore, he suspected that the accused Nataraj, who was working as a teacher in Swamy Vivekananda School where the prosecutrix was studying, might have kidnapped her.

4. On appreciation of the oral evidence of PWs 1 to 14, the documents at Exs. P1 to P16. M.Os. 1 and 2 and Ex. D1, a portion of statement of PW3, the Trial Court, by its impugned Judgment and Order, found the accused guilty of the offence under Section 376 IPC and convicted and sentenced him accordingly.

5. I have heard the arguments of Sri Y.S. Shivaprasad, learned Counsel for the appellant - accused and Sri Vijayakumar Majage, learned High Court Government Pleader and perused the impugned Judgment and Order of conviction and sentence and also the entire material found in the original records obtained from the Trial Court.

6. Sri Shivaprasad, the learned Counsel for the appellant -accused, strongly contended that the Trial Court committed serious error in recording its finding that the prosecution proved its case against the accused for the offence under Section 376 IPC inasmuch as, the evidence of PW1 prosecutrix as to the accused committing sexual intercourse on her could not have been relied upon in view of the medical evidence that the hymen of the prosecutrix was found intact and there was no further material to show that she was subjected to sexual intercourse by the accused. He further contended that the very factum of coming into existence of Ex.P1 complaint as narrated by PW1 prosecutrix has not been proved by the prosecution inasmuch as the Woman Police Constable, who is said to have recorded the said complaint - statement, has not been examined as a witness for the prosecution and the PW1 prosecutrix herself has stated In her evidence that she does not know the contents of the said complaint - statement as the same were not read over and explained to her. While submitting so, the learned Counsel for the appellant - accused further contended that the very factum of the accused and the girl together fleeing from Hiriyur town to Bangalore and staying together at Nallur during the period from 26.10.2003 to 15.11.2003 has not been proved by the prosecution beyond reasonable doubt and therefore, there could be no occasion for the accused to commit any sexual intercourse on the girl.

7. Per contra, the learned High Court Government Pleader strongly contended that the evidence of prosecutrix as to the accused committing sexual intercourse on her with her consent has been clearly spoken to by the prosecutrix and admittedly the prosecutrix was below 16 years and therefore, the Trial Court did not commit any error in convicting the accused for the offence under Section 376 IPC. He further contended that, in all cases of sexual intercourse, the hymen of the victim need not be torn and therefore, simply because the hymen of PW1 girl was found intact, it could not be said that there was no intercourse committed by the accused on the prosecutrix as stated by the prosecutrix in her evidence. He contended further that the impugned Judgment and Order of conviction and sentence does not call for any interference in this appeal.

8. As could be seen from the averments in the complaint Ex.P1 said to have been filed by the prosecutrix, it is her say that she herself fell in love with the accused, when she communicated the same to him, he told her that, she was still a minor and therefore, she should concentrate her mind on her studies, but, since herself threatened him that if he were not agreed to marry her, she would die, he agreed to marry her and therefore, as suggested by herself, he took her to Bangalore and they together stayed in a house at Nallur village near Whitefield and, during the said period, they married and led marital life as married couple.

9. However, the evidence in examination-in-chief of the prosecutrix as PW1 is inconsistent with the above averments in the complaint Ex.P1. She has stated in her evidence that on 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 was loving her and he would look after her properly by marrying her and made her to stay in the house of his aunt viz., Kaveramma for about 20 days and during the said period, they led marital life as married couple and that thereafter the Police of Hiriyur Police Station came to the said house and brought them together to Hiriyur. She has further deposed in her examination-in-chief that she did not lodge any complaint before the Police and she does not know what is written in Ex.Pl complaint as the same were not read over and explained to her.

10. This prosecutrix has been cross-examined by the learned Public Prosecutor after getting her treated hostile. In her cross-examination, she has admitted that next day, after they came to Bangalore, the accused brought a ready made 'Thaali' (Mangalya) and tied it to her neck and thus they got married themselves and the intercourse took place between herself and the accused. But she has categorically denied the suggestion that the averments made in Ex.P1 complaint are true and correct and Ex.P1 complaint came to be written at her Instance.

11. It is not in dispute that the prosecutrix was subjected to medical examination on 16.11.2003 and she was examined by PW5 Dr. M. Latha, the Lady Medical Officer, Government Hospital, Hiriyur. She has stated in her evidence that on 16.11.2003 at about 10.45 a.m., the prosecutrix was brought to her by a Woman Head Constable of Hiriyur Police Station for her medical examination with a history of rape on her and accordingly she examined her and found that the development in her physical body was proportionate to her age. She has further deposed that when she examined her private parts, she did not notice any injury and the hymen was found Intact She has further deposed that since the prosecutrix was not subjected to sexual intercourse during the past seven days from the date of her examination, she did not find any signs of recent intercourse on her and she issued the certificate as per Ex.P7 to the same effect.

12. It is not in dispute that the said Smt. Kaveramma, in whose residential house the accused and the prosecutrix are alleged to have stayed together during the period from 26.10.2003 to 15.11.2003. though has been cited as CW8, has not been examined on the ground that her address could not be found during the trial of the case. Besides this, PW2 Lakshman. the father of the prosecutrix, has not stated in his evidence that, after the prosecutrix was brought from the house of Smt. Kaveramma along with the accused, she narrated before him as to she marrying the accused and staying with him as his married wife during the said period in the said house at Nallur village. Though he has stated in examination-in-chief that he filed his complaint as per Ex.P3. he has further stated that he does not know its contents.

13. PW3 Smt. Eramma, the mother of the prosecutrix has simply stated in her examination-in-chief that, when she enquired with the prosecutrix, she disclosed that the accused kidnapped and took her (prosecutrix) from Hiriyur to Bangalore and there, he tied Thaali (Mangalya) and then committed rape on her. Thus it is clear that the evidence of PWs 2 and 3, the parents of the prosecutrix besides being inconsistent, does not in any way establish that the prosecutrix was subjected to sexual intercourse at any time during the said period by the accused. Further, the oral evidence of PWS, the Lady Medical Officer and the contents of Ex.P7, the certificate issued by her also does not establish that there was intercourse with the prosecutrix in the recent past.

14. In support of his contention that the hymen being intact need not necessarily lead to an inference that there was no sexual intercourse committed by the accused on the prosecutrix, the learned Government Pleader has placed reliance on the decision of the Hon'ble Supreme Court in the case of Madan Gopal Kakkad v. Naval Dubey and Anr. reported in : (1992) 3 SCC 204. In the said case before the Hon'ble Supreme Court, the victim girl was aged about 8 years and she was alleged to have been raped by the accused, the medical evidence was to the effect that the hymen of the girl was found intact, but, there was extrajudicial confession made by the accused as to his guilt. On those facts, it was observed that, the Hon'ble Supreme Court agreed with the High Court that the extra-judicial confession made by the respondent -accused, which was not shown to have been obtained by coercion, promise of favour or false hope etc., and the said confession was made by the accused in the presence of a body of persons on two occasions and therefore, the said confession was amply corroborated by the evidence of the victim, whose testimony in turn was corroborated by as many as five prosecution witnesses and also the medical evidence. Therefore, I am of the considered view that the facts in the said case before the Hon'ble Supreme Court cannot be equated with the facts in the instant case and hence the observations of Hon'ble Supreme Court in the said case cannot be applied to the instant case.

15. Learned High Court Government Pleader has also placed reliance on the decision of the Bombay High Court in the case of The State of Maharashtra v. Savala Sagu Kokare and Anr. reported in 1907 Cri.L.J. 786 in support of his contention that even if the hymen is found intact, there could be sexual intercourse. It was found by the Bombay High Court in the said case that the statement of the prosecutrix as to the commission of forcible intercourse on her by the accused was corroborated by the circumstances that the torn blouse and bloodstained underwear were seized and abrasions were found on the back of the prosecutrix. Therefore, the Bombay High Court held that though the hymen was intact, there could be penetration of the private part of the accused into that of the prosecutrix at least to some extent since the complete sexual intercourse is not the requirement of the offence under Section 376 of IPC. In the instant case, it is the case of the prosecution that the prosecutrix and the accused had sexual intercourse on several occasions during the said period, but it is not the case of a stray incident, of forcible sexual intercourse on the girl, which could be an incomplete one. Further, as could be seen from the evidence of PW5, the Lady-Medical Officer, who examined the prosecutrix with a history of rape on her, it is not elicited 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 rupture of hymen need not occur in all the cases of sexual intercourse, the prosecution has to elicit from the Medical Officer examining the prosecutrix with a history of rape that the hymen was of such a nature as, it could remain intact despite there being intercourse with the girl on several occasions within a period of 15 to 20 days.

16. Learned Counsel for the appellant - accused has relied upon a decision of Bombay High Court in the case of Vishnu S/o Parmeshwar Yadav and Ors. V. State of Maharashtra reported in : 1997 Cri.L.J. 1724. The prosecutrix in the said case was aged about 11 years and there was no evidence on record to corroborate the say of the prosecutrix. Further, the hymen of the prosecutrix was found intact. On those facts, the Bombay High Court held the medical evidence was that the hymen was found intact and there were no signs of external injuries on any part of the body of the prosecutrix suggest that, there could be no sexual intercourse with the prosecutrix.

17. Though it is settled principle that there could be conviction of the accused for the offence under Section 376 IPC solely on the basis of the uncorroborated testimony of the prosecutrix, her testimony should not suffer with any infirmity and it should conclusively suggest the sexual intercourse on her by the accused with or without her consent, having regard to the age of the prosecutrix. Admittedly the prosecutrix herein is less than 14 years of age. Therefore, her consent could be of no relevance if there could be sexual intercourse with her by the accused. On careful reading of the averments in Ex.Pl, which is said to have been recorded by the Woman Police Constable, as narrated by the prosecutrix herself, it could be seen that though she (prosecutrix) is said to have stated that herself and the accused led marital life as married couple and there was intercourse with her by him, she has not stated as to when she was subjected to such intercourse for the first time and on how many occasions she was subjected to same. As could be seen further, from the averments in Ex.Pl, it is clear that the prosecutrix herself fell in love with the accused and she went to the extent of threatening him that if he were not to love and marry her, she would die. Therefore, it is clear that she wanted to marry him at any cost, even without the consent of her parents. It could be seen further from the averments in Ex.P1 that since her parents were thinking of giving her in marriage to some other person, she communicated the same to the accused and compelled him to take her from her house and to marry her. Therefore, having regard to this conduct of the prosecutrix and all other circumstances of the case, the possibility of she stating falsely that there occurred sexual intercourse between herself and the accused so that her parents would agree to give her in marriage to the accused could not be ruled out. She has also admitted in her cross-examination made on behalf of the accused that on one occasion, when the accused had come to the Trial Court during the trial, her parents had requested the accused to marry her.

18. As could be seen from the averments in the said complaint and also the evidence of PW1 prosecutrix, her evidence is totally inconsistent with the said averments. Therefore, I am of the opinion that the evidence of prosecutrix could not have been relied upon by the Trial Court as to the occurrence of sexual intercourse with her by the accused. In this view of the matter, the accused deserves to be acquitted of the offence under Section 376 IPC.

19. Learned High Court Government Pleader contended, in the alternative, that if this Court holds that the prosecution failed to prove that there was sexual intercourse between the accused and the prosecutrix, the facts that are proved against the accused, constitute an offence of kidnapping by the accused inasmuch as, the girl was taken by the accused from out of the lawful guardianship of her parents and therefore, he deserves to be convicted for the offence under Section 363 IPC. In this respect, he further contended that, though charge is not framed against the accused for the offence under Section 363 IPC, since the said offence could be termed as 'minor offence' as compared to the offence under Section 376 IPC, the accused shall have to be convicted for the said offence invoking the provisions of Section 222 Cr.P.C.

20. Section 222(2) Cr.P.C. provides that, when a person is charged with an offence and facts proved, reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it, As to the expression 'minor offence', it would be relevant to refer to the decision of the Hon'ble Supreme Court in the case of Shamnsaheb M. Multtam v. State of Karnataka reported in : AIR 2001 SC 921 Head Note- F and para Nos. 16 & 17. Head Note-F reads as under:

(F) Criminal Procedure Code, 1973 - Section 222(2) - 'Minor offence' - Meaning - Where main ingredients of two cognate offences are common, one punishable with lesser sentence can be said to be minor offence - Ingredients of Section 304-B IPC being different from those of Section 302 PC, the former cannot be regarded as minor offence - Words and Phrases - 'Minor offence' -Interpretation of Statutes - Internal aids;

Further, paras 16 and 17 read as under:

Para 16: What is meant by 'a minor offence' for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis--vis the other offence.

Para 17: The composition of the offence under Section 304-B, I.P.C. is vastly different from the formation of the offence of murder under Section 302, I.P.C. and hence the former cannot be regarded as minor offence vis--vis latter. However, the position would be different when the charge also contains the offence under Section 498-A, I.P.C. (Husband or relative of husband of a women subjecting her to cruelty). As the word 'cruelty' is explained as including inter alia 'harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

21. Following the above observations of the Hon'ble Supreme Court in the said case, I am of the considered opinion that the offence under Section 363 IPC and the one under Section 376 IPC cannot be held to be 'cognate offences' and therefore, the accused herein cannot be convicted for the offence under Section 363 IPC in the absence of charge framed against him for the said offence. Besides this, no material is placed on record by the prosecution through evidence of any of the witnesses examined for it that the accused kidnapped the prosecutrix PW 2, the father of the prosecutrix, who filed the complaint Ex.P3 alleging that he suspected that the accused might have kidnapped the prosecutrix, has turned hostile and has stated in his evidence that he does not know the contents of Ex.P3 complaint. Therefore, the accused cannot be alternatively convicted for the offence under Section 363 IPC as submitted by the learned Government Pleader.

22. The learned High Court Government Pleader also contended that even if the offence under Section 376 IPC is held not made out against, the accused, he can be convicted for the offence under Section 354 IPC. Suffice it to say that this contention also does not deserve acceptance inasmuch as there is no material on record, produced by the prosecution, to show that the accused assaulted or used criminal force at any time on the prosecutrix with intent to outrage her modesty.

23. For the reasons aforesaid, I am of the considered opinion that the Trial Court was not justified in convicting the accused - appellant for the offence under Section 376 IPC. Hence, the following:

ORDER

The present appeal is hereby allowed. The judgment and order of conviction and sentence dated 21st September 2007 passed in Sessions Case No. 75/2006 by the learned Principal Sessions Judge, Chitradurga is hereby set aside. The accused is hereby acquitted of the offence under Section 376 IPC. If the fine amount is already paid by the accused in compliance with the impugned order of sentence, the same shall be refunded to him. The bail bond of the accused - appellant shall stand cancelled.