Karnataka High Court
Puturaj @ Saloman S/O Sudhir vs The State Of Karnataka on 30 July, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF JULY, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL APPEAL NO.3531/2013
BETWEEN:
Putraj @ Saloman S/o Sudhir,
Aged about 20 years,
Caste Cristian
R/o Sultanpur Village,
Tq. & Dist. Bidar.
... Appellant
(By Sri Ravi B.Patil, Advocate)
AND
The State of Karnataka
Trough Rural Police Bidar,
Represented by its
State Public Prosecutor,
High Court of Karnataka
Circuit Bench at Gulbarga.
... Respondent
(By Sri Prakash Yeli, Addl. SPP)
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This Appeal is filed under Section 374 of Code of
Criminal Procedure praying to call for the records in
Sessions Case No.132/2012 on the file of the Principal
Sessions Judge, Bidar, peruse the same, allow this
appeal and set aside the judgment, order of conviction
and sentence dated 10.01.2013 and set the
appellant/accused at liberty.
This Appeal is coming for final hearing this day,
Hanchate Sanjeevkumar J., delivered the following;
JUDGMENT
The accused has preferred the appeal questioning the legality and correctness of the judgment of conviction and order on sentence dated 10.01.2012 passed in Sessions Case No.132/2012 by the Principal Sessions Judge at Bidar (hereinafter referred to as the 'the Sessions Court' for brevity).
2. We have heard the learned counsel for the appellant as well as the learned Additional State Public Prosecutor.
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3. Brief facts of the prosecution case are as follows ;-
The first informant is the mother of the victim girl. The first informant along with her husband, are blessed with four children among them two male children and two female children and second daughter was 4 years old. Her mother's house is at Sultanpur Village. It is stated that about five days prior to the lodging of first information statement (FIS) her husband went to her sister's village. When this being the fact on 05.03.2012 at evening 7.00 p.m. her second daughter who was 4 years old was playing with other children in front of her house and had not returned home even after crossing night till 8.00 p.m. The first informant presumed that her daughter was in her mother's house. Therefore, after having dinner slept in the house. On 06.03.2012 at earlier morning 3.00 a.m. she heard the sound of crying of child and upon opening the door, she saw her daughter victim was standing by crying and first 4 informant-mother had enquired regarding what has happened to her, the victim had stated that when the victim and other children were playing at that time the accused (the victim had stated the name of the culprit as 'Putraj' anna) had taken her to a dilapidated church building and gagged her mouth and threatened her and also the victim had shown her private part saying that there is pain and the first informant had noticed the bleeding from the private part and immediately first informant had informed this fact to her father-in-law- Shiromani-PW.5 and husband of her sister and all have taken the victim to the hospital and admitted in the hospital.
It is stated that this incident was occurred on 05.03.2012 from 7.00 p.m to till 3.00 a.m. on the next date 06.03.2012. Therefore, lodged first information statement before the police against the accused that he had ravished and committed the offence of penetrative sexual assault on the victim.
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4. Upon receipt of the first information statement (Ex.P2) the police have registered crime as per first information report (Ex.P.5) in Crime N.20/2012 for the offence punishable under Section 376 of Indian Penal Code. On the basis of the first information statement (Ex.P2) and first information report (Ex.P.5) the Investigating Officer had conducted the investigation and filed charge sheet against the accused for the offence punishable under Section 376 of the Indian Penal Code.
5. After receipt of the charge sheet the committal Court has taken the cognizance of the offence alleged as per Section 190 of Code of Criminal Procedure (Cr.P.C) and furnished copies of charge sheet to the accused as per Section 207 of Cr.P.C and since the offence alleged is exclusively triable by the Sessions Court, therefore, committed the case to the Sessions Court as per Section 209 of Cr.P.C. The Sessions Court after receipt of the committal records had registered the 6 case as Sessions Case No.132/2012 and the Sessions Court had framed the charge against the accused for the offence punishable under Section 376(2)(f) of Indian Penal Code. Upon reading over and explained the charge to the accused, accused pleaded not guilty and claims to be tried and accordingly by recording his plea the Sessions Court has proceeded with trial.
6. Before the Sessions Court, the prosecution has totally examined 19 witnesses as PWs.1 to 19 and got marked documents as Ex.P.1 to Ex.P.10 and also got marked material objects M.Os.1 to 8. After completion of the prosecution evidence the accused was examined under Section 313 of Code of Criminal Procedure. When put the incriminating evidences and circumstances to him but he denied all the incriminating evidences and circumstances. The accused did not choose to lead defence evidence and the accused simply denied the prosecution case. 7
7. After hearing the arguments and analyzing the evidences adduced before the Sessions Court, the learned Sessions Judge had recorded finding that the accused is guilty of the offence punishable under Section 376(2)(f) of Indian Penal Code and for which it is ordered the accused shall undergo imprisonment for life and imposed a fine of Rs.25,000/- to be paid to PW.4 - victim with default clause that if he fails to pay the fine amount then he further undergo rigorous imprisonment for a period of two years.
8. Calling in question the said judgment of conviction and order on sentence of the Sessions Court, the accused has preferred the present appeal on various grounds as enumerated in the memorandum of appeal.
9. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records including the Sessions Court records. 8
10. The learned counsel for the appellant submitted that from perusal of the Doctor's evidence the prosecution case is not proved. Further submitted that the suspected seminal stains were not present in the inner garment. Therefore, submitted that there is a doubt in the prosecution case and the Sessions Court only on mere assumption and presumption recorded the conviction.
10(a). Further submitted that when it is the case of prosecution that the alleged offence has occurred between 7.00 p.m. on 05.03.2012 to 3.00 a.m. on 06.03.2012 for about eight hours which itself falsify the prosecution case.
10(b). Further submitted that with reference to the evidences of PWs.7, 8 and 9 that PWs.7 and 8 have turned hostile and PW.9 during the course of cross- examination stated that they were playing infront of their house and accused was not present at the said 9 point of time and after that the victim went back to her house which clearly goes to show that the prosecution case is false one.
10(c). Further submitted that even though from the evidence of the Doctor that the hymen was ruptured with fresh injury and collected samples and sent to Forensic Science Laboratory for chemical examination but the report came out with opinion that with negative report for presence of gonococci and spermatozoa. Therefore, submitted that the appeal be allowed and acquit the accused.
10(d). Further the learned counsel for the appellant submitted that upon considering the cross- examination of PW.12 -Doctor, it proves the offence as depicted by the prosecution is not occurred and further submitted that PWs.1, 2, 3, 5, 6 and 10 are the interested witnesses and due to prior enmity between 10 the complainant's side and the accused a false case is registered as against the accused.
10(e). Further submitted that when the mother of the victim had noticed that till night 8.00 p.m. the victim had not returned to the house she assumes that victim might have gone to her grand-mother's house and accordingly she slept without bothering returning of the victim. This conduct of PW.3 itself goes to show that the complainant had not thought of anything wrong was happened as against the victim.
10(f). Further submitted that upon considering the prosecution evidences there is no coherence to each other and therefore submitted that entire prosecution case is false one and therefore prayed to allow the appeal and acquit the accused.
11. On the other hand, the learned Additional State Public Prosecutor submitted that the prosecution is able prove the guilt of the accused that the accused 11 had committed the offence of penetrative sexual assault against the victim who is 4 years girl.
11(a). Further submitted that, the prosecution has examined the material witnesses who are father, mother, grand-father and the victim herself and upon considering the evidences of them there is coherence in their evidences and corroboration with each other and much particularly upon considering the evidences of PW3 - mother and PW.4 the victim, there is consistency in their evidences to prove the fact that the accused had committed the offence as alleged.
11(b). Further submitted that upon considering the medical evidence as deposed by PW.12 the Doctor and the FSL report, they corroborate the evidences of PWs.3 and 4.
11(c). Further submitted that PW.5 is the grand- father of the victim and his evidence is found relevant as per Section 6 of the Indian Evidence Act. Further 12 submitted that upon considering the evidence of PW.5 that the accused had taken the victim to a dilapidated church building on 05.03.2012 at evening 7.00 p.m. Therefore, this corroborates the chain of events as deposed by PWs.3 and 4.
11(d). Further submitted that during the course of investigation conducted by the Investigating Officer all the evidences collected are put-forth before the Sessions Court and the Sessions Court after considering all the evidences adduced before it, in a proper way and correctly and has rightly convicted the accused for the offence as alleged and accordingly sentenced the accused for imprisonment for life which needs no interference by this Court. Therefore prayed to dismiss the appeal.
12. Upon considering the case of the prosecution that the accused had ravished the victim who is 4 years old girl and committed penetrative sexual assault and 13 considered the evidence of PW.3 who is the mother of the victim girl. PW.3 had stated that she knew the accused and has lodged the complaint before the police. She had delivered a child three days prior to 05.03.2012 to the fourth child. On 05.03.2012 at evening 6.00 p.m. the victim was along with PW.3-mother and her husband had been to Hyderabad at that time the victim had gone out from the house for playing with other children. PW.3 deposed that till 8.00 p.m. on that day the victim had not returned to the house and she thought that the victim might have gone to her grand- mother's house and thereafter she has slept and kept quite. Further she deposed that, at early morning 3.00 a.m. on 06.03.2012 she heard child was crying and opened the door and saw the victim (PW.4) was standing in front of the door.
Further deposed that she had enquired the victim and the victim had told her that the accused had taken her by gagging her mouth in a dilapidated church 14 building and made her fall on the ground and the accused fell on the victim and even the victim was crying but the accused did not leave and the accused committed something on her private part.
Further PW.3 deposed that upon seeing the private part of the victim it was found blood is oozing from the private part and then PW.3 has told this fact to her father-in-law and husband of her sister and they have taken her to the hospital and also telephoned to her husband and thereafter her sister and elders had come to the house.
Further she deposed that she has given complaint before the police as per Ex.P.2 and thereafter the police have conducted spot panchanam where the alleged offence was taken place and stated that in the said place the inner garment of the victim was fallen on the ground on the place of incident and accordingly have collected the same as it is M.O.1.
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13. Upon considering the evidence of PW.3 and tested with the cross-examination nothing is revealed so as to disprove the evidence of PW.3. It is the cross- examination to the effect that regarding the distance of her house and place of incident and who has taken the victim. But upon considering the cross-examination in this line nothing is revealed to disbelieve the evidence of PW.3. Even upon considering the cross-examination the prosecution case is reiterated regarding blood was oozing from the private part of the child and there was injury occurred in the private part of the victim. Therefore, upon considering the evidence of PW.3 it inspires confidence of the Court and the Sessions Court has rightly believed the evidence of PW.3.
14. Then considering the evidence of PW.4 who is the victim herself was 4 years old and upon considering the evidence of PW.4 she has identified the accused by telling that when the victim was playing in front of the house the accused came there and taken 16 her to the dilapidated church building and also deposed committed something on the private part and also PW.4 identified M.O.1-inner garment which she has worn on the day of the incident.
15. Further she has stated that she was taken to the hospital and Doctor has examined her. Upon considering the cross-examination of this minor victim she has denied the suggestion that the accused did commit nothing. Therefore upon considering the evidences of PWs.3 and 4 their evidences clearly goes to show the guilt of the accused that he has committed the offence as alleged.
16. Further this Court has considered and appreciated the evidence of PW.12 - Doctor. PW.12 had stated that on 06.03.2012 at 6.30 a.m. the victim was brought by her mother, aunt and grand father with the history of alleged sexual assault and she examined and 17 upon examination she noted down the admission marks of the child victim which are stated as follows ;-
i. Abrasion noted in the inner part of lower lip. ii. Abrasion around neck 3 to 6 mm in size. iii. I found 4 small abrasion 3 to 4 mm, 2 in number on back.
iv. On examination of local part, 2nd degree perennial care noted with irregular margin, measuring 1.5 x 1 x 2 cms. in size.
Further PW.12 had stated that she has noted the ruptured hymen with fresh injury and collected vaginal swab and smear and sent for microbiology and pathological examination, which came negative for presence of gonococci and spermatozoa. Further she has deposed that the vulva and vagina stained with blood and also the clothes were stained with dirt mud and blood. Accordingly, she sent the same for FSL report. PW.12 has furnished the report as per Ex.P.6. Further PW.12 stated that the injury found on the 18 private part of the victim could be caused only by sexual assault.
17. Upon considering the cross-examination of the Doctor -PW.12 nothing is elicited to disbelieve the evidence of Doctor. It is the cross-examination of Doctor to the effect that the exact hours and age of injury cannot be said. But just because the exact hours and age of the injury cannot be said that it is not ground to disbelieve the evidence of Doctor. But the evidence revealed that when she examined the victim she has noticed that the victim has fresh bleeding injury and there was bleeding from the private part. Therefore, the evidence of PW.12 in this regard corroborates the evidence of PWs.3 and 4 as discussed above.
18. Even PW.12 was cross-examined to the effect that if finger is inserted then there could have been chances of occurring injuries and even though the Doctor had stated that there may be a chances to 19 causing injuries but it is the general question asked the victim but this does not discredit the evidence given by PW.12 regarding what she has noticed the injuries. Therefore, the evidence of PW.12-Doctor that the injuries found on the private part could be caused only by sexual assault. This corroborates the evidences of PWs.3 and 4.
19. Further upon analyzing the evidence of PW.4
- victim in right perspective manner the Court does not see any reason why the victim is telling lie before the Court by saying the name of the accused and also upon seeing the accused. PW.4 had categorically deposed by seeing the accused that this accused had committed something in her private part. Herein it is pertinent to note that the victim is only 4 years old girl she stated that something is caused on the private part by the accused and she did not have such maturity to tell exactly that sexual intercourse has taken place. Therefore, when PW.4 had pointed to her private part 20 that the accused did something on her private part, it is fact proved that the accused had committed penetrative sexual assault on her.
20. When PW.3 as well as PW.4 have stated that there is bleeding from private part and also this has been witnessed by PW.3 - mother and also this has been witnessed by PWs.2, 3 and 6 and the prosecution is able to prove that there is a penetrative sexual assault on the victim by the accused.
21. Also upon considering the evidence of PW.13
- Doctor who had examined the accused had stated that the accused was produced before him for medical examination and found that by conducting radiological test and also upon dental examination the accused is found to be of the age between 17 to 19 years and also it is the evidence of PW.13 that after receipt of the FSL report and based on that he had issued final opinion that the accused is between the age of 17 to 19 years 21 old and is physically normal and also found him that he is also able to perform sexual intercourse. Therefore, the evidence of PW.13 is proved the fact that there is nothing to suggest that the accused is not able to perform sexual intercourse.
22. Further upon considering the other circumstantial witnesses, PW.2 is the father of the victim and husband of PW.3. He had stated that on previous date of the incident he had been to Hyderabad on 04.03.2012 and on the next day i.e., 05.03.2012 the PW.3 telephoned him by stating that the accused had ravished the PW.4 and immediately on 6th March at 10.30 a.m. he had been to his house from Hyderabad and reached to the Government Hospital and therein PW.4 was admitted and upon enquiry the PW.4 had stated him that the accused had taken her and ravished her. Upon considering the cross-examination of this witness nothing is elicited to discard the evidence of PW.2.
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23. Further PW.5 is the grand-father of PW.4, father of PW.2 and father-in-law of PW.3 and he had stated that PW.3 told him that accused had ravished PW.4 and upon considering the cross-examination of him nothing is elicited to say that this witness is telling lie.
24. PW.6 is the co-brother of PW.2 and he had stated that on 05.03.2012 at evening 7.00 p.m. he was returning to his house after completion of his work and he saw that the accused had taken the victim and standing near the Church. Further PW.6 had stated that he had not enquired the accused because the accused always used to take the victim on the arm, as the victim is a small child. Later on he came to know that on the next day at early morning 3.00 a.m. the PW.3 came to his house with crying that the accused has ravished the victim and upon seeing the victim he has noticed that there was blood oozing from the private part of the victim and then PW.4 was admitted to the 23 hospital. In the cross-examination nothing is elicited that PW.6 is telling lie before the Court.
25. Upon considering the evidences of PWs.2, 5 and 6, their evidences are found to be relevant as per Section 6 of the Indian Evidence Act res gestae. PW.6 had seen the accused on 05.03.2012 at 7.00 p.m while he was returning to his house after completion of his work standing near the Church and all the PWs.2, 5, and 6 have noticed that this fact was told to them by PW.3 and upon seeing the private part of the victim they found that the blood was oozing from the private part. The evidence of PW.2, 5, and 6 are found to be forming 'Res Gestae' forming a particular statement as a part same transaction.
26. The provisions of Section 6 of the Evidence Act, 1872, observing that it is an exception to the general rule whereunder the hearsay evidence becomes admissible. However, such evidence must be almost 24 contemporaneous with the acts and there should not be an interval which would allow fabrication. Therefore, in this context the evidences of PWs.2, 5 and 6 are forming some part of res gestae which are made contemporaneously and this court is noticed that there would not be any chance for fabrication as they have deposed the fact that they perceived the fact of rape on the victim - PW.4 immediately after the incident by the PW.3. Therefore, their evidence is found to be relevant and thus admissible and trustworthy and thus, inspires confidence of the Court being trustworthy and believable.
27. PW.7 is the student he had stated in his evidence that on 05.03.2012 at evening 4.30 to 5.00 p.m. she had seen the victim was playing along with Nikith (PW.8), Johnson (PW.9) and with other children. He had turned hostile and did not say that he had seen the accused and had taken the victim to the dilapidated Church building. PW.7 had turned hostile to 25 the effect that the accused taking the PW.4 to the dilapidated Church building but during the course of examination-in-chief PW.7 has stated that on 05.03.2012 at evening 4.30 to 5.00 p.m. he had seen the victim and was playing along with PWs.8 and 9 and along with other children and whatever this evidence stated in examination-in-chief is found to be reliable.
28. Upon considering the evidences of PWs.8 and 9, the PWs.8 and 9 both have stated in their evidence that on 05.03.2012 at evening 7.00 p.m they were playing with the victim in front of their house and the accused had taken the victim. Even though PW.8 had turned hostile but during the course of cross- examination he had stated that the circumstances to the effect that on 05.03.2012 at even 7.00 p.m. he along with other children were playing with PW.4 - victim and accused had taken the victim and at that time there was night time. Further from the evidence it is proved that while they were playing the accused had come to that 26 place and had taken the victim to the dilapidated Church building.
29. Upon considering these evidences, the evidences of these witnesses are found to be relevant as per Section 7 of the Indian Evidence Act regarding just before the incident when the victim was playing and the accused came there had taken the PW.4 to the dilapidated Church building. Therefore, from these evidences it further corroborates to the effect that the accused had taken the victim and from the evidences of PWs.2, 3, 4 and 5, it is the accused who had committed the alleged offence as it is proved categorically from analyzing all the evidences as discussed above.
30. Also considering the submission made by the learned counsel for the appellant that there is absence of gonococci and spermatozoa as it was canvassed that this absence is leading to innocence of the accused, but we found there was no merit in the 27 argument made by the learned counsel for the appellant. Just because there is negative report regarding the presence of gonococci and spermatozoa that cannot be made a ground to say that the accused had not committed the alleged offence.
31. In the offence of penetrative sexual assault as it is in the present case there cannot always be expected presence of gonococci and spermatozoa. Absence of spermatozoa on vaginal smear does not necessarily falsify the version of the prosecution case. Penetration does not necessarily lead to the discovery of spermatozoa. On this principle we place reliance on the judgment of the Hon'ble Supreme Court in the case of Narayanamma vs. State [(1994) 5 SCC 728].
32. Further, as in the present case considering the evidence of Doctor - PW.12 as it is found there is fresh rupture of hymen of the victim PW.4 and also there was bleeding from the private part. This is 28 sufficient to hold that the offence of penetrative sexual assault is committed on the victim and also from the medical evidence Doctor - PW.12. It is proved that there is a cut lacerated injury found on the private part. Therefore, this evidence is sufficient to hold that there is an offence of rape committed on PW.4-victim and in this regard we place reliance on the judgment of the Hon'ble Supreme Court in the case of Mange v. State of Haryana [AIR 1979 SC 1194]. Therefore, in the present case it is not only from the evidence of PW.3- mother and PW.4- victim, the alleged offence committed by the accused is proved but also by the evidence of medical evidence PW.12-Doctor, the offence of rape is proved. The complicity of the accused in the present case who has committed the alleged offence is categorically proved by the evidences of PWs.3 and 4 as discussed above in detail and also for the circumstantial evidences upon analyzing the evidences of PWs.2, 5, 8 and 9 as discussed above in detail.
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33. PW.16 is the Police Constable who had stated that he had taken the material object to the FSL office at Kalaburagi.
34. PWs.1 and 17 are the panch witnesses to the spot panchanama-Ex.P.1 who have stated that on 05.03.2012 at about 1.00 p.m. police conducted a panchanama at the place of the incident as per Ex.P.1 and they found that there was inner garment seized as per M.O.1 while conducting Ex.P.1. Further there is no much cross-examination to discard the evidences of these witnesses. The PW.1 stated the date of panchanama on 05.03.2012, but PW.17 stated he had been to spot on 06.03.2012 and conducted panchanama and after perusing the Ex.P.1 spot panchanama, it is proved the spot panchanama was conducted on 06.03.2012 at 1.00 p.m. The PW.18 Investigating Officer had stated that on 06.03.2012 at 1.00 p.m. he had conducted spot panchanama. Thus the date told by PW.1 is mere aberration but conducting 30 spot panchanama on 06.03.2012 at 1.00 p.m. is proved by PW.17 and PW.18 Investigating Officer and also recovery of M.O.1 - inner garment of victim.
35. PW.18 is the Police Inspector who had conducted investigation and narrated the sequence of events during the course of investigation. After registration of crime had conducted spot panchanama and seized M.O.1 - inner garment of PW.4 and had recorded the statements of the witnesses and had made arrangement for sending the articles to FSL and after collection of the medical report and FSL report and since he came to the conclusion that all the material evidences are collected before the investigation, therefore, filed the charge sheet as against the accused.
36. PW.19 is the Police Sub-Inspector who had stated that he had received MLC report from the hospital and the accused produced before him after apprehending him. Therefore, upon considering the 31 evidences of PWs.18 and 19 their role is conducting investigation and accordingly they collected the evidences and the PW.18 had filed charge sheet against the accused before the Court.
37. Therefore, after considering all the evidences as discussed above, PWs.3 and 4 are the very material witnesses as discussed above. The evidences of PWs.2, 5 and 6 are found to be relevant as per Section 6 of the Indian Evidence Act on the principle of rest gestae. Further the evidence of PW.12 - Doctor who had noticed the injuries on the victim which corroborates the evidences of PWs.3 and 4 and from the evidences of PWs.3 and 4 it is proved that it is the accused who has committed the offence as alleged.
38. Further from the evidence of PW.13 Doctor it is his evidence that there is nothing to suggest that the accused is not able to perform sexual act. The evidence 32 of PW.12 who has given the evidence on medical side corroborates the evidence of PWs.3 and 4.
39. Further upon considering the evidences of PWs.1 and 17 they are panch witnesses as per Ex.P.1 and therein the PW.18 had collected the inner garment of PW.4. Therefore, upon proper analysis of the evidences as discussed above once again this Court does not find any perversity approach of the Sessions Court while arriving at a conclusion by holding that the accused is guilty of the alleged offence. Therefore, the Sessions Court had rightly convicted the accused for the offence punishable under Section 376(2)(f) of the Indian Penal Code.
40. After having gone through the evidences on record carefully and cautiously and meticulously the conviction recorded by the Sessions Court for the offence under Section 376(2)(f) of the Indian Penal Code is liable to be confirmed.
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41. The Sessions Court after finding the accused is guilty of the offence under Section 376(2)(f) of the Indian Penal Code had passed order on sentence that the accused/appellant shall undergo punishment of imprisonment for life and also shall pay a fine of Rs.25,000/- payable to PW.4 - victim.
42. The learned counsel for the appellant/accused submitted that the order on sentence imposed against the accused is harsh one as he was found to be 17 to 19 years of old as on the date of offence as per the evidence of PW.13 - Doctor and at the young age he had committed the offence as alleged and therefore requests to show leniency while awarding sentence. Therefore, it is sum and substance of the submission of the learned counsel for the appellant/accused that even though he had committed the offence as alleged but the punishment of imprisonment for life is too harsh considering the age of the accused is 17 to 19 years as on the date of the 34 incident. Therefore prayed to take leniency while awarding sentence.
43. Further the learned counsel for the appellant submitted that the alleged offence had taken place on 05.03.2012, which is prior to the amendment to Section 376 of Indian Penal Code since amendment is by the Act 2013 with effect from 03.02.2013 and therefore, before the amendment and when the offence as alleged has taken place for the said offence the punishment was with rigorous imprisonment for a term which shall not less than 10 years but which may be for life and shall also be liable to fine. Therefore submitted leniency may be shown while awarding sentence considering the age factor of the appellant/accused and prayed for modification of award on sentence and submitted it would suffice if sentence is imposed for 10 years.
44. In this regard the learned counsel for the appellant/accused relied on the judgment of the of the 35 Hon'ble Supreme Court in the case of Dinesh @ Buddha vs. State of Rajasthan [AIR 2006 Supreme Court 1267] and submitted that in similar facts of the case wherein in eight year child was revished the Hon'ble Supreme Court has awarded sentence of 10 years and the same can be awarded by modifying the sentence of imprisonment for life into 10 years, in the present case also.
45. Considering the offence alleged in the present case which is occurred on 05.03.2012 which is prior to the amendment made in the Indian Penal Code substituting Section 376 of IPC. Therefore, for the offence alleged as and when prevailing Section 376 of IPC before the amendment the punishment to be prescribed is 10 years imprisonment, which may extend to imprisonment for life and with fine.
46. The Hon'ble Apex Curt in the above cited case also confirming the ravishness act on eight years 36 old girl had imposed sentence of 10 years and therefore considering the age factors of the accused in the present case as he was 17 to 19 years as on the date of the alleged incident and therefore the sentence awarded by the Sessions Court of imprisonment for life is modified into 10 years of rigorous imprisonment with fine of Rs.50,000/- and in case if the accused fails to pay fine amount of Rs.50,000/- he shall further undergo rigorous imprisonment for a period of two years. Out of the said fine amount an amount of Rs.40,000/- to be paid to the victim-PW.4 on proper identification and acknowledgment.
47. The above said fine amount imposed on the accused is a lesson to him as he is also to pay compensation to the victim.
48. Further the Parliament has inserted Section 357-A of the Code of Criminal Procedure providing compensation to the victim. This 37 Section 357-A is inserted into the Code of Criminal Procedure by the Act 5 of 2009 with effect from 31.12.2009. As per this, every State has to formulate a scheme for providing funds for the purpose of compensation to the victim arising out of the crime and who requires rehabilitation. Also a provision is made as per sub-section (2) a recommendation is made by the Court to the District Legal Services Authority or the Karnataka State Legal Services Authority to determine the quantum of compensation to be awarded under the scheme.
49. As per the legislative dictum as stated under Section 357-A of Code of Criminal Procedure, the State has formulated namely Karnataka Victims Compensation Scheme, 2011.
50. The National Legal Services Authority even has also formulated the scheme as a model to all the States for providing compensation to the victim arising 38 out of various crimes including the victims of sexual assault.
51. The Hon'ble Supreme Court in the case of Indian Woman Says Gang-Raped on Orders of Village Court, published in Business and Financial News dated 23.01.2014, IN RE, which is suo motu writ petition reported in (2014) 4 Supreme Court Cases 786, were pleased to issue the dictum regarding the victim compensation which are stated as below ;-
"19 No compensation can be adequate nor can it be of any respite for the victim but as the State has failed in protecting such serious violation of a victim's fundamental right, the State is duty bound to provide compensation, which may help in the victim's rehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace.
20. In 2009, a new Section 357A was introduced in the Code which casts a responsibility on the State Governments to formulate Schemes for compensation to the victims of crime in coordination with the Central Government whereas, previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this Section. Under the new Section 357A, the onus is 39 put on the District Legal Service Authority or State Legal Service Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. In the case of State of Rajasthan vs. Sanyam, Lodha, (2011) 13 SCC 262, this Court held that the failure to grant uniform ex-gratia relief is not arbitrary or unconstitutional. It was held that the quantum may depend on facts of each case."
52. Further the Hon'ble Supreme Court in the case of Tekan alias Tekram vs. State of Madhya Pradesh (Now Chhattisgarh) [(2016) 4 Supreme Court Cases 461], were pleased to observe grant of compensation to the victim arising out of the crime of rape and it is worthwhile to extract paras 13, 14 and 17:-
"13. On perusal of the aforesaid Vvictim Compensation Schemes of different States and the Union Territories, it is clear that no uniform practice is being followed in providing compensation to the rape victim for the offence and for her rehabilitation. This practice of giving different amount ranging from Rs.20,000/- to Rs.10,00,000/- as compensation for the offence of rape under section 357A needs to be introspected by all the States and the Union Territories. They should consider and formulate a 40 uniform scheme specially for the rape victims in the light of the scheme framed in the State of Goa which has decided to give compensation up to Rs.10,00,000/-.
14. While going through different schemes for relief and rehabilitation of victims of rape, we have also come across one Scheme made by the National Commission of Women (NCW) on the direction of this Court in Delhi Domestic Working Women's Forum vs. Union of India [(1995) 1 SCC 14], whereby this Court inter alia, had directed the National Commission for Women to evolve a "scheme" so as to wipe out the tears of unfortunate victims of rape. This scheme has been revised by the NCW on 15-4-2010. The application under this scheme will be in addition to any application that may be made under Section 357, 357-A of the Code of Criminal Procedure as provided in Para 22 of the Scheme. Under this scheme maximum of Rs.3,00,000/- (Rupees three lakhs) can be given to the victim of rape for relief and rehabilitation in special cases like the present case where the offence is against an handicapped woman who required specialized treatment and care."
"17. Indisputably, no amount of money can restore the dignity and confidence that the accused took away from the victim. No amount of money can erase the trauma and grief the victim suffers. This aid can be crucial with aftermath of crime.""
53. Further the Hon'ble Supreme Court in the case of Mohd.Haroon & Ors vs Union Of India & Anr [(2014) 5 SCC 252], were pleased to laid down the 41 guidelines regarding compensation to the victim arising out of crime of rape. It is worthwhile to extract paras 122, 123, 124 and 125 :-
"122. As a long-term measure to curb such crimes, a large societal change is required via education and awareness. The Government will have to formulate and implement policies in order to uplift the socio-economic conditions of women, sensitisation of police and other concerned parties towards the need for gender equality and it must be done with focus in areas where statistically there is higher percentage of crimes against women.
123. No compensation can be adequate nor can it be of any respite for the victims but as the State has failed in protecting such serious violation of fundamental rights, the State is duty-bound to provide compensation, which may help in victims rehabilitation. The humiliation or the reputation that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace.
124. In 2009, a new Section 357-A was introduced in the Code which casts a responsibility on the State Governments to formulate schemes for compensation to the victims of crime in coordination with the Central Government whereas, previously, Section 357 ruled the field which was not mandatory in nature and only the offender can be directed to pay compensation to the victim under this Section. Under the new Section 357-A, the onus is put on the District Legal Services Authority or State Legal Services Authority to determine the quantum of compensation in each case. However, no rigid formula can be evolved as to have a uniform amount, it should vary in facts and circumstances of each case. Nevertheless, the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance. The mental trauma that the victim suffers due 42 to the commission of such heinous crime, rehabilitation becomes a must in each and every case.
125. Considering the facts and circumstances of these cases, we are of the view that the victims in the given case should be paid a compensation of Rs.5 lakhs each for rehabilitation by the State Government. We, accordingly, direct the State Government to make payment of Rs. 5 lakhs, in addition to various other benefits, within 4 weeks from today. Further, we also wish to clarify that, according to Section 357-B, the compensation payable by the State Government under Section 357-A shall be in addition to the payment of fine to the victim under Section 326-A or Section 376-D of the IPC."
54. Therefore, it is legislative mandate and also as per the dictum of the Hon'ble Apex Court stated supra, the State has to provide compensation to the victim arising out of the crime and for necessary rehabilitation and for this it is the duty cast on the Karnataka State Legal Services Authority and to the concerned District Legal Services Authority to determine the compensation and pay the compensation accordingly. Therefore, it is hereby directed the District Legal Services Authority, Bidar shall determine the compensation to be payable to the victim and 43 accordingly shall pay compensation to Pw.4-victim in the present case. Hence we pass the following :-
ORDER The appeal is allowed in apart.
The judgment of conviction and order on sentence dated 10.01.2013 passed in Sessions Case No.132/2012 by the Principal Sessions Judge, Bidar convicted the accused for the offence punishable under Section 376(2)(f) of the Indian Penal Code is hereby confirmed.
The order on sentence is modified to the extent that the accused shall suffer rigorous imprisonment for a period of 10 years with fine of Rs.50,000/- in default to pay fine amount he shall further undergo rigorous imprisonment for a period of two years.
Out of the said fine amount, a compensation of Rs.40,000/- is to be paid PW.4 - victim as per Section 357 of the Code of Criminal Procedure.44
Further the District Legal Services Authority, Bidar is directed to determine the compensation for the offence as alleged in the present case and shall pay to the victim-PW.4 as per the Karnataka Victims Compensation Scheme, 2011 and the guidelines/scheme framed by the National Legal Services Authority.
The Registry is hereby directed to send back the Trial Court Records along with copy of the judgment to the Sessions Court, Karnataka State Legal Services Authority and District Legal Services Authority, Bidar.
SD/-
JUDGE SD/-
JUDGE sn