Karnataka High Court
H.T. Kalaiah vs The State Of Karnataka on 17 June, 2014
1 Crl.A 368/13
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF JUNE, 2014
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.368 OF 2013
BETWEEN:
H.T. Kalaiah,
S/o. Thimmaiah,
Aged about 40 years,
Occ: Tractor Driver,
R/o. Front of Sagar Bar,
Shanivarsanthe Town,
Somwarpet Taluk,
Kodagu District - 571 236. ... APPELLANT/S
[By Sri. R.B. Anneppanavar, Adv.]
AND:
The State of Karnataka,
By Shanivarsanthe Police Station,
Somwarpet Circle,
Somwarpet - 571 236. ... RESPONDENT/S
[By Sri. K. Nageshwarappa, HCGP.]
***
2 Crl.A 368/13
This Crl.A. is filed u/Section 374(2) Cr.P.C
praying to set-aside conviction and sentence
dated: 07.03.2013 passed by the S.J., Kodagu,
Madikeri in S.C. No.12/2012 - convicting the
appellant/accused for the offence p/u/Ss.363 and
376 of IPC. The appellant/accused is sentenced to
undergo R.I. for 7 years and pay fine of
Rs.10,000/-, in default to pay fine, he shall
undergo R.I. for 1 year for the offence p/u/S.363
of IPC. The appellant/accused is sentenced to
undergo R.I. for 10 years and pay fine of
Rs.25,000/-, in default to pay fine, he shall
undergo R.I. for 2 years for the offence p/u/S.376
of IPC. The substantive sentences of imprisonment
shall run concurrently.
This Crl.A. coming on for Final Hearing, this
day the Court delivered the following:
JUDGMENT
The appellant has challenged his conviction and sentence for the offence punishable under Sections 363 and 376 IPC on a trial held by the learned Sessions Judge, Kodagu at Madikeri.
2. The facts relevant for the purpose of this appeal are as under:
The victim-P.W.4 is the daughter of P.W.3- Chandra and P.W.5-Kamalamma and she was said to be 3 Crl.A 368/13 a minor on the date of the incident. P.W.1-Shoba is the wife of the accused, her marriage with the accused was 15 years prior to the incident and they have 2 children through the wedlock. The accused was a driver on a tractor and on 04.08.2011, the accused was missing and he did not return to the house, therefore on 29.08.2011, P.W.1 approached the Police and submitted a missing complaint-Ex.P1, which came to be registered in Crime No.118/2011. On 16.09.2011, the Police learnt that the accused was in Holenarasipura with the victim and accompanied by a constable-P.W.11, they went to the village and found the accused along with P.W.4-victim. Both of them were brought to the Police station and the parents of the victim were informed. At that juncture, P.W.3 appeared in the Police Station and submitted a complaint-Ex.P6, which came to be registered in Crime No.121/2011 for the offence punishable under Sections 366-A and 376 IPC. In 4 Crl.A 368/13 the complaint at Ex.P6, it was alleged that the victim was 17 years and 9 months old and on 04.08.2011, when the parents of the victim went out of the house for coolie work and she was alone in the house, as she was not keeping well. In the evening, when they returned back, they did not find the victim in the house. It is in the aforesaid circumstances the statement of the victim was recorded by the Police, wherein she stated that the accused with an assurance to marry her had a sexual intercourse in her house on 04.08.2011 and forcibly took her in a bus and later they stayed in a rented room at Mangalore for a period exceeding a month. She also made a grievance that she was forced by the accused to stay in the rented room. The victim was examined by the doctor-P.W.2 and the injury certificate-
Ex.P3 was collected, statement of the witnesses were recorded, spot-mahazar was held as per Ex.P11, the cloths of the accused-M.Os.1 to 3 were 5 Crl.A 368/13 seized under mahazar-Ex.P14, transfer certificate- Ex.P15 was secured by P.W.14 and after complying the formalities, a charge sheet was filed against the appellant/accused for the charge under Sections 448, 366-A and 376 IPC.
During the trial, the prosecution examined P.Ws.1 to 14 and got marked the documents Exs.P1 to 20 and M.Os.1 to 3. His statement was recorded under Section 313 Cr.P.C., but no defence evidence was led. Anyhow, the contradictions-Exs.D1 and 2 have been got marked in the evidence of P.Ws.4 and
5. The trial Court after hearing the counsel and on appreciation of the evidence on record, convicted the appellant for the offence punishable under Sections 363 and 376 IPC. However he was acquitted of the charge under Section 448 IPC. He was ordered to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.10,000-00, in 6 Crl.A 368/13 default to undergo rigorous imprisonment for one year for the offence under Section 363 IPC and was ordered to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25,000-00, in default to undergo rigorous imprisonment for 2 years for the offence under Section 376 IPC. Aggrieved by the conviction and sentence, the present appeal is filed.
3. I have heard learned counsel for the appellant and also learned High Court Government Pleader.
4. The point that arises for my consideration is;
Whether the appellant has made out any grounds to warrant interference in his conviction and sentence for the offence under Sections 363 and 376 IPC?
5. Learned counsel for the appellant submits that the victim was not a minor and therefore, the 7 Crl.A 368/13 conviction and sentence for the offence under Section 363 IPC is not warranted. He also submits that there is no material on record to prove the act of rape and nothing is placed on record to prove that consent was obtained by fraud or misrepresentation. Therefore, he submits that even the conviction for the offence under Section 376 IPC is improper and illegal.
On the other hand, learned High Court Government Pleader supporting the Judgment and Order of the Court below and submits that the evidence of P.W.4-victim corroborated by the evidence of her parents is sufficient to affirm the conviction for the offence under Section 376 IPC. He also submits that the victim was a minor and therefore, the conviction for the offence under Section 363 IPC is justified.
6. Though in the complaint at Ex.P6, the age of the victim is mentioned as 17 years and 9 8 Crl.A 368/13 months, to prove her age, Ex.P15-transfer certificate, issued by the school authorities is relied on by the prosecution. The victim was a student of III standard and as per this certificate, she was born on 10.12.1993. As the incident was on 04.08.2011, the prosecution alleges that she had not attained the age of majority.
7. It is well-established principle that mere marking of a document is not a proof of its contents. It was necessary for the prosecution to examine the author of Ex.P15 i.e., the headmaster, who is said to have issued the certificate. Unfortunately, though the headmaster was shown as a charge-sheet witness, the prosecution has not taken any care to examine the author of Ex.P15. It is really unfortunate that a prosecutor, who represents the State in the Court below has not evinced interest to apply his mind and get the author examined to prove the contents of the 9 Crl.A 368/13 transfer certificate. In a criminal case, it is necessary for the prosecution to establish the date of birth and the fact of minority to attract the provisions of Section 363 IPC.
8. Reliance is placed on the decision of the Apex Court reported in 2006 AIR SCW 2648 [Ravinder Singh Gorkhi Vs. State of U.P.]; wherein the Apex Court held that the school leaving certificate produced during the trial issued by a person, who had no personal knowledge as to the date of the birth. In the absence of production of the register maintained by the school it is insufficient to prove the age. Not only non- examination of the person, who made an entry of the date of birth in the school register, the prosecution even has not taken any care to examine the author of Ex.P15. Therefore, the transfer certificate on the basis of which the prosecution relies to prove the age of the victim cannot be looked into for any purpose. Therefore, there is 10 Crl.A 368/13 no evidence to prove that the victim was a minor as on the date of the incident.
9. P.W.4 is the victim and it is only her statement, which was recorded by the Police and her evidence before the Court below which is relied upon to prove the offence of rape. The scrutiny of her evidence reveal that on 04.08.2011, the accused went to her house and said to have committed forcible sexual intercourse and asked her to accompany him by giving threat and therefore, she proceeded with the accused in a bus, but did not complain about the act of the accused to any person at least to the conductor, driver or the passengers. She states that she was taken to a town and was staying in a room for a period exceeding one month. She says that the accused had threatened her and therefore, she did not make any complaint to the neighbours or any other person. She was treated as hostile by the prosecution and Exs.P9 and 10 were marked as 11 Crl.A 368/13 contradictions relating to her statements before the Police. She says that she has not made any such statement before the Police as per Exs.P9 and
10. She even denies about the accused having married her in the temple. Even the prosecutor had suggested that she having made a statement that the accused had taken her to the temple at Darmasthala and married and had sexual intercourse. She even denied the said suggestion. The scrutiny of her evidence does not reveal any facts or circumstances to prove either fraud or misrepresentation. That apart, nothing is elicited in her evidence to prove that she had no consent for the sexual intercourse. When there is no material either to prove that she was a minor or that the consent was obtained by either fraud or misrepresentation and when the circumstances are sufficient to hold that she had the consent, when she accompanied the accused and stayed in a rented house for more than a month, this material 12 Crl.A 368/13 on record is insufficient to attract even the provision of Section 376 IPC. Her conduct in continuing to stay with the accused for a period exceeding a month without any grievance, infers consent for sexual intercourse on her part. Therefore, it is said that silence indicates consent.
10. P.W.1 is the wife of the accused. P.W.2 is the doctor, who examined the victim and has issued Ex.P3. It reveals that she observes the signs of having undergone sexual intercourse. There were no external injuries. P.Ws.3 and 5 are the parents of the victim. Except that the victim was missing from the house, there is no material in the evidence of the prosecution and even they had not filed any missing complaint till she was secured after about a month after missing from the village.
13 Crl.A 368/13
11. P.W.6 is the attesting witness for the spot mahazar-Ex.P11, whereas P.Ws.7 and 8 are the attesting witnesses for the mahazar-Ex.P14 i.e., seizure of the cloths of the accused M.Os.1 to 3. P.W.9 is the aunt of the victim and P.W.10 is the neighbour, who speaks about the statement made by the victim and that she had married the accused in a temple. P.W.11 is the carrier of the FIR., P.W.12 is the ASI., who registered a missing complaint of P.W.1-wife of the accused, P.W.13 is the head constable, who registered the complaint and P.W.14 is the Police Officer, who held the investigation.
12. The scrutiny of the material placed on record does not reveal any material either to attract the provisions of Sections 363 or 376 IPC. The trial Court has appreciated the evidence of P.W.4-victim and accepted Ex.P15-transfer certificate issued by the school authorities without examination of its author. Therefore, the 14 Crl.A 368/13 approach of the trial Court in awarding conviction for the offence under Sections 363 and 376 IPC is improper. Hence, the point is answered in affirmative.
Consequently, the appeal is allowed. The conviction and sentence ordered by the trial Court for the offence under Sections 363 and 376 IPC are set aside and the appellant is acquitted of the charge. Further, he is ordered to set at liberty forthwith, if he is in custody.
Sd/-
JUDGE.
Ksm*