Karnataka High Court
State Of Karnataka, vs Rangappa S/O Sanna Erappa on 22 July, 2014
Author: K. Bhakthavatsala
Bench: K. Bhakthavatsala
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF JULY 2014
PRESENT
THE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA
AND
THE HON'BLE MR. JUSTICE PRADEEP D.WAINGANKAR
CRIMINAL APPEAL NO.2595/2011
BETWEEN
State of Karnataka,
Through Karatagi Police Station,
Gangavati Taluk,
Koppal District. Appellant
(By Sri V M Banakar, Addl. SPP, for appellant)
AND
Rangappa,
S/o Sanna Erappa,
Age: 30 years,
Caste Kumbar,
Occ: Coolie,
R/o Bennur,
Taluk: Gangavati,
District: Koppal. Respondent
(By Sri Srinivas B Naik, Amicus Curiae, for respondent)
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This Criminal Appeal is filed under Section 378(1) & (3)
of the Code of Criminal Procedure, praying to set aside the
judgment and order of acquittal dated 11.10.2010 passed in
S C No.11/2010 on the file of Fast Track Court-I, at Koppal.
This Appeal coming on for hearing this day, Dr.
Bhakthavatsala, J., delivered the following:
ORDER
It is a case of raping a lass, aged about 3 years. The Sessions Court has recorded an order of acquittal in favour of the accused for the offence punishable under Section 376 of the Indian Penal Code. This is impugned in this Appeal.
2. Brief facts of the case leading to the filing of the Appeal may be stated as under:
P.W-1/Anjanamma-mother of the prosecutrix, aged about 3 years, lodged a complaint as per Ex.P1 with Karatagi Police Station against the accused. It was registered in Crime No.199/2009 against the accused for the offence 3 punishable under Section 376 of IPC. The complainant has stated in her First Information Report that in the month of November 2009, she came to her parental house situated at Bennur Village, along with her child by name Rekha, and the accused person, often visiting her house and play with her daughter-Rekha and she used to go with him. It was stated that on 28.11.2009 at about 6.30 pm, the accused went to her house and took her daughter saying that he would play with the child, but he did not return with the child. Hence, the complainant, her brother/P.W-3(Suresh), P.W- 4/Pampapathi, Shankrappa, Amaresh and Shekrappa, who gathered near her house, started searching for the accused and child and at about 8.30 pm, Kariyappa Naika (P.W-5) informed them saying that he saw the accused going in a paddy field and he asked him where was he going?, for which the accused said that he was going for watering crops and he (P.W-5) came towards the village. Thereafter, the complainant and others went towards the land of Ambanna Naik, with a torch and saw the child-Rekha moaning and lying in paddy filed of Ambanna Naik. She had sustained 4 injuries all over the body; there was bleeding from vagina. They took the child and came home and came to a conclusion that the accused has raped Rekha. The victim was examined by P.W-6/Dr. Veena in the Government Hospital at Gangavathi and issued a medical certificate as per Ex.P4. The accused was arrested on 29.11.2009 and produced him before the JMFC with remand application. The accused was remanded to judicial custody. He continued to be in judicial custody till the impugned judgment came to be passed.
The case of the accused is of total denial and that a false case has been foisted against him on account of rivalry between Kuruba community on one side and Kumbar community on the other. It is stated that the complainant belongs to Kuruba community; whereas the accused belongs to Kumbar community. The prosecution has got examined as many as 10 witnesses and got marked Exs.P1 to P11. After the evidence on the side of prosecution was over, statement of the accused under Section 313 of Cr.PC was recorded. The accused has denied all the incriminating circumstances 5 appearing in the evidence of prosecution witnesses. He has not adduced defence evidence. The trial Court, after hearing arguments, perusing oral and documentary evidence on record, recorded an order of acquittal in favour of the accused on the following grounds:
(i) that in the medical certificate issued by P.W-6/Dr. Veena, the history of rape by the accused on the girl child is mentioned between 6.30 pm and 8.30 p m on 27.11.2009, but the date of offence is mentioned in various places of medical certificate (at Ex.P-4) as 27.11.2009 and therefore did not inspire confidence of the trial Court to believe the evidence of P.Ws.1 to
3 and 5 that the alleged incident occurred on 28.11.2009;
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(ii) that in the cross- examination of P.W-6, the story of the prosecution was improved stating that the date mentioned in Ex.P4 as 27.11.2009 is due to oversight;
(iii) that the Investigating Officer did not collect the clothes of the victim worn by the prosecutrix;
(iv) that as per the evidence of P.W-6, the teeth bite marks on the cheek of the victim child was not proved with that of teeth bite marks of the accused;
(v) that as per chemical examination
report (Ex.P8), seminal stains were
not detected in items 1,2 and 3;
(vi) that the chain of circumstances are
not established.
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3. Learned Addl. SPP submits that the findings
recorded by the trial Court is erroneous, perverse and resulted in miscarriage of justice. He further submits that the prosecution has placed cogent and convincing evidence, but the trial Court erred in rejecting the oral and medical evidence placed on record on the sole ground that the date of offence is mentioned in Ex.P4-medical certificate as 27.11.2009 though it was an error. He further submits that in the case of MADAN LAL Vs. STATE OF J & K [(1997) 7 SCC
677), the accused/teacher committed rape on his student, aged about 13 years was convicted by the High Court and sentenced him to undergo RI for a period of 5 years and pay fine of `2,000/-. He cites a decision reported in (2012) 4 SCC 37 (RAJENDRA PRALHADRAO WASNIK Vs. STATE OF MAHARASHTRA) in case of rape of 3 years old child and murder and the Apex Court confirmed the order of conviction and sentence.
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4. Sri Srinivas B Naik, learned amicus curiae, appearing for the respondent/accused, submits that the trial Court, on proper appreciation of oral and documentary evidence, has acquitted the accused and the same does not call for interference by this Court.
5. In the light of the arguments addressed by the learned Counsels for the parties, the only point that arises for consideration is:
Whether the impugned judgment calls for our interference ?
6. Our answer to the above point is in the affirmative for the following reasons:
There is no dispute that the accused belongs to a different community of the complainant. In the case of rape, question of proving motive does not arise. Since the prosecutrix is a child aged about 3 years, there is no direct 9 evidence. P.W-1/mother of the victim viz., Anjanamma has deposed that the accused used to come to her house and thus he had acquaintance with the child and on the date of incident, he took the child, but he did not return home and therefore she, her brother and others went in search of them. She has further deposed that at that time, P.W-5/Kariyappa informed them stating that he had seen the accused with the child near the land of Ambanna Naik. Thereafter, the complainant, her brother and others went in search of the accused and the child with a torch towards the land and found the child groaning and lying in the land with injuries on person; they brought the child to the house and on her examination they came to a conclusion that the accused committed rape on her. They went to the Police Station, where P.W-1 lodged a complaint as per Ex.P1. She is an illiterate lady. Merely because she has stated in her cross- examination that she did not know what was written in the complaint at Ex.P1, it cannot be said that she did not lodge complaint against the accused. The accused has made much about the date mentioned in Ex.P4 viz., the medical 10 certificate issued by P.W-6. It is pertinent to mention that in Ex.P4, Crime number and date are mentioned as No.199/2009 dated 29.11.2009. P.W-6/Dr. Veena has deposed that the date mentioned in Ex.P4 as against Sl. Nos.12,17,18 and 19 as 27.11.2009 is an error. It is not the case of the defence that P.W-6/Medical Officer did not examine the victim and issue medical certificate (Ex.P4). What is to be seen is whether P.W-6 examined the victim on 29.11.2009 and noticed the injuries found on her person as mentioned in Ex.P4. Ex.P5 is the letter dated 29.11.2009 written by the Karatagi Police Station to the Medical Officer, Gangavati, for medical examination of the victim. P.W-6 has noticed the following:
• vulva congested;
• hymen torn;
• vagina congested; and • fourchette tear present extending from post fourchette to the anal maine; • bite marks over the upper lip in the midline about 1 cm;11
• circular bite mark extending from below the nostril up to the chin encircling the mouth;
• circular bite mark over the left cheek; • abrasion over the left side of the neck 2 cms;
• abrasion over the left eye about 1 cm; • abrasion over the right side of the neck (V shaped);
• abrasion above the right nipple ½ cm; and • abrasion over the abdomen above the canbilicus absent ½ cm.
Nothing worthwhile is elicited in the cross-examination of P.W-6 to disbelieve that the child did not sustain the above mentioned injuries. According to her (P.W-6), age of the wound is between 12 to 24 hours. If the incident had occurred on 27.11.2009, the age of the wound cannot be between 12 to 24 hours. Ex.P4 has to be read in toto. It is pertinent to mention that the accused was also examined medically and physically P.W-8/Dr. Ramakrishna. No doubt Ex.P8/FSL report is negative, but in view of the medical 12 report at Ex.P4 that there were 8 injuries and hymen was torn, it is sufficient to hold that the child was raped on 27.11.2009 at about 6.30 p m. P.W-1/mother of the deceased, has deposed that she has seen the accused taking her child; later on P.W-5/Kariyappa also has seen the accused taking the child towards the land, thus, the circumstances establish that the accused has committed rape on the child aged about 3 years and in that process inflicted the injuries.
The contention of the defence that a false case is foisted; teeth bite marks found on the victim were not proved as that of the teeth of the accused holds no water. The evidence of star witnesses viz., P.Ws.1,5 and 6 cannot be brushed aside. The trial Court has not properly appreciated the evidence on record and erred in rejecting their evidence. In our view, there is a ring of truth in case of the prosecution and it has proved the guilt of the accused for the offence punishable under Section 376 of IPC beyond all reasonable doubt. Heard the learned Addl. SPP and amicus curiae on the point of sentence. It is a fit case to award sentence as per judgment rendered in Madanlal's case, supra. Accordingly, we answer 13 the point formulated for our consideration in favour of the prosecution.
7. In the result, we pass the following order:
Appeal is allowed and the impugned judgment dated 11.10.2010 made in SC No.11/2010 on the file of Fast Track Court-I, at Koppal, acquitting the accused for the offence punishable under Section 376 of IPC is set aside.
Consequently, the accused is convicted for the offence punishable under Section 376 of IPC and sentenced him to undergo RI for 5 years and pay a fine of `10,000/-, in default in payment of fine, he shall undergo SI for 6 months. If the fine amount is recovered, the same shall be paid to the victim-Rekha or P.W-1/mother of the victim as compensation. The accused is entitled for set off of the period of detention undergone by him under Section 428 of Cr.PC.
The accused is directed to surrender before the trial Court on 1.9.2014 and serve the sentence, failing which the 14 trial Court is directed to secure the presence of the accused and commit him to prison.
Registry is directed to pay a sum of `5,000/- to the learned amicus curiae.
Sd/-
JUDGE Sd/-
JUDGE Bjs/ Kmv