Bangalore District Court
SPL.C/292/2014 on 31 January, 2015
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 30th DAY OF JANUARY, 2014
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 292/2014
COMPLAINANT :
The State of Karnataka by
Subramanyanagar Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED :
Venugopal @ Venu
S/o Prabhakar @ Prabhu
Aged 22 years, r/at
Rajesh's house, Ramachandrapura,
Doddabommasandra,
Vidyaranyapura,
Bangalore.
[Rep. by B.S.Associates, Advocates ]
***
/2/ Spl.C.C.No.292/2014
JUDGMENT
Subramanyanagar Police, Bangalore City have charge sheeted the accused for the offences punishable under Sections 366(A) and 376 of I.P.C.
2. The case of the prosecution in brief, is as under :
C.W.2, the prosecutrix was of 13 years in the year 2012. The accused had kidnapped the prosecutrix on 08/10/2012 at 8.10pm while she was going to the shop on Vivekananda Law College road, took her on his two wheeler to his friend C.W.-10 Vikram Raj's house situated in Doddabommasandra, Ramachandrapura, Vidyaranyapura, kept her till 11/10/2012, during that period he had sexual intercourse with C.W.-2, the prosecutrix by force, thereafter, dropped her nearby law college road to go to her house. In the meanwhile C.W.-1 Noor Ahmed, father of the prosecutrix had lodged a complaint on 11/10/2012 before the Subramanyanagar police. On /3/ Spl.C.C.No.292/2014 being registered the case, drew necessary Mahazar, recorded the statement of the victim and other prosecution witnesses, voluntary statement of the accused. Accused and the prosecutrix were subjected to medical examination. By completing the investigation, Investigating Officer submitted the charge sheet before the Court for the aforesaid offences.
3. The chargesheet was submitted to VII ACMM Court and it was committed to the Sessions Court for trial. After registering the case in S.C No.284/2013, it was entrusted to CCH-54. The learned Presiding Officer has framed the charge under Sections 366(A) and 376 of I.P.C. The accused pleaded not guilty and claimed to be tried. Hence, posted for evidence on prosecution side. At the time of evidence, on the point of jurisdiction, this case has been transferred to this Court.
/4/ Spl.C.C.No.292/2014
4. On prosecution side got examined as many as 8 witnesses as P.W.1 to P.W.-8 out of 21 charge sheet witnesses and got marked documents at Ex.P.1 to P.10, the details of which are given in the annexure of this Judgment. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments. Subsequently, the arguments heard on both the sides and posted for judgment. At that stage, by hearing on both sides, first charge for the offence under Section 366(A) of I.P.C. has been altered as Section 366 of I.P.C. To that effect alteration of charge has been made, readover and explained to the accused, he has pleaded not guilty and claimed to be tried. On both the sides submitted that no further evidence as the evidence is already on record. Heard in further. Posted for judgment.
5. Heard the arguments on both sides. Perused and posted for Judgment.
/5/ Spl.C.C.No.292/2014
6. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused had kidnapped C.W.-2, the minor girl aged about 13 years, daughter of C.W.-1 and C.W.-7, on 08/10/2012 at 8.10pm from Vivekananda Law college road, Gayathrinagar, Bangalore with intent to solicit her to sexual intercourse punishable under Section 366 of I.P.C. ?
2) Whether the prosecution has proved beyond reasonable doubt that accused has committed rape on C.W.-2, in the house of C.W.9 Sunanda situated at Vidyaranyapura, Doddabommasandra, Ramachandrapura area of Bangalore during the period from 08/10/2012 to 11/10/2012 punishable under Section 376 of I.P.C ?
3) What order?
7. My findings on the above points are as under:-
/6/ Spl.C.C.No.292/2014 Point No.1 : In the Negative.
Point No.2 : In the Negative.
Point No.3 : As per final orders for the following:
REASONS
8. Point Nos.1 & 2:- Points Nos.1 & 2 are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
It is the case of the prosecution that accused Venugopal @ Venu S/o Prabhakar @ Prabhu had an intention of soliciting P.W.-1, prosecutrix who was of 13 years to sexual intercourse. She was then studying in 7th Standard. It is alleged by the prosecution that accused had kidnapped the prosecutrix on 08/10/2012 at 8.10pm from Vivekananda law college road while she was going to the shop at that time. There is also allegation that he had committed rape on her in the house of C.W.-9 after kidnapping her and kept in that house. Therefore, the age of the /7/ Spl.C.C.No.292/2014 prosecutrix shall have to be looked into at the first instance.
9. According to prosecution, the prosecutrix was of 13 years as on the date of the alleged incident. In order to prove the same, the prosecution has produced Ex.P.1, the certificate issued by P.W.-2 Shyamala, the Head Mistress of the school in which she was studying. Ex.P.1 speaks that she was studying in 7th Standard, her date of birth is 31/03/2000 as per school records. Ofcourse, she is subjected to cross-examination on defence side. Nothing contrary is extracted from her mouth to disbelieve her version. Her evidence is also corroborated by P.W.-1, the prosecutrix, P.W.-5 Reshma, mother of the prosecutrix. As per this Ex.P.1, the prosecutrix was of 12 years 6 months as on the date of the alleged incident. In the complaint at Ex.P.3 dated 11/10/2012 mentioned age of the prosecutrix was 13 years. Ofcourse C.W.-1 Noor Ahmed, who is father of the victim as well as the complainant has not been examined as he is reported to be dead. However, /8/ Spl.C.C.No.292/2014 P.W.-6 Shivanna, ASI has stated that he has received the complaint as per Ex.P.3 from C.W.-1 on 11/10/2012 at 12.45pm wherein mentioned the age of the prosecutrix was 13 years as on that date. P.W.-1, prosecutrix was examined on 15/09/2012. She has stated before the Court that her age is 14 years as on that date. The incident took place in the month of October, 2012. Therefore, her evidence also suggests that she was of 12-13 years. P.W.-5 Reshma, mother of the prosecutrix has stated that age of the prosecutrix as on the date of the incident was 13 years, now 15 years. She has been examined on 12/11/2014.
10. Ofcourse, prosecution has got examined P.W.-7 Dr.Pradeep. The prosecutrix was sent to hospital to ascertain her age and also to give opinion whether she was used to sexual intercourse. He has stated that on the basis of radiological test and other tests, her age is above 15 years below 16 years. In the cross- examination, this has not been specifically denied on /9/ Spl.C.C.No.292/2014 defence side. The general suggestion that he has not subjected the prosecutrix to medical examination and submitted a false report as per Ex.P.6, has been made and same has been denied by P.W.-7. Even as per Ex.P.6, the age of the prosecutrix was below 16 years. As per the school records, she was of 13 years. Her date of birth is 31/03/2000. There is no other document to falsify the same. Though in Ex.P.6, the Doctor has certified that her age is above 15 and below 16 years, in view of the medical jurisprudence, exact date of birth cannot be certified. There is no other evidence produced on defence side contrary to Ex.P.1. The whole evidence available before the Court is taken into consideration, she is below 16 years. She was studying in 7th Standard. Keeping in view all these factors, it can very well be concluded that she is minor i.e., under the age of 18 years that too below 16 years. As per the ocular statement of the prosecutrix and her mother and school certificate, she was at 13 years only as on the date of alleged incident.
/ 10 / Spl.C.C.No.292/2014
11. Now the next question arises whether the prosecution has proved beyond reasonable doubt the kidnapping of the prosecutrix by the accused. In order to prove its case, the prosecution has got examined 8 witnesses. Out of them, P.W.-1, the prosecutrix, P.W.- 5 Reshma, mother of the prosecutrix, P.W.-7 Dr.Pradeep, P.W.-6 Shivanna, ASI, P.W.-8 J.U.Somegowda, Police Inspector, the Investigating Officer are the material witnesses in the present case.
12. According to prosecution, accused used to come near the house of the prosecutrix for his work, he used to talk with prosecutrix, used to stare at her, used to laugh at her. On coming to know of this fact through prosecutrix, P.W.-5 Reshma advised the accused. However, on 08/10/2012 at 8.10pm P.W.-1 prosecutrix was coming to the shop on Vivekananda law college road. Accused was with his two wheeler on that road. On being seen the prosecutrix, he came near her and forcibly took her on his two wheeler, taken away to his friend, P.W.-4 Vikram Raj's house / 11 / Spl.C.C.No.292/2014 situated in Doddabommasandra, Vidyaranyapura, Ramachandrapura, Bangalore. As per the prosecution, there are no other eye witnesses to kidnapping of the prosecutrix by the accused. Prosecutrix is the proper person who has to speak about the incident taken place, what happened on that day. The evidence of P.W.-1, prosecutrix suggests that one year back, in the month of October, at 8.00pm she was going to shop, the accused took her on bike, they went to his friend's house at Byrasandra. She was partly examined on 15/09/2014. After the part examination, she stopped saying anything. The victim was of 14 years then, whatever the question was put to her, she was not in a position to speak out anything. Hence, further chief examination was deferred. Again she was examined in chief in further on 11/11/2014. She has categorically stated that accused took her to the house of Vicky i.e., P.W.-4 Vikram Raj. The learned Public Prosecutor had shown the said witness who had also come to the Court on that day for his evidence, on being seen, she / 12 / Spl.C.C.No.292/2014 had identified and stated that she and the accused stayed in Vicky's house for 3 days. Prosecutrix has been subjected to cross-examination at length by learned counsel for the accused. There is a suggestion made to prosecutrix that they got several signals. She admitted the same. Again she was put to the question that whether she made an attempt to escape from him. According to her, she did not make any efforts to run away from the accused. It is pertinent to note as already discussed in supra, the prosecutrix was of 14 years, the consent by the prosecutrix is wholly irrelevant. Merely because she did not draw the attention of publics or did not make any efforts to go away from the accused, does not defeat the case of the prosecution. The accused is a married person having a child. According to version of the prosecutrix, accused himself had taken away the prosecutrix on the bike that night to the house of P.W.-4. The evidence of P.W.-1 establishes that accused had removed the / 13 / Spl.C.C.No.292/2014 prosecutrix from lawful custody of her guardian/parents without their consent.
13. The learned counsel for the defence has vehemently argued that in the cross-examination, prosecutrix has admitted that even 15 days after she was brought back to the house, again she had gone to the accused to talk with him. Ofcourse, she has admitted the same. For the reason she admits that she had been to the accused after 15 days, does not take away whole case of the prosecution and it also does not discredit the version of the prosecutrix that accused had taken away her on two wheeler on 08/10/2012 at 9.10pm from Vivekananda Law college road. The consent of guardian is absent. The victim girl was of 13 years only. She is not capable of understanding the acts, things happened. When such being the case, taking away the victim girl by the accused itself constitutes the offence punishable under Section 363 of I.P.C. Merely because she maintained her silence while going with the accused on that day, / 14 / Spl.C.C.No.292/2014 does not tantamount the valid consent of the prosecutrix. The consent of the child is immaterial. It is no consent in the eye of law.
14. There are 2 charges, one is under Section 366 of I.P.C. According to prosecution, the accused having an intention to solicit her to sexual intercourse, he took away the prosecutrix on his bike on 08/10/2012. Section 366 of I.P.C. consists of 2 folds, one is kidnapping a woman with intent to marry against her will, another is kidnapping a woman with intent to seduce her to illicit intercourse. Section 361 of I.P.C. defines kidnapping from lawful guardianship. It provides whoever takes a female under the age of 18 years out of keeping of the lawful guardian of such minor without the consent of such guardian is said to kidnap. Section 363 of I.P.C. is a punishment clause for kidnapping. The use of the word 'keeping' in the context connotes the idea of charge, protection, maintenance and control. On plain reading of Section 361 of I.P.C., the consent of the minor who is taken or / 15 / Spl.C.C.No.292/2014 enticed is wholly immaterial, it is only the guardian's consent which takes the case out of its purview nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of keeping of lawful guardian would be sufficient to attract Section 363 of I.P.C. Section 366 of I.P.C. is aggravated form of Section 363 of I.P.C. Even if there is no amount of force where the age of the prosecutrix was 13 years, the offence under Section 366 of I.P.C. is made out. Merely because the prosecutrix has admitted 15 days after she came back home, again she had gone to the accused, does not discredit her version that accused had taken away on 08/10/2012.
15. The Court must deal with rape case in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation. There is nothing to discard her version. So far as concerned to taking away from / 16 / Spl.C.C.No.292/2014 Vivekananda college road by accused is found reliable. This part of her evidence is strengthened by Ex.P.3, the complaint dated 11/10/2012. C.W.-1 Noor Ahmed, father of the victim is no more. Hence, he is dropped. However, P.W.-6 Shivanna then ASI has stated in his evidence that C.W.-1, father of the prosecutrix had lodged a complaint as per Ex.P.3 on 11/10/2012 at 12.45pm. P.W.-5 Reshma, mother of the victim corroborated the same. Ofcourse, here and there some minor contradictions are found. But the contradictions are bound to occur. But they are insignificant contradictions of which do not go to the root of the prosecution case.
16. P.W.-5, mother of the prosecutrix has stated that about 2 years back, accused had kidnapped the prosecutrix for 3 days, took her to his friend's house. Ofcourse, what she has stated in further "after coming to know that they are in the house of his friend, they went there, the galata took place between accused and themselves, they came back with empty hands", is not / 17 / Spl.C.C.No.292/2014 mentioned in the complaint by the complainant. The other part of her evidence cannot be discarded. Ofcourse, she made some improvements to that effect. It amounts to exaggeration. But it does not take away her whole evidence. She has stated in page No.2 of her cross-examination that "after 3 days accused himself brought back the prosecutrix". With this background, the accused statement recorded under Section 313 of Cr.P.C is read between the lines, he has admitted that "on 11/10/2012, he dropped the prosecutrix nearby her house". He answered this to question No.13. The question No.13 is that "P.W.-3 Mathin, the maternal uncle of the prosecutrix has stated that complainant told him that accused had taken away the prosecutrix on 08/10/2012, they searched for 2 days, but not traced, on 11th of the same month, accused himself brought back the prosecutrix and dropped near the house". For this question, he has admitted that he dropped the prosecutrix on 11th near the house of the prosecutrix. In further he has stated that she had / 18 / Spl.C.C.No.292/2014 come to him, advised her and dropped her near her house. His answer to question No.13 is read between the lines according to his version, it is an admitted fact that prosecutrix was with him, but according to him she herself had been to him, he advised her and dropped her near her house on 11th of October, 2012. From this it is very clear that prosecutrix was with the accused. Whether prosecutrix herself had gone searching the accused or accused had taken away the prosecutrix on two wheeler at 8.10pm and after 2 days, he dropped her on 11th is the crucial point to be looked into her. I have already discussed on this point what the prosecutrix has stated, so also P.W.-5, mother of the prosecutrix has given corroborative evidence. It is not established fact that there is enmity between the accused and the family of the prosecutrix. There is nothing before the Court to show the illwill between the 2 families. When that is so, what made the complainant to lodge a complaint on 11/10/2012. Ofcourse, there is delay in lodging the complaint.
/ 19 / Spl.C.C.No.292/2014
17. According to prosecution, she was alleged to have been kidnapped on 08/10/2012, the complaint was lodged on 11/10/2012. C.W.-1, complainant is no more to explain the delay caused in lodging the complaint. However, on going through the Ex.P.3, there is clearly mentioned that they searched their daughter in their relatives', friends' house, not traced out, hence, they had lodged the complaint on 11/10/2012. Ofcourse, some other factors with respect to that they had been to the accused after they came to know that both of them are in the house of P.W.-4, but they did not succeed in getting back the prosecutrix do not find place either in the statement or in the complaint. Irrespective of it, when the complaint itself speaks that that they searched their daughter at different places, not traced, lodged the complaint, itself is sufficient in rape cases. It is not only the case of kidnapping to seduce the minor girl to illicit intercourse, but also the commission of rape on the minor girl who was at the age of 13 years. When / 20 / Spl.C.C.No.292/2014 that is so, merely because there is delay in lodging the complaint, is not fatal to the prosecution case.
18. According to prosecution, P.W.-4 Vikram Raj, C.W.-9 Sunanda, mother of the Vikram Raj are other material witnesses who have to speak about stay of the accused with the victim girl in their house situated in Doddabommsandra, Vidyranyapura at Ramchandrapura, Bangalore. P.W.-4 Vikram Raj has been examined on prosecution side. However, he has not supported the prosecution. But he has not totally denied the whole case of the prosecution. According to prosecution, he is the friend of accused. Hence, accused had taken the victim girl to his house and kept there for 3 days where he had also committed rape on her. P.W.-4 in his cross-examination has admitted that he knows the accused, but he does not say that he is his friend. On going through his whole evidence, he is not inclined to support the prosecution. When he is the friend of the accused, it is quite natural that the supportive evidence wouldn't be expected from / 21 / Spl.C.C.No.292/2014 him. However, according to his chief examination, accused is not stranger to him, but known person. He has given a different version that he had seen the accused moving around with a girl, he had informed the same to the wife of the accused. He has in further stated that he was closely moving with the girl who has come to the Court on that day for her evidence. Then the learned Public Prosecutor got her inside the Court, showed the said girl, then P.W.-4 has admitted he found the accused with this girl, he had seen 2-3 times both of them on road. Ofcourse, in the cross- examination led by the learned Public Prosecutor, he has denied that the accused had brought this girl to his house, they were sleeping in his sheet house by stating that both of them got married, he and his mother were sleeping in the out house, they allowed the accused and the victim girl to sleep in the sheet house. The learned counsel for the defence has put several suggestions to P.W.-4 in his cross-examination with respect to in which area he had seen the accused / 22 / Spl.C.C.No.292/2014 with the girl. He has denied the suggestion that he had no where seen the accused with the victim girl. The another suggestion was made by him to P.W.-4 that he is seeing the prosecutrix today only for the first time, then P.W.-4 has given the different version that the girl seen by him was short, he had seen the said girl from upstairs, she was with burkha, he had seen the face only, not seen face to face, he cannot say whether the prosecutrix is the same girl or not. It is pertinent to note the evidence of P.W.-4 is read in its entirety, would give a clear picture that he has deliberately not supported the prosecution, he goes on changing his version from stage to stage. Merely because of that reason, his whole evidence cannot be discarded. It can very well be gathered from his whole evidence that he knows the accused, he had seen the accused with the prosecutrix. Ofcourse, he has not supported the prosecution on the material point of stay of accused with the victim girl in his house. The admission given by the accused during the course of / 23 / Spl.C.C.No.292/2014 recording the accused statement that he had dropped her near her house on 11/10/2012 should not be forgotten. One would not expect the support from the friend of the accused, merely because P.W.-4 has not supported the prosecution, the other part of his evidence available on prosecution side should not be disbelieved. The statement given by the prosecutrix before the Court is trustworthy, there is nothing extracted to discard her evidence. Her evidence is also corroborated by P.W.-5 Reshma, mother of he prosecutrix that prosecutrix was found missing on 08/10/2012 till 11/10/2012 on which date accused dropped her near her house. There is no piece of evidence to believe the version of the accused that prosecutrix herself had left the house for him, immediately he took her back to her house on 11th itself by giving proper advise. In order to escape from the clutches of law, he has given the said answer to question No.13. The question No.30 is whether he has anything to be stated. He has given answer to this / 24 / Spl.C.C.No.292/2014 question as "£ÉÆAzÀ ¨Á®QAiÉÄà £À£ÀߣÀÄß EµÖ¥ÀqÀÄwÛzÀ¼ Ý ÀÄ, £À£ÀUÉ ªÀÄzÀÄªÉ DVzÉÉ JAzÀÄ ºÉýzÀgÀÆ §A¢zÀݼÀÄ, PÀgÉzÉÆAiÀÄÄÝ CªÀgÀ ªÀÄ£É §½ ©lÄÖ §AzÉ£ÀÄ, ¥ÀÅ£ÀB 2 ¢£ÀUÀ¼À £ÀAvÀgÀ £ÉÆAzÀ ¨Á®Q ªÀÄvÉÛ £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀ¼ÀÄ, ¥ÀÅ£ÀB PÀgÉzÉÆAiÀÄÝ CªÀgÀ ªÀÄ£ÉUÉ ©lÄÖ §AzÉ£ÀÄ." So from the aforesaid answer given by the accused to question No.30 also, the stay of prosecutrix with the accused is not denied by him. According to him, she herself had been to him, he took her back to her house, again after 2 days, she approached him, he brought her back to his house. If that would be the case, there was no occasion for the complainant to lodge a complaint with respect to missing of his daughter. If the version of the accused that he immediately took her back to her house is believed, why the complaint had been lodged by her parents, is not explained on the defence side. As already discussed in supra, there is no enmity between 2 families. Accused is married having one child. The prosecutrix was of 13 years only studying in 7th / 25 / Spl.C.C.No.292/2014 Standard. After lodging of complaint by C.W.-1, father of the prosecutrix, the spot Mahazar was drawn on 11/10/2012 itself by P.W.-6 in presence of panchas. Same has been corroborated by evidence of P.W.-6 Shivanna, ASI.
19. P.W.-8 Somegowda, Police Inspector, the Investigating Officer has also stated that on the basis of the information given by the accused in his voluntary statement that he would show to which place he had taken the prosecutrix, on that basis he had drawn the Mahazar as per Ex.P.9 on 22/11/2012 with respect to the place of commission of rape i.e., door No.149, Doddabommasandra, Byrappa Garden, i.e., house of P.W.-4 Vikram Raj. Though P.W.-6 and 8 are subjected to cross-examination on defence side, nothing has been extracted from their mouth contrary to prosecution case. Above all, the evidence of P.W.-8 is corroborated by P.W.-1, prosecutrix. The prosecutrix has clearly stated that accused had forcible sexual / 26 / Spl.C.C.No.292/2014 intercourse with her in the house of P.W.-4 Vicky. That is the name stated by her.
20. The evidence of the prosecutrix is corroborated by Ex.P.6, the medical report issued by P.W.-7 Dr.Pradeep. It is also strengthened by evidence of P.W.-7. He has also stated that after medical examination of the prosecutrix he had issued medical report as per Ex.P.6. Ex.P.6 depicts that "hymen shows tears at 1 o' clock, 2 o'clock, 6 o'clock and 10 o'clock position, no signs of inflammation and tears are old in nature, admits 2 fingers. In opinion part, he has written "she is used to an act like that of sexual intercourse and there is no evidence of forced sexual intercourse".
21. Ex.P.6 also speaks that fourchette is intact and clitoris intact, no external injuries found. But as discussed in supra at the beginning part of the judgment that consent by the minor for sexual intercourse is wholly irrelevant. She is the girl of / 27 / Spl.C.C.No.292/2014 tender age, she could hardly be expected to describe the act of sexual intercourse committed by accused on her. What is the mental state of such a child, capability of understanding the things happened should not be discarded. Merely because Doctor mentioned that there is no evidence of forced sexual intercourse does not let off the accused for the offence punishable under Section 376 of I.P.C.
22. I have already discussed in supra about the age of the victim. She is of tender age. When the prosecutrix is minor below 16 years, in view of legal position then prevailed, the question of her being a consenting party to the sexual intercourse does not arise or is of no consequence. Section 375 clause sixth of I.P.C. provides "a man is said to commit rape who has sexual intercourse with a woman with or without her consent, when she is under the age of 16 years of age". Therefore, absence of external injuries does not defeat the case of the prosecution. As per the medical evidence, her hymen is not intact. The / 28 / Spl.C.C.No.292/2014 minor contradictions in her statement are not of much value. In rape cases we may not find eye witnesses. Such acts are usually committed within 4 walls. Hence, the version of the prosecutrix assumes more importance. The prosecutrix in her further chief examination has stated that accused had committed rape on her during her stay with him in Vicky's house. Her testimony inspires the confidence and is found reliable. She has flatly denied the suggestions made by the learned counsel for the defence that accused had not committed rape on her. He made some suggestions that she had not given the statement before the police on some of the aspects. The learned counsel for the defence has argued that she made some improvements in her evidence by stating that her stay with the accused in his friend's house had come to the knowledge of her parents and after 2 days they had been to the said house and called her back. I have already discussed on this point in supra, the mere exaggeration does not throw out the prosecution theory / 29 / Spl.C.C.No.292/2014 as unbelievable. The minor discrepancies in the statement are bound to occur. But there is no flaw or infirmity in the statement of the prosecutrix. I found it perfectly safe to base the reliance on her statement when the same is corroborated on material particulars by other evidence namely medical evidence. Her testimony is unimpeachable. Neither exaggeration nor insignificant discrepancies in her evidence does affect the truth of her testimony on the real material point. In the absence of enmity against the accused, there is no reason why she should implicate him falsely. Normally a woman particularly a girl of tender age would not falsely implicate for the offence of rape at the cost of her character. In Indian society, it is very unusual that a girl with a view to implicate a person would go to the extent of stating that she was raped. Her testimony not only inspires confidence, but also corroborated by the medical evidence. As discussed in supra, the absence of any external injuries is not valid / 30 / Spl.C.C.No.292/2014 ground for innocence of the accused, conviction under Sections 366 and 376 of I.P.C. is proper.
23. The prosecution has placed sufficient corroborative and untainted evidence on the point of commission of rape by the accused on prosecutrix who is of tender age. The testimony of the prosecution is uninfluenced. There is nothing to show hat she had been tutored. The prosecution has succeed in proving its case that accused is found guilty of the offence punishable under Section 366 as well as 376 of I.P.C. The evidence of the prosecutrix supported by medical evidence and the evidence of mother of the prosecutrix is enough to implicate the accused. There are corroborative materials inescapably finding the guilt of the accused. There are proved circumstances of which would sufficiently corroborate the guilt of the accused. The prosecution has proved its case beyond reasonable doubt by placing the unimpeachable evidence of the prosecutrix, supportive medical evidence and other acceptable evidence. Merely because, the friend of the / 31 / Spl.C.C.No.292/2014 accused has not supported the prosecution with respect to their stay in his house, does not render the evidence of prosecutrix unworthy of acceptance. The case of the prosecution is duly proved. The accused is found guilty of the aforesaid offences. Hence, I hold point Nos.1 and 2 in the Affirmative.
24. Point No.3: In view of my above discussion and findings, I proceed to pass the following:
ORDER Accused is found guilty of the offences punishable under Section 366 and 376 of I.P.C.
To hear regarding sentence.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court on this the 30th day of January, 2015.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
***
/ 32 / Spl.C.C.No.292/2014
ORDER ON SENTENCE
Heard on both the sides regarding the sentence. The learned counsel for the accused has submitted that accused is youngster who is at the age of 22 years. he is married. He has aged parents. He is the also TB patient. The accused had not done voluntarily. The false case has been registered. His family members are depending on his earnings. He was working as Electrician on contract basis. Leniency may be shown in imposing the sentence.
2. The learned Public Prosecutor has submitted that the prosecutrix is of tender age, he had induced and taken away such a girl having an intention to solicit her to illicit intercourse, committed rape on her. There are no mitigating circumstances to show sympathy in imposing the sentence.
3. It is the case wherein the accused is found guilty of the offence punishable under Sections 366 and 376 of I.P.C. The victim is of tender age as on the / 33 / Spl.C.C.No.292/2014 date of the alleged incident. She was then studying in 7th Standard. Though the question of awarding the sentence is matter of discretion of the Judges, the discretion has to be exercised on consideration of circumstances aggravating or mitigating of individual cases as also circumstances relating to character and antecedents of the individual accused and it is impossible to expect the mathematical uniformity in the sentence. There are certain basis circumstances which must be kept in mind in view to determine the sentence in awarding particular cases. The nature of the crime, social background of the accused, personal factors connected with the accused are some of the relevant factors in the present case. The accused is a married person. He was an Electrician. The victim girl was of tender age that too 13-14 years, she was then studying in 7th Standard. Under the circumstances, there are no mitigating circumstances to impose the sentence less than minimum prescribed. Section 366 of I.P.C. is punishable with imprisonment for a term / 34 / Spl.C.C.No.292/2014 which may extend to 10 years and shall also be liable to fine. Section 376 of I.P.C. is punishable with imprisonment of either description for a term not less than 7 years, but which may be for life or for a term which may extend to 10 years and shall also be liable to fine.
4. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to society crying for justice against such criminals. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not led undue under such serious threats. The social impact of the crime particularly where it relates to offence against the girl who is of tender age and those having serious repercussions on social order and public interest, the social impact of the crime cannot be lost sight of a per se requires exemplary treatment. There is no scope for awarding sentence less than prescribed minimum.
/ 35 / Spl.C.C.No.292/2014 Leniency is not desirable when the crime has been committed not only against the individual victim, but also against the society to which the criminal and the victim belong. The offence which affects the morale of the society should be severely dealt with. Section 3 of P.O Act has no application to the present case as the accused is above the age of 21 years. Having regard to all thee factors, I proceed to pass the following :
ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted for the offence punishable under Section 366 of I.P.C. and sentenced to undergo Simple Imprisonment of 3 years and shall also pay fine of Rs.5,000/-, in case of default to pay the fine amount, he shall undergo Simple Imprisonment of another six months.
Acting under Section 235(2) of Cr.P.C. accused is hereby convicted for the offence punishable under Section 376 of I.P.C. and sentenced to undergo Simple Imprisonment of 7 years and / 36 / Spl.C.C.No.292/2014 shall also pay fine of Rs.15,000/-, in case of default to pay the fine amount, he shall undergo Simple Imprisonment of one year.
The aforesaid sentences shall run
consecutively.
The J.C. period of accused from
22/11/2012 to 08/08/2013 and
30/01/2015 till date be setoff as laid down under Section 428 of Cr.P.C. After deposit of fine amount by the accused, a sum of Rs.18,000/- out of total fine amount of Rs.20,000/- be awarded to P.W.1, the prosecutrix as compensation.
Issue copy of judgment free of cost to the accused forthwith.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in open court and also in V.C Hall on this the 31st day of January, 2015) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** / 37 / Spl.C.C.No.292/2014 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION P.W.-1 Heena P.W.-2 Shyamala P.W.-3 Mathin P.W.-4 Vikram P.W.-5 Reshma P.W.-6 Shivanna P.W.-7 Dr.Pradeep P.W.-8 Somegowda LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 School certificate Ex.P.1(a) Signature of P.W.-2 Ex.P.2 Statement of P.W.-4 Ex.P.3 Complaint Ex.P.3(a) Signature of P.W.-6 Ex.P.4 F.I.R.
Ex.P.5 Spot Mahazar
Ex.P.5(a) Signature of P.W.-6
Ex.P.6 Medical report of victim
Ex.P.7 Medical report of accused
Ex.P.8 Voluntary statement of accused
/ 38 / Spl.C.C.No.292/2014
Ex.P.9 Spot Mahazar
Ex.P.9(a) Signature of P.W.-8
Ex.P.10 F.S.L report
LIST OF MATERIAL OBJECTS MARKED
-NIL-
LIST OF WITNESSES EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
***