Karnataka High Court
N D Raveesha @ Ravi vs The State Of Karnataka on 21 June, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 21ST DAY OF JUNE, 2013
:BEFORE:
THE HON'BLE MR.JUSTICE B.V.PINTO
CRIMINAL APPEAL No.59/2011
BETWEEN:
N.D.RAVEESHA @ RAVI,
S/O. DODDAIAH,
AGED ABOUT 33 YEARS,
R/AT. NAGATHIHALLI COLONY,
HONNAVALLI HOBLI,
TIPTUR TALUK, TUMKUR. ... APPELLANT
(BY SRI.Y.S.SHIVAPRASAD, ADV.-AMICUS CURIAE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY PUBLIC PROSECUTOR,
BY HONNAVALLI POLICE STATION,
TUMKUR DISTRICT. ... RESPONDENT
(BY SRI.G.M.SRINIVASA REDDY, HCGP)
THIS CRIMINAL APPEAL FILED U/S.374(2) CR.P.C
PRAYING TO SET ASIDE THE ORDER DT:27.11.09
PASSED BY THE P.O., FTC-IV, TUMKUR IN
S.C.NO.162/07 - CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE P/U/S 366-A, 376 AND
417 OF IPC. AND THE APPELLANT/ACCUSED IS
SENTENCED TO UNDERGO R.I. FOR 5 YEARS AND TO
PAY FINE OF RS.20,000/-, IN DEFAULT OF FINE TO
UNDERGO FURTHER S.I. FOR THREE MONTHS FOR
THE OFFENCE P/U/S 366-A OF IPC. AND THE
APPELLANT/ACCUSED IS FURTHER SENTENCED TO
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UNDERGO R.I. FOR 7 YEARS AND TO PAY FINE OF
30,000/-, IN DEFAULT OF PAYMENT OF FINE TO
UNDERGO FURTHER S.I. FOR FOUR MONTHS FOR THE
OFFENCE P/U/S 376 OF IPC. AND THE
APPELLANT/ACCUSED IS FURTHER SENTENCED TO
UNDERGO S.I. FOR ONE YEAR FOR THE OFFENCE
P/U/S 417 OF IPC. ALL THE SENTENCES SHALL BE
RUN CONCURRENTLY.
THIS CRIMINAL APPEAL COMING ON FOR
DICTATING JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:-
JUDGMENT
This appeal has been filed challenging the Judgment dated 27.11.2009 passed by the Fast Track Court-IV at Tumkur in S.C.No.162/2007 convicting the appellant for the offence under Section 366-A of IPC and sentencing him to undergo rigorous imprisonment for five years and to pay fine amount of `.20,000/- in default of payment of fine to undergo further simple imprisonment for three months and further convicting him for the offence under Section 376 of IPC and sentencing him to undergo rigorous imprisonment for seven years and to pay fine of `.30,000/-, in default of payment of fine to undergo further simple imprisonment for a period of four months and also further convicting 3 him for the offence under Section 417 of IPC and sentencing him to undergo simple imprisonment for one year for the said offence.
2. It is the case of the prosecution that, on 16.08.2007, victim who was aged about 15 years was induced by accused to go to Tiptur along with one Bhavya with the knowledge that, it is likely that the victim will be seduced to illicit sexual intercourse after having witnessed the cinema at Tiptur and while returning back to Nagathihalli village, the accused had forcible sexual intercourse with the victim at the place situated behind the school of Nagathihalli. Thereafter, he took her to Heggere near Tumkur during night hours and again he had sexual intercourse with her, thereby, he is alleged to have committed an offence under Section 366-A of IPC.
3. It is the further case of the prosecution that, six months prior to 16.08.2007, the accused had forcible sexual intercourse with the victim knowing fully well that she was just 15 years old and thereby he has 4 committed an offence under Section 376 of IPC. It is the further case of the prosecution that, accused having had forcible sexual intercourse with the victim at Nagathihalli about six months prior to 16.08.2007, made her believe that he would marry her and as such called upon her not to disclose about the incident to anybody and having made her believe so, again had sexual intercourse with her at Nagathihalli and Heggere near Tumkur and thereafter, accused refused to marry her, thereby he is alleged to have committed an offence under Section 417 of IPC.
4. The prosecution in order to prove the case has examined in all 13 witnesses and got marked Exs.P1 to 19 and produced MOs.1 to 7. The defence of the accused was one of total denial. However, he got marked Exs.D1 and D2- being portion of the statements of PWs.2 and 4 respectively. The learned Sessions Judge after hearing the prosecution and the defence found that the accused is guilty of the aforesaid offences and sentenced him as aforementioned. It is this Judgment of 5 conviction which has been challenged by the accused in this appeal.
5. On 19.08.2007, at about 9.30 a.m., the complainant by name Smt.Chikkamma wife of Eshanna approached the Honnavalli police Station, Tiptur Taluk and gave a written complaint stating that her daughter/victim was going to Kannada Bharathi Higher Secondary School and was studying in 9th Standard. On 16.08.2007, i.e, Thursday, she had been to school at Honnavalli, but did not return. Her husband came to Honnavalli on that night and enquired about her daughter. No trace was available till 18.08.2007 about her daughter/victim. The victim came home and when enquired, she has stated that one Raveesh @ Ravi of Nagathihalli had taken her to Tiptur on the pretext of going for a cinema and she had gone with the accused to Tiptur along with one Bhavya and all of them watched the cinema. Thereafter, both of them went to Tumkur by an auto and in Tumkur, Bhavya went to her friend's house whereas, she was brought by Raveesh @ Ravi to Singatkere and they remained in the open field 6 in Singatkere during that night. It is stated in the complaint that, on the said night, accused promised the victim that, he would marry her after obtaining permission from her mother and thus saying he had intercourse with her. On the next day, they went back to Tiptur from Singatkere and during night hours they stayed in the house of the relatives of the accused at Hosapatna. Thereafter, on the next day morning, her daughter informed that, she would go to her house. It is further stated in the complaint that, since her daughter was a minor girl, accused abducted her and thereby he has committed rape on her. Hence, suitable action is prayed against the accused.
6. PW-12- H.G.Mahesh, Sub-Inspector of Police of Honnavali police station registered the above complaint in Crime No.74/2007 on 19.08.2007 for the offences under Sections 366-A, 376 of IPC and commenced the investigation. Along with the complainant, the victim had also gone to the police station. Thereafter, PW.12 referred the victim to the Tiptur Government hospital for examination. On the 7 same day, complainant and the victim led PW.12 and the panchas to the spot of the incident situated in the limits of Heggere Village and the victim had identified the scene of occurrence. The Spot mahazar as per Ex.P4 was prepared on the said spot. PW.12, thereafter seized the clothes worn by the victim in the presence of panchas as per Ex.P3. PW.12 thereafter handed over the further investigation to CPI-PW.13
7. PW.13-G.B.Manjunatha- after taking over the further investigation recorded the statements of the victim, her father and other witnesses and on the same day, he arrested the accused and forwarded him for medical examination. After recording his statement, accused volunteered to produce the clothes worn by him at the time of the incident which was recorded by PW.13. The statement is marked as Ex.P13 and mahazar is marked as Ex.P8. Thereafter, accused was sent for medical examination to the Government hospital at Tiptur. After examination, he was produced before PW.13, who forwarded the accused to the Court, which remanded accused to custody. Since, it was 8 found that the victim was a minor girl an offence under Section 417 of IPC is also added to the earlier crime and request is made to the Magistrate. After securing the medical certificate from the hospital, PW.13 has filed the charge sheet. Since, the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions at Tumkur and the matter was made over to Fast Track Court-IV. The charge for offences under Section 366-A, 376, 417 of IPC came to be framed against the accused and the accused pleaded not guilty to the said charges.
8. PW.1-Chikkamma is the complainant. She has stated before the Court the contents of the complaint given by her before the police. She has stated that her daughter/victim was forcibly taken by accused by making her believe that, he would marry her and thereafter, he had sexual intercourse with her. She has stated before the Court that, during the year 2007, the victim was aged 15-16 years. The learned Public Prosecutor has sought permission of the Court to treat PW.1 hostile. In the cross-examination, it is elicited that 9 PW.1 had forgotten the correct information and hence she had done the said mistake regarding the actual date on which the victim came back, after she was taken by accused. It is suggested to PW.1 that, accused had not taken the victim or Bhavya to Tiptur under the guise of going for a movie. It is also suggested that, accused has not sexually assaulted the victim. However, these suggestions have been denied by PW.1.
9. PW.2 is one Bhavya who is a class mate of the victim. She has stated in her evidence that on 16.08.2007, herself and victim went to Tiptur to see a movie. While they were at Tiptur, accused joined them to the movie. Thereafter, all the three of them witnessed the movie at Tiptur and they returned back to Honnavalli, whereas the accused went elsewhere. It is in the evidence of PW.2 that, thereafter in the same evening herself and the victim joined the accused at Tiptur and both herself and victim went to Tumkur on the same night, since she wanted to go to her friend's house. She called the victim also to accompany her. But the accused objected for the same. Hence, PW.2 10 alone went to her friend's house at Tumkur. It is in the evidence of PW.2 that, six months prior to 16.08.2007, victim had informed her that accused had expressed his desire to marry her. However, after returning to Honnavalli village, victim did not say anything as to what happened to her while she had accompanied the accused at Tumkur after leaving her behind in the house of her friend. The learned Public Prosecutor treated PW.2 as hostile. It is suggested that, police have recorded her statement on 03.10.2007 on which date, she had informed the police about the victim telling her that accused had sexual intercourse with her about 6 months prior to 16.08.2007. In the cross-examination by accused, PW.2 has stated that, she does not know with whom the victim was making up-and-down from Nagathihali village to Honnavalli village to attend the school. It is suggested to her, that accused did not accompany them at Tiptur or Tumkur as stated by her in the chief-examination.
10. PW.3 is the victim. She has stated that she knows the accused. Herself and Bhavya were going to 11 school together from their village at Nagathihalli. It is stated by her that, about 6 months prior to 16.08.2007, accused had sexual intercourse with her by promising to marry. This fact was informed by her to PW.2 and not to anybody else. She has stated that, such incident has taken place in the premises of the school at Nagathihalli. It is further elicited from her evidence that, the same was repeated on two or three occasions at the same venue. It is stated in the evidence of the victim that, on 16.08.2007, accused came to her school and called her to accompany him at Tiptur for a movie. She did not agree. But, since accused prevailed upon her, she went for a movie. However, she requested PW.2 to accompany her and all three of them went to a movie at Tiptur. She further states that, accused was waiting at Tiptur bus stand. After witnessing the movie, PW.2 and herself returned back to Honnavalli and at Honnavalli, they collected school bags from the shop of one Jaganna, where they had kept their school bags and thereafter, again PW.2 asked her to go to Tumkur along with her to the house of her aunt for which she agreed. 12 Both of them went to Tumkur by catching a bus. On the way, accused met them at Tiptur bus stand and inspite of the protest, he accompanied them to Tumkur. It was around 8.30 p.m, when they reached Tumkur. From Tumkur bus stand herself and Bhavya were going to Aunt's house in an auto. But accused came forward to accompany them in the same auto up to the house and all of them went in the said auto. When the auto stood near the house of Bhavya's relative, though victim wanted to get down from the auto, accused prevailed upon her to join him, rather than to go to the house of the relative of Bhavya. Hence, she accompanied the accused on that day during night hours. Accused took her near the place where medicinal shrubs are collected from the agriculturists and in spite of her protest, accused had forcible sexual intercourse with her outside the said building. It is stated in her evidence that, till 6.00 a.m., on the next day morning, both of them remained in the said spot. It is further stated in her evidence that, thereafter accused brought her to Tumkur. From Tumkur both of them went to Tiptur in a 13 bus, wherein they met the wife of the accused and the latter took them to Hosapatna village to the house of the grand mother of the accused at about 7.45p.m. However, it is stated by her in the evidence that, no untoward incident took place on her in the house of the grand mother of the accused. On the next day morning, accused brought her to Tiptur and told that, he does not intend to marry her as he has got his wife and children and asked her to keep mum over the issue. Therefore, she returned to the house and narrated the incident. In the cross-examination, it is suggested to her that, she is falsely implicating accused and that no such incident as alleged by her has happened. It is also suggested that no force has been exercised on her by the accused. It is admitted by the victim that, she did not bring the aforestated facts either to the notice of the class teacher or to the head master of the school. However, it is admitted by her that, accused promised to marry her and therefore without intimating her parents, she had gone for a movie with him. She also admits in the cross- examination that, accused was already a married 14 person and was having children and also she was aware that the law prohibits a girl to marry within 18 years of age. It is also admitted by her that, exposing herself sexually would bring bad name to her and to her parents. But having believed the words of accused that, he would marry her by deserting his wife, she agreed to his terms.
11. PW.4-Eshanna is the father of the victim. However, he has also turned hostile to the case of the prosecution, insofar as the act of sexual intercourse said to have been committed by accused as mentioned to him by the victim-PW.3.
12. PW.5-Panchakshari is a signatory to Ex.P5. However, he has turned hostile to the case of the prosecution. Similarly, PWs.7 and 9 have also not supported the case of the prosecution.
13. PW.8 Channappa is a signatory to Ex.P4, which is a spot mahazar.
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14. PW.10 Dr.Ravi, has stated that on 19.08.2007, at about 7.00 p.m., he was on duty at the Government Hospital at Tiptur as a duty Medical Officer. PW.3-Victim was examined by him on the request of the police. He has stated that, after examining the victim, he has found that, there is nothing to suggest that PW.3 has not been subjected to sexual intercourse and he cannot definitely state as to whether there was intercourse or not. He has stated that, it may be a case of intercourse. While questioning the victim, she has stated that, she was in love with one Raveesh, who is aged about 30 years and that he had married with another woman and got two children and that during the span of about four to seven months on several occasions, he had intercourse with her. She had also disclosed that accused had intercourse with her on 16.08.2007 for the last time. PW.10 has issued certificate as per Ex.P9. It is further stated by PW.10 that, on 19.08.207, he examined accused and opined that, there is noting to suggest that, he is incapable of performing sexual intercourse.
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15. PW.11-Basavaraju is the father-in-law of the accused. But he has turned hostile to the prosecution case. It is stated that, accused had married his daughter Geetha about five years back and he has got two children from the said wedlock.
16. PW.12-H.G.Mahesh is the Sub-Inspector of police who has registered the case.
17. PW.13-is the CPI whose role in the investigation has been discussed in the earlier part of this judgment.
18. It is from the above evidence on record that, the learned Sessions Judge has found accused guilty of the offences and convicted and sentenced him as aforestated.
19. Heard Sri.Y.S.Shivaprasad, learned Amicus Curiae for the appellant and Sri.G.M.Srinivasa Reddy, learned HCGP for the State/respondent. 17
20. It is submitted by the learned counsel for the appellant that, from the evidence of PWs.2 and 3, it is clear that the victim had herself voluntarily gone along with accused for a movie and that from the FSL report, it is seen that, there is no evidence to show that, the victim is subjected to recent sexual intercourse, by the accused. It is further submitted by him that the documentary proof of the age of the victim has also not been produced by the prosecution to show that, she is less than 16 years of age. It is submitted that, Ex.P15 which indicates the date of birth of the victim as 19.08.2002, is document produced by the prosecution without any basis for the same and even as per Ex.P15, age of the victim is between 15-16 years. It is also submitted that, prosecution has produced a letter from Head Master of Kannada Bharathi Higher Secondary School stating therein that the date of birth of the victim is 20.09.1992. However, the said head master has not been examined before the Court. His evidence has not been permitted to be challenged in the cross examination. Therefore, both Exs.P-15 and 16 cannot 18 become a conclusive proof regarding age of the victim. However, even if the age of the victim is taken according to Ex.P-15, she is aged between 16 and 18 years and therefore it is for the prosecution to prove that the act has been committed against her will and without her consent. It is his submission that, having regard to the nature of the conduct of PW-3 as spoken to by PW-2, the consent of the victim is explicitly shown and therefore, no offence under Section 376 of IPC is made out by the prosecution. He therefore submits that, accused is entitled for an order of acquittal for offence under Section 376 of IPC.
21. So far as the offence under Section 366-A of IPC is concerned, it is his submission that, from the evidence of PWs-2 and 3, it is clear that, they had voluntarily gone along with the accused for a movie. Even if it is believed that the version is true, there is no force or coercion exercised by the accused on PWs.2 and 3 while going along with the accused. Having regard to the fact that victim has been subjected to sexual 19 intercourse 3 times, he submits that, on this ground also there is no case made out.
22. So far as the offence of cheating is concerned, it is elicited from the mouth of PW-3 that the accused was already a married person and she knew that marrying a married person is an offence and she also knew that the accused was having 2 children. Under the circumstances, he could not have legally married the victim and he could not have promised to marry her and therefore, the offence under Section 417 of IPC is also not made out. Hence, he submits that appeal may be allowed and accused may be acquitted.
23. Sri.G.M.Srinivasa Reddy, learned HCGP for the State/respondent submits that the evidence of PW-1-mother and PW-4- father of the victim girl clearly indicates that the victim was less than 16 years of age. The evidence of PWs.3 and 4 is further corroborated by Exs.P-16 and 17- letters issued by the Head Master of the School indicating the date of birth of the victim as 20.9.1992. Since the incident has happened and that 20 she was studying in 9th Standard, it is established that she was less than 16 years of age and therefore the consent or otherwise is no ground for offence under Section 376 of IPC. It is clear case of PW-3 that, she has been subjected to sexual intercourse and therefore prosecution has established that, the accused has committed sexual intercourse with PW-3, who is less than 16 years of age. Under the circumstances, he submits that the prosecution has proved the offence under Section 376 of IPC as well as under Section 366- A of IPC and the learned Sessions Judge has rightly convicted the accused for the said offences. Hence, he submits that, appeal may be dismissed by confirming the judgment of conviction passed by the learned Sessions Judge.
24. I have carefully gone through the evidence on record i.e., the evidence of PW-3- victim and PW-2- her friend. From the evidence of these witnesses, it is clear that PWs-2 and 3 were in the habit of leaving the school and going to movies to Tiptur and Tumkur. It is their case that, the accused had come to the school and 21 asked them to come along with him for a movie at Tiptur. However, PW-3 says in her evidence that, when herself and PW-2 went to Tiptur, accused was found in the bus stand. Thus, it is clear from the said evidence that accused was waiting in the bus stand at Tiptur and PWs-2 and 3 have voluntarily gone without any force by the accused. Therefore, it is seen that the act of victim in going to school at Honnavalli and again from Honnavalli to Tiptur is not by any force by the accused. Further, it is their case that they had kept their school bags in the shop of one Jaganna, which indicates that out of their own volition they have gone to the town where they met the accused and thereafter they went to the movie. This clearly indicates that the victim had gone voluntarily with the accused to the movie and thereafter on one more occasion she had gone with the accused to the house of her friend and when the house of her friend reached, she did not get down from the auto and went along with the accused and it is her case that thereafter she was raped. The said evidence of PW- 3 clearly indicates that she had accompanied the 22 accused voluntarily without any force or coercion by him which indicates that, there was consent for sexual intercourse committed by him and the same is proved. Further, the FSL report which is produced and marked as Ex.P-19 indicates that in none of the articles sent for examination neither seminal stains nor spermatozoa was detected. The report on the articles sent for FSL examination clearly establishes that there was no recent intercourse on the person of PW-3, victim.
25. Therefore, I am of the opinion that the prosecution has not proved that the accused has committed sexual intercourse on the victim by force or by inducement or by coercion to attract the offence under Section 376 of IPC. Hence, the accused is entitled for an order of acquittal for the offence under Section 376 of IPC. It is not proved by the prosecution that victim had been forcibly taken by the accused and therefore, the offence under Section 366-A of IPC is also not proved against him. So far as offence under Section 417 of IPC is concerned, the evidence of the victim in paragraph 20 of her deposition clearly establishes that, 23 she knew that the accused was already married and was having two children and she also knew that marrying a married person having children is legally impossible. Hence, the question of accused cheating her does not arise at all. Under the circumstances, I am of the considered opinion that the offence under Section 417 of IPC is also not made out against the accused.
26. From what has been discussed above, it is seen that the judgment of the trial Court is not based on the evidence on record and is against the settled principles of law and the same is contrary to the facts brought before the Court. In this case, the learned Sessions Judge has arrived at an erroneous conclusion. Hence, the following order:
ORDER
a) The appeal is allowed.
b) The order of conviction and sentence passed against the appellant by the Presiding Officer, Fast Tract Court No.IV, Tumkur by judgment dated 27.11.2009 in S.C.No.162/2007 is hereby set aside and the 24 accused is acquitted of the charges levelled against him.
c) It is submitted that the accused is in custody and hence it is directed that he shall be set at liberty forthwith, if not required in any other case.
d) Office is directed to transmit the operative portion of the order to the trial Court forthwith.
e) The service rendered by the learned Amicus Curiae in presenting the case is appreciated. Office is directed to pay the fees fixed by this Court vide order dated 3.4.2013 after deducting an amount of Rs.5,000/-
already paid to him.
Sd/-
JUDGE KSR/DM