Karnataka High Court
Narayana Swamy vs The State Of Karnataka on 26 March, 2018
Equivalent citations: 2018 (3) AKR 210, (2018) 187 ALLINDCAS 848 (KAR), (2018) 3 KCCR 2407, (2018) 4 KANT LJ 192
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 1223 OF 2017
BETWEEN
NARAYANA SWAMY,
NOW AGED 28 YEARS,
S/O ANJINAPPA @ GUDYOD,
R/O GOLLAALLI VILLAGE,
CHINTHAMANI TALUK,
CHICKBALLAPURA PIN - 563 138.
... APPELLANT
(BY SRI. VISHWANATHA POOJARY K., ADVOCATE)
AND
THE STATE OF KARNATAKA,
BY CHINTHAMANI TOWN POLICE,
REPRESENTED BY SPP OF
HIGH COURT OF KARNATAKA
AT BENGALURU,
HIGH COURT BUILDING,
BENGALURU PIN - 560 001.
... RESPONDENT
(BY SRI. K. NAGESHWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DATED 26.11.2016 AND SENTENCE DATED 30.11.2016
PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, CHIKKABALLAPURA (SITTING AT CHINTAMANI) IN
SPL.S.C.NO. 30/2016 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
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UNDER SECTION 376(2) AND 506 OF IPC AND SEC. 6 OF
POCSO ACT. THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR 10 YEARS AND
TO PAY FINE OF RS. 10,000/- IN DEFAULT OF PAYMENT OF
FINE TO UNDERGO SIMPLE IMPRISONMENT FOR 1 YEAR FOR
THE OFFENCE PUNISHABLE UNDER SECTION 376(2) OF IPC
AND SEC. 6 OF POCSO ACT. FURTHER, THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 6 MONTHS AND TO PAY
FINE OF RS. 2,000/- IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO SIMPLE IMPRISONMENT FOR 1 MONTH FOR THE
OFFENCE PUNISHABLE UNDER SECTION 506 OF IPC. BOTH
THE SENTENCES SHALL RUN CONCURRENTLY. AND THE
APPELLANT/ACCUSED IS PRAYS THAT HE BE ACQUITTED.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.03.2018 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is directed against the impugned judgment of conviction and order of sentence passed by the II Addl. District and Sessions judge, Chickballapur, (Sitting at Chintamani) in Spl.S.C.No.30/2016 dated 26.11.2016 sentencing the accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/- and in default of payment of fine the accused was sentenced to undergo simple imprisonment for a period of one year for the offence punishable under Section 376(2) of IPC r/w. Section 6 of POCSO Act 2012. The accused was also convicted for the :3: offence punishable under Section 506 of IPC and sentenced to undergo simple imprisonment for a period of 6 months and also sentenced to pay a fine of Rs.2,000/- and in default to pay the fine, he has to undergo simple imprisonment for a period of one month. Sentences were ordered to run concurrently. The same has been challenged in this appeal by urging various grounds.
2. The brief facts of the case of the prosecution are as under:
On 28.01.2015 at about 8.30 p.m. one Bhagyamma has given a statement before the Chintamani Town Police alleging that her husband has got two wives, she is the first wife and Aluvelamma is the 2nd wife and that she has got 2 male and 2 female children, Aluvelamma has got two male children. Three days prior to the incident she and Aluvelamma went to Dibburahalli for their business and on the same day, at about 5.00 p.m. her daughter Satyamma called to Aluvelamma's phone and informed that the victim is very much sick and she make her to sleep in their house. Then Bhagyamma suggested her to bring the victim to the hospital. At about 6.30 p.m. when she came to hospital she :4: noticed the victim on the bed in the hospital and removed her clothes which covered on the victim and she noticed bleeding on her private part. When she enquired the victim she told the complainant that when they were begging in Chitamani bus stand she felt headache and she went upstairs of vegetable market shops and slept over there. At that time, one person came and removed her pant and lifted her chudidar top and he slept over her. She tried to cry, he closed her mouth and removed his pant and nikkar and raped her and went off from the place. After that she took towel which she had with her and covered the body and went near her sister who was near civil bus stand and she narrated the incident to her. Her sister took her to the house and then along with her mother's sister they went to the hospital.
3. Hence, PW1 lodged a complaint. The same has been registered for the offences punishable under Section 376 of IPC and Section 6 of POCSO Act 2012 in Crime No.24/2016.
4. Accused has been arrested in the case and remanded to judicial custody. After completion of :5: investigation, the investigating officer filed charge sheet against the accused for the offences punishable under Section 376 of IPC and Section 6 of POCSO Act, 2012. After hearing both sides charges were framed for the offences punished under Sections 376 and 506 of IPC and Section 6 of POCSO Act, 2012. The same was read over to the accused, accused pleaded not guilty and claims to be tried.
5. In order to prove its case prosecution in all cited 29 witnesses but examined 21 witnesses as PWs. 1 to 21 and marked the 32 documents as Exs. P1 to P32 and got marked the articles as MOs. 1 to 10.
6. Thereafter, on hearing the arguments advanced by the prosecution and counsel for the accused and on evaluating the entire evidence which is placed by the prosecution, the trial court held the accused guilty of the offence punishable under Section 376(2) of IPC and Section 6 of POCSO Act, 2012 and convicted the accused with the aforesaid sentence.
7. I have heard learned counsel for the appellant- accused and learned Government Pleader for the State. :6:
8. Learned counsel for the appellant contends that the court below has not properly appreciated the evidence on record in order to prove the guilt of the accused. The trial court, without properly appreciating the materials on record and the evidence placed before it has erroneously come to the conclusion that the prosecution has proved guilt of the accused.
9. It is further contended that there is no corroborative evidence placed by the prosecution. The trial court has not taken into consideration the evidence in proper perspective and the judgment of the trial court is only based on presumption and there are no reasons for convicting the accused.
10. It is further contended that the Investigating Officer has fixed the accused in the alleged case though he did not commit the offence as narrated in the complaint at Ex.P1 filed by PW1 mother of the victim since the real accused could not be traced.
11. It is also contended that the Investigating Officer has not conducted the identification parade in order to find :7: out the real accused in the case. But no such parade has been conducted. He also contends that the victim is a girl aged about 9 years and she is not in a position to speak the entire case. But she is tutored by the Investigating Officer and she has given evidence only as per the guidance of the police officials. He has been accused only with an ulterior motive. Hence, he prays that the judgment passed by the court below may be set aside and the appellant-accused may be acquitted of the offences stated above.
12. On the other hand, controverting the submissions made by the learned counsel for the appellant, learned Government Pleader has taken me through the evidence of PW2 being the victim who has specifically stated in her evidence about the rape being conducted and which fact is also confirmed by the averments made by the complainant PW1 in her complaint that on 28.01.2016 at about 5.00 p.m. her daughter Satyamma has called to Aluvelamma's phone and informed her that the victim is very much sick and she made her to sleep in the house. Then complainant PW1 suggested them to bring the victim to the hospital. At about 6.30 p.m. when she came to the hospital she noticed the :8: victim on bed in the hospital and later when she enquired with the victim she came to know that when the victim was begging with her sister near the vegetable market of Chintamani bus stand she felt headache and she went upstairs of the vegetable market and she slept over there. Then one person came and removed her pant and lifted her chudidar top and he slept over her then he raped her and went off from the place. After that she took the towel which she had with her and covered her body and went near her sister and narrated the incident to her and her sister took her to the house and then her mother's sister Rathnamma came there and took them to the hospital.
13. It is further contended that the evidence of PWs.1 and 2 corroborated with the evidence of PW8 Dr.Swathi regarding the injury sustained by the victim on her private part. Even the Investigating Officer has also took the accused to the Balamandira where the victim had identified the accused. The accused was well acquainted with the family of the victim and her family members. The medical report as per Ex.P3 discloses that bleeding was present at that time. There was no external injuries on the body of the :9: victim and MO Nos. 1 to 3 and 6 taken from the victim and hymen was torn, there were small tears over labia minora and majova and lower vaginal walve about ¾ inches tear present. Stitching was done. Hence, he contends that the oral evidence of PW1 corroborates with the opinion of Dr.Swathi at Exs.P13 and 14. Even the evidence of PW1 corroborates with Ex.P17 statement of the victim under Section 164(A) of Cr.P.C.
14. It is further contended that the accused was examined by PW12 Dr.Sukumar who has opined that accused was capable to have sexual intercourse and nowhere is it stated that he is not capable to perform sexual act. Hence, urging all these grounds, learned Government Pleader submits that the reasoning given is on consideration of the material evidences and documents on record and interference by this Court is not called for and prays for dismissal of the appeal.
15. On hearing the learned counsel for the appellant and learned Government Pleader for State, the point that arises for consideration in this appeal is, : 10 : "Whether the impugned order of conviction and sentence passed by the court below is justified?"
16. On hearing the contentions advanced by the learned counsel for the parties and on an evaluation of the material on record, let me examine the evidence adduced by the prosecution witnesses.
17. PW1 Bhagyamma is the mother of the victim and the complainant in this case. She has stated about the incident and she stated that the police came to the hospital and she gave the complaint which was marked as Ex.P1. Then after two days police asked her daughter to show the place of occurrence and conducted the spot mahazar as per Ex.P2. After 10 days the police took the victim to the hostel and after 20 days they brought the accused with them to the hostel at Chikkaballapur and her daughter identified the accused.
18. In the course of cross-examination, PW1 has stated that the accused is her far relative and he had also come to their house. She denied the suggestion that accused has not raped her daughter and she fell down and : 11 : injured while playing and she gave false complaint against the accused.
19. PW2 Kum.Gayathri is the victim girl aged about 9 years. In her evidence, she has deposed that at the relevant time she and her sister Sathyamma went to Civil Bus-stand at Chintamani for begging. At 1.00 p.m. when she had headache she told her sister that she will sleep in the complex and while she was sleeping in the complex the accused came there and committed rape on her. He also threatened to kill her if she informs the same to anyone. She came back from the complex and told her sister about the incident and both of them went home. As per the advise of her mother, her sister and her mother's sister took her to the hospital. After two days when the police enquired about the place of the incident she showed them the place. The accused person was coming to their house. After 20 days when police brought accused with them to Balamandira where victim was staying, she recognized him.
20. PW3 Madhusudan in his evidence has stated that he is the auto driver. On 01.02.2016 at about 11.00 a.m. : 12 : when he was near the complex, police came along with the victim and her mother and took him to the place of occurrence of crime and sealed the blood stained cement and ordinary cement and packed in a cloth. They are marked as MOs. 4 and 5 and he is the panch witness for the same.
21. PW4 Dr.Neela is the medical officer, Radiologist, Chikkaballapura. She states in her evidence that on 08.02.2016 x-ray of the victim Gayathri was given by the PC of Chintamani Police Station. On considering the same she gave her report that the age of the victim is between 8 and 12 years. The report is marked as Ex.P4.
22. PW5 Sharadamma R. was the Head Mistress of Government Higher Primary School, Chintamani. She gave her evidence stating that as per the request made by the Police officials of Chintamani Police Station she has given the date of birth of the victim and also the date of admission to 1st standard. Admission Register extract is marked as Ex.P7 and the date of birth certificate is marked as Ex.P8.
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23. PW8 Dr.Swathi is the medical officer of Chintamani Government Hospital. She stated in her evidence that on 28.01.2016 at about 7.45 p.m., the victim girl aged about 9 years came with her mother PW1 to the hospital complaining of bleeding. When she examined the victim she found that the hymen was torn, there were small tears over labia minora and majova and lower vaginal walve about ¾ inches tear present. Stitching was done and there was no secondary sexual characters developed. The report given by PW8 is marked as Exs.P13 and 14.
24. PW10 Sathyamma is the sister of the victim. She narrated the incident similarly as that of her mother and the victim.
25. PW12 Dr.Sukumar has stated in his evidence that the accused was capable to have sexual intercourse. The report given by PW12 is marked as Ex.P18.
26. PW13 Dr.Manjula has stated in her evidence that on the basis of the teeth of the victim, her age was : 14 : assessed as 8 to 9 years. The report given by PW13 is marked as Ex.P20.
27. PW13 L.Padma was the ASI, Chintamani. In her evidence, she has deposed that on 28.01.2016 she went to the Chintamani Government Hospital along with the Investigating Officer and recorded the statement given by the victim and her mother as per Ex.P1 complaint.
28. PW21 M.Manjunath who was working as CPI, Chintamani Police Station is the Investigating Officer and he has deposed in his evidence that he recorded the statement of the victim and her mother by visiting the hospital along with PW13. He also requested the medical officer to give the report after examining the victim and he also requested the Social Welfare Department to give compensation to the victim. After identification of the accused by the victim he arrested the accused and after investigation, filed charge sheet against the accused.
29. It is relevant to state that the evidence of PW1 complainant, PW2 victim and PW8 the doctor who examined the victim, corroborates with each other. There : 15 : is no contradiction in any of the statements given by the witnesses. The ground of not conducting the identification parade raised by the accused cannot be considered as the Investigating Officer himself has taken two or three persons before the victim for identification and she identified the accused as the one who committed the rape. The said fact cannot be disbelieved as the accused was known to her and he used to come to her house also.
30. At a cursory glance of the aforesaid evidence and also the cross-examination nothing worthwhile has been elicited even in the cross-examination of PW1 Bhagyamma said to be the complainant who has filed the complaint as per Ex.P1 and PW2 said to be the victim aged in between 8 to 12 years as the accused has committed rape on her. The same has been reflected in her statement recorded by the Judicial Magistrate as per Ex.P17 and the contents in the statement has been corroborated to the evidence of PW1 and so also the report given by the doctor as at Ex.P4. PW.12 being the doctor who examined for the prosecution relating to the accused stated that he is capable to have sexual intercourse and to that effect : 16 : issued report as per Ex.P18. PW8 Dr.Swathi who has issued the report as per Exs.P13 and P14 relating to the sexual intercourse on the victim, subjected the victim to examination as the victim was complaining of bleeding and also found that the hymen was torn, there was small tears over labia minora and majova and lower vaginal walve about ¾ inches tear present. As per the evidence of PW13 Dr.Manjula, she stated on the basis of teeth of the victim, the victim was aged between 8 to 12 years. The report given by PW13 is marked as Ex.P20. Hence, the court below has rightly come to the conclusion by appreciating the evidence on record in proper perspective to prove the guilt against the accused. The statement of the victim does not suffer from any infirmity and the rape committed by the accused on the victim forcefully is proved. The conviction held by the court below is by appreciating the entire evidence on record. There is no perversity in the order passed by the court below for convicting the accused for the offences punishable under Sections 376(2) and 506 of IPC and also under Section 6 of POCSO Act, 2012. : 17 :
31. For the foregoing reasons, the point is answered in the affirmative. There is no justifiable grounds urged in this appeal for interference by this Court. Consequently, the appeal stands rejected by confirming the judgment of conviction and sentence held by the court below in Spl.S.C.No.30/2016 dated 26.11.2016.
Sd/-
JUDGE Cm/-