Karnataka High Court
Shri. Suresh S/O Dundappa Gudami vs The State Of Karnataka on 14 December, 2021
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.A.NO.2503/2011
BETWEEN
SHRI.SURESH S/O DUNDAPPA GUDAMI,
OF KAMATENATTI, TALUKA: CHIKODI, DIST: BELGAUM.
...APPELLANT
(BY SRI.K.L.PATIL, ADV.)
AND
THE STATE OF KARNATAKA,
BY P.S.I. HUKKERI P.S., HUKKERI,
REP.BY THE STATE PUBLI PROSECUTOR,
HIGH COURT BUILDING, DHARWAD.
RESPONDENT
(BY SRI.PRAVEEN K.UPPAR, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) PRAYING THAT
THE IMPUGNED JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 10.12.2010 PASSED BY THE HON'BLE V
ADDITIONAL SESSIONS JUDGE, BELGAUM IN S.C.NO.155/2008 ON
ITS FILE MAY KINDLY BE SET ASIDE AND THE ABOVE NAMED
APPELLAN(ACCUSED) MAY KINDLY BE ACQUITTED OF THE OFFENCES
PUNISHABLE UNDER SECTION 366, 344, 376 AND 506 OF IPC BY
ALLOWING THIS APPEAL.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant-accused is before this court impugning the judgment of conviction dated 10.12.2010 and order of sentence dated 13.12.2010 passed in S.C.No.155/2008 on the file of the V Additional Sessions Court, Belagavi (hereinafter referred to as 'the trial court' for short), convicting him for the offences punishable under Sections 376, 366, 344 and 506 of IPC and sentencing him to undergo simple imprisonment for a period of seven years for the offence punishable under Section 376 of IPC and to pay a fine of Rs.5,000/-, in default to undergo further simple imprisonment for a period of one year. The accused is sentenced to undergo simple imprisonment for a period of three years for the offence punishable under Section 366 of IPC and to pay a fine of Rs.2,500/-, in default to undergo simple imprisonment for a period of two years and six months. The accused is further sentenced to undergo simple imprisonment of one year for the offence punishable under Section 344 of IPC and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of three months. Further, the accused -3- is sentenced to undergo simple imprisonment for a period of one year for the offence punishable under Section 506 of IPC and to pay a fine of Rs.1,000/-, in default to undergo simple imprisonment for a period of three months.
2. Brief facts of the case are that, P.W.2-father of the victim filed a missing complaint as per Ex.P4 alleging that his daughter who was aged 13 years was found missing since 24.01.2008. The FIR was registered in crime No.17/2008 and investigation was undertaken. In the meantime, the victim who returned to the house on 27.03.2008 filed the first information with Hukkeri police station against the accused alleging that on 24.01.2008, when she was proceeding to her school, the accused, who was known to her came and induced her that he will take her to the hospital at Chikkodi. Since she had gone with him to the hospital at Chikodi twice and since accused had gained her confidence, she accompanied him. But, however, the accused took her to Chikodi and thereafter to Kolhapur and further she was taken to Gujarat. When she questioned the accused about his highhandedness, he criminally intimidated and -4- gave life threat. The victim stated that she was taken to Gujarat and kept in a room. She was not allowed to call her parents and he used to lock the door from outside, whenever he was going out. Further, the accused committed forcible sexual assault on her repeatedly for more than two months. Subsequently, the accused dropped the victim near the house of her grand-mother and fled away. Therefore, she requested the police to register the case and to initiate legal action against him. The FIR was registered, the investigation was undertaken and charge sheet was filed against the accused for the above said offences.
3. The accused appeared before the trial court and pleaded not guilty for the charges leveled against him. The prosecution examined P.Ws.1 to 13 and got marked Exs.P1 to P17 in support of its contention. The accused has denied all the incriminating materials available on record, in his statement under Section 313 of Cr.P.C., but has not chosen to lead any evidence in support of his defence. However, during the cross- examination of P.W.1, Ex.D1 came to be marked. -5-
4. The trial court after taking into consideration all these materials on record came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and accordingly, convicted and sentenced him as stated above.
5. Being aggrieved by the same, the accused is before this court challenging the impugned judgment of conviction and order of sentence passed by the trial court.
6. Heard learned counsel Sri.K.L.Patil for the appellant and learned HCGP Sri.Praveen K.Uppar for the respondent-State.
7. Learned counsel for the appellant submitted that the contention of the prosecution that the victim was aged 13 years at the time of the incident is not proved. Even though the prosecution examined P.W.10-Principal/Head Master of the school to prove the date of birth, Ex.P13 is not helpful to the prosecution to its contention that the date of birth of the victim was 11.10.1994 and she was aged 13 years at the time of the incident. Moreover, even according to the victim, she voluntarily accompanied the accused and they went up to Gujarat traveling -6- in public transport. The victim was away from home and she was being taken to Gujarat, but she never resisted the act of the accused. Even according to the victim, she stayed with the accused in a room where there are several such rooms adjoining one another. None of the neighbours or the owners of the rooms/premises in question were examined by the prosecution to prove the commission of the offence. The victim has never raised the issue with any of the occupants of the adjoining premises or the owner of the building during this period of two months. If the entire evidence of P.W.1 is taken into consideration, nowhere she has stated that she was forcibly taken away or kidnapped by the accused against her will. The conduct of the victim discloses that she is deposing falsely against the accused with some motive. Nothing prevented her from raising the voice and alerting the neighbours if the accused tried to kidnap her and take her to unknown place as far as to Gujarat and staying for more than two months. The evidence lead by the prosecution also discloses that the victim used to accompany the accused to visit the doctor as she was suffering from skin disease. Therefore, it is not for the first time, the -7- victim accompanied the accused on the date on which missing complaint was registered by the father of the victim.
8. Learned counsel further submitted that, even medical evidence adduced by the prosecution is not helpful to prove its contention. P.W.8 is the doctor who examined the victim categorically stated that there were no injuries found on the body of the victim when she was examined. The witness categorically stated that since hymen was raptured, she formed an opinion that she was subjected to sexual intercourse. But the witness categorically stated that hymen could be raptured for variety of reasons. Under such circumstances, no value could be attached to Ex.P12-medical certificate relied on by the prosecution.
9. He further submitted that the prosecution also examined P.W.3 said to be the friend who was studying with the victim. The witness states that she along with the victim was studying in the same school, but during cross-examination the witness categorically stated that she had already married about 1½ years earlier to her deposition before the trial court. She also -8- states that she got married when she attained the marriageable age. The witness was examined before the trial court on 30.10.2010 and the evidence of the witness is to be taken into consideration. She had already attained the majority about 1½ year earlier to October, 2010 and so also the victim girl. Therefore, by no stretch of imagination, it could be stated that the victim was aged 13 years at the time of the accident.
10. Learned counsel further submitted that even though the accused is charged under Section 376 of IPC, none of the witnesses have spoken to about any act committed by the accused to constitute the offence under Section 376 of IPC. The victim only states that the accused had physical relationship with her. The same would not amount to commission of rape as defined under Section 375 of IPC. When the prosecution failed to place sufficient materials to substantiate its contention that the accused had in fact committed rape, the accused is not liable for conviction. The trial court ignoring all these facts and circumstances proceeded to convict the accused without any -9- basis. Therefore, the impugned judgment of conviction and order of sentence passed by the trial court is liable to be set aside.
11. Alternatively, learned counsel submitted that the incident in question said to have occurred during January, 2008, the accused was hardly aged 22 years at that time. Now he is married and is having a family and 13 long years have elapsed from the date of the incident. The accused was in custody for about three years during the trial and also after conviction till the order of sentence is suspended by this court. Therefore, leniency may be shown in favour of the appellant and set off could be given to the sentence already undergone by the appellant. Hence, he prayed for allowing the appeal.
12. Per contra, learned HCGP opposing the appeal submitted that serious allegations are made against the appellant for having committed the offence. The victim was hardly aged 13 years at the time of the incident. The accused took advantage of his position and under the guise of taking her to the doctor for treatment, kidnapped her from the custody of her parents. She was taken to Gujarat and kept in a room. The
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victim explained the commission of the offence by the accused in detail both in the first information and also while deposing before the court as P.W.1. She categorically stated that under the pretext of taking her to the hospital, the accused took her away and even when she resisted to go with him, he criminally intimidated and taken her to Gujarat. Since the victim was hardly 13 years, the accused cannot take the defence that the act was committed with her consent. The victim categorically stated that, she was kept in a room locked, when he used to go outside and she was not permitted to call her parents over phone. The victim also stated that during her stay for about two months with the accused in Gujarat, he was having physical relationship with her and he spoiled her. The witness also stated that since she was helpless and unable to resist the accused, she finally refused to take food and thereafter, the accused took her and dropped her in Kamatenatti. When the victim is a child aged 13 years, the court cannot expect her to explain the act of the accused in detail which will amount to traumatizing the victim again and again. Moreover, there is no cross-examination to the victim to disbelieve her version. The accused has taken the
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defence of total denial, but failed to explain the incriminating materials that are placed before the court.
13. Learned HCGPP further submitted that P.Ws.1 and 2 have categorically stated in their evidence that the date of birth of the victim is 11.10.1994 and that she was 13 years at the time of the incident. It is also stated that she was studying in 8th standard during that period and there is absolutely no cross- examination to these facts deposed by the witness. The prosecution also examined P.W.10, the Head Master of the school in which the victim was studying. The school certificate as per Ex.P13 also corroborates the evidence of P.Ws.1 and 2. There is absolutely no reason for P.W.10 to issue Ex.P13 mentioning the date of birth as 11.10.1994. The witness stated that the date of birth mentioned in the school register is on the basis of the documents that were furnished while admitting the victim to the school at the first instance. There is nothing to conclude that all these witnesses are deposing falsely.
14. Learned HCGP further submitted that P.W.3, the classmate of the victim deposed before the court that she was
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also studying with P.W.1 and she was aged 13 years. During the cross-examination, it is only elicited that she has already been married about 1½ year ago and that she married at the marriageable age. The witness has categorically stated that she was 13 years while she was examined before the court in 2009, it cannot be concluded that she had attained the age of 18 years since she stated that she married at the marriageable age. When the prosecution is successful in proving that the victim was a minor aged 13 years at the time of the incident, the accused cannot contend that he took the victim with her consent and act was committed with her consent.
15. Learned HCGP further submitted that P.W.8 is the doctor who examined the victim after returning to the village. She issued Ex.P12-Medical certificate wherein it is specifically stated that hymen was not intact and she has given the opinion that the victim had undergone sexual intercourse. Even though during cross-examination, it is suggested that hymen could be raptured for other reason including cycling, there is no cross- examination to P.W.1 or P.W.2 that the victim was used to such
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activities like cycling. When the prosecution proved the commission of the offence by the accused by examining the victim herself and also produced materials which are clinching, it cannot be concluded that the victim was a major as on the date of the incident. The victim has also deposed before the court that she was criminally intimidated. Under such circumstances, the trial court convicted the accused by assigning cogent reasons in its judgment. There are no reason to interfere with the impugned judgment of conviction and order of sentence passed by the trial court. Hence, he prayed for dismissal of the appeal.
16. Perused the material on record. The point that would arise for my consideration is:
Whether the impugned judgment of conviction and order of sentence passed by the trial court in S.C.No.155/2008 for the offence punishable under Sections 366, 344, 376, 506 of IPC calls for interference by this court in this appeal?
My answer to the above point is in the 'Partly in the affirmative' for the following:
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REASONS
17. It is the specific contention of the prosecution that the victim was aged 13 years at the time of the incident. P.W.1 is the victim and P.W.2 is her father. Both the witnesses in their evidence stated that the date of birth of the victim is 11.10.1994. It is pertinent to note that this date of birth was elicited from the victim by the learned counsel for the accused during the cross-examination. The witness categorically stated that she was 13 years 8 months at the time of the incident. Similarly, P.W.2 the father of the victim and he also stated that the victim was 13 years as her date of birth is 11.10.1994. Similarly, P.W.3, the classmate of the victim deposed before the court stating that she is aged 13 years and she is studying along with the victim. There is absolutely no cross-examination about the age of the victim to any of these witnesses. Nothing has been elicited from P.Ws.1 and 2 to disbelieve their version. The contention of the learned counsel for the appellant that P.W.3 stated that she already married for about 1 ½ years and that she married at the marriageable age is sufficient to conclude that the
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victim already aged 18 years or at least 16 years at the time of the incident cannot be accepted under any circumstance. There is absolutely no reason as to why there is no cross-examination regarding date of birth and the age as mentioned by P.Ws.1 and
2.
18. The prosecution is also relying on Ex.P13-date of birth certificate issued by P.W.10-Principal of LBS College where the victim was studying in 8th standard during the year 2007-08. As per this document, the date of birth of the victim is 11.10.1994. Even though this witness was cross-examined at length, nothing has been elicited from him to disbelieve his version or falsify Ex.P13. It is only stated by the witness that Ex.P14-attendance certificate produced before the court is issued by him to assist the police. It is pertinent to note that it is not even suggested to P.W.10 that he has given a false certificate for any reason. Of course, it is elicited from the witness that date of birth mentioned in Ex.P13 was on the basis of the date of birth mentioned in the transfer certificate issued in favor of the victim after completing her 7th standard. There is absolutely no
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reason as to why all these materials both oral and documentary are to be ignored while determining the age of the victim. It is also pertinent to note that the accused has not probabalized his contention that the victim was a major as on the date of the offence. Therefore, I do not find any substance in the contention taken by the learned counsel for the appellant that the age of the victim is not proved by the prosecution.
19. The second contention raised by the learned counsel for the appellant is with regard to the allegation that the victim was kidnapped by the accused from the lawful custody of her parents. To prove this contention, the prosecution again relied on the evidence of P.Ws.1 and 2 and also the investigating officer who has drawn the mahazar of the scene of occurrence in Gujarat, as the same was shown by the victim, which is as per Ex.P9. There is absolutely no cross-examination to any material witnesses who have spoken to regarding these aspects of the matter, including the investigating officer. When the prosecution is successful in proving that the victim was a minor aged 13 years at the time of the accident, the contention of the appellant
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that she had not resisted or raised voice while she was being taken by the accused cannot be the reason to disbelieve the version of the prosecution. The evidence given by the victim regarding her kidnap by the accused that it was only under the pretext of taking her to the doctor for treatment inspires confidence in the mind of the court. Moreover, when the prosecution is successful in proving that the victim was minor at the relevant period of time, the accused cannot raise the defence of consensus of the victim.
20. The next contention raised by the learned counsel for the appellant is that the ingredients of Section 375 of IPC are not spoken to by the victim. This contention is also cannot be accepted in view of the evidence led by the prosecution in that regard. P.W.1 is the victim herself who specifically states that she was taken to Gujarat in spite of her resistance and the accused developed physical contact and spoiled her. The age and the social background of the victim is to be considered while appreciating the oral evidence of this witness. She is a girl aged 13 years from a rural area who studied up to 8th standard. She
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stated that she was taken by the accused in spite of her resistance. She also stated that the accused developed physical contact and spoiled her. There is absolutely no cross- examination on these points spoken to by the victim. Without there being any cross-examination to disbelieve the version of the victim or to probabilize that there was no offence as defined under Section 375 of IPC, it cannot be concluded by saying that the victim has not narrated the entire act in detail to attract Section 375 of IPC.
21. The act of committing rape on a minor girl itself is a devastating experience for the victim and asking her to relive the said experience again and again even before the court of law, will amount to traumatizing the victim again and again. When there is no serious cross-examination about the facts that are deposed by the victim, it cannot be contended that all the ingredients of Section 375 of IPC are not spoken to by the victim in detail. It is not the victim who is facing the trial. Moreover, when the age and social background of the victim are taken into consideration, even if the victim has explained the act committed
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by the accused in detail in terms of Section 375 of IPC, definitely that would have been an artificial evidence which was required to be arrived at by the court as unnatural. The evidence deposed by the victim before the court is quite natural to her age with her social background. There is no reason to reject such evidence or to suspect regarding commission of the offence by the accused. Therefore, I do not find any merit in the contention taken by the learned counsel for the appellant in that regard.
22. P.W.7-ASI who accompanied the victim to Gujarat and Ex.P9 is drawn at the scene of occurrence, as the place was shown by the victim. Nothing has been elicited from this witness to disbelieve his version.
23. The prosecution examined P.W.8 and relied on Ex.P12-medical certificate. Even though there were no external injuries found on the body of the victim, it is stated that hymen was not intact and the victim was used to sexual intercourse. Though this witness was cross-examined by the learned counsel for the appellant, the medical certificate Ex.P12 is never challenged in the cross-examination of the witnesses. It is
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elicited from the witness that since hymen was not intact, she formed an opinion that the victim has undergone sexual intercourse. It is also elicited that hymen could be torn for various other reasons including cycling. But it is not the contention of the accused that the hymen of the victim was raptured as she was used to cycling etc.
24. The learned counsel for the appellant placed reliance on the decision of the Hon'ble Apex Court in the case of State of Madhya Pradesh Vs Munna Alias Shambhoo Nath1 and in the case of Vishnu Alias Undrya Vs State of Maharashtra2; and in the case of Birad Mal Singhvi Vs Anand Purohit3, to contend that the prosecution is not successful in proving the age of the victim in accordance with law. I have gone through these decisions in the light of the facts and circumstances of the present case. In Munna Alias Shambhoo Nath (supra), the Hon'ble Apex Court observed that, even though the prosecution produced evidence including school certificate, opinion of the doctor who conducted medical examination of the prosecutrix, 1 (2016) 1 SCC 696 2 (2006) 1 SCC 283 3 1988 (Supp) SCC 604
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including the bone ossification test, examination of the Principal of the school, the age of the victim was not proved, since the Principal of the college pleaded ignorance about the fact as to the date of birth mentioned in her letter of declaration. The doctor who conducted medical examination had not supported the case of the prosecution. But on the other hand, deposed that the girl could not have attained the age of 14 years. As per the x-ray report of the ossification test, the doctor opined that the age of the prosecutrix could not be more than 14 years. But the said doctor was never examined. Nothing has been elicited from the prosecutrix about her age, even though she was examined before the court. Even though the mother of the victim stated the age of the prosecutrix as 13 years, during cross- examination, she stated that she had married about 20 years back and she begotten eldest daughter within two years and within 2-3 years thereafter the prosecutrix had born. Thus, the finding of the High Court that there were no sufficient materials to come to the conclusion about the exact age of the prosecutrix was accepted by the Hon'ble Apex Court, as no clinching
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materials were produced to prove the fact that the girl was less than 16 years of age at the time of the incident.
25. The Hon'ble Apex Court considered its earlier decision in Birad Ml Singhvi (supra) wherein it is held that entries regarding dates of birth contained in the school register and the secondary school examination have no probative value as no person on whose information the date of birth of the candidates were mentioned in the school record was examined. The Hon'ble Apex Court also placed reliance on Sunil Vs State of Haryana4, wherein it is held that in a criminal case, the conviction of the accused cannot be based on the approximate date of birth which is not supported by any record. It would be quite unsafe to base conviction on an approximate date. Thus, the Hon'ble Apex Court held that the age of the prosecutrix was not proved by the prosecution.
26. In Vishnu Alias Undrya (supra), the Hon'ble Apex Court considered the fact that the date of birth of the prosecutrix has been concurrently recorded by both the trial court and the 4 (2010) 1 SCC 742
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High Court on consideration of the evidence of the father and mother of the prosecutrix and also the date of birth register in the municipal records and hospital record. Therefore, it was held that the finding of the trial court that the prosecutrix was less than 16 years of age on the date of commission of the offence was not at all challenged by the accused and thus, held that there are sufficient materials to hold that prosecutrix was below 16 years of age and her consent, if any, for committing any act is immaterial, under clause sixthly of the definition of "rape" under Section 375 of IPC. Therefore, this decision relied on by the learned counsel for the appellant is not helpful for him. Moreover, in the present case, P.W.1-victim and P.W.2-father have consistently stated about the date of birth of the victim and also that she has been still studying in 8th standard. There is absolutely no cross-examination to any of these witnesses regarding this aspect of the matter. Moreover, the school certificate relied on by the prosecution, i.e., Ex.P13 is supported by the evidence of P.W.10 where he states that date of birth mentioned therein is on the basis of the date of birth which was found in the school leaving certificate produced at the time of
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admission of the victim to the school. When the evidence led by the prosecution regarding the exact date of birth of the victim is corroborated by both oral and documentary evidence, I do not find any reason to suspect the age of the victim as 13 years to be precise and under any case below 16 years.
27. Learned counsel for the appellant placed reliance on the decision of the Hon'ble Apex Court in the case of Kavita Chandrakant Lakhani Vs. State of Maharashtra and Another5 to contend that mere abduction of the victim is not sufficient to attract Section 366 of IPC, but it is necessary to prove that the accused abducted the girl with intent to compel her to marry against her will or to force her or seduce her to illicit intercourse. But this decision referred to a woman who was admittedly a major and there were multiple statement by the victim regarding commission of the offences, which were quite contradictory to one another, which gave an impression that the story of commission of the offence was built after due deliberation and the victim was having relationship with the accused who was known to both the families. Under such 5 AIR 2018 SC 2099
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circumstances, the allegation that the accused kidnapped the victim forcibly from her house with an intention to marry her or seduce her to illicit intercourse was held to be an after thought.
28. Learned counsel also placed reliance on the decision of the Hon'ble Apex Court in the case of Sakshi vs Union of India and Others with Smt.Sudesh Jakhu Vs. Narender Verma and Others6 to contend that ingredients of Section 375 of IPC are not at all attracted to the present case. It is the public interest litigation filed by an NGO seeking declaration in the form of an appropriate writ or direction that the word "sexual intercourse" as contained in Section 375 of IPC shall include all form of penetration and also to issue writ, order or directions to register such cases falling within these broadened interpretation of word "sexual intercourse" as offence under Section 375, 376 and 376A to 376D of IPC. Under such circumstances, the Hon'ble Apex Court considered as to when Section 375 of IPC is applicable and can it be altered so as to include all forms of penetration as tried to be suggested by the petitioner and held that, it is well settled principle that the intention of the 6 AIR 2004 SC 3566
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Legislature is primarily to be gathered from the language used. It is also equally well settled that a statute enacting an offence or imposing a penalty is to be strictly construed. It is highlighted that the fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear. However, while dismissing the writ petition, the Hon'ble Apex Court issued certain directions to be followed while dealing with such offences concerning Section 354, 375 and 377 of IPC and the cases of child sexual abuse or rape. This decision which suggests strict construing of the meaning used in the enactment is of no help to the appellant to seek acquittal of the offence alleged.
29. Learned counsel for the appellant placed reliance on the decision of the Hon'ble Apex Court in the case of Pratap Misra and Others Vs State of Orissa7 to contend that on consideration of facts and circumstances of the case, the act complained was held to be a consensual act. But in the said case, the victim was a married woman aged 23 years. Under the facts and circumstances of the case, the court observed that 7 (1977) 3 SCC 41
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there are serious contradictions in the case made out by the prosecution as to the manner in which the accused committed rape on the prosecutrix. Therefore, the Hon'ble Apex Court held that the contentions of the prosecution cannot be accepted and the impugned judgment of conviction is to be interfered with. But in the present case, the victim is a minor aged 13 years. Under such circumstances, the accused cannot contend that the act complained is a consensual act. Therefore, the decision relied on by the learned counsel for the appellant is not helpful to get acquittal of the accused.
30. Learned counsel for the appellant also placed reliance on the decision of the Hon'ble Apex Court in the case of Santosh Prasad @ Santosh Kumar Vs State of Bihar8 to contend that the evidence of the prosecutrix is not corroborated by any other evidence or materials and therefore, the accused cannot be convicted. In the said case, the Hon'ble Apex Court categorically held that the accused can be convicted for the offence of rape on the solitary evidence of the prosecutrix, provided the same inspires confidence and appears to be 8 2020 AIAR (Criminal) 220
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absolutely trustworthy, unblemished and should be of sterling quality. In the present case, P.W.1-victim categorically stated that she was induced and taken by the accused to Gujarat, kept her in a room and committed sexual assault repeatedly. It is not the contention of the prosecution that there are any witness who witnessed the act of the accused. Even though the victim has categorically stated regarding the commission of the offence by the accused in her chief-examination, nothing has been elicited from her during cross-examination to disbelieve her version. It is only suggested to the witness that she is deposing falsely against the accused which has been denied by the witness. When there is no effective cross-examination to take any specific defence, the accused, cannot contend at this stage that the victim was a major or she has consented for the act. Therefore, all these decisions are not applicable to the facts and circumstances of the present case.
31. In view of the discussion held above, I do not have any hesitation to hold that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and I
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do not find any reason to interfere with the impugned judgment of conviction passed by the trial court.
32. The contention raised by the learned counsel for the appellant that leniency may be shown in favour of the accused in sentencing him is concerned, the same is to be considered in the light of the nature of the offence committed by the accused. The prosecution is successful in proving that the victim aged 13 years was kidnapped from the custody of her parents on 24.01.2008 and she was brought back by the accused only on 27.03.2008. Therefore, accused had taken the victim with him for almost two months to Gujarat and committed sexual assault repeatedly. It is also pertinent to note that initially the victim was induced to take her to a doctor for providing treatment for her skin disease and thereafter, she was taken away to Kolhapur and from there to Gujarat. This conduct on the part of the accused demands no sympathy, as suggested by the learned counsel for the appellant. Even though it is contended that the accused was hardly aged 22 years at the time of the incident, it is to be noticed that the trial before the trial court was concluded
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and the impugned judgment of conviction was passed on 10.12.2010, i.e., within three years from the date of the offence. The appeal which was filed in the year 2011 came to be listed from time to time and on many dates of hearing, the learned counsel for the appellant was absent, as per the order sheet maintained. Under such circumstances, the accused cannot be permitted to take advantage of his own wrong to seek leniency in the matter of sentencing him for the heinous offence of committing rape. Moreover, as per Section 376 of IPC, which stood as on the date of the incident, the minimum sentence of 7 years is to be imposed on the accused for the offence in question. Of course, proviso to Section 376(2)(f) suggest that for any special or adequate reasons, the lesser punishment could be imposed. The discussions held above do not suggest that there is any adequate or special reason for invoking the said provision.
33. Learned counsel for the appellant placed reliance on the decision in the case of State of Rajasthan Vs
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N.K.(Accused)9 in support of his contention that even if the accused is to be convicted and the appeal is to be rejected, leniency may be shown in favour of the accused and the benefit of set off for the period which the accused has already undergone in prison is to be given. The Hon'ble Apex Court considering the fact that the incident had taken place during 1993 and the accused was in custody for little less than two years, felt it proper to sentence the accused to undergo imprisonment for a period already undergone by him and to pay fine.
34. Learned counsel for the appellant contended that the incident had taken place during 2008 and 14 long years have been elapsed and the accused was then aged 22 years. He is the only bread winner of the family having aged parents. Now, he is married and having a child aged 9 months. The victim is also married and settled down in her life. The appellant being a young man should be given a chance of reformation. 9 AIR 2000 SC 1812
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35. Learned counsel placed reliance on the decision of the Hon'ble Apex Court in the case of Phul Singh vs State of Haryana10 to contend that leniency may be shown to the appellant as long incarceration would not serve any purpose. On the other hand, reasonable substantive sentence of 2-3 years could be imposed to enable the appellant to lead a decent life. Learned counsel highlighted that Section 376 in unamended IPC enables this court to reduce the sentence for special and adequate reasons. In view of the same, he prays for showing maximum leniency in favour of the appellant which would serve the ends of justice.
36. Learned HCGP opposing the submissions of the learned counsel for the appellant submitted that maximum leniency is already shown in favour of the appellant by the trial court. The accused being aged 22 years at the time of commission of the offence, aged parents, he is married and now having a child cannot be termed as special and adequate reason to reduce the period of substantive sentence. The lapse of more than 14 years after commission of the offence cannot be the sole 10 1980 Madras Law Journal (Crl) 533
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ground to reduce the sentence. Therefore, he prays for confirmation of order of sentence passed by the trial court.
37. Considering the rival submission regarding quantum of sentence that is to be awarded for the offence punishable under Section 376 of IPC, the proviso to Section 376(1) which stood before substitution of Act 13 of 2013 w.e.f. 03.02.2013, the imposition of sentence of imprisonment for a term less than 7 years could be imposed, subject to adequate and special reasons to be mentioned in the judgment. In the present case, accused was aged 22 years at the time of commission of the offence and 14 long years have elapsed from the date of commission of the offence. It is stated that victim is already married and she has settled down in her life. The accused is also married and having a child. The responsibility to support his family is on the accused. Learned counsel for the appellant/accused submits that accused has repented for the act which was committed while he was still at the age of 22 years. These facts and circumstances could be considered while sentencing the accused. The suggestion given by the learned
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counsel for the appellant that, by payment of compensation to the victim workout to be disastrous, as the victim is said to have been settled down in her life by marrying another person. Under such circumstances, I am of the opinion that appellant/accused may be given an opportunity to reform himself as he has repented for the act which he has committed. At the same time, the sentence imposed by the trial court could be reduced to reasonable period of substantive sentence and by increasing the fine amount that is payable by the accused. Even though the victim is entitled for compensation under Section 357 of Cr.P.C., no information is available as to her present status. Awarding of compensation in her favour at this length of period when she is already been married and settled in life, may prove to be disastrous. At the same time, if the victim is willing to claim compensation, not passing any order in that regard would also workout injustice to the victim. Therefore, I deem it proper to reserve liberty with the victim to claim compensation, if she is willing to do so. Hence, I answer the above point "partly in the affirmative" and proceed to pass the following:
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ORDER The appeal is allowed in part.
The judgment of conviction dated 10.12.2010 passed in S.C.No.155/2008 on the file of the V Additional Sessions Judge, Belagavi convicting appellant/accused for the offences punishable under Sections 376, 366, 344 and 506 of IPC is confirmed. However, the order of sentence dated 13.12.2010 passed by the trial court for the offence punishable under Section 376 of IPC is modified and the appellant/accused is sentenced to undergo rigorous imprisonment for a period of 4 years with fine of Rs.50,000/- and in default, he shall undergo rigorous imprisonment for a period of 1 year.
The remaining portion of the order of sentence passed by the trial court is confirmed.
The victim is at liberty to claim compensation from the trial court by filing a simple application in that regard. In case of filing such an application, the trial court should proceed to award the compensation from out of the fine amount that is to be deposited by the accused.
Registry is directed to send back the trial court records with a copy of the judgment to the trial court.
SD/-
JUDGE MBS/-