Venkatesh @ Venkatesh Vs the State of Karnataka

22/27.8.14, PASSED BY THE ADDL.DIST.& SESSIONS JUDGE, CHITRADURGA IN S.C.NO.118/2012CONVICTING THE APPELLANT/ ACCUSED NO.1 & 2 FOR THE OFFICES P/U/S 376(g) AND 506 R/W 34 OF IPC SEC.67(a) OF I.T. ACT 2000.AND APPELLANT/ACCUSED NO.1 & 2 ARE SENTENCED TO SUFFER R.I. FOR 10 YEARS AND TO PAY RS.25,000/- EACH AS COMPENSATION TO THE VICTIM/P.W.1 FOR HAVING COMMITTED THE OFFENCE P/U/S 376(2)(G) R/W 34 OF IPC.2) ACCUSED NO.1 & 2 ARE SENTENCED TO SUFFER R.I. FOR 2 YEARS FOR HAVING COMMITTED THE OFFENCES P/U/S 506 R/W 34 OF IPC.3) ACCUSED NO.1 & 2 ARE SENTENCED TO SUFFER R.I. FOR 3 YEARS AND SHALL PAY RS.10,000/-EACH AS COMPENSATION TO THE VICTIM/P.W.1 FOR HAVING COMMITTED THE OFFENCES P/U/S 67(a) OF I.T. ACT.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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This appeal is by the accused Nos.1 and 2 being aggrieved by

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the judgment of conviction and order on sentence dated 22.08.2014 passed in Special Case No.118/2012 on the file of Additional District and Sessions Judge, Chitradurga (hereinafter referred to as 'trial Court' for brevity) by which the trial Court had passed the following order;

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1) Accused No.1 and 2 are sentenced to suffer rigorous imprisonment for a period of ten years and to pay Rs.25,000/(Twenty five thousand only) each as compensation to the victim/P.W.1 for having committed the offence punishable U/S.376(2)(g) r/w. 34 of IPC.

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2) Accused No.1 and 2 are sentenced to suffer rigorous imprisonment for a period of 2 years for having committed the offence punishable U/S.506 r/w. 34 of IPC.

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3) Accused No.1 and 2 are sentenced to suffer rigorous imprisonment for a period of 3 years and shall pay Rs.10,000/- (Ten thousand only) each as compensation to the victim/P.W.1 for having committed the offence punishable U/S.67(a) of I.T. Act.

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All the sentences shall run concurrently.

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5) Accused No.1 and 2 shall deposit compensation amount in the court within 30 days from today.

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6) If the accused No.1 and 2 failed to deposit the compensation amount within one month from today, the same shall be recovered as per Sec.421 to 423 of Cr.P.C.,

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7) Accused No.1 and 2 are entitle for set off the period of detention during trial U/S.428 of Cr.P.C.,

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Office to issue conviction warrant as per law.

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9) Office to supply a copy of Judgment and order on sentence to the accused No.1 and 2 free of cost forthwith."

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A complaint dated 18.05.2012 came to be filed by victim

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alleging that on 18.05.2012, when she was grazing sheep near her village at about 01.00 p.m., accused Nos.1 and 2 were also grazing their sheep. While the victim was resting under the shade of a tree, accused No.1 had called her. When she refused, both accused Nos.1 and 2 had forcibly taken her by holding her hand and put her down on the ground, accused No.1 sat on her chest, while accused No.2 had undressed her and had assaulted her on her left thigh with the stone lying by

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the side. After the assault, she had come home and had informed about the incident to her aunt namely, Tippamma. That since her mother was not in town, she took some time to give the complaint.

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That upon the said complaint, jurisdictional police registered the case in Crime No.76/2012 for the offences punishable under Sections 324, 354 r/w Section 34 of IPC. Further statement of the victim was recorded on 19.05.2012 wherein the victim had further stated that said accused Nos.1 and 2 despite resistance by her, had forcibly sexually assaulted her and also threatened her with dire consequences that if she revealed the incident to anyone. As such, being under threat, she did not reveal the said incident in the earlier complaint. Based on the said further statement, additional Sections 376, 506 of IPC were added.

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That jurisdictional police conducted the investigation and filed a charge sheet for the aforesaid offences. The charges were framed. The accused pleaded not guilty. As such evidence were recorded. The prosecution had examined 15 witnesses marked as PW.1 to PW.15 and exhibited 16 documents marked

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as Ex.P1 to Ex.P16, 13 material objects were marked as MO.1

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to MO.13. No evidence is led on behalf of the accused.

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Trial Court framed following points for its consideration;

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"1) Whether prosecution proves beyond reasonable doubt that, on 18.05.2012 at 1 p.m., at Chikkagondanahally village, Chitradurga Taluk in the land belonging to Borappa S/o. Bajji Rudrappa when P.W.1 grazing sheep, accused No.1 and 2 with common intention dragged, made her to lay, then consecutively raped her, thereby committed an offence punishable U/S.376(g) r/w. 34 of IPC?

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2) Whether prosecution proves beyond reasonable doubt that, on the above said date, time and place when P.W.1 grazing sheep, accused No.1 and 2 with common intention dragged, made her to lay, then consecutively raped her, threatened to kill if thereby she disclosed the incident to others, committed an offence punishable U/S.506 r/w. 34 of IPC?

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3) Whether prosecution proves beyond reasonable doubt that, on the above said date, time and place when P.W.1 grazing sheep, accused No.1 and 2 with common intention dragged, made her to lay, then consecutively raped her, recorded the incident in the mobile, transferred to C.D., published in the village, thereby committed an offence punishable U/S.67, 67(a), 67(b) of I.T. Act, 2000 r/w. 34 of IPC?"

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On appreciation of evidence answered point Nos. 1 and 2 in the affirmative. Point No.3 in partly affirmative. Consequently, passed the conviction order as noted above.

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Being aggrieved by the same, accused Nos. 1 and 2 are before this Court.

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Learned counsel appearing for the appellants submitted

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that there are glaring omissions and contradictions in the case of the prosecution. While in the complaint dated 18.05.2012 there is no whisper about accused committing forcible sexual intercourse, the same has been added in the subsequent statement recorded on the day subsequent to the filing of the complaint i.e., on 19.05.2012. Thus, there is an improvement in the version of the prosecution. The omission and the contradiction have not been explained by the prosecution. Victim who has been examined as PW1 herself has admitted of she not mentioning about forcible sexual intercourse in her first complaint dated 18.05.2012.

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8.1. Referring to the depositions of doctors who have been examined as PW5 and PW7, counsel for the appellants submitted that PW5 has deposed that there was no history of recent sexual intercourse i.e. within 24 hours. Thus, the medical evidence has not supported the allegation of victim being subjected to forceful sexual intercourse. Therefore, he

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submitted that prosecution has failed to make out a case punishable under Section 376 of IPC.

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8.2. that panch witnesses- PWs.9 and 10 have not supported

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the case of prosecution. The prosecution has not proved the case beyond reasonable doubt with regard to seizure of mobile and the SIM cards.

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8.3. that the Investigating Officer has submitted that he has not investigated as to whom does the mobile in question belong and that he has also not investigated as to whom does the sim card belong.

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8.4. that though the trial Court seemed to have played the compact disc (CD) in the open Court, in the presence of the counsel for the appellants and victim the same ought not to have been relied upon as no certificate required under Section 65B of the Indian Evidence Act, 1872 has been produced.

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8.5. The accused No. 2 has not been subjected to potency test. No voluntary statement of the accused No.2 has been recorded. Therefore, there is no basis on which the prosecution claims to have seized the mobile containing record of the act

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allegedly committed by accused Nos. 1 and 2 on the victim. No material is placed as to commission of offence by accused No.1.

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8.6. That since the victim is major on the date of the incident,

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there is no reason or justification for her not to mention about the commission of forcible sexual intercourse on her by the accused Nos. 1 and 2. At the most, the case could be one falling under the provisions of Section 354 of IPC and not under Section 376 of IPC.

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8.7. that the accused persons have already undergone incarceration of 7^1/ 2 years considering they not having any criminal antecedents, alternatively the sentence imposed on them be reduced.

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8.8. He refers to provisions of Section 376(2)(g) of IPC as stood prior to the amendment and submitted that there are sufficient reasons available for reduction of the sentence even below the minimum period. Hence seeks for allowing of the appeal.

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Learned HCGP on the other hand justifying the judgment of conviction and order on sentence passed by the trial Court submitted that PW.1 has withstood the test of crossexamination. Her evidence is unshakable and there is nothing on record to point out her testimony which cannot be believed.

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9.1. that she has given explanation for not mentioning about she being subjected to forcible sexual intercourse by accused Nos.1 and 2 in her complaint at Ex.P4 and same has not been rebutted or controverted.

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9.2. that the medical evidence in the nature of depositions of PW5 and PW7 who had examined the victim also stands corroborated of she having subjected to forcible sexual intercourse and she having suffered injuries all over her body. That there are no special circumstances warranting reduction of sentence. Therefore, seeks for dismissal of the appeal.

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Heard. Perused the records.

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Complaint in Ex.P4 dated 18.05.2012 filed by the victim

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at 10.30 p.m. on the date of incident reads as under;

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ತುರುವನೂರು ��ೕ� �ಾ�ೆಯ ಸ�-ಇ��ೆಕ�� ರವರ ಸ��ಾನ�ೆ�

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Mೇ0ದ;Eಂದ ಈ >ನ ತಡ\ಾU ಬಂದು ನನ� 8ೕ^ೆ ಅಸಭN\ಾU ವI(k, Cಾ<ಂದ ಕ-f, ಕ��ಂದ MೊXೆದು +ೋವiಂಟು @ಾAದ 8ೕಲ�ಂಡ \ೆಂಕಟ ಮತುB ಮಂಜ ಇವರುಗಳ 9ರುದm �ಾನೂನು EೕI ಕ2ಮ ಜರುUk ಎಂ4ಾ ಈ ನನ� ದೂರು �ೕಡುIB#ೆ;ೕ+ೆ .

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¢£ÁAP À : 18.05.2012 v À ªÄä «zs À É ÃAiÄ À ¸ À »/- (PÆ®èª É Ää) À

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¸ À Ü¼ À : aP À ÌU É ÆAq À £ À º À ½î UÁ æ ª À Ä

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¢£ÁAP À 18.05.2012 g À Az À Ä 10.30 ¦.JA.U É ¦gÁå¢ oÁu É U É ºÁdgÁV PÆlÖ º É É Ã½P É z À Æg À £ À Äß ¹éÃP À j¹P É ÆAq À Ä oÁuÁ ª É Æ.£ À A.76/2012 P À ®A 324, 354 g É /« L.¦.¹. jÃvå À ¥ Àæ P À g À t £ É ÆÃAzÁ¬Ä¹P É ÆArg À Äv É ÛÃ£ É . ¸ À »/-

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A further statement of the victim was recorded on 19.05.2012 at about 08.30 a.m. No doubt there is no mention

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of victim being subjected to forcible sexual intercourse by accused Nos. 1 and 2 in her complaint given as per Ex.P4. Her explanation for not mentioning the same as found in the further statement marked as Ex.P5, appears to be natural. There is no delay in filing of the complaint and the further statement. The accused persons are admittedly related to the victim. Though an attempt is made in the cross-examination to bring on record certain animosity between maternal uncle of the victim and the accused No.1, the same has remained just an attempt. Victim

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has been cross-examined on four occasions by the accused persons. Nothing has been elicited to discredit her version of

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she having been subjected to physical assault and forcible

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sexual intercourse by accused Nos. 1 and 2.

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PW7 had examined the victim on 19.05.2012 at about

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12.30 p.m. He had found the following injuries on the body of the victim.

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4. Upon examination I found following;

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1. Love bite Marks over left breast over upper and outer quadrant

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2. Bite marks present over left cheek

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3. Abrasion marks present near right elbow about 2 X 3 cms in size.

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4. Abrasion marks present over left shoulder about 2 X 3 cms in size.

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5. Contusion marks present over left thigh about 1 X2 cms in size.

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5. I am of the opinion that, the above mentioned injuries are simple in nature and caused by hard and blunt object. Accordingly, I issued Wound Certificate as per Ex.P.6 and my signature is at Ex.P.6(a).

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6. When I have examined the PW-1, it appeared that there was forceful sexual assault on PW-1.

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7. I also found that, there is alleged history of rape and assault and instruments are not available for collection of sample in case of history of rape and also there was no gynecologist available in our hospital accordingly, PW-1 was referred with help of police for higher Centre, for further examination. In our hospital, a Lady Medical Officer is unauthorized absent for about three years, therefore, services of such Lady medical Officer is not available, accordingly, 1 referred for higher Centre".

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He had also issued a wound certificate as per Ex.P6 with

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his signature identified as Ex.P6(a). The said witness has deposed that on his examination he found that victim appeared to have been subjected to forceful sexual assault. He has referred victim-PW1 to the higher centre with the police's help for further examination, as there was no lady medical officer available in his hospital. That in the cross-examination said witness has reiterated the injuries sustained by victim as per Ex.P6.

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The said witness has deposed in paragraphs 10, 11, 13 and 14 of his cross examination reads as under;

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"10. Love bite mark means it is a bite gently on the body. It is not true to suggest that, Love bite mark occurs only when consent is there and there is no forceful act. Witness voluntarily states, love bite mark also present in forceful act. If there is a forceful act of biting, then there may be chances of skin laceration. It is true to suggest that, in Ex.P.6 certificate it is not mentioned there is skin laceration. It is not true to suggest that, PW-1 was not brought before me by HC116-Shashidhar for medical examination.

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11. It is true to suggest that, if a person falls on crushed stones, then there may be chances of occurring the Abrasion and Contusion injuries what are mentioned at Sl.No.3. to 5 injuries above stated in Ex.P.6. It is true to suggest that, if a child bites then there may chances of occurring love bite marks what is stated at Sl.No.1 injury mentioned in Ex.P.6 certificate.

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12. Dr.R.V.Soumya is a Lady Medical Officer, who is unauthorisedly absent for over three years.

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13. It is not true to suggest that, when PW-1 was brought before me she was in cheerful mood. Witness voluntarily states the PW-1 was under mental shock when she was brought before me. I have no mentioned in Ex.P.6 Wound certificate that, when PW-1 was brought before me, she was under mental shock.

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14. It is true to suggest that, if there is a rape on woman then there may be many nail marks, clothes are torn and hairs are scattered position and face looks like ugly. I have noticed PW-1 that, her hairs were scattered and biting marks and injuries stated above."

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Thus, nothing is elicited from this witness to discredit his

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version of he examining PW1 and finding injuries. Also, victim

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having been subjected to sexual assault.

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Similarly, the evidence of PW5, who on examination of

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victim on 19.5.2012 at 7.15 p.m. has found the following

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external injuries on the body of PW1;

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6. Upon examination, I found following external injuries on the body of PW-1;

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1. Contusion of 3 X 3 cms, bluish in colour present over the back of left side of head.

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2. Contusion of 4 x 4 cms is present over the front of upper part of right arm.

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3. Abrasion of 5 X 2.5 cms (teeth bite mark) is present over the upper part of front of left breast.

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4. Linear Abrasions four in numbers of varying sizes from 5 cms X 0.1 cms to 1 cms X 0.5 cms is present over the front of right elbow.

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5. Abrasion of 4 X 4 cms is present over the back of left side of chest 5 cms below the top of shoulder and 13 cms from the midline.

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6. Contusion, blue in colour of 3 X 4 cms present over the front of left thigh.

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At para 10, the said witness has stated that the injuries found on the body of the victim was "due to forceful act without her consent".

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Though, learned counsel for the appellants referring to deposition of the said witness found at para 16, wherein she has stated that, “recent sexual intercourse has not been taken place means it is not within 24 hours from the time of my examination”, submitted that the said evidence does not support the case of prosecution, it is necessary to note that the alleged incident had taken place around 01.00 p.m. on 18.05.2012, whereas PW5 examined PW1 at 07.15 p.m. on 19.05.2012.

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Her opinion of victim not having been subjected to sexual intercourse before 24 hours has been clarified at para 16 of her deposition which reads as under;

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"16. After receipt of Report from FSL., Davanagere, the Police have requested me to give opinion report, accordingly, I issued my opinion report as per Ex.P.2 and my signature is at Ex.P.2(a). Now I see FSL report which is

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marked as Ex.P.3. I am of the opinion that, recent sexual intercourse has not taken place. Recent sexual intercourse has not been taken place means it is not within 24 hours from the time of my examination. Because Hymen is ruptured and admits 2 fingers in vagina it means there was sexual intercourse taken place on previous occasion."

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Further at para 20, while answering the cross-

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examination, the said witness is stated as under;

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"20. The PW-1 was brought before me after 24 hours from time of alleged incident. Chikkagondanahlly is 10 kms away from Chitradurga town. From Chikkagondanahally to Chitradurga there are plenty of buses and other vehicles are plying."

¶161

The said witness has also deposed that victim was under state of nervousness when she was brought for her examination. At para 23, the said witness has stated as under;

¶162

"23. At the time of my examination of PW-1 by inserting two fingers she was feeling pain. It is true to suggest that, if there is repeated sexual intercourse then there might be chances of inserting two fingers easily without pain. If there is a rape then there may be of chances of biting marks found on various parts of body."

¶163

If the deposition of PW1 read in the light of deposition of PW5 and PW7 as noted above, it makes it clear that prosecution has established the case of the victim having subject to physical assault and forcible sexual intercourse beyond reasonable doubt. Merely because she has not stated

¶164

the same in her first complaint which was made at 10.30 p.m.

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on 18.05.2012 and added in her further statement on 08.30

¶169

a.m. of 19.05.2012 cannot be a case to take away the core of the prosecution, when the victim has withstood the test of cross-examination.

¶170

The Hon'ble Apex Court in the case of GANESAN VS. STATE REP. BY ITS INSPECTOR OF POLICE reported in (2020) 10 SCC 573 , at paragraph 10 has held as under:

¶171

'' 10. In the present case, the appellant-accused has been convicted by the learned trial court for the offence under Section 7, punishable under Section 8 of the POCSO Act. We have gone through the entire judgment passed by the learned trial court as well as the relevant evidence on record, more particularly the deposition of PW 1 father of the victim, PW 2 mother of the victim and PW 3 victim herself. It is true that PW 2 mother of the victim has turned hostile. However, PW 3 victim has fully supported the case of the prosecution. She has narrated in detail how the incident has taken place. She has been thoroughly and fully cross-examined. We do not see any good reason not to rely upon the deposition of PW 3 victim. PW 3 aged 15 years at the time of deposition is a matured one. She is trustworthy and reliable. As per the settled proposition of law, even there can be a conviction based on the sole testimony of the victim, however, she must be found to be reliable and trustworthy.

¶172

10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639] , it is observed in paras 9 to 14 as under : (SCC pp. 195-98)

¶173

“9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 : 1990 SCC (Cri) 210] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same

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amount of suspicion as that of an accomplice. The Court observed as under : (SCC p. 559, para 16)

¶178

‘16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.’

¶179

10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594 : 2005 SCC (Cri) 780] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under : (SCC p. 597, para 12)

¶180

‘12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after

¶181

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the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.’

¶185

11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under : (SCC pp. 394-96 & 403, paras 8 & 21)

¶186

‘8. … The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. … The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable

¶187

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prosecution case. … Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. … Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. …

¶191

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¶192

21. … The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.’

¶193

(emphasis in original)

¶194

12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86 : 2003 SCC (Cri) 1080] , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, nonexamination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

¶195

13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 : 1993 SCC (Cri) 674] this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9 : (2010) 1 SCC (Cri) 1208] placing reliance on an earlier judgment in Rameshwar v. State of

¶196

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Rajasthan [Rameshwar v. State of Rajasthan, 1951 SCC 1213 : AIR 1952 SC 54] .

¶200

14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.”

¶201

10.2. In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

¶202

10.3. Who can be said to be a “sterling witness”, has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi) [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750] . In para 22, it is observed and held as under : (SCC p. 29)

¶203

“22. In our considered opinion, the “sterling witness” should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a

¶204

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witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a “sterling witness” whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.”

¶208

Similarly, in the case of MUKESH VS. STATE OF

¶209

CHATTISGARH reported in (2014) 10 SCC 337 at paragraph

¶210

15 has held as under;

¶211

"15. Further, as has been repeatedly held by this Court in a catena of cases, the sole testimony of the witness ( sic prosecutrix) is sufficient to establish the commission of rape even in the absence of corroborative evidence. Reliance has been placed on the decision of this Court in Mohd. Iqbal v. State of Jharkhand [(2013) 14 SCC 481 : (2014) 4 SCC (Cri) 271] , which states as under: (SCC p. 485, paras 17-19)

¶212

“ 17 . There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses.

¶213

18 . In Narender Kumar v. State (NCT of Delhi) [(2012) 7 SCC 171] this Court has observed that even if a woman is of easy virtues or used to sexual intercourse, it cannot be a licence for any person to commit rape and it further held: (SCC p. 180, paras 30-31)

¶214

‘ 30 . … conviction can be based on sole testimony of the prosecutrix provided it lends assurance to her testimony. However, in case the court has reason not to accept the version of the prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix's case becomes liable to be rejected.

¶215

31 . The court must act with sensitivity and appreciate the evidence in totality of the background of the entire case

¶216

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and not in the isolation. Even if the prosecutrix is of easy virtues/unchaste woman that itself cannot be a determinative factor and the court is required to adjudicate whether the accused committed rape on the victim on the occasion complained of.’

¶220

***

¶221

19 . In the statements of the appellant-accused under Section 313 Cr.PC, only a bald statement had been made by both the appellant-accused that they were innocent. No explanation had been furnished by either of them as to why the prosecutrix had deposed against them and involved them in such a heinous crime.”

¶222

In the very same judgment at paragraphs 21, 22 and 23

¶223

the Apex Court dealing with delay in lodging the FIR has held as under;

¶224

"21. Further, the delay in lodging the FIR has been well explained by the prosecution and thus, it cannot be considered a ground for acquittal of the accused. It is clear from the facts and circumstances of the case that the prosecutrix, being a married lady, could not have lodged the FIR on her own, especially in case of Indian circumstances. As stated in the facts on record, her husband was not in the village and returned on the following evening of the incident. Further, the incidence had occurred late in the night and there was no elder person of the family present to go to the police station and lodge the complaint regarding the incident. Hence, it is natural for her to wait for her husband to return. This fact is verified by the statements of PW 11 and PW 2. Further, the distance of the police station from the place of residence is shown to be 20 km. Thus, the conduct of the prosecutrix and the witnesses was natural and logical and the accused cannot get the benefit of delay in the filing of complaint.

¶225

22. In this regard reliance has been placed on the decision of this Court in Sri Narayan Saha v. State of Tripura [(2004) 7 SCC 775 : 2005 SCC (Cri) 410] , which states as under: (SCC pp. 777 & 778, paras 5 & 10)

¶226

“ 5 . We wish to first deal with the plea relating to the delayed lodging of the FIR. As held in a large number of cases, mere delay in lodging the FIR is really of no consequence, if the reason is explained. In the instant case,

¶227

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the evidence of PW 3, the victim and that of her husband, PW 4, clearly shows that there was initial reluctance to report the matter to the police by PW 4. He, in fact, had taken his wife to task for the incident and had slapped her. In Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977 : 1995 Supp (2) SCR 629] it was observed that a woman who was a victim of sexual violence, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of a culprit . Therefore, the rule of prudence that her evidence must be corroborated in material particulars, has no application. At the most, the court may look for some evidence which lends assurance.

¶231

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¶232

10 . There was no reason as to why a woman, more particularly a married woman, would falsely implicate the two accused persons. Minor discrepancies in the testimony of PWs 3 and 4 were sought to be highlighted. Taking into account the fact that the evidence was recorded in court after about seven years of the occurrence, these have been rightly held to be of no consequence by both the trial court and the High Court.”

¶233

(emphasis supplied)

¶234

23. Further, in State of Rajasthan v. N.K. [(2000) 5 SCC 30 : 2000 SCC (Cri) 898] , this Court has held as under: (SCC pp. 40-41, paras 14-17)

¶235

“ 14 . It is true that the incident dated 1-10-1993 was reported to the police on 5-10-1993. The prosecutrix was a married woman. Her muklana ceremony had not taken place. Muklana ceremony is a rural custom prevalent in Rajasthan, whereunder the bride is left with the parents after marriage having been performed and is taken away by the husband and/or the in-laws to live with them only after a lapse of time. The origin of the custom owes its existence to performance of child marriages which are widely prevalent there. The muklana was yet to take place. The prosecutrix was a virgin prior to the commission of the crime and this fact finds support from the medical evidence. The parents of such a prosecutrix would obviously be chary to such an incident gaining publicity because it would have serious implications for the reputation of the family and also on the married life of the victim. The husband and the in-laws having become aware of the incident may even refuse to carry the girl to reside with them. The incident if publicised may have been an end to the marriage of the prosecutrix. Added to this is the communal tinge which was sought to be given by the community of the accused. PW 10, the father of the prosecutrix, the prosecutrix, PW 2 and other witnesses have

¶236

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stated that while they were about to move to the police station they were prevented from doing so by the community fellows of the accused who persuaded them not to lodge a report with the police and instead to have the matter settled by convening a panchayat of the village people. After all the family of the victim had to live in the village in spite of the incident having taken place. The explanation is not an afterthought. An indication thereof is to be found in the FIR itself where the complainant has stated — ‘the delay in lodging the report is due to village panchayat, insult and social disrepute’. Nothing has been brought out in the crossexamination of the witnesses to doubt the truth and reasonableness of the explanation so offered.

¶240

15 . We may however state that a mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the court it cannot be counted against the prosecution. In State of Rajasthan v. Narayan [(1992) 3 SCC 615 : 1992 SCC (Cri) 781] this Court observed: (SCC p. 623, para 6)

¶241

‘ 6 . … True it is that the complaint was lodged two days later but as stated earlier Indian society being what it is the victims of such a crime ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a married woman. A woman and her relatives have to struggle with several situations before deciding to approach the police…. ’

¶242

16 . In State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] this Court has held: (SCC p. 394, para 8)

¶243

‘ 8 . … The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged.’

¶244

17 . So are the observations made by this Court in Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977 : 1995 Supp (2) SCR 629] repelling the defence contention based on delay in lodging the FIR. In the present case, in our opinion the delay in lodging the FIR has been satisfactorily explained.”

¶245

(emphasis supplied)

¶246

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¶249

In the light of the aforesaid evidence of PW1, PW5 and PW7, this Court could not find any irregularity in the judgment of conviction passed against appellants for the offence punishable under Section 376 of IPC.

¶250

As regards to judgment on order of sentence passed against accused Nos.1 and 2, for they having committed offences punishable under Sections 67, 67A, 67B of the Information and Technology Act, 2000 is concerned, as rightly pointed out by learned counsel for the appellants, PW15, the Investigation Officer, in paragraph 28 of his deposition has stated as under;

¶251

"28. ಪಂಚE.ೆ +ಾನು +ೋnೕಸು �ೊಟು� ಕ7ೆkರ�ಲ�. ಮು.@ಾ.7-oCೈದ��ರುವ kp OಾE.ೆ ಸಂಬಂಧಪn�ದು; ಎಂದು ತ�rೆ @ಾAಲ�. oCೈದ��ರುವ kp ನಂಬ� Oಾರದು; ಎಂದು +ಾನು ದೃಢಪAk�ೊಂAಲ�. 1+ೇ ಆ7ೋu ಮ+ೆ.ೆ MೋUರುವi>ಲ� ಮತುB ಅ�� oCೈ ಮತುB kAಯನು� ಜuB @ಾA�ೊಂAರುವi>ಲ� ಎಂದ7ೆ ಸEಯಲ�, �ಾ2aಾ.1-ಇವರು ಕ� **�** ಂದ MೊXೆ>#ಾ;7ೆ ಎಂದು Mೇ0ದು; ಆ ಕಲ�ನು� ಜuB @ಾA�ೊಂAಲ�. o�ೆvನು� ಹುಡು�ಾAದರೂ kಗ�ಲ� �ಾರಣ ಜuB @ಾA�ೊಳ1ಲು ಆಗ�ಲ�. ಮು#ೆ;@ಾಲುಗಳನು� ಜuB @ಾA�ೊಂಡ ನಂತರ �ಾNw @ಾA ನಂತರ ಅದರ 8ೕ^ೆ ಪಂಚರ ಸd @ಾAk�ೊಂA#ೆ;ೕ+ೆ ಮತುB kೕಲು Mಾe#ೆ;ೕ+ೆ . ಮು.@ಾ.1 Eಂದ 5 ಬWೆ�ಗಳh Xಾಕ�� 4ೆ.ೆದು�ೊಂಡು ನಮ.ೆ ಕಳhdk�ೊn�#ಾ;7ೆ dೕ.ಾU +ಾನು ಅವiಗಳ 8ೕ^ೆ ಸd ಪXೆದು�ೊಳ1^ಾಗ�ಲ�. ಎxಎ�ಎ ಕyೇE.ೆ ಮು#ೆ;@ಾಲುಗಳನು� >ಃ12.07.2012ರಂದು ಕಳhdk�ೊn�#ೆ;ೕ\ೆ . ಎxಎ�ಎ` ಕyೇEಯವರು ಗಂಗಯN, A\ೈಎ�u ಇವE.ೆ ವರ> ಬ7ೆ>#ಾ;7ೆ . �ಯ@ಾವ0ಗಳ ಪ2�ಾರ A\ೈಎ�u ದ{ೆ(ಯ

¶252

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ಅT�ಾE.ೆ ಪತ2 ಬ7ೆಯುವ ಕ2ಮ ಇರುವiದEಂದ ಅವE.ೆ ವರ> �ೊn�#ಾ;7ೆ . dೕ.ಾU ಅವರನು� aಾ|#ಾರರ+ಾ�U @ಾAರುವi>ಲ�."

¶256

Panch witnesses PW9 and PW10 have not supported the case of prosecution with regard to drawing up of Ex.P8/Mahazar. Admittedly, the prosecution has not produced certificate under Section 65B(4) of the Indian Evidence Act, 1872. PW1, during her evidence though has claimed that the act was recorded, but has pleaded ignorance about she having seen the contents of the said video. But has stated that her mother and aunt had seen. No witness in this regard has been examined by prosecution. The submission of the counsel for the appellants in this regard appears to be acceptable. Therefore, the judgment of conviction and order on sentence passed under Section 67A of the Information and Technology Act, 2000 cannot be sustained.

¶257

As regards the purported omission and contradiction in

¶258

the case of prosecution is concerned, the omission and the contradictions have not been brought on record by the defence in the manner known to law.

¶259

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¶262

Appropriate to refer to judgment of the Apex Court in the case of MUNNA PANDEY VS. STATE OF BIHAR reported in (2024) 18 SCC 728 wherein, dealing with provisions of Sections 161, 162 Cr.PC as well as Section 145 of the Indian Evidence Act, 1872 with regard to requirement of confrontation to the witness of his earlier statement, at paragraphs 57 and 58 as held has under;

¶263

"57. In the aforesaid context, we may refer to and rely on a three-Judge Bench decision in V.K. Mishra v. State of Uttarakhand [ V.K. Mishra v. State of Uttarakhand , (2015) 9 SCC 588 : (2015) 4 SCC (Cri) 1] , wherein this Court, after due consideration of Section 161 CrPC and Section 145 of the Evidence Act, observed as under: (SCC pp. 599-600, paras 16-19)

¶264

“ 16 . Section 162 Cr.PC bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.PC can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) Cr.PC. The statements under Section 161 Cr.PC recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: ( i ) of contradicting such witness by an accused under Section 145 of the Evidence Act; ( ii ) the contradiction of such witness also by the prosecution but with the leave of the Court; and ( iii ) the reexamination of the witness if necessary.

¶265

17 . The court cannot suo motu make use of statements to police not proved and ask questions with reference to them which are inconsistent with the testimony of the witness in the court. The words in Section 162CrPC “if duly proved” clearly show that the record of the statement of witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be duly proved for the purpose of contradiction by eliciting admission from the witness during cross-examination and also during the cross-examination of the investigating officer. The statement before the investigating officer can be used for contradiction but only

¶266

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after strict compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction .

¶270

18 . Section 145 of the Evidence Act reads as under:

¶271

‘ 145. Cross-examination as to previous statements in writing .—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.’

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19 . Under Section 145 of the Evidence Act when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his crossexamination. The attention of witness is drawn to that part and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and there is no need to further proof of contradiction and it will be read while appreciating the evidence. If he denies having made that part of the statement, his attention must be drawn to that statement and must be mentioned in the deposition. By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter when investigating officer is examined in the court, his attention should be drawn to the passage marked for the purpose of contradiction, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. If the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act, that is, by drawing attention to the parts intended for contradiction .”

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(emphasis supplied)

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30 -

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NC: 2026:KHC:17925 CRL.A No. 869 of 2014

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HC-KAR

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58. What is important to note in the aforesaid decision of this Court in V.K. Mishra case [ V.K. Mishra v. State of Uttarakhand , (2015) 9 SCC 588 : (2015) 4 SCC (Cri) 1] is the principle of law that if the witness was not confronted with that part of the statement with which the defence wanted to contradict him, then the court cannot suo motu make use of statements to police not proved in compliance with Section 145 of the Evidence Act. Therefore, it is of utmost importance to prove all major contradictions in the form of material omissions in accordance with the procedure as established under Section 145 of the Evidence Act and bring them on record. It is the duty of the defence counsel to do so.

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The Apex Court in the case of ARJUN PANDITRAO KHOTKAR VS. KAILASH KUSHANRAO GORANTYAL AND

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OTHERS reported in (2020) 7 SCC 1 at para 25 has held as

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under;

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25. Under sub-section (4), a certificate is to be produced that identifies the electronic record containing the statement and describes the manner in which it is produced, or gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer, by either a person occupying a responsible official position in relation to the operation of the relevant device; or a person who is in the management of “relevant activities” — whichever is appropriate. What is also of importance is that it shall be sufficient for such matter to be stated to the “best of the knowledge and belief of the person stating it”. Here, “doing any of the following things …” must be read as doing all of the following things, it being well settled that the expression “any” can mean “all” given the context ( see , for example, this Court's judgments in Banwarilal Agarwalla v. State of Bihar and Om Prakash v. Union of India). This being the case, the conditions mentioned in Section 65-B(4) must also be interpreted as being cumulative."

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31 - NC: 2026:KHC:17925 CRL.A No. 869 of 2014

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HC-KAR

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Thus, there has been no compliance for the requirement

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of production of certificate under Section 65(b) (4) of the Indian Evidence Act. In the light of prosecution failing to prove and establish the allegation of commission of offence by the accused persons for the offence punishable under Section 67A of Information Technology Act, this Court is of the considered view that the appellants have made out a case for setting aside of the judgment of conviction and order of sentence to the extent offence punishable under Section 67A of the Information and Technology Act, 2000.

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34. Accordingly, the following;

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ORDER

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i. Appeal is partly allowed.

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ii. Judgment of conviction and order on sentence to the extent directing accused Nos.1 and 2 to suffer rigorous imprisonment for a period of 3 years and to pay fine amount of Rs.10,000/- as compensation to the victim -PW1 for the offence punishable under Section 67A of the Information and Technology Act,

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32 -

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NC: 2026:KHC:17925 CRL.A No. 869 of 2014

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HC-KAR

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2000 is set aside and they are acquitted of the said offence.

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iii. Judgment and conviction and order on sentence for the offences punishable under Section 376(2)(g) and 506 r/w Section 34 IPC are confirmed and the detention undergone shall be set off against the order of sentence.

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Sd/(M.G.S. KAMAL) JUDGE

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RU, List No.: 1 Sl No.: 31

Venkatesh @ Venkatesh v. the State of Karnataka

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Venkatesh @ Venkatesh v. the State of Karnataka

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