Karnataka High Court
Rakesh vs State By Mudigere Police on 10 April, 2008
Bench: K.Sreedhar Rao, Jawad Rahim
;'HND;
IN THE HIGH COURT OF KARNATAKA AT BANc3A__L_ORE
DATED THIS THE 10*" DAY OF APRIL,
V PRESENT: 4£W% Vu'
THE HON'BLE MR. }USTIC.E...K,._SREED'H';?I§;v§i}'X:O Aj u
AND:__ " 4 "
THE HON'BLE MR."j'D'STIcVE"3AyvA_D']RA«H'I--:va..I
CR|___. A. NoE.§2vOPv.T,2OOS'
CRL."A. No-.. 1717;? GE 2004
BETWEEN: A.
_IN CRL. :A-ENG;9.2---.VOF..Z.i305
1 RAKTESH-"5. ' ¢
S/O --LA')(MAhE30'WDA
:27 YEARf_§,.TVV 1 ;
R_/O 4HUI._LEM--ANE4 " _
KUNDUR VDILIEASE-».T_ "
MUDGERE TALUK'.
'AVCHICKH-:A<3A'LuR DIST
DDDDD APPELLANT
(BY SRI V.Y.KUMAR, ADV.)
1 STATEBY MUDIGERE POLICE
|Y!UDvITGERE
H MLJDIGER TALUK
CHICKMAGALUR DIST
RESPONDENT
(By SRI C.H.3ADHAV, S.P.P.) >i<>k>k Ex.) THIS CRIMINAL APPEAL IS FILED U/S. 374 CR-__P.C. BY THE ADVOCATE FOR THE APPELLANT AGAINST;_ THE JUDGMENT DATED 2.12.2004 PASSED BYT HE F:ASTjT_RACK COURT -II, CHIKMAGALUR IN S.C. N'O'.4Y..,'~8_<Iy'2O*a%2 CONVICING THE APPELLANT - ACCUSED NO.:I,FOR.THE,_ OFFENCE U/SS. 376,312 AND 3O7~----.OiF, '-IPC AND SENTENCING HIM TO UNDERGO--S'.I~FOF',, 7_,YEARS ANDVTO : ' PAY FINE OF RS.15,000/- I.D.,,TQ.._UfND,ER<3O SQI-.,_FQP.. 2 YEARS FOR THE OFFENCE U/S. 376-.O'F IP'C_A~ND. FLIRTHTER SENTENCING HIM TO UNDER.._C_3O SLI FOR BJYEARS AND TO. PAY FINE OF RS.15,000/-- TO" UN'D,ER,GO_ S;IFOR 6 MONTHS FOR THE OFFENCE"'w«.l'J/S'. 312 ._OF IPC AND TO UNDERGO LIFE IMPRISON..M'ENT-- A-ND TO"-PAY FINE OF RS.10,000/-- I.D., TO...U"FsDE?_Rc;,--O,'S..,_I»,FOR 2 YEARS FOR THE OFFENCE U/S. 307 OFIPAC.'»SU,ESTA.NTIvE SENTENCES TO RUN CONCURR,ENTLY,,FT_C-.2, A = ' }'\,,."'.I'\|O..:_4V1,7v'iV7"C';'F"2004 BETWEEN}, 1 "LA§»CMA!\£GQWDA,@._SL_JBBEGOWDA S'/O 'SOMEGOwD'A__ 3' 50 YEARS, ~' ~ R/O HU.LLEMAN'E, * ,K_ U!\i_DUR VIL.I._,.,AGE 'M'LIDIr3ERE TALUK _ "CHICKfY1AGALUR DIST SAROJAMMA .. W,/O LAXMANGOWDA 4-3 YEARS, R/O HULLEMANE, KUNDUR VILLAGE MUDIGERE TALUK CHICKMAGALUR DIST REKHA D/O LAXMANGOWDA 23 YEARS, R/O HULLEMANE, KUNDUR VILLAGE MUDIGERE TALUK, CHICKMAGALUR DIST , _ APP'ELLANTS (BY SRI V.Y.I<uMA-R, ADV.) ' AND:
STATE BY MUDIGERE POLICE * ._ MUDIGERE A MUDIGERE TALUK _ CHICKMAGALUR RESPONDENT (By SRI c.H.JADHAV, THIS CRIMINAL'AVP'PEAL.v._AIS FI'LEDi'._'L:./AS. 374 CR.P.C. BY THE ADVOCATE..__ FOR »"F.t1'E_' =AP_PELLANT AGAINST THE 3UDG.'v"1E'NT_ 'EDT. 23;.12.04"-.PASS'E~D" BY THE P.O., FAST TRACK cOuRT--I_I, cH.II<IwAOA.LU.R, IN S.C.NO.8G/O2 -- CONVICTING THE APPELLANT/ACCUSED .NOS.2 FOR THE OFFENCE P/U/S. 324 OF.._IPr; A'ND'3«RCON«VI'CTINO THE APPELLANT/ACCUSED NOS.3 AND 4. VFO_R'..VAi\£...-"OFFENCE P/u/S. 323 OF IPC AND SENFENCING» THE APPELLANT ACCUSED No.2 TO UNDERGO S.,':Ii«:.F.Q:R ,3 YEA'R.s___.AND TO PAY FINE OF RS.1S,OOO/-- I.D., " «HE SHALL HAVE TO UNDERGO S.I. FOR ONE YEAR FOR AN I .-O'FFEN..CE_"P/U/S. 324 OF IPC AND SENTENCING THE "'.APPEL'LA!\}'I'S7ACCUSED NOS.3 AND 4 TO PAY FINE OF 'R.S';1oo0/é2:_EAcH I.D., THEY SHALL HAVE TO UNDERGO S.I. ETC...' FOR 3.__°MONTHS EACH FOR AN OFFENCE P/U/S. 323 OF IPC, THESE APPEALS ARE COMING ON FOR HEARING THIS
-..v'DA:\.I*', JAWAD RAHIM. 3., DELIVERED THE FOLLOwING:--
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/ auoemsnr These appeals are directed against the judgement passed in sc. No. 80/2002 dated o2~12--2oo4 on t.he».fi|e of the learned Judge, Fast Track Court, convicting the appeilant in Crl. A. fngforftfhef offence punishabie under Sections in convicting the first appeilantin Cri'-.._A.- No.:.1"--7Ai??/O4°';fo"ri the? offence punishable under Sec'ti.pr. 324V'I~PC:"'and 'appellants 2 and 3 for the offence Jponisriab:|_eJ'u:.n_d,e'r~tSection 323 IPC.
2. We have ' 'heard .the"irv._ifearned counsel Mr. V.Y.K.u'r'nar.u;'yfor':'fa;the'-is'appeH'ants and learned SPP Sri C.H.3adh'a:_v,' -- State.
_ 3. of ailegations, on the basis of accuse-d----«were arraigned tried and found guiity Latha, a young giri, was iiving with her widowed mother in Huilemane, Mudigere Taiuk near the A x_ho'u_se of the appellant - accused No.1 -~« Rakesh. Accused V';No.1 -- Rakesh induced her on the false promise of marrying and sexually exploited her. He enticed her more than once for sexual intercourse and impregnated her and then forced abortion. He continued to exploit her for period over year and ultimately when she conceived and 'of three months, at risk of her life, he forcedV__h'"e._r: toj_ctef'rmi'n'a_té pregnancy.
4. It is also aileg.ed,__theiV"acc::sed.,»'i§lo».iu«F 'Rakesh, took PW12 ~-- Latha from thevfcustody off'-hermother and left her in NGO Organi2a,t'ifen <§rorin,f"wlfi'ef're.yshe was sent to a private family to work,..a.s'_a, After staying in such /51'dCco.n,d'ijti'on:*§fo-r m'on'ths"£PW12 - Latha managed to return'-yto' her with accused No.1 to keep his promise, =but,._ h'ef're.tracted and refused to marry. Her ofand.,_.ax.raii and thus, she went to his house on ' once again request him to marry her. While \ ligand reprimand her.
wa.su7,?'jrei3uesting him, his father -- accused No.2 -- Laxrnanaoowda, mother -- accused No.3 -- Sarojamma and A A.dfa'd_ghter -- accused No.4 -- Rekha joined with accused No.1 They ordered her to leave the place, but as she continued to stay there and pleaded with /N, 5/ (3 accused No.1, he picked up a chopper in an attempt to kill her. Some how she warded off the blow and when she regained her control, accused No.2 unleashed furious dog on her to bite her. The dog obeyed the command.ofr-.a:c.c_used No.2 and hit her severely. She was accused 2 and 3.
5. On the basis of her:=,,report.fivshe 'vvas4're'fe_'rre,d.'to hospital for the treatment a'nr:_l__ a ca"se'was offence punishable under seem. .376""anVV:i3C7:VfiPC against Accused No.1 and for....ti,*e ciffe,;_"=AC"e"~.p'u:n'irshab|e under Section 324 IPC against accussed._No.h?.for".'c'ausiing grievous hurt to her and *for~ tVh'e.Vj'offe.n:ce_:Vybuinishable under Section 323 IPC r/w 34 Iwixfssagaiinstilactxisied No.3 and 4. Th"e'«.i.m/estigation culminated in filing of the ',.cha.rge4V'sheet--._and accused were tried. During trial, the "provsecut'iVonV.?'e><amined 13 witnesses and relied on 16 docu..me:_nts and 3 material objects. Based on the evidence ido"c.umentary and ocular, the learned trial judge found the accused guilty and sentenced them to various period of ii/' imprisonment. Against the said Eudgment they are in this appeat
7. We have heard both sides.
8. Sri V.Y. Kumar, for the apipe!la.nts_'c--ont.eny:ds..ythat V the accused appellants areVi*nnocent._ 'i--lowe.ve3i*,. he hégdhver\',( little to say with regard to on record.
Though the learned evidence, we have re-ap_praise_d_ appeal. On reappraisal testimony of the Pro secutrix accused No.1 regarding sexual her evidence reveals accused had "her not once but continuously for sevjei*aly.m4o\Vnt:i1§ iahdhhvwhhenever she became pregnant he got terrninated. Ultimately when she refused, he develop and after this he took her to M.G. H"o.spit_a|',:.lA5wlhere the doctors medicaliy terminated that .. preg nancy.
9. Such evidence has establishes carnal relationship of the accused with the victim on the pretext of r\ a'\./ {'?V»i\"' marriage. As seen from the impugned judgement it was urged before the trial court that she was a consenting party to the sexual intercourse and therefore, of Section 376 IPC are not attracted. But, oi'Q_ what transposed given by the prosecutrixfl re_v'e'aV:!s_ sihejjvvas j helpless victim and had to toiildiei-hand'.l.:'otAv:'ithe accused, who was obviously--.s_n"e_domin_arit.gp'os'i"tiVo'n'"a"nd also had made her to believe her'wo.u:ld"'marry"her. .-'3This cannot be termed as her free .e_cori-sent o'r'V:l_w,iLii'fu| participation in sexual intercours--e. §There'_fore;'~:l.w.eVVfindulthat the finding of the trial:'"co"u.rt"'-i"i?s_ __o'_n"fth_e medical evidence is acceptable A'regwa.rdsing'«.cha_rge_'for offence under Section 376 EPC.
Bef0're.....us the learned counsel Sri V. Y. Kumar ' .'Vtho.i_ign:'refeVr'r'ed to some inconsistency in the evidence of .'ith'eiiwitne'sjse:s, but he has mainiy questioned severity of the punisvhment imposed upon the accused describing it as A.iinj~Aust and harsh.
11. The evidence relating to the charge of rape punishable under Section 376 PC, is formidable as the evidence of the prosecutrix has remained undis|0d'g,ed_f=_It is also corroborated by the medical evidence ofthe conducted abortion at M.G. 1-Ios_pita.l., itaoldg that the conviction of the accuisecigNo.17forjtheiteffefnce punishable under Section 3l7_;6~...1Pc is well r'o,utri,eje»a.ta5nd the' trial court has reached right,.c.on"cl_usion. 'liVe..,firJ,d no reason to interfere with the same-.
1 2. AS . : rega rci' ' . pun ble u nder Sectio n 307 IPC" we find the victim had while he was in the house in the companylof ac:c:uv_s4edV_"2«:.jtlo 4, to plead with him to keep his to rha'rry.....h.er. At that juncture, it appears he not i to marry her, but became violent and picked ~.Ug),'a sickle and tendered blow on her. The mediclai evidence has proved injuries suffered by victim _wer_.e grievous and likely to cause death. Victim's evidence sdiscloses she was dragged by accused No.1, though she was pregnant and under distress, assaulted her and attempted /i wit 5 / 1/ If} to kill her with chopper. It woufd bring the offence punishable under Section 307 IPC. This is substantiated by the medical evidence. Therefore, we find conviction of accused No.1 for the offence punishable under Sectilon 307 IPC is also just and proper.
13. As regards charge for the offerrfcev'rpiunishaiiiehS"-._ under Section 312 IPC, there islino Zdenjial'-,fr:o,m----.ttie'v.acVc,us'ed 3' that he had taken the prosec,utrixf"to"i4.G. got. her admitted, where he indvuced her to ,_x:un'dergo abortion against her will and;..,_p'rj.eve.i_'iied.A,iup,on""d,octor to record her willingi"iless:f.xihiiisof«'th'e»»V-evidence is also unshaken. Therefore, prosecutrix was subjected to abortion:ofgfherllp_reg_nan~cy at the instance of accused No.1 bi_fin:gs__,AV'thue off'ence..i'within the purview of offence under ' ,.Sec.t,ionV'~3§i«»?;'IPC. Therefore, conviction under Section 312 "I.PC7is ailsoftonfirmed.
As regards accused No.2 is concerned, the 3' '~,_Vcha..rge against him was that he had joined accused No.1 in = ..--rnaking attempt on the life of the prosecutrix. To this we U see that accused No.2 had unleashed a furious dog at the victim to bite her. Dog did obey his command, an_d__bit the victim, when she was trying to escape. Th_'iV's--V..f"i5falso supported by medical evidence that the docf;o:i'sVhav:e"ifo'uind 4_ dog bite along with other injuriesco-f.abij'asi_oni.~'Iagn.d .4t';:ii.ui'is.es.'s4 The allegation against accused (that and assaulted with hands,Vis..sg:'a'*l~so suV'pported-,:by.st'he ijriedical evidence apart from» sta.tern.ent"'of the"vi»5tim: However, the learned trial judge only for the offence punistiajbie and absolved him for the "c3"ecti0n 307 IPC. We confirm nd also. _'
-Lii<ewi's.e,,.4t'ne"charge against accused 3 and 4 fofihaiving caused grievous injuries to the victim is also "the evidence and it is also supported by the ._rifledica:l""_~eviVd;'ence. We find no reason to interfere with the same ' .
16. The main grievance of the appellants is that the sentence imposed upon them is too harsh. we have considered this aspect.
17. While sentencing the convicted' courts are required to keep in~~m.ind--'_ the"i-p'rin'ciip'l.es...of; proportionality. The courts are also only the felonious propens'i»ty:of_the"accusediAh.v'co'i1'i'mission of the crime, but also the cVirc--u.rr_ista~nces' i"nw.hi.cih the crime is committed and and the victim.
Sri V.Y.Kumaréiearnjed"cordiisel./ffhast several grounds to sen'te-nce imposed. However, it is noticed that a young girl at the time of incident,VV'li--ivirn3gw_ith._widowed mother with no possible from Aa'i'ly..__on'e. The Accused No.1 had lured her to ' .-u'ri'desi.rabVIephysical intimacy and induced her to believe his .'assuranceT5,.5'The victim was not financially sound and was virtu~.all'y living with her widowed mother sustaining from 'minimal resources. In such situation it is seen that she succumbed to his desire and accused No.1 exploited her on the pretext of marriage. Accused No.1 has indulged in 13 carnal relationship with victim and then not only failed in his promises but indulged in physical assault wllegn she requested him to bail her out of the distress answers delay in approaching the police of"'-the the accused No.1. in this fact:v'slitua'tion-gythe.:a'cc_u.sed No.11'. has to be visited with sentence pr4opoi+tionate'v_to his
18. The offence com'mitted si\lo.1is held to fall within thefambiti"of_$e'ctiovii._376*ivl5C,""however, as the victim had allowed?'s'u_chf'_e3Vpli-Ji.tatlli§3:Vn'.'.~without reporting to the pol;i'ce'««gi._:a--ndseeking»A:.'a'~nyi_.___aTction, even though prOVl¥3iO"l1'Sis_:"t3f 37'6'**i4PC prescribes minimum imprisonin_erit_imprisonment, but it could be scaled dolwrb: -to period subject to order regarding co'Au'Idvv-«enhanced to be paid as compensation to ' permissible under Section 357(3) Cr.P.C. 19;v'vle:'i.V_"l:;he second aspect is regarding punishment impo~s_ed for the offence punishable under Section 307 EPC. evidence reveals an attempt was made by the accused V'§\io.1 on the life of victim, but fortunately the doctors have U certified the injuries suffered by her were not severe and dog bite. No injuries of serious nature was caused to her by using the object like chopper, which accused'"'l$l'o-«..bi."'.,'was armed with. Therefore, while confirming the' co.nvi'ctio'i':r of accused No.1 for the offence ;3u.nishableiunvdleri,'Secti_o.n5 IPC, it would not justify to order done by the trial Court.V»--.i:i}ienceL"s.en'teAnc:e"':..foi""the said offence needs to be modified.------
20. As regar'd_s*~._acc_usedi'-N._o..'3'~.cand 4 are concerned they have been convict_ed._fo't'lthe_.~o:ffen;&_e'.. punishable under Sectio'n"'323:L:IP(§iéirid "d~ir'ected_"'t'l'ieV:n'a to pay fine of Rs.1,000/~ each ,V"whi.cr:' isljust.:an.d'p¥roper and it is confirmed.
21."-VA'ccused'-._ii\l'diV.2 is convicted for the offence p-iin'is:hiablve. i.znde'r""S'ection 324 IPC and was sentenced to ' r''_thre.e:*fiears.:irijiprisonment with fine of Rs.1S,G0O/-- by the 'trial Coulrti needs interference.
In the result, /I proceed to pass the following §.¢i>...« be credited to the State as fine and balance amount of Rs.1,16,500/-- shall be paid to PW12-- Latha, the victim/prosecutrix as Compensation permissible under Section 357(3), At this stage, learned counsel for the'::ap0Ae'I§.arit§_;'*eAS'ri_ V.Y.Kumar submits that the'.-*c:a»s.eé en 16.4.2008 to enable the appelianits ehgm,...,ii Hence, list this 'on 16.4.2008.
.cTs%gj*t;fsa/-
Sd/~ EUDGE