Karnataka High Court
N Vijaya @ Ameen C P No 14990 vs State Of Karnataka By East Police ... on 12 August, 2009
Equivalent citations: 2010 CRI. L. J. 1050, 2010 (1) AIR KANT HCR 264 (2010) 3 CRIMES 71, (2010) 3 CRIMES 71
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 127" DAY OF AUGUST 2009
BEFORE A
THE HONBLE MRJUSTICE ARALI
CRIMINAL APPEAL NQm.445/?.{}Of7:f.. "if a
BETWEEN: A A A A
N.Vijaya @ Ameen.
S/o K.S.Naganna,
Convict Prisoner No.14990, _
Central Prison--Myso1'e;...A_ :4. ...Appe11ant
(By Sri A. N . Radharkrishna, A V
appointed as'a1nicus"cu"I'iae)." '
AND: ~ M
Stateof " .
East Police tChama.raj_n'agar. ....Respondent
[By;SI':1_A.V:Rama1<rishna, HCGP) ikcriminal appeal is filed by the .coiii"$;riC't / appeiiant / accused through the Supt. ,CentraI p::son,_ Mysore against the judgment dated 31.8.2006 passed the 13.0., F.T.C., Chamarajanagar in S.C.No.'10/2005, convicting the A " 'appellant/accussed/convict for the offence punishable _ under Section.366, 323, 506 Part II and 376 r/w. 34 of . ViVPCA and convicting for the offence punishable under Section. 5 of Immoral Traffic [Prevention] Act, 1956 and sentencing him to undergo R1. for 5 years and to pay fine of Rs.2,500/-- for the offence punishable under Section 366 r/2. 34 of IPC I.C., to undergo R}. for 6 months and sentencing him to undergo R.I. for one month and to pay fine of Rs.100/~ for the offence c________""'*-./"'*«._,,_....._____( p/u/s.323 r/w. Sec.34 of IPC I.D.'"Z to undergo R1. for 7 days and further sentencing him to undergo R.I..--._for 2 years and to pay fine of Rs.l000/~ for the" offence punishable under' Section.506 Part II r/W. sec-.--f4f54;"vof I.P.C. and I.D. to undergo R1. for 3 months.;and§fu.rth,er sentencing him to undergo R1. for 10 year's__ar1:d_to pay fine of Rs.5000/-- for the offence pu_.r1isvhyableV.. under"
Section 376 r/W. Sec.34 of iPc,,;'i;D; 1"o¥u:r1.;c'.erg0_ R.1: for one year, further sentencing him to'~underg'o RI'; :fc1r"*;}4 years and to pay fine of Rs.20_O0/-- for_~,t'he'~ offences punishable under Section'-.._ 5 of IInrr1orjav1...VVVVVTraffic.V' (Prevention) Act, 1956, ID. to_undergo.R.'£. .for°5 months substantive sentences shall _concurrent_ly. This criminal a'ppeal7. -for hearing this day, the Court delivered the follow-"ingg. __ _ThHeV No.10/2005 on the file of Fas-t T'raci{v'C'ou_r't,. Chamarajanagar [hereinafter referred toast "TriaI"Coiirt' for short) has challenged in this C'ap'pea1.gpcorrectness of the judgment and order of aic:=d.1~~sentence dated 31.8.2006 passed in the said case céinvicting him for the offences under Sections 356/s41;"323/34, 376/34 and 506 Part 11/34 of I.P.C. ' 'eeanddsection 5 of Immoral Traffic (Prevention) Act 1956 T ~~and sentencing him to undergo rigourous imprisonment for various periods and also to pay fine of Various amounts as stated in the impugned order of sentence.
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2. Heard the arguments of Sri A.N.Radhakrishna, the learned counsel for the appellant~accused and also Sri A.V.Ramakr1'shna, the learned High". Government Pleader. Perused the _ and order of conviction and sentence and the entire" = b material found in the original re.cords.}Jblta1i11le'd 'the Trial Court. _ _ g
3. On appreciation of evidence PW1 to PW12, the documentstfat E3_izh:;bilts«.__PvCA1"'%:o P17 and M0s.1 to 3 produced_by the aiiidllexhibits D1 to D10,2re1evanlt._-vporitions"inthe statements of prosecution witnesseslgotl the accused, the Trial Court, by__;1*ts judgment and order of conviction, appel1ant--accused for the said offences. _/fhough!ll"_the'V~.,charge was framed against the appellant- acctisedf the said offences for which he has been 'conyicted and also for the offences under Sections 3, 4 6 of Immoral Traffic (Prevention) Act, 1956, the rial Court acquitted the accused of the offences under Sections 3. 4 and 6 of the said Act.
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4. The learned High Court Government Pleader submitted that the complainant~State has not filed any appeal against the judgment and order of acquittal of the accused of the said offences.
5. Stated in brief, the case of the pro$:écfit_i--g::__r, _ alleged in the complaint Ex.P1 dated 'V PW1 Kumari Raziya Sultana, d/ PW4.
as under:
(a) The co_mplain_ant~,is'~~aged ab,outJ2O years.
She has been at.ilH-ar.ad~anahalli Village of .Kolleg'al.l'llal3uk;-ljhainarajanagar Dist. along with been rolling beedi in the house. only. has been dealing in plastic ..,goodls. raatelrnal aunt namely Smt.l\/lubeena ..(CW2l"*-h~"'s been residing at Udayagiri in , - ., , V city.
_ Whenever the complainant used to go to l ,. ll/Iyslore to see her said maternal aunt, she used to see one Vijay @ Ameen (Al herein] as he was a neighbour of her said maternal aunt. The said Vijay used to 'visit Haradanahalli Village along with the complainants maternal aunt. As such, accused No.1 was known to all the members of the complainants family.
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(c) On 27.6.2004 at about 11.00 a.m. while the complainant was alone in her hodse. at Haradanahalli Village, Al Vijay came and informed her that her maternal' au;nt"'was admitted in a hospital at Mysore he had come there to take her :tolpl\/lly:s.c.:)re';---Then complainant told him, that her' 'mother. gdne' * Chamarajanagar .and-v..t.p:.th.erefore. V l'10tll accompany him to 'but this v.A.1...*lfijay told her that had either mother at Chamarajpanagarypand shefciirnplairiant) could also meet hei'*mt:'the:r at Clhamarajanagar. 1: 'staid; words. of the accused.
:thlel'corir::plaiifViVant'accoinpariied him. He took her to some dista'i1cei».frerri._.her house where one white ambassadcrllcar parked. Showing the car. he ;' told the complainant that he had brought the car r~0mlt'A~MYS0re'll'lto take her with him. She noticed _thatl..4tw_o"other male persons were in the said car. boarded the said Car, Al Vijay and another boy sat on her either side and she was n1-ade to sit in between them.
(e) After the said car came near Chamarajanagar, A1 Vijay and the said other boys pressed her mouth forcibly and A1 Vijay threatened her showing knife and saying that if she were to raise cry, he would kill her and throw q-,;v----«-_..C~'N»-'\...---«----- her dead body into the water at some place. Therefore, the complainant kept quiet. Then Al and the said boys forcibly administered her four tablets. When she refused to swallow _ tablets, A1_and both the said personss1appedl5her _ and thrusted the tablets to her water. Having left \?\TlLlTlMl'IO.'L1lt€§l'Il8.tl'i7$;'*:V"Sl;1'$ swallowed the said tablets.
into sleep.
{1} When ,.-the returned to her senses, she noticed ishefjwals. lying in a room with no piece of... her. bsay and the three boys ir1c1i'gding;ithc:g were also in the said allllnlalced. On seeing them all, she Then A1--Vijay slapped an"cii4__tl*irVeatene.(i' She further noticed that she {' "Was all the said three persons while she ' waskinconslclious. Then all the said three persons _ again' committed forcible sexual intercourse on her A despitei' her resistance and her request not to do . . 'Q
(g) The complainant came to know from the talks among the said three persons that she was in a room of Ranganatha Palace Lodging situate at Nanjangud Road, Chamarajanagar. Thereafter, they vacated the said room, took her to another lodge. in the latter lodge, they forced her to have €Nm_«{ forcible sexual intercourse withother boys also:
When she refused to oblige them, they blehthgand threatened her showing the knife. There-fore..'~V..s'h.e slept with them. A} Vijay was 4_ Rs.1,000/~ to Rs. 1.500/W frorn therf1';'Li:};ex%2'ise,, Al Vijay made her to submit._her-*oAersonto s"tra_ngers by taking her to different"«lodgings.,.".iDuring*. that» period, she was not timelyf0o'C1.ll?fheyllusedl' to earn money by ;n.aiking--._,g'herl "to._su':bmit her person to variousl:.'per'sor.isV. "
(h)_O-':3 oniellldlayr, thereafter,.ll.?Xll Vijay took her to other Srnt.Mubeena Taj VI," 'At ll\/Iohammad Ilyas @ ,M':'ie;h§ie piresent there and A1 Vijay that. he found her [complainant] at 'land.fit':ierefore he brought her there.
;' "After her there, he went away. Thereafter, She "ngarrateldlllbefore her maternal aunt and the _ all the incidents. On the next day, PW5 ' Illyasgtoolk her to one Riyaz Khan (CW8) residing at Laslikar Mohalla. The said Riyaz Khan searched for the said Vijay, but he could not find him.
(i) On the afternoon of 16.8.2004, the said Mohammed Ilyas (PW5] informed the complainant that Al Vijay was arrested and he was at Woman Police Station and therefore the complainant should bring her mother. Therefore, the ,......___(""'%-----x.......
complainant went to the said Police Station with her mother at Chamarajanagar and lodged her complaint against A1 Vijay and two other persons.
6. On the basis of the said complaint, theliolicevv of Chamarajanagar Police Station registered A1 Vijay and two other pers--ons,ganldflissilrefl' accordingly. During investigation. Police trace the said two other l1er'efolre',l"charged sheet came to be filed' aga.instll{Ali'Yijayllandtwo other persons respectively therein A2 and Therefore, the case against A2 and canile up and it proceeded against A1 only; ..
Stirg'A.N.l1§aldlhaI:.rishna, the learned Counsel for 9 "aprpluellanlteaccused vehemently contended that thougljg' itcilsl the case of the prosecution that Al, along 'A2 and A3, took the victim girl namely PW1 l"'._l{u:nari Raziya Sultana from Ranganatha Palace V' ""'t.odging at Chamarajanagar to various other lodgings and there, he subjected her to forcible sexual intercourse by many other persons and thereby earned w money and thereafter he took her to the house of one Rajamma situate at 731 Cross, Udayagiri, Kyathamaranahalli in Mysore City and further subjected her to forcible intercourse by many perstons over a period of more than one month, the_p1'osccu3.i_o1'1 has not been able to prove the same, it has. not chosen to examine as proseciutiorilzvvitnesses, thee said S1nt.Rajam1_na [CW10i: and anyllof Proprietors of the other lotdgirigs andil therefore the conviction of the accused for?wj.gthe"'--o:ffei:ce under Section 5 of 'fi*affiC*-l.l[PreventionJ Act, 1956 cannot be sustained ' V _ 8. 1l5erl-ccnof_a;f~th'e- "learned High Court Government '~ _ Plé:ade'r.:st.ronglly'contended that though the Managers or of various other lodgings, where the [P\/Vi) was' subjected to forcible sexual intercourse by several persons, are not examined as " pr_o_s'ecution witnesses, the Trial Court was justified in .. _..convicting the accused for the said offences relying on the oral evidence of PW1 victim girl which is convincing and acceptable.
9. It is pertinent to note that, though it is alleged in the complaint EX.Pl that after she was subjected to ' forcible sexual intercourse at Ranganatha Palace Lodging situate at Nanjangud Road, Chamarajanagar, she was taken by the accused to other there she was further subjected to sexual__:'as:sault various other persons, she }iasf"not7; state"d._ ivn5'he'r evidence the names of any of the said oti'_:el:r" lodgings.' Further, though it is the the~.;;jro:sec.u:tion that the victim girl was made house of CWIO Rajamma . as Kyatamaranahalli in l\/iysoreg has not got the said Rajamma"*examinec1;_ has it got examined any other witriess who clota--l-d." have spoken that her residential V used by the said Rajamrna as a place and this girl was made to stay there for any 'period. This being so, as rightly submitted by Sri A._l\l;'Radhakrishna, the learned Counsel for the my _..'lappellant~accused,'the Trial Court was not justified in convicting the accused for the offence under Section 5 of the Immoral Traffic [Prevention] Act, 1956. As such, the ...a.~..«*:"*~«-"~"=---»»=--~r*** impugned judgment and i order of conviction and sentence insofar as it relates to conviction of the appellant--accused for the said offence and sentencing him to undergo rigorous imprisonment for a period of 14 years and also to pay fine of Rs.2,000/~ be set--aside and the appellant--accused_ acquitted of the said offence.
10. As to the conviction of accigisegdvdifor offences under Sections 556- I.P.C., all r/W. Section 34 Counsel for the appelvlant--_ac'cused«.g contended that PW} NandishtflthelMaiilagef-..':oi":Ranganatha Palace Lodge to A1 tonhave taken the girl, PW3 Prakash, th_e in the said lodge, have turned hostile and .t1?i3_reforé"_v»t_h'e;" 'prosecution has not been able to prove the fact girl was taken to the said lodging, made her.' to stay in a room therein during the night of during which night the victim girl was said to it have been subjected to forcible sexual intercourse by A1 and the said other two accused one after another. He further submitted that except the say of PWI Victim girl z,---....("""*"\.....~___7 1»?
road at Haradanahalli Village, she saw that two other persons were in the said car and she was made to sit in the car in between A1 and one of the said other two persons, and that on the way to Chamarajanagaiyshe was forced to swallow tablets, when she so, she was slapped and also threatened said other persons that shev"lM§vould"'._be' therefore she took the tablets and".conseq.L1le'r1tly"}\Xfent'VVop asleep and when she returlneldr to senseg' noticed that she was lying undressed also the said two ltherarolom in naked condition. She she then noticed that she was raped and the said persons and also" ---- they committed forcible sexual _ in_ter.co1._irse .(_)vI'l'..l1€I'. careful reading of evidence of PW1 Nandish, it the_.gl\/lalnager of the Ranganatha Palace Lodging, it could 'seen that he has stated in clear terms in his V Ml"eXamination»~in~chief that on the afternoon of 27.6.2004 while he was on duty in the said lodging, A1 Vijay came there along with PW1 Kumari Raziya Sultana (whom he f% to lay down any such legal principle insulation the marauders of their activities of killing kidnapped innocents outside the ken of others. {Para 21) Fact that note contained the scribbling purported to have been authored by«<jla«V:.g«rot1p styled as Babbar Bhalsa owing the_ttwo' _ of the deceased was recovered by .pol.1ice_frotn _ the scene of murder,:'the"'said_Anotel"woul'd:7notp help the appellant accu:sedf_'un'less~.he_shows~ he has nothing9to__ do' that Babbbbar Khalsa,l'V'ev.en assun_1ing.Vthai;' the note was left by,-the rr1i.i1"deifers"-without'anyvintention to mislead the {?.ara 22) " "it _v [lf'linpi1.asis supplied) l7. -- provisions of Section 106 Evidence Elct,_:vtoVt11eA"fact.s of this case and following the 'l V. iobservatiolnlsmof Hon'ble Supreme Court, it could case of the prosecution is that Al, along other accused, brought the victim girl from i. "def residence at Haradanahalli Village to 'r~{_3'harnarajanagar in a car and then she was made to "stay along with them in room No.60 of Ranganatha Palace Lodging at Chantiarajanagar. When the prosecution has established the fact that Al brought '='""--'N"""_*""'\._J the Victim girl to the said lodging and stayed with her in the said lodging, then the burden came to be shifted on the accused, of explaining as to What happened thereafter in the said room or, of showing that nothing happened as deposed by PW} prosecutrix. silent, this Al has not discharged this V
18. The facts constituting A_ 'l7orc«ihVle«._ seminar intercourse on the victim girl. said have committed by the accused"'e«i.Vi:'r'1. the were within the special the Victim girl.
T he Victimx 'stated. (in oath that after she was brought vwthetrel, other two persons committed forcible, sexual intercourse on her one after another and despite her request that they This accused, though has denied the entire "~-levidence of PW1 victim girl, has not brought 2 ainrthing in her cross ex.amination~in~chief to disbelieve 'her evidence in examinationdnmchief as to he l committing forcible sexual intercourse on her While she Was made to stay in the said lodging.
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12..
The evidence of a victim of sexual assault stands almost on par with the evidencejhhlon an iryured witness and to an extent ei)enlg":ril)re reliable.
If the evidence of proseciitn:X"--.:inspéres--.u confidence, it must lfiJe""lrelied'«,with,oiit_ seeking corroboration of her') statement yrnaterial. particulars. _. V 3 a H The testimonigfiof the must be appreciated in ther'bac_k_grlound ofltlie entire case and the tritl1l.. Cotirt. 1' -be alive to its responsibiliiy..Cl_nd :§en'sitive.i._L:;hile dealing with the' cas_'es involvirig seiaial. niolestations. allegations in the complaint Ex.Pl:¥__and also"'~.the_l'eiridence of PW} prosecutrix are carefully "scru.vtinis.ec.l., »'itll"could be seen that her evidence fall.s}gini'~ linen' allegations in the complaint. «.of..:A1___and other two other accused taking the .pro'secutt*i'x: her residence to the said lodging at Charnalrajanagar and making her to stay with them in V' said lodging is consistent with the allegations in the l complaint. Further, as could be seen from the evidence of PWI. she has given all the minor details of the acts of forcible sexual intercourse committed on her by the accused while she was made to stay in the said lodging. e-._.c"-~»""'-~*w"
'Q against the accused that he compelled the Victim girl to subject her person to Various strangers for monetary consideration, the sentence of R1. for 'a perijo(1«'..of.'__:1iQ_f' years imposed by the trial Court ismhereby-top " b years.
24. The impugned sentence relates to imposition of sentenceig of imprisonment, fine for the offences underyifiéectiorisl 11 1.19.0. is left f' if if The {leg'a.1Ax" amicus curiae Sri A.N.Radhakrish_natis -- which shall be paid to by. the Goyevrnrnent.
Sd./--
JUDGE