B.C. DEV A@ DYAVA v. STATE OF KARNATAKA

Citation: [2007] 8 S.C.R. 509

Court: Supreme Court of India

Bench: R.V. RAVEENDRAN, LOKESHWAR SINGH PANTA

Case summary

B.C. DEV A@ DYAVA v. STATE OF KARNATAKA.pdf

Judgment text

B. C. DEVA@ DYAVA f '"" v. STATE OF KARNATAKA JULY 25, 2007 [R. V. RAVEENDRAN AND LOKESHWAR SINGH PANTA, JJ. ] ,.... Penal Code, 1860-Section 376--Commission of sexual assault on prosecutrix by accused~Conviction under-Upheld by High Court- Interference with-Held: Courts below recorded finding ofguilt ofaccused on basis ofproper appreciation of evidence-There were no plausible and justifiable reasons to discard the testimony of prosecutrix, a trust-worthy witne$s-Entire incident stated in the complaint was corroborated by oral testimony ofprosecutrix, her parents and independent witnesses-Also absence of any corroboration of medical evidence would not belie the prosecution case-Thus, order of courts below upheld - her testimony.

The prosecutrix is a trust-worthy witness and her evidence cannot be brushed aside on the flimsy plea raised by the accused that a false case was lodged against him because ofenmity between his family members and the prosecutrix's family and that the prosecutrix was a consenting party to the sexual intercourse as she did not make any attempt to resist the accused from committing the offence nor the doctors noticed any mark of injury on any part of her body. [Para 10, 11, 12) (515-E; 514-G-H; 515-8) 2. 2. The proseuctrix gave graphic narration of the occurrence in 't complaint lodged against the accused. The name ofthe accused, who was also working as a Mistry in the same Coffee Estate where the prosecutrix and her parents besides PWs-4, 5 and other persons _were working has been categorically mentioned as an offender of the crime.

Thus, the entire incident narrated in the complaint stands corroborated by the oral testimony of the prosecutrix, her mother, her father and the independent witnesses. (Para 13) (516-C-D) 2. 3. The plea that no marks of injuries were found either on the person ofthe accused. or the person of the prosecutrix, does not lead to any inference )_-,. that the accused has not committed forcible sexual intercourse on the prosecutrix. Though, the report of the Gynaecologist pertaining to the medical examin~tion of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence ofany corroboration of medical evidence,. the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted.

Though, the FSL Report pertaining to the undergarments ofthe accused and the victim did not contain any seminal stains, yet the said report cannot be given any importance because the underwear of the accused was taken into possession by the police on the next day of the incident when he was arrested. There is no evidence brought on record to show that the accused handed over the same underwear to the \ 8. C. DEVA@DYAVAv. STATEOFKARNATAKA[LOKESHWARSINGHPANTA,J. ] 511 . I - byjumping into the water tank and eventually she was rescued from drowning ---. ' by PW-4 Shashappa, PW-5 Yashodhara, Babu and Vishwanath. It is the evidence of PW-4 that in the afternoon of the day of incident when he was "-/ working in the pump house near the water tank, he heard slight sound of ~ somebody falling into the tank. He along with Babu, Vishwanath and PW-5 ~-, ' ' Yashodhara immediately rushed to the water tank and noticed the prosecutrix >- .. drowning in the water.

He stated that the prosecutrix was pulled out of the I water tank by them and when he asked her about the cause of her committing suicide, the prosecutrix disclosed that she was forcibly raped by the accused in the afternoon on the day of occurrence. This witness was cross-examined at length, but nothing could be elicited from his evidence to establish that the witness has given evidence to implicate the accused in a false ~ase or the witness is, in any way, related to the prosecutrix and therefore, tried_ to help her. Yashodara (PW-5) has testified and corroborated the testim~ri{~f-the prosecutrix and PW-4 in its entirety. The proseuctrix has given graphi~··n~rration ofthe occurrence in complaint Ex. P-2 lodged against the accused at 7. 00 p. m. in the Police Station. The name of the accused, who was also working as a Mistry in the same Coffee Estate where the prosecutrix and her parents (PWs- 2 and 13), besides PWs-4, 5 and other persons were working has been ..

\ categorically mentioned as an offender ofthe crime. Thus, the entire incident narrated in the complaint (Ex:P-2) stands corroborated by the oral testimony of the prosecutrix, her mother (PW-3), her father (PW-13) and independent rwitnesses (PWs-4 and 5). The plea that no marks of injuries were found either ;-on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though, the report of the Gynaecologist pertaining to the medical examination of the prosecutrix does not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted. Though, the FSL. Report marked as Ex.

C-1 pertaining to the undergarments of the accused and the victim did not contain any seminal stains, yet the said report cannot be given any importance because the underwear of the accused was taken into possession by the police on the next day of the incident when he was arrested. There is no evidence brought on record to show that the accused handed over the same under wear to the police, which he was wearing on the day of incident or he had handed over some other underwear which was seized under mahazer (Ex. P-5) by the police. The possibility of absence of seminal stains on petticoat of the prosecutrix which she was wearing at the time of the incident, could not be ruled out due to the fact that the petticoat got drenched in the water and the seminal stains might have been washed away. 14. The Trial Court as well as the High Court have recorded the finding of guilt of the accused based upon proper appreciation of the evidence led by the prosecution in this case.

In view of the aforesaid discussion, we qo A not find any justified and justifiable ground to interfere with the conviction and sentence awarded by. the Trial Court and confirmed by the High Court. The appeal is, therefore, dismissed. 15. The accused is on bail. He is directed to surrender before the Trial Court forthwith and to su~fer the remaining period of sentence. B NJ. Appeal dismissed.