Karnataka High Court
The State Of Karnataka vs Manikanta @ Mani on 5 April, 2023
Author: B.Veerappa
Bench: B.Veerappa
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CRL.A No. 972 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2023
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO. 972 OF 2016
BETWEEN:
1. THE STATE OF KARNATAKA,
BY DEPUTY SUPERINTENDENT OF POLICE,
MADIKERI SUB-DIVISION,
MADIKERI-571 201
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU.
...APPELLANT
Digitally signed (BY SRI. K.S ABHIJITH, HCGP)
by MALATESH
KC AND:
Location: High
Court of
Karnataka 1. MANIKANTA @ MANI,
S/o. PANDARI,
AGED 25 YEARS, COOLIE,
R/O. TATA COFFEE ESTATE,
MARGOLY, BADAGA BANANGALA VILLAGE,
VIRAJPET TALUK,
KODAGU DISTRICT-571 218.
...RESPONDENT
(BY SRI.D. NAGARAJA REDDY., ADVOCATE)
****
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CRL.A No. 972 of 2016
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377
OF CR.P.C PRAYING TO MODIFY THE ORDER OF SENTENCE
DATED 30.01.2016 PASSED BY THE III ADDL. DIST. AND S.J.,
KODAGU AT MADIKERI IN S.C.NO.72/2012 - AND IMPOSING
INADEQUATE SENTENCE AGAINST THE RESPONDENT FOR THE
OFFENCE PUNISHABLE UNDER SECTION 448 AND 376(2)(f) OF
IPC.
THIS CRIMINAL APPEAL, COMING ON FOR HEARING
THIS DAY, B VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the State of Karnataka being aggrieved by the judgment of conviction dated 30.01.2016 made in Sessions Case No.72/2012 passed by the III Additional District and Sessions Judge, Kodagu, Madikeri, imposing sentence on the Accused/Respondent for a period of seven years and to pay a fine of Rs.50,000/- for the offence punishable under Section 376(2)(f) of IPC and to undergo simple imprisonment for a period of one year and to pay fine of Rs.500/- for the offence punishable under Section 448 of IPC. The present appeal is filed by the State for enhancement of sentences.
2. The brief facts of the prosecution case are that, on 28.09.2011, at about 4.40 P.M. when the victim was changing -3- CRL.A No. 972 of 2016 her clothes in her house in an estate by name Margolly Estate in Badaga-Bangangala, the accused trespassed into the house with an intention to commit rape on her, closed her mouth in one hand and committed sexual intercourse with her against her will. At that time, her father-PW1 came to the house and thereby the accused ran away from the back door of the house. Thereafter, on enquiry, PW2, the victim, disclosed the same to her father and the father has lodged a complaint as per Ex.P1 to the Jurisdictional Police on the same day i.e. on 28.09.2011 at about 8.10 P.M. The Jurisdictional police registered a case in Crime No.126/2011 under the provisions of Sections 448, 376 (2)(f) of IPC read with Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The Investigation Officer after investigation filed charge sheet against the accused. On referring the matter, the learned Sessions Judge secured the presence of the accused and framed charge under the provisions of Sections 488 and 376 (2)(f) of IPC on 18.7.2012. Further, on perusal of the order sheet maintained by the learned Sessions Judge, charge with regard to offence under Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was -4- CRL.A No. 972 of 2016 discharged on 05.07.2012. Subsequently, on 18.7.2012, the learned Sessions Judge, framed charge under the provisions of Sections 448, 376 (2)(f) of IPC and read over the accused in the language known to him and the accused pleaded not guilty to the aforesaid charge.
3. In order to prove its case, the prosecution in all examined 13 witnesses - P.Ws.1 to 13, got marked the material documents Exs.P.1 to 16 and material objects M.Os.1 to 11. After completion of recording of the statement of the prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 Cr.P.C., was recorded. Though the accused denied the case of the prosecution in toto, did not lead any evidence.
4. Based on the aforesaid pleadings, the learned Sessions Judge framed following point for consideration:
"Whether the prosecution proves that the accused illegally trespassed into the house of P.W.2 with an intention to commit rape on her and committed sexual intercourse against her will?"-5-
CRL.A No. 972 of 2016
5. Considering both oral and documentary evidence on record, the learned Sessions Judge, recorded a finding that the prosecution proved its case beyond all reasonable doubt that the accused illegally trespassed into the house of P.W.2 with an intention to commit rape on her and committed sexual intercourse against her will and thereby convicted him for the offences punishable under the provisions of Sections 376(2)(f) and 448 of IPC., and sentenced him to undergo rigorous imprisonment for period of 7 years and to pay a fine of Rs.50,000/- and in default of payment of fine to undergo simple imprisonment for a further period of two years for the offence punishable under Section 376(2)(f) of IPC; and to undergo simple imprisonment for a period of one year and to pay a fine of Rs.500/- and in default of payment of fine to undergo simple imprisonment for a period of one month for an offence punishable under Section 448 of IPC., and both the sentences to run concurrently.
6. The accused has not filed any appeal against the impugned judgment of conviction and order of sentence passed by the trial Court.
7. We have heard learned counsel for the parties. -6- CRL.A No. 972 of 2016
8. Sri. D. Nagaraja Reddy, learned amicus curiae for accused on instructions submits that as the accused has already undergone the period of sentence imposed by the trial Court, he has now been released from custody. The said submission is placed on record.
9. Sri K.S. Abhijith, learned HCGP for the State contended with vehemence that the impugned judgment of conviction and order of sentence convicting accused for the offences punishable under Sections 376(2)(f) and 448 of IPC., and sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of Rupees Fifty Thousand is erroneous, contrary to the material on record and law as the proviso to Section 376(2)(f) is that whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. Provided the Court may for adequate and special reasons to be mentioned in the judgment to impose sentence for imprisonment either description for a term not less than 5 years. Admittedly, in the entire judgment no special reason is -7- CRL.A No. 972 of 2016 assigned for imposing sentence of imprisonment either description for a term not less than 10 years except in the sentence portion that too only in one line that 'taking into consideration the period that the accused is in custody and his age, the Court fails to take leniency'. As such, the same is contrary to the provisions of the Act which cannot be sustained and sentence is liable to be enhanced.
10. The learned HCGP would further contend that the learned Sessions Judge failed to appreciate the fact that sexual assault has taken place on a minor girl by the accused which is proved by the prosecution beyond reasonable doubt and the learned Sessions Judge has also appreciated this aspect and rightly convicting the accused, but has proceeded to impose meager sentence ignoring the provisions of the Act that the accused shall have to be punished with minimum sentence of not less than 10 years. He would further contend that the learned Sessions Judge has totally failed in awarding a maximum sentence for the heinous act committed by the accused, though agreed with the case of the prosecution, but committed an error in imposing meager sentence of seven years instead of minimum period of 10 years which has -8- CRL.A No. 972 of 2016 resulted in reducing the sentence and the same is contrary to the provisions of the Act resulting in miscarriage of justice to the minor girl-victim and thereby sought to allow the criminal appeal.
11. Per contra, Sri D. Nagaraja Reddy, learned amicus curiae for the accused/appellant while justifying the impugned judgment of conviction and order of sentence contended that the accused was in custody since the date of offence and as he is young and only bread earner in his family and his mother is sick, lenient view taken by the learned Sessions Judge is just and proper. He would further contend that since the accused has already undergone the punishment imposed by the learned Sessions Judge and after completion of the sentence imposed, the accused has been released and thereby this Court cannot interfere with the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge for further enhancement of sentence, that too, at this stage, after completion of period of sentence imposed on the accused. Therefore, he sought to dismiss the criminal appeal. -9- CRL.A No. 972 of 2016
12. In view of the aforesaid rival contentions urged by the learned counsel appearing for the parties, the only point that would arise for our consideration in present appeal is:
"Whether the State has made out a case for enhancement of sentence imposed by the learned Sessions Judge in view of the provisions of Section 376(2)(f) of IPC., in the peculiar facts and circumstances of the present case? "
13. We have given our anxious consideration to the arguments advanced by the learned counsel appearing for the parties and carefully perused the entire material on record including the original records.
14. This Court being the Appellate Court, in order to re- appreciate the entire evidence on record, it is relevant to consider the evidence of prosecution witnesses and material documents relied upon.
i) P.W.1 - Sri H.C. Thimmaiah, who is the father of the victim has deposed that the accused has committed sexual assault on his daughter, who was studying in 4th standard and aged about 9
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CRL.A No. 972 of 2016years on 28.9.2011 at about 4.40 p.m., when he came to the house after finishing his work, he found the lock of the front door was locked from inside the house. So he went to the backside of the door of the house and tried to enter the house. At that time, the accused was setting right his pant and he ran way from the house through the backside of the door. He found his daughter laying naked on the sofa, an handkerchief was stuffed into her mouth. On enquiry with her daughter, she told that when she was changing her uniform, the accused entered into the house and committed the accused entered the house and committed the sexual intercourse on her. Nothing has been elicited in his cross-examination to disbelieve his evidence;
ii) P.W.2, the victim in her evidence has deposed that on 28.9.2011 at about 4.00 p.m. she came to her house by collecting the key from her uncle and when she was changing the school uniform,
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CRL.A No. 972 of 2016at that time, the accused entered into the house and committed sexual intercourse on her by closing her mouth with cloth. Suddenly, her father came and she narrated the said incident to her father. When her father entered the house, the accused ran away from the house through back door of the house. Nothing has been elicited in her cross-examination, to disbelieve her evidence;
iii) P.W.3 - Sri H.R. Krishnappa, who is the mahazar witness and relative of P.W.1, has admitted in his cross-examination, the offence committed by the accused on P.W.2 and seizure of clothes by the police which were worn by her at the time of commission of sexual assault viz., T-shirt, pant and underwear;
iv) P.W.4 - Sri Dinesh, panch witness to the seizure mahazar; P.W.5 - Sri Shivanna and P.W.6 - Smt. Manjula, mother of the victim, who has
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CRL.A No. 972 of 2016deposed on par with her husband, have turned hostile to the case of the prosecution;
v) P.W.7 - Sri Shivappa, uncle of the victim has deposed that P.W.2 had come to his house and taken the key on 28.9.2011 at about 3.00 p.m., and thereafter, he came to know that there was a quarrel between P.W.1 and parents of the accused and that accused had committed sexual assault on P.W.2 and thereby has supported the case of the prosecution;
vi) P.W.8 - Dr. Vishwanath Shimpi, Senior Specialist/Deputy Chief Medical Officer of the District Hospital, Kodagu, Madikeri, who examined the accused has deposed that the accused was capable of performing the sexual act and accordingly, issued the certificates Exs.P.7, 8 and 9;
vii) P.W.9 - Smt. Pramila Nazarath, Woman Police Constable, who had taken the victim/P.W.2 to the doctor for examination has deposed that she
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CRL.A No. 972 of 2016had produced the articles of the victim and submitted to the investigating officer;
viii) P.W.10 - Sri Rathan Singh, Police Sub-Inspector, who received the complaint as per Ex.P.1 and filed the FIR as per Ex.P.10, has deposed that he had produced the victim before the Medical Officer for examination and thereafter, he arrested the accused and produced him before the Medical Officer for examination;
ix) P.W.11 - Dr. Saroja S., the Medical Officer, who examined the victim girl has deposed about the presence of pain, semen and blood in the vagina of the victim, collected the same and sent to Forensic Science Laboratory for scientific examination. Nothing has been elicited in her cross-examination, to disbelieve her evidence. She has not explained how the semen of accused was found on the underwear of the victim girl. Thus, it is very vital evidence to accept the prosecution case along with the
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CRL.A No. 972 of 2016evidence of P.Ws.1 and 2. She has supported the case of the prosecution;
x) P.W.12 - Dr. Chayakumari, Scientific Officer, has deposed with regard to examination of articles sent by the Investigating Officer as well as the seminal stains found on the clothes of the victim. He has given the report that the seminal stains found on the clothes of the victim were that of the accused. Nothing has been elicited in her cross-examination to disbelieve her evidence; and
xi) P.W.13 - Sri J.D. Prakash, Deputy Sub-Inspector and the Investigating Officer, has deposed that he conducted further investigation and after completion of the investigation, filed the charge sheet against the accused.
Based on the aforesaid material evidence on record, the learned Sessions Judge convicted accused for the offence punishable under provisions of Sections 376)2)(f) and 448 of IPC and sentenced him as stated supra.
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CRL.A No. 972 of 2016
15. The learned Sessions Judge while convicting the accused under the provisions of Section 376(2)(f) of IPC., has failed to notice the proviso to Section 376(2)(f) of IPC., which prescribed that whoever, commits rape on a woman when she is under twelve years of age; shall be punished with rigorous imprisonment for a term which shall "not be less than ten years," but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
16. Admittedly, in the present case, there is no whisper in the entire judgment assigning any special reason for reducing the minimum sentence prescribed for an offence punishable under the provisions of Section 376(2)(f) of IPC., but while imposing the sentence, the learned Sessions Judge has taken lenient view considering the period of custody and age of the accused and accordingly, sentenced the accused to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.50,000/-. Thereby the very punishment imposed is contrary to the provisions of aforesaid Section,
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CRL.A No. 972 of 2016which cannot be sustained and as such, requires for further enhancement.
17. Though the accused has not filed any appeal against the impugned judgment of conviction and order of sentence convicting him for the offences punishable under the provisions of Sections 376(2)(f) and 448 of IPC, on an appeal filed by the State for enhancement of sentence, in order to meet the ends of justice, it is relevant to consider the material on record to verify whether the conviction is adequate or not.
18. On scrutiny of evidence of P.W.1 who is the father of the victim, P.W.2 - victim, Medical Officer - P.W.11 and Scientific Officer - P.W.12, the Medical Certificate - Ex.P.11 and FSL report - Ex.P.12, an inference can be drawn that the prosecution has proved beyond reasonable doubt that the accused has illegally trespassed into the house of P.W.1 - father of the victim girl and committed sexual intercourse on P.W.2 against her will, who is aged about 9 years and studying in IV Standard, when she was changing her uniform in her house. The learned Sessions Judge recorded a finding that the prosecution has proved beyond reasonable doubt the guilt of
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CRL.A No. 972 of 2016the accused in commission of offence of sexual assault and the said offences attract the provisions of Sections 376(2)(f) and 448 of IPC.
19. The date of birth i.e., 27.1.2003 and age of the victim as per Ex.P.6 have not been disputed and on the date of offence i.e., 28.9.2011, the victim was aged about 8 years 8 months and the Certificate Ex.P.6 issued by the Head Master of the School is neither challenged nor disputed. It is also not in dispute that the material objects - M.Os.1 to 11 i.e., Towel, Top, Middi, Kacha, Blanket, T.Shirt, Pant, Kacha, Cervical Swab, Vaginal Swab and Cervical Swab seized clearly prove that the accused had committed sexual assault on P.W.2, who is being a minor girl, and as such, the learned Sessions Judge was not justified in imposing sentence for seven years without assigning any special reasons in the judgment as contemplated under the proviso of Section 376(2)(f) of IPC. Thereby, the accused is liable to be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may be for life and shall also be liable to fine.
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CRL.A No. 972 of 2016
20. Admittedly, the accused has not challenged the impugned judgment of conviction and order of sentence passed against him by the trial Court. Hence, the assertion made in Ex.P.1 - the complaint and evidence of both P.Ws.1 and 2 - father of victim and the victim, P.W.6 - Manjula - mother of the victim, P.W.8 - Dr. D. Vishwanath Shimpi and P.W.11-Dr. Saroja S. - Medical Officers, P.W.10 - Rathan Singh, PSI, Investigating Officer and P.W.12 - Dr. Chayakumari - Scientific Officer have not been challenged by the accused and as such, the prosecution has made out a case for further enhancement of sentence imposed on the accused, in view of the fact that the punishment should always be proportionate to the commensurate to the gravity of offence in terms of the Indian Penal Code. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Shimbhu and Another -vs- State of Haryana reported in AIR 2014 SC 739 (Full Bench) wherein at paragraphs-21 and 22, it is held as under:
"21. It is imperative to mention that the legislature through the Criminal Law (Amendment) Act, 2013 has deleted this proviso in the wake of increasing crimes against women. Though, the said amendment
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CRL.A No. 972 of 2016will not come in the way of exercising discretion in this case, on perusal of the above legislative provision and catena of cases on the issue, we feel that the present case fails to fall within the ambit of exceptional case where the Court shall use its extraordinary discretion to reduce the period of sentence than the minimum prescribed.
22. This is yet another opportunity to inform the subordinate courts and the High Courts that despite stringent provisions for rape under Section 376 IPC, many courts in the past have taken a softer view while awarding sentence for such a heinous crime. This Court has in the past noticed that few subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking aid of the proviso to Section 376(2) IPC. The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases."
21. For the reasons stated above, the point raised in the present criminal appeal is answered partly in the affirmative holding that the State has made out a case for further enhancement of sentence imposed on the accused by the
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CRL.A No. 972 of 2016learned Sessions Judge in view of the provisions of Section 376(2)(f) of IPC., in the peculiar facts and circumstances of the present case and the accused is sentenced to undergo rigorous imprisonment for a minimum period of ten years and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default of payment of fine, to undergo further simple imprisonment for a period of Two years for the offence punishable under the provisions of Section 376(2)(f) of IPC.
22. In view of the above, we pass the following:
ORDER
i) Criminal Appeal filed by the State is allowed in part;
ii) The impugned judgment of conviction and order of sentence, dated 30th January, 2016 passed in S.C.No.72/2012 passed by the learned II Additional District and Sessions Judge, Kogadu at Madikeri, convicting the accused for the offences punishable under Section 448 of IPC., is hereby confirmed, but only in so far as sentencing the accused to
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undergo rigorous imprisonment for seven years and to pay fine of Rs.50,000/- and in default of payment of fine to undergo further simple imprisonment for a terms of two years for the offence under Section 376(2)(f) is hereby modified;
iii) Accused is hereby sentenced to undergo rigorous imprisonment for a minimum period of ten years and to pay a fine of Rs.50,000/- (Rupees Fifty Thousand only) and in default of payment of fine, to undergo further simple imprisonment for a period of Two years for the offence punishable under the provisions of Section 376(2)(f) of IPC;
iv) The accused has already undergone further sentence of two years for default in payment of fine amount of Rs.50,000/- (Rupees Fifty Thousand Only), the same shall be considered. However, it is made clear that the accused has to undergo minimum period
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CRL.A No. 972 of 2016
of 10 years rigorous imprisonment as contemplated under the provisions of Section 376(2)(f) of IPC., with default clause i.e., that he shall further undergo minimum sentence of two years, if he has failed to pay the fine amount of Rs.50,000/- (Rupees Fifty Thousand only) imposed by the trial Court. The appellant/accused is entitled for the benefit of set off under Section 428 of the Code of Criminal Procedure;
v) It is needless to observe that the criminal
appeal is filed by the State only for
enhancement of sentence under the
provisions of Section 376(2)(f) imposed by the trial Court. As such, the sentence imposed by the trial Court for the offence punishable under Sections 376(2)(f) and 448 of IPC., shall always run concurrently.
vi) The trial Court is directed to secure the presence of the accused to undergo
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CRL.A No. 972 of 2016remaining period of sentence now enhanced by this Court in the present criminal appeal; and
vii) Registry is directed to return the Trial Court Records, forthwith.
23. The service rendered by the learned Amicus Curiae, Sri D. Nagaraja Reddy to arrive at this conclusion is appreciated and the same is placed on record. The High Court Legal Services Committee is directed to pay a remuneration of Rs.10,000/- as Honorarium to the learned Amicus Curiae forthwith.
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