Karnataka High Court
State Of Karnataka vs Vijaya @ Vijaykumar on 19 April, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
CRL.A.No.1307/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19th DAY OF APRIL, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.1307/2016 (A)
BETWEEN:
STATE OF KARNATAKA BY
THE CIRCLE INSPECTOR OF POLICE
MADIKERI RURAL CIRCLE - 571 201
REP. BY S.P.P.
HIGH COURT OF KARNATAKA
BANGALORE - 560 001 ...APPELLANT
(BY SRI.SHANKAR H S, HCGP)
AND:
VIJAYA @ VIJAYAKUMAR
S/O JANARDHANA
AGED ABOUT 26 YEARS
AGRICULTURIST
2ND MONNANGERI, MADE VILLAGE
MADIKERI TALUK - 571 201 ...RESPONDENT
(BY SMT.RAKSHA KEERTHANA K, ADVOCATE)
CRIMINAL APPEAL IS FILED U/S.378(1) AND (3) CR.P.C
PRAYING TO GRANT LEAVE TO APPEAL AND SET ASIDE THE
JUDGMENT AND ORDER DATED 10.03.2016 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU AT
MADIKERI IN S.C.NO.99/2012, ACQUITTING THE RESPONDENT-
ACCUSED OF THE OFFENCE PUNISHABLE UNDER SECTION 376, 420
OF IPC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 09.03.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
CRL.A.No.1307/2016
2
JUDGMENT
"In acquitting the respondent/accused whether the trial Court committed patent illegality leading to failure of justice?"
is the question involved in this case.
2. The respondent was prosecuted in Sessions Case No.99/2012 on the file of the III Addl. District and Sessions Judge, Kodagu, Madikeri for the charges for the offences punishable under Sections 376 and 420 IPC on the basis of the charge sheet filed by Madikeri Rural Police in Crime No.85/2008 of their Police Station.
3. Crime No.85/2008 was registered against the respondent/accused on the basis of the complaint Ex.P1 filed by the victim PW.1. For the purpose of convenience the parties will be referred to henceforth according to ranks before the trail Court.
4. The case of the prosecution in brief is as follows:
PW.1 was born on 29.02.1992. The accused was her uncle's son. PW.1 used to go to the farm land of the accused for coolie work. In January 2008 when PW.1 had gone to the farm land of the accused luring her of love and marriage and CRL.A.No.1307/2016 3 under the false promise of marriage, he had sexual intercourse with her. He told her not to reveal the incident to anybody and assured that he will marry her soon. But, he did not marry. As a result of such sexual relationship, PW.1 became pregnant. On noticing the changes in her, her parents took her to the doctor where her pregnancy was revealed. On enquiry PW.1 revealed the incident to her parents. They insisted the accused to marry her. Though initially he agreed for the same, later he told that he gets the pregnancy terminated and declined to marry her. At the instance of victim party, panchayat was held on the issue. In the panchayat the accused agreed to marry her, but, later absconded. Thereby he committed the offences punishable under Sections 376 and 420 of IPC.
5. PW.1 filed complaint Ex.P1 before PW.8. On the basis of Ex.P1, PW.8 the then PSI of Madikeri Rural Police Station registered the FIR as per Ex.P5 and sent PW.1 for medical examination. He handed over the further investigation to PW.9 the Circle Police Inspector of Madikeri Rural Police Circle. PW.9 conducted the investigation and filed the charge sheet.
CRL.A.No.1307/20164
6. The trial Court on hearing the parties framed the charges against the accused for the offences punishable under Sections 376 and 420 of IPC. The accused denied the charges. Therefore, trial was conducted. In support of the case of the prosecution, PWs.1 to 9 were examined and Exs.P1 to P5 were marked. On his examination under Section 313 Cr.P.C. the accused neither filed the defence statement nor lead defence evidence.
7. The trial Court on hearing the parties by the impugned judgment and order acquitted the accused on the following grounds:
i) Age of the victim was not proved.
ii) The relationship between the accused and PW.1
was consensual one.
iii) The prosecution has not produced the DNA test
report to show that the child was conceived and born due to the alleged sexual relationship of the accused with PW.1
iv) Even assuming that the accused cheated PW.1 on false pretext of marrying her, as per the judgment CRL.A.No.1307/2016 5 of the Hon'ble Supreme Court in Tilak Raj vs. State of Himachal Pradesh reported in AIR 2016 SC 406, the accused is not liable to be convicted.
Submissions of Sri H.S.Shankar, learned HCGP.
8. The evidence of PW.1 and PW.4 shows that the victim was born on 29.02.1992 and the same was not disputed. The accused himself suggested to PW.1 that in the Panchayat he agreed to marry because of the force exerted by her parents. That itself probabilises the evidence of PW.1 that the accused promising to marry her, committed sexual intercourse, then resiled from the said promise. The evidence of PW.1 and PW.6 shows that on 28.04.2008 the victim was found to be 18 to 20 weeks pregnant. That probabilises the prosecution case that the accused had sexual intercourse with PW.1 in January 2008. She had not yet attained the age of 16 years. As on that date, she was aged 15 years 10 months. Therefore her consent was not consent under law. The evidence of PW.1 was corroborated by the evidence of PW.4 and 6 to 9. The trial Court committed perversity in disbelieving the evidence of PW.1 and acquitting the accused CRL.A.No.1307/2016 6 only on the ground that DNA profiling was not done. The conduct of the accused shows that even before he developed the sexual relationship with PW.1, he had no intention to marry her and on the false promise of marrying her he sexually abused her which amounts to rape and cheating.
9. In support of his submission, he relies on the following judgments:
i) Anurag Soni vs. State of Chhattisgarh1
ii) Veerendra vs. State of Madhyapradesh2
iii) Karthi @ Karthick vs. State rep by Inspector of Police, Tamil Nadu3
iv) State of U.P. vs. Naushad4 Submissions of Smt.Raksha Keerthana, learned counsel for the accused/respondent.
10. The evidence of PW.1 shows that the alleged sexual relationship was consensual one. PW.1 being below 16 years of age was not proved. Her parents were not examined. PWs.2 and 3 her co-workers did not support the case of the prosecution. There was no corroboration to the evidence of PW.1. The Investigating Officer did not get the DNA profile of the child of PW.1 done and produced the same. The trial Court 1 (2019)13 SCC 1 2 (2022)8 SCC 668 3 (2013)12 SCC 710 4 (2013)16 SCC 651 CRL.A.No.1307/2016 7 on appreciating the oral and documentary evidence in sound manner has acquitted the accused. Such acquittal order cannot be interfered by this Court only on the ground that another view is probable. Therefore, the appeal is liable to be dismissed.
11. In support of her submissions, he relies on the following judgments:
i) Vijayan vs. State of Kerala5
ii) Krishan Kumar Malik vs. State of Haryana6
iii) Pramod Suryabhan Pawar vs. State of
Maharashtra and another7
iv) Kaini Rajan vs. State of Kerala8
v) Harinarayan vs. State of Madhyapradesh9
]
ANALYSIS
12. The case of the prosecution is that the accused under the false promise of marriage committed sexual intercourse with PW.1 who was aged below 16 years and then he resiled from marriage, thereby he committed offence of rape and cheating.
5 (2008)14 SCC 763 6 (2011)7 SCC 130 7 (2019)9 SCC 608 8 (2013)9 SCC 113 9 2022 SCC online MP 1851 CRL.A.No.1307/2016 8 Reg. age of PW.1
13. To substantiate the charges the prosecution mainly relies on the evidence of PW.1/victim, PW.6/doctor who examined PW.1 and issued the report Ex.P4, PW.7 the co- worker of PW.1 in Dharmastala Sangha and the evidence of PWs.8 and 9 the Police Officers.
14. The trial Court also accepts the evidence lead by the prosecution to the effect that the accused had sexual intercourse with PW.1. But, according to the trial Court that was on the volition of PW.1 herself. Under such circumstance, first, what are the ingredients of such offence and what is the meaning of consent has to be examined.
15. The relevant provision of Section 375 of IPC reads as follows:
"[375. Rape.--A man is said to commit "rape" if he--
(a) xxxxx
(b) xxxxxx
(c) xxxxx
(d) xxxxxx
under the circumstances falling under any of the following seven descriptions:--
First.-- Against her will.
Secondly.-- Without her consent.
Thirdly.-- xxxx
CRL.A.No.1307/2016
9
Fourthly.-- xxxx
Fifthly.-- xxxxx
Sixthly.-- With or without her consent, when she is
under sixteen years of age.
Seventhly. xxxx."
16. The reading of the above provision shows that if the victim was aged below 16 years at the time of the commission of the offence, the consent of the victim does not save the accused from operation of section 375 and 376 IPC. Therefore, age of the victim becomes relevant.
17. To prove the age of the victim the prosecution relied on the evidence of PW.1, PWs.4, 5 and 6. There is no dispute that PW.1 had studied up to VII Standard in Government Primary School, Jodupalu village. PW.1 in her chief examination deposed that her date of birth is 29.02.1992 and she had studied up to VII Std. PW.4 the Head Mistress of Government Primary School, Jodupalu village deposed that PW.1 studied in their School from I Std to VII Std, as per their school records the date of birth of PW.1 was 29.02.1992.
18. In the cross examination of PW.1 her evidence with regard to her date of birth and about she studying in CRL.A.No.1307/2016 10 Jodupalu village was not at all disputed. Even in the cross examination of PW.4 the date of birth of the victim or the genuineness of Ex.P3 the certificate was not disputed. It was only suggested to PW.4 that during the admission of PW.1 in the said school PW.4 was not working in that School. Her evidence that she has issued the certificate based on the records maintained in the school was also not disputed.
19. Relying on the evidence of PW.5 and Ex.P4 it was contended that as per the prosecution records themselves, the victim was aged 14 to 18 years, therefore, the accused is entitled to the benefit of doubt and the evidence that her date of birth was 29.02.1992 shall be rejected.
20. The Hon'ble Supreme Court in Mahadeo S/o Kerba Maske vs. State of Maharashtra and another10 while laying down the principles in determining the age of juvenile victim held that the principles in assessing the age of the juvenile in conflict with law is equally applicable in the assessment of the age of the juvenile victim. Referring to Rule 12(3) of Juvenile Justice (Care and Protection of Children) 10 (2013)14 SCC 637 CRL.A.No.1307/2016 11 Rules, 2007 the Hon'ble Supreme Court held that in determining the age of the victim, the order of priority of the documents which are to be relied shall be as follows:
i) the matriculation or equivalent certificates, if available; and in the absence whereof;
ii) the date of birth certificate from the
school (other than a play school) first
attended; and in the absence whereof;
iii) the birth certificate given by corporation or a
municipal authority or a panchayat;
iv) Only in the absence of any of the above the
medical opinion can be sought.
21. In the light of the above principles laid down by the Hon'ble Supreme Court, Ex.P3/school certificate and the evidence of PW.4 take precedence over the evidence of PW.5 and his opinion. PW.5 examined PW.1 and issued such certificate based on the reference made by PW.6. Whereas the Investigating Officer himself had not referred PW.1 to PW.6 for age assessment. Therefore, there is no merit in the contention that considering the evidence of PW.5 to the exclusion of the other evidence benefit of doubt shall be given to the accused with regard to the age of PW.1. Under the circumstances, the finding of the trial Court that the age of the CRL.A.No.1307/2016 12 victim was not proved is contrary to the evidence on record and the judgment of the Hon'ble Supreme Court in Mahadeo's case referred to supra.
Reg. 376 and 420 IPC
22. As per the complaint and the evidence of PW.1, the accused sexually abused PW.1 in January 2008 under the false promise of marriage. PW.6 is the doctor who examined the victim and gave the report Ex.P4. According to the evidence of PW.6 and Ex.P4, PW.1 was brought to him on 28.04.2008 with the history of sexual abuse by the accused in January 2008. On examination, the victim was found to be 18 to 20 weeks pregnant. The only suggestion to PW.6 is that she has not conducted any examination of PW.1 and she is deposing falsely which was denied by her.
23. PW.6 was a public servant. Nothing was elicited in her evidence to show that she had any animosity against the accused to depose falsely against him. More over the accused himself did not dispute the fact of victim conceiving and delivering a child. As against that in the cross examination of PW.1 he suggested, because she became unwedded mother she has falsely implicated him in the case. In addition to that CRL.A.No.1307/2016 13 the Hon'ble Supreme Court in North West Karnataka RTC vs. Gourabai11 has held that the doctor will not take signature on a piece of paper to an incorrect matter. Therefore, PW.6's evidence has to be given credence.
24. If the above evidence with regard to gestation period is considered, the date of the sexual abuse falls in the early part of the month of January. As already held the victim being born on 29.02.1992 was proved by the evidence of PWs.1 and 4. In that event in January 2008 she was still below the age of 16 years. In such event, the act of the accused falls under the sixth description of the offence of rape as defined under Section 375 of IPC. Therefore, irrespective of the alleged consent of PW.1, such act constitutes the offence of rape.
25. Learned counsel for the respondent contended that the parents of PW.1 and the other persons, who allegedly participated in the panchayat were not examined. It was further contended that as per the evidence of PW.1 the accused was paying lesser wage as compared to the other land 11 (2009)15 SCC 165 CRL.A.No.1307/2016 14 owners. In that event, in the ordinary course she should go to the work where she gets higher wages. Therefore, her evidence regarding she going to the land of the accused for work is unacceptable. Alternatively, PW.1's evidence shows that she was engaged in sexual relationship voluntarily. Her evidence regarding rape by cheating was not corroborated by the evidence of other witnesses, therefore, the same shall be disbelieved.
26. The Hon'ble Supreme Court in para 8 of the judgment in State of Punjab vs. Gurmit Singh12 while laying down the principles with regard to the appreciation of evidence of prosecutrix and the approach of the Courts in the trial of the offence under Section 376 IPC held as follows:
8. xxxxxxxxxxxx The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an 12 (1996) 2 SCC 384 CRL.A.No.1307/2016 15 otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not over-look. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl of a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an CRL.A.No.1307/2016 16 imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty.
Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."
(Emphasis supplied)
27. The same view is reiterated in the latest judgment of the Hon'ble Supreme Court in Ganesan vs. State rep by Inspector of Police13.
28. Even assuming that the case is not covered under the sixth description of Section 375 IPC, the next question is whether the alleged consent of PW.1 was an informed consent 13 (2020)10 SCC 573 CRL.A.No.1307/2016 17 or that was under the misconception is the question. According to PW.1 she fell prey to the sexual advancement of the accused on account of his false promise of love and marriage. Section 90 of IPC states that, if the consent is given under the misconception of a fact and if the person doing such act knows that consent was given in consequence of misconception, the same is not consent for the purpose of IPC.
29. The Hon'ble Supreme Court in Anurag Soni's case referred to supra in the similar circumstance held that if the prosecution is successful in proving that from the very inception, promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention for the accused to marry prosecutrix, then it can be said that her consent was on misconception of fact.
30. The Hon'ble Supreme Court in para 17 of the judgment in Karthi's case referred to supra held that as long as commitment of marriage subsisted, the relationship between the parties could not be described as constituting the offence of rape under Section 376 IPC. But on the accused CRL.A.No.1307/2016 18 declining to marry the prosecutrix different dimension comes to be attached to the physical relationship. In that judgment also it was held that the first attempt of the victim party will be to approach the village elders and to settle the matter amicably persuading the accused to marry the victim and then only they think of filing the complaint. Therefore, naturally delay occurs.
31. In para 10 of the judgment in Naushad's case referred to supra it was held that, if the testimony of the prosecutrix shows that right from the beginning the accused had no honest intention to marry and he kept on promising that he will marry her till she became pregnant such kind of consent cannot be said to be any consent as the victim was under the misconception of fact that the accused intends to marry her and submits herself for the sexual intercourse with him.
32. In the light of the above judgments this Court has to examine whether the evidence of PW.1 was reliable and trust worthy to hold that the accused sexually abused PW.1 under the false pretext of marriage. PW.1 in the complaint as CRL.A.No.1307/2016 19 well as in her deposition categorically stated that she was going to the farm land of the accused for work and he represented to her that he is in love with her and he will marry her. She also deposed that the accused was her uncle's son, making her to believe that he will marry her, he had sexual intercourse with her in his farm land, he told her not to reveal the same to others and he will marry her. Consequently she became pregnant. She also deposed that when she started getting stomach pain her father took her to the hospital and it was found that she was pregnant. She further deposed that when she revealed to the accused about her pregnancy and asked him to marry, he agreed. But on the next day he came to her parents and said that he will not marry her and he gets her pregnancy terminated. She further deposed that in that regard a panchayat was held. In the Panchayat her parents, elder brother, sister in law, the accused, his mother and elder brother participated. In the panchayat the accused agreed to marry her and from the next day itself he absconded from the village. Then she filed the complaint.
33. In the cross examination of PW.1, her blood relation with the accused is not disputed. She conceiving a CRL.A.No.1307/2016 20 child and delivering a female child is also not disputed. As against that in the cross examination of PW.1 when she deposed that the accused admitted the paternity of the child and in the panchayat he agreed to marry her, the accused himself suggested to PW.1 that he so agreed in the panchayat to marry her under pressure. That suggestion itself indicates the conducting of the panchayat and accused agreeing to marry her. That suggestion itself substantiated the prosecution case regarding conducting of the panchayat and the accused agreeing to marry her in the panchayat. Therefore, the contention that non-examination of the parents of the victim or the panchayatdars is fatal, carries no merit.
34. In the cross examination of PW.1 it was elicited that after four years of she begetting the child out of her controversial pregnancy, she was married to another person and begot another girl child. At the time of the incident PW.1 was aged hardly 15 years. By the time she tendered evidence before the Court she was married to another person and was having a child out of such marriage. In such situation, it would be hard for any woman to relive the previous episodes CRL.A.No.1307/2016 21 and to depose to that unless such incident had shaken her soul. At the stake of her settled marital life PW.1 stood the ground and gave evidence. The only suggestion made to her in the cross examination is that with an intention to make money out of complaint he is falsely implicated in the case which she denies. But such defence was not put forth by him either in his examination under Section 313 Cr.P.C. or by filing any defence statement. Such question was posed to PW.1 only as a chance defence.
35. PW.1 was girl hailing from a poor family in the rural area. The evidence on record shows that she had to go to the work as a substitute for her mother during the natal care of her mother. Since the accused was economically better placed, PW.1 who was still a child and was naturally unaware of motives or the vices of the worldly people fell prey for his false and rosy promise of love and marriage. Therefore there are grounds to believe that her consent, if any for the sexual advancement of the accused was under such misconception.
36. PW.1's evidence was corroborated by the evidence of doctor before whom at the earliest point of time she was CRL.A.No.1307/2016 22 presented with a history of sexual abuse by the accused under the pretext of marriage and the consequent pregnancy. The evidence of PWs.1 and 6 was further corroborated by the evidence of PW.7 the President of Dharmastala Sangha. Her evidence shows that herself, PW.1's mother Honnamma and the accused were the members of Dharmastala Sangha and they were working together. She also deposes about PW1 coming to the Sangha for work as a substitute for her mother during the natal care period of her mother and accused and PW.1 talking with each other during the said period. She also deposes about she learning through the mother of PW.1 about PW.1 conceiving on account her sexual relationship with the accused, convening panchayat in the village and accused absconding from the village after the panchayat. In her cross examination nothing was elicited to impeach her evidence. The above evidence goes to show that PW.1's evidence was reliable and trust worthy to hold that the charge that the accused engaged in sexual relationship with her with false promise of marriage and then took U turn. That was further corroborated by the other evidence on record. CRL.A.No.1307/2016 23
37. The trial Court on holding that the relationship was consensual acquitted the accused mainly on the ground that DNA test was not conducted and that was fatal. The larger bench of the Hon'ble Supreme Court in para 53 of the judgment in Veerendra's case referred to supra regarding requirement of DNA profiling in such cases held as follows:
"53. In view of the nature of the provision under Section 53A Cr.P.C and the decisions referred (supra) we are also of the considered view that the lapse or omission (purposeful or otherwise) to carry out DNA profiling, by itself, cannot be permitted to decide the fate of a trial for the offence of rape especially, when it is combined with the commission of the offence of murder as in case of acquittal only on account of such a flaw or defect in the investigation the cause of criminal justice would become the victim. The upshot of this discussion is that even if such a flaw had occurred in the investigation in a given case, the Court has still a duty to consider whether the materials and evidence available on record before it, is enough and cogent to prove the case of the prosecution. In a case which rests on circumstantial evidence, the Court has to consider whether, despite such a lapse, the various links in the chain of circumstances forms a complete chain pointing to the guilt of the accused alone in exclusion of all hypothesis of innocence in his favour.
(emphasis supplied)
38. The above judgment clearly shows that the lapse or omission in conducting DNA profiling cannot be permitted to CRL.A.No.1307/2016 24 decide the fate of trial involving the offence of rape. The above said larger bench judgment takes precedence over the judgment in Krishan Kumar Malik's case.
39. The trial Court without appreciating the evidence on record in consonance with the principles laid down in the aforesaid judgments of the Hon'ble Supreme Court committed patent illegality in acquitting the accused. Further the trial Court failed to note that the accused indulged in incest relationship with his own cousin aged 15 years and cheated her. Therefore, such order of acquittal has lynched the cause of justice and the same is liable to be set aside. Suffice it to say that the judgments in Vijayan's case Kainy Rajan's case and Harinarayan's case relied on by the learned counsel for the respondent/accused cannot be justifiably applied to the facts of the present case. Hence the following:
ORDER
i) The appeal is allowed.
ii) The impugned judgment and order of acquittal dated 10.03.2016 in SC No.99/2012 passed by the III Addl. District and Sessions Judge, Kodagu, Madikeri is hereby set aside.CRL.A.No.1307/2016
25
iii) The accused is hereby convicted for the offences punishable under Sections 376 and 420 IPC.
For hearing on sentence, the accused shall be present before the Court on 20.04.2023.
Sd/-
JUDGE Sd/-
JUDGE AKC CRL.A.No.1307/2016 26 KSMJ & RMBJ 07.07.2023 ORDER ON SENTENCE Sri Sanjaykumar Tumbada, Jailer of District Prison, Madikeri produces the accused digitally from Madikeri District Prison.
Heard the accused on sentence. The accused submits that he has dependant mother and specially abled sister, therefore leniency may be shown in the period of sentence.
The accused is convicted for the offences punishable under Sections 376 and 420 of IPC. The incident has taken place in the year 2008. The records show that upto 2012, the accused was absconding. He has undergone detention of about three years during trial.
The minimum period of sentence for the offence punishable under Section 376 of IPC at the relevant time was seven years. The punishment for the offence punishable under Section 420 of IPC is upto seven years.
Considering the aforesaid facts and circumstances, interest of justice would be met by sentencing the CRL.A.No.1307/2016 27 accused/respondent to rigorous imprisonment of seven years for the offence punishable under Section 376 of IPC and rigorous imprisonment of three years for the offence punishable under Section 420 of IPC along with sentence of fine. Hence the following:
ORDER For the offence punishable under Section 376 of IPC, the accused is sentenced to rigorous imprisonment of seven years and fine of Rs.50,000/-. In default to pay the fine amount, he shall undergo simple imprisonment of six months.
For the offence punishable under Section 420 of IPC, the accused is sentenced to rigorous imprisonment of three years and fine of Rs.10,000/-. In default to pay the fine amount, he shall undergo simple imprisonment of three months.
The substantive sentences of imprisonment shall run concurrently.
As per Section 428 of Cr.P.C., the accused is entitled to the benefit of set off for the period of detention already undergone by him.CRL.A.No.1307/2016
28
Acting under Section 357A of Cr.P.C., the matter is referred to District Legal Services Authority, Kodagu, Madikere for determination of the compensation payable to the victim and for disbursement of the same.
The material objects if any shall be destroyed after expiry of the appeal period.
The trial Court shall issue conviction warrant accordingly.
Sd/-
JUDGE Sd/-
JUDGE KSR