Karnataka High Court
Syed Akbar vs State Of Karnataka on 25 January, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC:3613
CRL.A No. 1246 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.1246 OF 2011
BETWEEN:
SYED AKBAR
S/O SYED RIZWAN
AGED ABOUT 22 YEARS
R/AT NO. 181, 1ST FLOOR
9TH CROSS, HEGGANAHALLI
PEENYA IIND STAGE
BANGALORE
...APPELLANT
(BY SRI KARIAPPA.N.A, ADVOCATE)
AND:
STATE OF KARNATAKA
BY RAJAGOPALA NAGAR POLICE STATION
BANGALORE CITY
(REPRESENTED BY LEARNED
Digitally signed by
STATE PUBLIC PROSECUTOR)
LAKSHMINARAYANA
MURTHY RAJASHRI
...RESPONDENT
Location: HIGH
COURT OF (BY SMT.N.ANITHA GIRISH, HCGP)
KARNATAKA
THIS CRL.A IS FILED U/S.374(2)CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 8.12.2011 PASSED IN S.C.NO.5/2010 BY
THE XLV - ADDL. CITY CIVIL AND SESSIONS JUDGE,
BANGALORE - CONVICTING THE APPELLANT/ ACCUSED FOR
THE OFFENCE P/U/S.376 OF IPC.
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:3613
CRL.A No. 1246 of 2011
JUDGMENT
1. This appeal is filed against the judgment of conviction and order of sentence dated 08.12.2011 passed in S.C. No. 5/2010 by the XLV Additional City Civil and Sessions Judge, Bengaluru City. The appellant - accused has been convicted for offence under Section 376 of IPC and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.20,000/- and in default to undergo rigorous imprisonment for six months. The trial Court ordered that the said fine amount, on deposit, be paid to the victim - P.W.1.
2. Factual matrix of prosecution case is as under:
The appellant - accused was following the complainant - P.W.1 while she was going and coming to work at garment factory saying falsely that he was in love with her and intends to marry her. The appellant - accused had falsely stated that he had informed his mother about their love. On 22.09.2009, in the evening at about 06.30 pm the appellant - accused had taken the complainant - P.W.1 to his house situated at Peenya II Stage, Hegganahalli, 9th -3- NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 Cross saying that he would introduce her to his mother and took her to the second floor of the building to a vacant house and falsely called his mother, bolted the house from inside, stated to the complainant that he would marry and committed rape on her against her will on the floor of the house. Charge sheet has been filed against the appellant - accused for offence under Section 376 of IPC. The trial Court framed charge against this appellant - accused for offence under Section 376 of IPC. In order to prove the charge the prosecution examined P.W.1 to P.W.10 and got marked Ex.P.1 to Ex.P.8 and M.O. 1 to M.O. 11. Statement of the appellant - accused has been recorded under Section 313 of Cr.P.C. The trial Court, after hearing arguments, formulated points for consideration and after appreciating the evidence on record, convicted the appellant - accused for offence under Section 376 of IPC and sentenced him as noted above. Said judgment of conviction and order of sentence has been challenged in this appeal.-4-
NC: 2024:KHC:3613 CRL.A No. 1246 of 2011
3. Heard learned counsel for appellant - accused and learned HCGP for respondent - State.
4. Learned counsel for appellant - accused would contend that on perusal of the complaint there is overwriting in the date of incident i.e., 02.09.2009 has been overwritten as 22.09.2009 in paragraph No. 3 of the complaint - Ex.P.1. He contends that in the FIR also the date of offence is mentioned as 02.09.2009. FIR has been registered on 26.09.2009 on the complaint filed by the complainant as per Ex.P.1 and there is a delay in filing the complaint. He contends that a reading of the entire evidence of P.W.1 would indicate that she voluntarily went to the house of the accused and there was no hue or cry at the time of incident or after the incident. Victim is aged 18 years and she gave consent for sexual intercourse. He contends that appellant and victim were in love since one month and the victim went to the house of appellant - accused on his request to talk with his parents regarding marriage. The victim has not filed the complaint immediately. The victim had not told about the incident to -5- NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 her mother. P.W.9 - the Investigating Officer has admitted in the cross-examination that date of offence mentioned in FIR is 02.09.2009. The improvements and omissions in the evidence of P.W.1 have been put forth to the Investigating Officer and he has admitted the same. C.W.17 who has registered the FIR has not been examined and the FIR is not marked. Opinion of the Scientific Officer - FSL i.e. P.W.10 is not conclusive and the same has been admitted in the cross-examination. P.W.10 has admitted that he conducted only preliminary test and his opinion is not conclusive. The Doctor who examined the victim i.e. P.W.5 has noted that there are no injuries on the private part of the victim and injuries found on the body of the victim might have been caused within one week and they are old injuries. Mother of the victim - P.W.4 has stated in her evidence that only after asking P.W.1 has revealed about the incident. P.W.1 has not complained to the Manager of the Garment factory or the Security Guard about the incident. The very fact that victim had the mobile phone number of the appellant - accused shows that she was in -6- NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 contact with the appellant - accused. P.W.1 has not intimated or complained regarding the incident to anyone till 26.09.2009. P.W.2 - panch to spot mahazar - Ex.P.2 has not supported the case of the prosecution. Another panch C.W.3 has not been examined. Learned counsel for appellant - accused, placing reliance on the decision of the Hon'ble Apex Court in the case of Santhosh Prasad Vs. State of Bihar, reported in 2020 (3) SCC 443 contended that solely relying upon the evidence of the prosecutrix conviction is not sustainable as there are material contradictions in the evidence of prosecutrix. He contends that P.W.1 - prosecutrix is not a sterling witness. He also placed reliance on the decision of the Hon'ble Apex Court in the case of Manak Chand alias Mani Vs. State of Haryana reported in 2023 SCC Online SC 1397 and contended that the story put forth by the prosecutrix is doubtful story considering her evidence on record. He also placed reliance on the decision of the Hon'ble Apex Court in the case of Kaini Rajan Vs. State of Kerala reported in 2013 (9) SCC 113 and contended that as there is a -7- NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 consent for sexual intercourse, that will not attract the ingredients of offence under Section 376 of IPC since the victim is aged 19 years. He further submitted that victim is now married and having children and she is settled at her home at Shivamogga and the appellant - accused is also married and having two children and he was already in custody for a period of 02 years 03 months. He further submits that considering the said aspects, this Court may confirm the conviction of the appellant - accused and sentence may be reduced for the period already undergone by enhancing fine amount which may be given to P.W.1. On that point he placed reliance on the decision of the Division Bench of this Court in the case of State of Karnataka Vs Murali Krishnan Alias Murali reported in 2016 SCC Online Kar. 8752 : (2016) 3 Kant.L.J. 449 (DB). On these grounds he prayed to allow the appeal.
5. Per contra, learned High Court Government Pleader appearing for respondent No. 1 - State argued that on appreciation of evidence on record, the Trial Court has rightly convicted the appellant - accused. She has -8- NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 supported reasons assigned by the Trial Court. She has further argued that the evidence of PW-1 and injuries found on her body itself establish that the appellant - accused had penetrative sexual intercourse on PW-1. She further contends that there can be conviction based on the testimony of victim of rape/prosecutrix and her testimony does not require any further corroboration as she is the sterling witness. On that point she relied on the decision of the Hon'ble Apex Court in the case of Phool Singh Vs State of Madya Pradesh reported in 2022 (2) SCC 74. On these grounds she sought for dismissal of the appeal.
6. On the grounds made out and considering arguments advanced, the following point arises for my consideration:
"Whether the Trial Court has erred in convicting the appellant - accused for offence punishable under Section 376 of IPC."?-9-
NC: 2024:KHC:3613 CRL.A No. 1246 of 2011
7. My answer to the above point is in the negative for the following reasons:
PW-1 is the victim girl and she was aged about 19 years as on the date of offence. P.W.1 has filed complaint against this appellant - accused as per Ex.P1 and it is filed on 26.09.2009. On the basis of the said complaint case has been registered against this appellant - accused for offence under Section 376 of IPC. As per averments of the complaint the appellant - accused was behind P.W.1 - victim girl and he was trying to talk with her and he did so for one month and he was forcing her to marry him and she told him that she is not interested in marrying him and she had not told the same to her parents in the house due to fear. It is further stated in Ex.P1 - complaint that on 26.09.2009 at about 6.30 pm when she was returning after completing her work in the garment factory, the appellant - accused called her to his house to talk with his parents regarding marriage. She went to his house at about 7.00 pm and there was nobody in the house and this appellant - accused closed the door of the house and
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NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 inspite of her request he did not opened the door and he committed forcible sexual intercourse on her. When she tried to scream he closed her mouth and threatened her not to disclose about the incident to anybody and therefore, due to fear she did not inform the same to her parents. It is further stated that due to the incident she was upset and did not go to her work in garment factory and thereafter she informed about the incident to her mother who took her to Police Station and then she filed complaint.
8. The victim - P.W.1, corroborating the averments of the complaint, has deposed that the appellant - accused was troubling her stating that he will marry her and on 22.09.2009 at about 6.30 pm the appellant - accused called her and she went along with him to intimate his parents and in the house there was nobody when they reached there and when she was about to return, the appellant- accused closed her mouth and took her inside the house, removed her clothes and
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NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 removed his clothes and committed forcible sexual intercourse and he threatened her not to intimate about the incident to anybody. When she was thinking to intimate about the incident to her brother, at that time the appellant - accused assaulted him. Therefore, she has not intimated same to her brother. Thereafter when she asked her mother for poison, her mother asked her as to what is the matter, at that time she intimated her mother regarding the incident and thereafter she filed complaint as per EX.P1. P.W.1 has been cross examined.
9. Learned counsel for the appellant - accused pointing out to the cross examination of PW-1 has contended that sexual intercourse between the PW-1 and appellant - accused is consensual. Merely because accused has given his phone number and his phone is received by PW-1 and PW-1 went along with the appellant
- accused to his house to talk with his parents regarding marriage does not indicate that alleged act of sexual intercourse is consensual. PW-1 in her complaint - Ex.P1 and in her evidence has specifically stated that when she
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NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 went to his house there was nobody in the house and the appellant - accused committed forcible sexual intercourse on her in his house by closing the door. As per Ex.P1 the incident took place on 22.09.2009 and complaint has been filed on 26.09.2009. P.W.1 has been examined by the Doctor - P.W.5 on 26.09.2009 with history of forcible sexual intercourse by the appellant - accused on 22.09.2009 at about 7.00 pm in his house. P.W.5 after examination of P.W.1 has given report as per Ex.P3. In Ex.P3 it is noted that hymen torn with tags of skin attached to the edge. P.W.5 - Doctor who examined the victim girl has noted injuries found on the body of the P.W.1 and they are I. two small abrasions one over the little toe of right foot, another on the big toe.
II. left foot black in color III. laceration wound over right forearm dorsal aspect black in color.
10. In the cross examination P.W.5 has stated that black color injuries found on P.W.1 - victim girl might have
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NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 been caused about two days or one week prior to her examination. Incident has taken place on 22.09.2009 and victim girl has been examined on 26.09.2009 by P.W.5 and found the injuries as noted above and opined that they might have been caused between two days to one week back, itself would indicate that victim had sustained injuries due to forcible act of this appellant - accused on 22.09.2009 which is within one week of examination of P.W.1 by P.W.5 - Doctor. The contention of the learned counsel for the appellant - accused that there is over writing of the date of incident in the complaint - EX.P1 and the date of incident mentioned in FIR is 02.09.2009. There is delay of 24 days in filling the complaint can not be accepted since injuries found on her i.e., laceration wound over right foot and left foot and the Doctor has opined that they might have been caused within one week itself indicate that incident has taken place on 22.09.2009 as deposed by P.W.1. Merely because there is over writing of date of incident, it cannot said that incident has
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NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 taken place on 02.09.2009. P.W.1 has specifically stated and deposed that incident has taken place on 22.09.2009.
11. Ex.P.2 is spot Mahazar. Incident has taken place in the hall of the house of the appellant - accused and flooring of the said hall is having Sadarahalli Granite Stone. The said spot itself shows that it is hard surface and in the incident P.W.1 has sustained abrasion injuries on her forearm and leg. Even though P.W.2 - panch witness has not supported the case of the prosecution, there is evidence of P.W.1 regarding she showing the spot of the incident to the Police and the Police preparing the spot mahazar as per Ex.P2. P.W.9 - Investigating Officer has also deposed regarding drawing of spot mahazar as shown by P.W.1 as per Ex.P2. The said evidence of P.W.1 and P.W.9 establishes the drawing of the spot mahazar as per Ex.P2.
12. P.W.5 - Doctor has collected clothes of the victim girl which she was wearing at the time of the incident and sent for FSL examination and after receipt of FSL report of item No.4 i.e. Chudidar Top has found
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NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 seminal stains. P.W.10 - Scientific Officer has deposed that she has not conducted confirmative test with regard to seminal stain on item No.4 and test what she conducted is preliminary test and it will not give conclusive report with regard to seminal stain. Even though the said aspect will not help the case of the prosecution, but there is specific evidence of P.W.1 regarding the forcible sexual intercourse on her by the appellant - accused. The contradictions pointed out in the cross examination of P.W.1 are not material contradictions. The trial Court has rightly appreciated the evidence on record and rightly convicted the appellant - accused for offence punishable under Section 376 of IPC. The appellant- accused has been sentenced to undergo rigorous imprisonment for a period of 05 years and pay fine of Rs.20,000/- and in default, undergo rigorous imprisonment for period of 6 months.
13. Learned counsel for the appellant, placing reliance on the decision of a Division Bench of this Court in the case of the State of Karnataka Vs. Murali Krishnan
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NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 Alias Murali (supra) contended that appellant - accused has already undergone custody for a period of 2 years and 3 months and prayed to reduce the sentence for the period already undergone by the appellant - accused. He contended that victim girl and appellant - accused are married now and they both have settled in their life. In the case of State of Karnataka Vs Murali Krishnan Alias Murali (Supra), Division Bench of this Court has observed as under:
"Since we find that the prosecutrix has voluntarily roamed and traveled with the accused to various places including Tamil Nadu State and as the accused has already undergone more than 3 years of imprisonment, in our considered opinion, interest of justice would be met if the accused is sentenced to undergo imprisonment for the period, which is already undergone by him. As mentions supra, for more than three years he was behind the bars. Again, he was taken to custody by the orders of this Court on 18.01.2016 and he continued to be in judicial custody till this date. However, apart from imposing sentence of imprisonment for the
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NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 period of which the accused has already undergone, he should also be imposed the sentence of fine."
14. Learned counsel for the appellant submits that if at this stage i.e. after passage of 15 years, if appellant is sentenced to undergo imprisonment, it will affect his married life as he is already married and having children. He further submits that by reducing the sentence to the period already undergone, the fine amount can to enhanced and same may be paid to P.W.1 - victim girl. Taking into consideration that appellant is married and having two children, placing reliance on the decision of the Division Bench of this Court referred to supra, the accused is imposed sentence of imprisonment for the period which was undergone by him and the fine amount is enhanced to Rs.5,00,000/-.
In the result the following;
ORDER I. The appeal is allowed in part.
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NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 II. The judgment of conviction for offence punishable under Section 376 of IPC passed in S.C.No. 5/2010 by the XLV Additional City Civil and Sessions Judge, Bengaluru is affirmed. Appellant - accused is imposed sentence of imprisonment for the period which is undergone by him and imposed fine of Rs.5,00,000/-, and in default of payment of fine by the appellant - accused he shall undergo simple imprisonment for a period of 8 months.
III. The said fine amount of Rs.5,00,000/- is ordered to be paid as compensation to the P.W.1 after proper identification.
IV. The appellant- accused shall deposit the said fine amount within 45 days.
V. The Trial Court is directed to secure P.W.1 for making payment of said compensation.
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NC: 2024:KHC:3613 CRL.A No. 1246 of 2011 In view of the disposal of the appeal, order dated 03.01.2024 is recalled. Accordingly, IA No.1/2024 is allowed. Issue intimation to the Trial Court regarding recall of the said order.
Sd/-
JUDGE LRS,DSP List No.: 1 Sl No.: 13