Karnataka High Court
Sri. Raju @ Rajashekhar Bharmanna ... vs The State Of Karnataka, on 31 January, 2013
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
Dated this the 31st day of January 2013
BEFORE
THE HON'BLE MR.JUSTICE B.V.PINTO
Criminal Appeal No.2858/2011
BETWEEN
Sri RAJU @ RAJASHEKHAR BHARMANNA NAYAK
AGE: 22 YEARS, R/O JAMANAL
TQ. & DIST: BELGAUM ... APPELLANT
(By Sri RAVI MATTUR, ADV., FOR Sri SRINAND A PACHHAPURE, ADV.,)
AND
THE STATE OF KARNATAKA
THROUGH PSI, KATAKOL P.S.,
NOW REPRESENTED BY SPP ... RESPONDENT
(By Sri V.M.BANAKAR, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION & ORDER OF
SENTENCE DATED 19.09.2011/21.09.2011 PASSED BY THE PRL.
SESSIONS JUDGE, BELGAUM, IN S.C.NO.207/2010, FOR THE
OFFENCES P/U/S 363, 343 & 376 OF IPC AND ACQUIT THE
APPELLANT.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
This appeal is filed challenging the Judgment dated 19.9.2011 passed by the Principal Sessions Judge, Belgaum in S.C.No.207/2010 convicting the appellant for the offences under Sections 366, 343 and 376 of IPC and sentencing him to undergo RI for a period of three years and to pay fine of `3,000/- for an offence under Section 363 IPC; RI for a period of two years and to pay fine of `3,000/- for an offence under Section 343 IPC and RI for 7 years and to pay fine of `50,000/- for the offence under Section 376 IPC with default clauses and further direction that the substantive sentences shall run concurrently.
2. It is the case of the prosecution that on 10.4.2010 at about 11 a.m. the appellant has kidnapped the victim, aged about 15 years by inducing her to come along with him and took her from her residence to Honaga village, thereby he is alleged to commit an offence under Section 366 IPC. It is further alleged against the appellant that in the Honaga Village of Belgaum Taluk, the appellant kept the victim from 10.4.2010 to 13.4.2010 in illegal confinement, thereby, he is alleged to have committed an offence under Section 343 IPC. It is further the case of the prosecution that between 10.4.2010 and 13.4.2010, -3- the accused has committed forcible sexual intercourse with the victim in the house of Basavaraj Bharmanna Naik in Honaga village, thereby he is alleged to have committed an offence under Section 376 IPC.
3. In order to prove the case, the prosecution has in all examined 21 witnesses and got marked Exs.P1 to P25 and produced MOs.1 to 7. The defence of the accused was one of total denial. However, by the impugned Judgment, the learned Sessions Judge was pleased to convict the appellant and sentenced him as aforesaid. Being aggrieved by the order of conviction and sentence, the convicted accused has filed this appeal.
4. The prosecution in this case has commenced with filing of the complaint by victim herself. She has stated in the complaint that about 2 to 3 months prior to the incident, she and her father had gone to coolie work near Hindalaga, Sinnolli village and in the said village, they were working in a stone quarry. Her sister Savita and her husband Shivaji had accompanied them to work in the quarry. The accused was the driver of the tractor owned by the quarry owner. He became acquainted with the victim and in talking terms with her. On -4- seeing the said conversation between the accused and the victim, the sister of the victim sent the victim to her house and hence she came back to her father's house. It is stated that on 10.4.2010 when the victim and her brother was in the house and when their parents and brothers had gone to work, the accused came at about 3'o clock and asked her to go to their village for the purpose of marrying and he induce her to go to Honaga Village. He took her there to Honaga village and kept her in one room and thereafter he promised to marry her and told him that he himself is her husband and that she is his wife and he asked her to sleep with him. When she refused he had forcible sexual intercourse with her. It is further stated in the complaint that the accused thereafter took her from that house and made to stay in the house of his relative from 10.4.2010 and again committed rape on her. Thereafter people from her village including her father came to the house and on seeing her relatives; the accused ran away from the house. When enquired she disclosed that the accused had taken her by inducing her to come along with him. Her father advised that since she is a small girl, she should not go anywhere and hence he took her to the police station where a complaint came to be registered. She has stated in the complaint that her date of birth is 20.5.1994 and that she -5- would submit the birth certificate. Based on the said complaint, the police of Guttal Police Station registered a case in Crime No.85/2010 for the offences under Sections 366(A), 376 IPC and commenced investigation. After arrest of the accused and subjecting both the accused and victim to the medical examination and thereafter subjecting the materials seized for Forensic Science Laboratory Examination, the police filed the charge sheet.
5. PW.1-Manjula has stated the aforesaid facts mentioned in the complaint while she is examined in the witness box. She has also stated that the appellant-accused has committed sexual intercourse with her against her will and without her consent. In the cross-examination, it is suggested that no such incident has happened and that a false case has been filed against the accused. It is also suggested that with the co-operation of the police, the charge sheet has been filed against the accused. However, the said suggestion has been denied by PW.1.
6. PW.2-Devaraj, is the brother of PW.1-the victim. He has also stated that the accused had come to the house about 8 days after his sister stopped working in the quarry. He has -6- identified the accused as the person, who had come to the house. It is also stated by him in the Court that the accused had forcibly taken his sister inspite of his protest for taking his sister forcibly.
7. PW.3-Smt.Rukmawwa is a relative of PW.1-the victim. It is in her evidence that she has seen both the victim and the accused walking on the road on the date of incident. When she attempted to talk to the victim, she did not talk to her. It is further stated by her that on the date of incident, parents of the victim had gone to work.
8. PW.4-Savita, is the sister of the victim. She has stated that the accused was talking to the victim in the quarry being the driver of the tractor belonging to the owner of the quarry. It is also in the evidence of PW.4 that the accused was telling the victim that he would marry her and he was scaring her. Hence, they have made the victim, leave the work and stay at home.
9. PW.5-Ramachandra and PW.8-Mallesh are belonging to the village and they knew the victim as well as the father of the victim. On coming to know that the victim has been forcibly taken from the village, they had accompanied the father of the -7- victim; PW.6-Somappa and they have gone to Honaga village to the house of PW.13-Mahadevi Basavaraj Naik and PW.14- Basavaraj Bharamanna Naik, in whose house the victim was found. They have brought the victim back. They have also seen the house where the accused was kept under illegal confinement in the house of the relative of the accused. It is stated by them that the accused had run away, but he had taken the victim along with him while coming to the village.
10. PW.6-Somappa, is the father of the victim and husband of the complainant. He has also stated that the accused was working in the quarry belonging to the owner of the quarry as a driver of the tractor. He has stated that he has sent his daughter to the village since accused was teasing her. Thereafter when the accused had kidnapped his daughter, they along with CW.9-Mallesh, PW.5-Ramachandra and PW.11-Shatteppa went in search of their daughter and found the daughter in the house of a relative of the accused. The victim was traced in the house and was brought back to the village, whereafter a complaint was lodged against the accused.
11. PW.7-Krishnawwa is the mother of the victim, who has spoken regarding the victim working in the quarry. PW.9- -8- Suresh, is a cousin of the victim, but his evidence is hearsay. PW.10-Mahadev, is also a hearsay witness, PW.11-Shatteppa, is a signatory to panchanama-Ex.P2, in which, the spot mahazar of the house of the victim was recorded.
12. PW.12-Anandrao is a witness to Ex.P4 under which the clothes of the victim has been seized by the police. PW.13- Mahadevi and PW.14-Basavaraj have not supported the case of the prosecution.
13. It is the case of the prosecution that the accused had kept the victim in the house of PWs.13 and 14. However, they have not supported the case of the prosecution.
14. PW.15-Smt.R.B.Jadhav, is the woman Police Constable, who had accompanied the victim to the hospital for medical examination and she is also the carrier of articles to FSL. PW.16-A.A.Arshinagudi, is the Police Constable, who has taken the FIR to the Inspector of Police, who has registered the case in Crime No.85/2010 and has conducted the investigation in respect of this case. He has also recorded the statement of witnesses and subjected the accused for medical examination on his arrest and thereafter handed over further investigation to his successor.
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15. PW.19-P.B.Naidu, has continued the investigation and after receiving the documents including the medical report, he filed the charge sheet before the Court. Thereafter, he received the FSL report and sent the same to the Court.
16. PW.20-Hanamantgouda is the head master of the Government Junior Primary High School. He has stated that the victim was studying in their school and according to the records maintained in the school, the date of birth of the victim was 20.5.1994.
17. PW.21-Dr R.S.Banti, is the medical officer at PHC, Kadkol, who has examined the victim on 13.4.2010 and on examination he has suspected that the victim was subjected to sexual intercourse. There were no external injuries on the body of the girl. But there was bleeding present from vagina and also rupture of hymen membrane. He has collected necessary materials from the person of the victim and packed the same for sending to FSL. He has further issued Wound Certificate as per Ex.P18 and after receipt of FSL report issued his final opinion as per Ex.P21 to the effect that the victim has not been subjected for sexual intercourse.
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18. It is from the above evidence of the prosecution witnesses that the learned Sessions Judge has recorded a finding of guilt and has convicted the appellant and sentenced him accordingly.
19. Heard Sri Ravi Mattur, learned Counsel for Sri Srinand A. Pachhapure, learned Counsel appearing for the appellant and Sri V.M.Banakar, learned Addl.SPP for the Respondent/State.
20. Learned Counsel for the petitioner submits that in view of the medical report as spoken to by PW.21, there is no sexual intercourse committed on the person of the victim and therefore the appellant could not have been convicted for the offence under Section 376 IPC. He also further submits that having regard to the FSL report that none of the clothes were found with the seminal stains either of the victim or of the accused, question of committing rape did not arise at all and therefore the appellant is entitled for an order of acquittal for the offence under Section 376 IPC. It is further submitted by him that the Doctor-PW.21 has further stated that there are absolutely no external injuries on the victim nor there are any injuries found on the private part of the victim. Therefore, there
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is absolutely no evidence to show that the appellant has sexually assaulted the victim. Hence, he submits that the conviction for the offence under Section 376 IPC is erroneous. It is his further submission that though the prosecution case is that the accused has taken the victim to the house of one Basavaraju, both Basavaraju and his wife who were examined as PWs.13 and 14 have turned hostile to the case of the prosecution and therefore the conviction for the offence under Section 343 IPC is erroneous and is not based on the evidence on record. There is no evidence to show that the victim had been forcibly kept in the house of one Basavaraju and therefore there was no illegal confinement of the victim. It is his submission that offence under Section 343 IPC is also not made out from the materials on record. Further, it is submitted by him that the victim had voluntarily accompanied the accused and if at all she was taken forcibly when she was seen by PW.3, she could have raised an alarm saying that she has been forcibly taken by the accused. On the other hand, she has not made any hue and cry when she was allegedly enticed by the accused to go to their village. It is his further submission that even the brother of the victim did not raise any hue and cry when the victim was accompanying the accused and therefore the question of forcibly taking the victim away from their lawful
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guardianship is not established by the prosecution. Therefore, the appellant is entitled for an order of acquittal. It is further submitted that the victim was aged about 16 years and that the age certificate produced before the Court through PW.20 is a derivative document and not an original document. Hence, it cannot be said that the victim is below 16 years and therefore he submits that the prosecution has not established the case against the appellant beyond reasonable doubt and hence he submits that the accused may be acquitted.
21. Sri V.M.Banakar, learned Addl.SPP on the other hand submits that in a rape case, the evidence of the victim herself is sufficient and secondly she is below 16 years and therefore the question of consent or otherwise does not arise. He submits that when we look at complaint as well as the evidence of PW.1, it is clear that the accused has promised to marry her and in such false promise of marriage, he has induced the victim to go from her house to Honaga village and there he had kept the victim for 3 days in the house of one Basavaraju. Hence, having regard to her age, the offence under Section 366 IPC is clearly made out. Said evidence of PW.1 was corroborated by PW.2 and also PW.9 who have also seen the victim being taken away by the accused in a car. PW.3 further says that when the victim and accused
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were seen together, the accused had not allowed the victim to speak though she tried to speak to her, which indicates that she was under pressure and force of the accused and therefore it is clear that the accused had taken the victim by force or by inducement. It is further submitted by him that the Doctor has found that the victim was bleeding when she was examined and further the Doctor has opined that the victim's hymen was ruptured. Hence, there is an attempt by the accused to have sexual intercourse with the victim forcibly. For having seen the victim in the house of Basavaraju, prosecution has examined 2 witnesses-PWs.7 & 8, who have categorically stated that they had accompanied the father of the victim-PW.6, where accused had kept the victim by force and hence an offence under Section 343 IPC is also proved by the prosecution by cogent and clear evidence. Under the circumstances, learned Addl. SPP submits that there is no material to upset the well considered Judgment passed by the learned Sessions Judge. Therefore, he submits that the appeal may be dismissed.
22. Having considered the entire materials on record and on thorough re-appreciation of the evidence adduced by the prosecution and the documents filed, I am of the opinion that the victim is aged less than 16 years and so far as the offence
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under Section 363 IPC is concerned, the prosecution has to prove that the victim has been kidnapped which means the accused should have taken the victim beyond certain limits without her consent or that of some person legally authorised to consent on her behalf. In this case, the evidence of PW.1 is clear to the effect that she has been induced ['pusalayisi' in kannada] or induced to go with the accused and therefore the victim has been forced to go from her parents' house to the village, where the accused had taken her. I am of the opinion that the prosecution has proved the ingredients of Section 363 IPC, which is so because, there is no clear evidence to show that the victim had attained the age of discretion much less 18 years and hence the kidnapping or abduction of a person below the age of 18 years is an offence under Section 363 IPC. Under the circumstances, having regard to the evidence of victim and her parents, I am of the opinion that the order of conviction so far as offence under Section 363 of IPC passed by the learned Sessions Judge is in accordance with law and there is no error or illegality in the order of conviction for the offence under Section 363 IPC.
23. So far as offence under Section 343 IPC is concerned, the victim has clearly stated that she had been taken to the house of one relative of the accused, there she was
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sexually assaulted and thereafter she was taken to another house, where she was kept for three days. The evidence of PWs.6, 7 & 8 clearly establishes that when they went to search the girl, the girl was found in the house of Basavaraju. The said Basavaraju and his wife are the relatives of the accused and naturally they have not supported the case of the prosecution. However, there is no reason why the evidence of PW.1-victim and the evidence of the parents and PWs.7 and 8 should be dis- believed. It is further case of the prosecution that, the victim was kept for three days and since she is a minor necessarily her detention was against her will in view of her evidence before the Court. Hence, I am of the opinion that the ingredients of Section 343 IPC is clearly established by the prosecution and hence the learned Sessions Judge has rightly convicted the accused for the offence under Section 343 of IPC is concerned.
24. So far as the evidence for offence under Section 376 IPC is concerned, the evidence of Doctor-PW.21 is to the effect that there is no evidence of forcible sexual intercourse on the victim and therefore it cannot be said that the accused had committed sexual intercourse with the victim. Under the circumstances, an offence under Section 376 of IPC is not made out and the accused is entitled for an order of acquittal of the
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said offence. However, on a careful scrutiny of the evidence of PW.1, it indicates that he has attempted to commit rape on the victim. This fact has been corroborated by the evidence of the Doctor, who have deposed that there was bleeding present from the vagina and there was rupture of hymen membrane of the victim. Under the circumstances, having regard to the fact that the victim has stated that she has been raped and further the fact that when she came to the witness box, she was above 16 years of age and of understandable age, I am of the considered opinion that the accused has attempted to commit rape on her and therefore an offence under Section 376 read with Section 511 of IPC is made out from the evidence on record.
25. Heard regarding the sentence to be imposed on the appellant so far as the offence under Section 376 read with Section 511 of IPC is concerned. The punishment for attempt to commit an offence may extend to one half of the imprisonment provided for that offence or with fine or with both.
26. Having regard to the facts and circumstances of this case and in view of the submission made by the learned Counsel for the appellant that the accused is in custody for 2 years 20 days, I am of the opinion that the sentence on the appellant may
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be reduced and modified since the appellant is a young person and that he is a villager.
27. In the result, the following order is passed:-
The appeal is allowed in part. The Judgment of conviction for the offence under Sections 363 and 343 of IPC, is hereby confirmed. The Judgment of conviction for an offence under Section 376 of IPC is hereby set aside and in its place, the appellant is convicted for the offence under Section 376 read with Section 511 of IPC. For the offence under Section 366 IPC, the appellant is sentenced to undergo imprisonment for two years and to pay a fine of `5,000/- in default to undergo sentence for six months. For the offence under Section 343 IPC, the appellant is sentenced to undergo imprisonment for one year and to pay a fine of `3,000/- in default to undergo S.I. for three months. For the offence under Section 376 read with section 511 of IPC, the appellant is sentenced to undergo imprisonment for two years while keeping the fine intact so also default sentence. All the substantive sentences are directed to run concurrently. Out of the fine amount recovered, a sum of `55,000/- shall be paid to the victim-PW.1.
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It is submitted that the appellant is in custody. Hence, the office is directed to transmit the operative portion of the order to the learned Sessions Judge for onward transmission to the Jail, where the appellant is in custody with a direction to set him at liberty forthwith if not required in any other case, immediately on deposit of fine amount.
Appeal is partly allowed, accordingly.
Sd/-
JUDGE cp*