Karnataka High Court
Suresha @ Venkatash Naik, vs The State By on 6 March, 2019
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IN THE HIGH COURT OF K ARNAT AKA
DHARWAD BENCH
DATED THIS THE 06 T H DAY OF MARCH, 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNK E A .S.
CRIMINAL APPE AL No.100061 OF 2016
BETWEEN:
SURESHA @ VENK ATASH NAIK,
S/O LIN GA NAIK ,
34 YEARS , COOLIE,
R/O: CHIKKALLAI VILLAGE,
CHITRADURGA DIS TRICT.
...APPELLANT
(BY SRI. T. BASAV ANAGOUD , ADV .)
AND:
THE STATE
BY THE CIRCLE IN SPECT OR OF POLI CE,
SANDUR CIRCLE, SANDUR.
REPTD BY SPP, HIGH COURT, DHARWAD.
...RESPONDENT
(BY SRI. A. R. RODRIGUES , A GA)
THIS CRIMINAL A PPEAL IS FI LED U/S 374( 2) OF
CR.P.C. SEEKIN G TO CALL F OR EN TIRE RECORDS IN
S.C. NO. 14/ 2007 ON THE FILE OF THE IST ADDL.
DISTRICT AND SESSIONS JUDGE, BALLARI AND T O
SET ASIDE THE IMPUGNED J UDGMENT, CONVI CTION
AND SENTENCE D ATED 09.12.2015 AND 10.12.2015,
PASSED BY THE I ST ADDL. DISTRI CT AND SESSION S
JUDGE BA LLARI , IN S.C. NO. 14/ 2007 FOR THE
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OFFENCES PUNIS HABLE UND ER SEC. 323, 506, 376
OF I PC.
RESERVED FOR JUDGMENT ON : 24.01.2019
JUDGMENT PRON OUNCED ON : 06.03.2019
THIS CRIMINAL APPEAL, HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT , COMING ON F OR
PRON OUNCEMENT OF J UDGMENT, THIS DAY, THE
COURT DELIV ERED THE F OLLOWING :
JUDGMENT
This is an appeal filed by the accused against the judgment of conviction and sentence dated 09.12.2015 passed by the learned I Additional District and Sessions Judge, Ballari, in Sessions Case No.14 of 2007 convicting the accused for the offences punishable under Sections 323, 506 and 376 of the Indian Penal Code.
2. The case of the prosecution in brief is as under:
That on 16.10.2006 at about 4.00 p.m. when CW.1 had gone to answer nature call at Batte Sab's land sitated by the side of Shanti Nagar which is by the side of NMDC within the limits of 3 Sandur Police Station. At that time, the accused went near the complainant. On seeing the accused, complainant got up and asked the accused as to why he was coming near to her. She tried to run away towards the village. At that time, the accused caught hold of CW-1 saying, that "I want you". He pulled her when the complainant started raising hue and cry, at that time, the accused tied his lungi to the mouth of the complainant and sat on her. He threatened her that if she do not keep quiet, he would kill her. He also assaulted her over her cheek. The accused did not let CW.1 even though she tried to escape. He committed sexual assault on her against her wish.
On the complaint filed by the victim, a case was registered against the accused for the offences punishable under Sections 323, 506 and 376 of IPC. After investigation, charge sheet was 4 filed against the accused for the aforesaid offences. Learned Magistrate committed the case to the Sessions Court, as the offence under Section 376 of IPC is exclusively triable by the Court of Sessions.
After trial, learned Sessions Judge found the accused guilt of the alleged offences. Accordingly, the Trial Court convicted the accused for the offences punishable under Sections 323, 506 and 376 of IPC. The accused was sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.500/- for the offence under Section 323 of IPC, to undergo simple imprisonment for a period of six months and to pay fine of Rs.5,000/- in default of payment of fine, to undergo simple imprisonment for two months for the offence under Section 506 of IPC. Further accused was sentenced to undergo simple imprisonment for a period of ten years and to pay 5 fine of Rs.50,000/-, in default of payment of fine, to undergo simple imprisonment for two years for the offence under Section 376 of IPC.
3. The said judgment has been assailed by the accused in this appeal on the following grounds:
The judgment of the trial Court is against the facts and evidence on record. The evidence of PW-1 is not at all corroborated by medical evidence. The happening of the incident deposed by the complainant does not prove the ingredients of Section 376 of IPC. Witnesses 2, 3 6 and 10, who claim to have caught hold of the accused and handed over the accused to the police on the same day. Admittedly, they came to the spot after the incident. According to the complainant her signature was taken in the village at her house whereas police says that the complainant had come to the police station to file the complaint. 6 There is material contradictions in the evidence of the prosecution. In order to harass the accused, a false case has been registered against the accused. Some of the witnesses have stated in their cross-examination that they have not seen the incident at all. It is the husband of the complainant who brought the witnesses to the Court. The Doctor has also deposed that there is no evidence of recent sexual intercourse. No semen stains were found on the body of the accused or on the clothes; Merely because some stains were found on the clothes, it cannot be presumed that it was semen stains. No written request was submitted to the Doctor for medical examination of PW-1. The direction given by the investigating officer to carry M.Os. to FSL has not been produced. Therefore, the judgment of the trial Court is erroneous, capricious and is liable to be set aside.7
Learned counsel further contended that the alleged act of rape has not at all been proved by the prosecution. The said fact is also not corroborated by the medical evidence available on record. There was no sign of recent sexual intercourse. There were no injuries on the complainant. Accused is a labourer and is not a resident of the said village. Out of ill-will, he has been falsely implicated in the case. There is delay in filing the FIR. The manner of filing the complaint is also doubtful. Therefore, learned counsel submitted that the prosecution has miserably failed to prove the guilt of the accused and prayed to allow the appeal by acquitting the accused of the alleged offences.
4. Learned Additional Government Advocate submitted that there is material evidence on record to prove the guilt of the accused beyond all reasonable doubt. The complainant being a 8 married lady knowing fully well, will not put a stigma on her. The accused was caught by the villagers at the spot and was beaten and handed over to the police. There were injuries on him. There is no explanation from the accused as to the fact that he has been falsely implicated in the case. He has not explained as to how he had sustained injuries. The incident has taken place in a broad day light at a place where the villages go for answering nature call. Absence of injuries on the complainant is not a ground to acquit the accused. There is no contra evidence to disbelieve the evidence of the prosecution. Therefore, learned Additional Government Advocate prayed for dismissal of the appeal.
5. In reply, learned counsel for the appellant submitted that on account of assault by a mob, the accused might have been injured. 9
6. On the basis of the above said facts and circumstances, the following points would arise for consideration:
(i) Whether the prosecution had proved before the trial Court beyond all reasonable doubt that the accused/appellant herein committed offence punishable under Sections 323, 506 and 376 of IPC?
(ii) What order?
7. It is well settled principle of law that in a criminal case the prosecution has to prove its case as made out in the charge sheet. If any omissions, contradictions and variance in the statements of witnesses examined before the Court, the benefit would go to the accused. The offences alleged should be proved beyond any reasonable doubt. In this case except prosecutrix
- PW1, all other witnesses are said to have gone to the spot after the incident.
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8. Looking at the evidence of CWs.3, 4, 6 and 10, they are all members of one family and neighbors of the complainant also. PW.1 - prosecutrix has clearly stated in her evidence that the accused bounced upon her. She raised hue and cry. The accused closed her mount with his lungi. She also beat him with a stone. In spite of that, he did not leave her. She has stated that "nannannu Aaropi Kedisibittanu". Except this one sentence, no other evidence is forthcoming from the prosecutrix with regard to the sexual intercourse by penetration. At the most, said evidence would only prove that there was an attempt to commit rape by the accused person. In her examination-in-chief, she has stated that, she sat for sometime and thereafter, CWs.2, 3, 6 and 10 and others came to the spot. On seeing them, the accused tried to run away. The witnesses caught hold and beat him and handed over to the police. Therefore looking to the evidence of PW.1 11
- prosecutrix, it is clear that the other witnesses are not the eyewitnesses to the incident in question. They have reached the spot only after the incident and must have caught hold of the accused. Coupled with their evidence, the fact that is proved, the accused has been caught at the place of incident. It is also admitted by the PW.1 in her cross-examination that, the place where the incident took place, the people would be going to their field and they will be moving around. Unfortunately there is no effective cross- examination of the prosecution witnesses by the defence, except suggestions. There is some variance, regardingcomplainant giving statement before the police at about 7.00 p.m., near her house. But whereas the Investigating Officer has stated, the complainant came to the police station and filed complaint.
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9. CW.6 - PW2, the neighbor has clearly stated that, while she was sitting on the katta of her house, she saw the boys of her village were running towards the place of incident and there was a galata. Thereafter she went there and came back. Further the people were beating the accused on the ground that, he has outraged the complainant. She is not a direct witness, as she was partly treated as hostile. Ultimately her evidence is that, she came to know the entire incident only through the complainant. In the cross-examination, she admits that, her bus fare has been borne by the complainant and her husband while coming to the Court. They had asked her to give evidence in their favour. Though she denied that she came to the spot after the incident, but the evidence clearly shows that, she must have come to the spot after the incident and whatever she has stated is, the hearsay from the complainant.
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10. PW.3 is the son of PW.2. He goes to the extent of saying that, he had seen the accused while committing an act of rape. But in the very next sentence, he was say that, while he was returning from the field, he saw the accused running and he caught hold of the accused. Then he found injuries on the complainant and handed over him to the police. He also admits that on the date of evidence himself along with complainant and his wife together have come to the Court. According to him when the act of rape was committed, himself, Netravati, Neelamma, Vinodamma and one Ravinayak were there. But stated that, he was little distance from the place of incident. But he again says that he was there.
11. PW.4 is the son of PW.2. According to him CWs.2 and 3 came, though they saw two legs and cloths near the place of incident. When they went and saw, the accused had tide the 14 complainant. She had sustained injury. He had removed her cloths and made her to roll on the ground. He himself and all other persons caught hold of the accused and handed over him to the police. He admits in his cross-examination, he was not actually seen the legs. He came to know that, Neelamma and Netra told him that there are two legs were visible. According to him, the accused had tied blue colour towel to the mouth of the complainant, but whereas the complainant says that she was tied with the lungi of the accused himself. Therefore, the evidence of PWs.1 to 4 does not establish an act actually commission of rape by indulging penetrates to intercourse by the accused.
12. PW.5 the doctor who had examined the accused and found that he was capable for performing a sexual intercourse. As per the FSL report, in the pubic hairs of the accused, no 15 seminal stains were found. No any injury on his penis as per the FSL report is P3. He admits that, if a person rolls over on the mud there is likelihood of erase of seminal stains.
13. PW.6 - CW.13 - pancha witness regarding seizure of the clothes at MOs.1 to 3. He admits, he has not seen where there is there any pocket to MO.1 and he cannot say whether the MO.1 was having any seminal stain. He did not know whom the lungi MO.3 belongs. Police have to prove that the articles belonged to only accused.
14. PW.7 is the carrier of the FIR. PW.8 is the pancha witnesses to the scene of offence Ex.P.6. PW.9 is the WHC who had been brought to the complainant to the VIMS, Hospital, Ballari for medical test. PW.10 is also carrier of seized articles to FSL.
15. The important evidence is that of PW.11
- doctor, who had examined the complainant. On 16 perusal of the evidence of the doctor, injures were found on the face of the complainant. 1) Multiple lineal scratch marks are present over the face on the right side 1 - ½ cms in length, 2) Abrasion circular about 1 Cm in diameter present is present over the left and right knee joint and 3. Abrasion about 2 cms circular is present on the inner surface of the right thigh 3 inches above the right knee joint. Local examination : external genitalia normal. Cervix and Vagina normal. No bleeding, No injuries. Introitus admits 2 fingers utreous vereted normal size. He found that the complainant was exposed to the act like that of sexual intercourse. He had issued wound certificate Ex.P.7. He admitted that the scratch marks on the face could be caused even by shrubs and bushes.
16. In view of non existence of any injury on the private part of the victim and FSL report at 17 Ex.P.9 disclosing that the seminal stains were not found on the material objects of the complainants and as well as that of the accused which are at item Nos.3 to 7, I find that the act like sexual intercourse has not taken place.
17. Therefore, the medical and oral evidence on record do not prove any beyond reasonable doubt that there was any complete act of forcible sexual intercourse amounting to rape on PW.1. It is not an universal law that whenever a married women comes and says before the Court that she had been raped at the cost of her social stigma etc., would not by itself a ground to accept her version. Her version has to be appreciated carefully and cautiously, though corroboration need not be insisted. In all cases there need not be any injuries as such, on the private part of the accused or the victim but at least there should be 18 some evidence suggestive of taking place of penetration.
18. Therefore, on overhaul appreciation of the evidence and also the ruling cited by the trial court in its judgment, I find that the evidence on record only proves that there was an act of attempt to rape has been committed. Though it is not appear to have taken place any act of penetrative sexual intercourse, it is evident from the medical evidence on the record.
19. The very definition of rape defined under Section 375 requires that an act will be rape, if the man penetrates his penis, to any extent into the vagina of the victim. Therefore, the evidence on record proves beyond reasonable doubt that the accused had attempted to commit rape. Therefore, he has to be convicted for the offence to attempt to under Section 376 read with section 511 of IPC.
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20. So far as the offence under Section 323 of IPC is concerned that is proved by PW1 and corroborated by the medical evidence also. Hence, the offence under Section 323 of IPC is concerned the finding of the trial court is affirmed.
21. As regards the offence under Section 506 of IPC is concerned, the evidence of PW.1 does not prove its ingredients. The allegation was that the accused threatened her to kill, if she raises his voice. Whereas in the examination-in- chief it has stated that she raised her voice asking to save her, then she also beat the accused with a stone. According to those witnesses, they have gone to the extent saying that, the accused who was trying to run away from the spot. The other witnesses have not stated anything with regard to threatened to kill the PW.1. Therefore, the conviction of the accused for the offences under 20 Section 506 of IPC is without any evidence on record and it is liable to be set aside.
22. Before relying on any authorities, the facts and circumstances of each case ought to be examined meticulously, in a criminal case the facts should substantially fit in to the case in hand so as to apply the authority in question. The principle of law laid down by the trial court is very much considered to arrive on right conclusion. Therefore, based on the evidence on record having regard to the facts and circumstances, I find that the prosecution had proved the attempt to commit rape and not rape.
23. The finding of the trial court with regard to Section 376 of IPC is liable to be modified, as that of one to an attempt to commit rape rather than rape under section 376 of IPC. In view of the above finding the accused has to be convicted for 21 the offences under Section 376 read with Section 511 of IPC. Section 511 of IPC reads as under :
511. Punishmen t for attempting to commit off ences punishable with impr isonment for life or other impr isonment.- Whoeve r atte mpts to commit an offence punishable by this Code with imprisonment for life o r imprisonment, or to cause such an offence to be co mmitted, and in such attempt does any act towards the commission of the offence, shall, where no express pro vision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description pro ve d fo r the o ffe nce, for a term which may extend to one-half of the imprisonment fo r life o r, as the case may be, one-half o f the lo ngest te rm of imprisonment provide d fo r that offence , o r with such find as is pro vided for the o ffe nce, or with bo th.
24. On perusal of section 511 of IPC, it is clear that an offence attempted to be committed is, punishment of imprisonment for life or imprisonment not exceeding half of the longest term provided for the offence, or fine, or both - 22
According as the offence is cognizable or non cognizable - According as the offence attempted by the offender is bailable or not - Triable by the court by which the offence attempted is triable - Non-compoundable.
25. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is punishable, because every attempts, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded. Attempt to commit an offence can be said to begin 23 when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment culprit commences to do an act with the necessary intention, he commences his attempt to commit the offence. The ward "attempt" is not defined, and must, therefore, be taken in its ordinary meaning. This is exactly what section 511 of IPC require;
26. In this case offence under Section 376 is punishable with minimum sentence of not less than 7 years imprisonment, but which may extend to imprisonment for life, and shall also be liable to be fine. The Trial Court had imposed simple imprisonment for 10 years and Rs.50,000/- fine for the offence punishable under Section 376 of IPC and imposed 6 months simple imprisonment 24 and to pay fine of Rs.5,000/- for the offence under Section 323 of IPC.
27. Therefore, having regard to the punishment provided to the offence considering the totality of the facts and circumstances of the case, I find that a sentence of 5 years simple imprisonment with fine of Rs.25,000/- is most appropriate sentence for the offence punishable under section 376 read with section 511 of IPC.
28. For the aforesaid reasons, the point raised for determination is answered accordingly. Hence, this court proceed to pass the following :
ORDER
1) The appeal filed by the appellant - accused is allowed in part.
2) The appeal filed by the appellant against judgment of conviction and sentence for the offence punishable under Section 323 of Indian Penal Code is hereby dismissed.
The judgment of the Trial Court is confirmed for the aforesaid offence. 25
3) The judgment of conviction and sentence imposed against accused for the offence punishable under Section 376 of Indian Penal Code is hereby modified and accused is convicted for the offence punishable under section 376 read with section 511 of IPC.
4) Accused shall undergo simple imprisonment for a period of five years and shall pay a fine of Rs.25,000/- for the offence punishable under Section 376 read with section 511 of IPC. In default to pay fine, he shall undergo simple imprisonment for a period of one year.
5) Judgment of conviction and sentence imposed by the Trial Court for the offence punishable under Section 506 of Indian Penal Code is hereby set aside.
6) Out of the total fine amount imposed for both the offences, a compensation of Rs.15,000/- shall be paid to the victim PW.1 under Section 357 (1) of Cr.P.C. 26
7) Period of detention undergone by the accused during the trial of the case and during pendency of this appeal, shall be given set off.
8) Office to send back the records to the court below with a copy of this judgment.
Sd/-
JUDGE K m v/ 1 - 6 E M/ 7 - en d .