Karnataka High Court
Pradeep S/O Prakash Dadge vs The State Of Karnataka on 31 January, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 31ST DAY OF JANUARY, 2013
BEFORE
THE HONOURABLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL NO.799 OF 2007
BETWEEN:
Pradeep S/o Prakash Dadge,
Age: about 22 Years, Occ: Coolie,
R/o: Yerbag,
Taluk: Basavakalyan. ... APPELLANT
[Smt Anuradha Desai, Advocate for
Sri Mahantesh Desai, Advocate]
AND:
The State of Karnataka
Represented by
Mudabi Police Station,
Taluk Basavakalyan,
Dist: Bidar. ... RESPONDENT
[Shri Sanjay.A.Patil, Additional State Public Prosecutor]
This Criminal Appeal is filed under Section 374 of the
Code of Criminal Procedure by the Advocate for the Appellant
2
against the judgement dated 18.04.2007 passed by the P.O.,
FTC-II, Bidar in S.C.No.117/06 convicting the
appellant/accused No.1. for the offence punishable under
Sections 366 and 376 of Indian Penal Code. And sentencing
him to undergo S.I. for a period of 5 years and pay a fine of
Rs.1,000/- I.D., to under go one year S.I. for the offence
punishable under Section 366 of Indian Penal Code and further
sentencing him to undergo R.I. for a period of 7 years and pay a
fine of Rs.1,000/- I.D., to undergo 1 year S.I. for the offence
punishable under Section 376 of Indian Penal Code. Both the
sentences shall run concurrently.
This Criminal Appeal coming on for final hearing this
day, the Court delivered the following:
JUDGMENT
Heard the learned counsel for the appellant and the learned Government Pleader.
2. The facts leading up to this appeal are as follows:
One Anandi bai of Yerbag village, Taluk Humnabad, District Bidar and the present appellant were of the same village. They were neighbors. The appellant was an agricultural labourer. He was on friendly terms with Anandi bai. It transpires that on 5.10.2005 at about 6.15.p.m., it is alleged, 3 that the appellant kidnapped Anandi bai from her house promising that he would marry her and took her to Humnabad to the house of one Jaishree where they stayed overnight and it is alleged that the appellant committed rape on her. In the meanwhile after having conducted a search for her over several days, it appears that a complaint had been lodged on 9.10.2005 by the father of Anandi Bai, reporting that his daughter was missing since 5.10.2005. The Police had apprehended the appellant on the very day. This was possible, as seen by hindsight, that the family of the complainant had traced Anandi Bai and the appellant to Humanabad and had requested the parents of the appellant to call upon the appellant to bring her back home. When the appellant failed to bring her back the complaint was ultimately lodged. That is the manner in which the appellant was apprehended on the same day by the police. After the appellant was apprehended Anandi Bai was also brought to the village. It is in this background that a case was registered against the appellant for offences punishable under 4 section 366 and 376 of the Indian Penal Code, 1890 (Hereinafter referred to as the 'IPC', for brevity). After further investigation, and on charges being framed, the petitioner had pleaded not guilty and claimed to be tried. Consequently, the prosecution examined 18 witnesses and got marked Exhibits P.1 to P.13(a). On the basis of the said evidence, the court below framed the following points for consideration:
1. Whether prosecution proves beyond all reasonable doubt that on 5.10.2005, at about 6.15 p.m. at Yerbag within the jurisdiction of Mathala Police Station, with the instigation of accused Nos.2 to 4, accused No.1, kidnapped Kumari "A" from the house of Madeppa, promising her that he will marry with Kum. "A", and took her to Humnabad to the house of Smt.Jaishree with an intention to marry against her will or to compell her to illicit intercourse, thereby committed an offence punishable U/s 366 IPC?
2. Whether prosecution proves beyond all reasonable doubt that, on the above mentioned date time and place, accused No.1, having kidnapped Kumari 5 "A" from the house of Madeppa took her to Humnabad to the house of Smt.Jaishreee, committed rape on Kum."A" thereby committed an offence punishable under Section 376 of I.P.C?
3. What order?
The court below held points 1 and 2 in the affirmative and convicted the accused for offences punishable under Sections 366 an 376 of the IPC and sentenced him to undergo simple imprisonment for a period of 5 years and to pay fine of Rs.1,000/- for an offence punishable under Section 366 of the IPC and to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.1,000/- for an offence punishable under section 376 of the IPC. The sentences were to run concurrently. It is that which is under challenge in the present appeal.
3. The learned Counsel for the appellant would contend that the court below has accepted the age of Anandi Bai as being 18 years as on the date of the incident and given the 6 sequence of events, in that, though it is alleged that the appellant had kidnapped Anandi Bai from her house and had kept her in confinement in his relative's house in Humanabad, the fact remains that she had willfully gone along with the appellant as they had moved together in public places and had resided in a relative's house. There was no allegation against the relative of any such criminal restraint insofar as the confinement of the victim is concerned and the fact that they lived together at such relative's house for over four days before the accused - appellant was apprehended by the police and brought to their village, it would indicate that there was no force used either in taking the victim to Humanabad or in her continuing to reside with the appellant at Humanabad. It is the allegation in the complaint apparently at the instance of the prosecution and possibly the family of the victim, that the same is sought to be pursued in the evidence tendered before the court as well. The further circumstance that the medical report was on the basis of a physical examination of the victim, 7 three days after the incident, the court below having noticed that there were no injuries to be found according to the medical report and that the woman's hymen was torn but that it was an old tear, would also point to the fact that there was no violation committed on the victim immediately prior to the medical examination. The report also indicated that there was no sign of any recent sexual activity. Therefore, it could not be said that there was medical evidence available of rape having been committed on the victim by the appellant. The court below has relied upon the oral testimony of the prosecutrix to hold that there was abduction and sexual violation without the consent of the prosecutrix. The court has also accepted the claim that the appellant had sex with the victim for several days against her will under threat of harm to her life. In the face of the above circumstances, which did not disclose that there was indeed a semblance of an abduction and in the absence of any medical evidence of physical violation or other violation of the victim, 8 the court below has concluded that the prosecution had established its case beyond all reasonable doubt.
4. Therefore, the learned Counsel would submit that it cannot be said that on the basis of the very sequence of events, that even a prima facie case of abduction and rape could be made out let alone the prosecution having established the case beyond all reasonable doubt and hence seeks that the judgment of the court below be set aside and the appellant be acquitted.
5. While the learned Government Advocate would vehemently oppose the appeal. He would submit that assuming the sequence of events are to be accepted, namely, that the victim had willfully accompanied the appellant to Humanabad on his promise that he would marry her and that they had consensual sex and it is only some days later that they were traced and on the complaint being lodged the appellant had been apprehended and the case registered and that the medical examination has not revealed any injuries on 9 the person of the victim. The very gravity of the offence would completely be magnified if the age of the victim is addressed. It would be possible for the appellant to contend that the allegations at best make out a case of consensual sex between the appellant and the victim and that no case of abduction or rape made out would be negated if it is considered that the victim was not a major and that she was a minor as on the date of the incident. In which event, the fact that there was consent by the victim would make no difference and sexual intercourse with a minor, even with consent of such minor, would indeed render the offence as rape. The fact that the victim was examined several days after she was brought from Humanabad explains the absence of any injuries or sign of sexual activity. The fact remains that the accused appellant was apprehended along with the victim at Humanabad in his relative's house. The court below having proceeded on the basis that the victim was 18 years of age is only on the basis of a radiological report furnished by the Medical Practitioner insofar as the 10 victim's age was concerned. There were no school records or other such records to fix the age of the victim. It is a scientific fact that the determination of age in the manner that was done in the present case on hand could only afford an approximation and not the exact age of the person concerned. It is accepted that there is always a margin of error in such cases which may even extend to two years. Therefore, the victim herself has stated her age as being '15' and the possibility that she was '16' even according to the radiological report is a circumstance that cannot be ignored notwithstanding that the court below has taken the age as 18 on the basis of the evidence of the Medical Practitioner. It could safely be determined as 16 as well, in which event the seriousness of the offence is apparent. Given the circumstances it cannot be said that there being consensual sex and absence of any force used in the abduction would not render it any less a case of kidnapping and rape. Therefore, the learned Government Pleader would emphasize that the determinative factor as to the seriousness of the offence would 11 be the age of the victim, which has not been highlighted at the trial and the appellant seeking to take advantage of the same ought not to be and therefore, would insist that the seriousness of the offence would not in any way be watered down in the manner that is sought to be projected by the appellant in this appeal.
6. Given the above rival contentions, it is not in serious dispute that the victim was in the company of the appellant for over four days. It is not the case of the prosecution that she was surreptitiously and forcibly kidnapped and taken away against her will or that she was kept in hiding without the knowledge of any third person apart from the appellant and that there was physical violence apparent. There were no vehicles used in the alleged abduction. It is hence apparent that the appellant and the victim had walked away from their respective houses, together, and had stayed at Humanabad without any protest from the victim to the knowledge of other people. If they had 12 stayed for over four days it was always possible for the victim to have raised an alarm at some point of time to escape the confinement, if at all, by the appellant. It is only much later that they have been brought together by the Police from the house of the relative of the appellant. Therefore, the allegation of abduction or force being used against the victim may be ruled out. The medical examination has not revealed any sign of sexual activity or that the appellant had committed rape on the victim. The observation of the court below that a woman's hymen will be torn only if she has sex for the first time is an incorrect observation. It is medically not tenable. In any event, the hymen of the victim in this case was torn. The medical report was to the effect that it was an old tear. Therefore, it could not be said that there was sexual violation committed by the appellant on the victim. Insofar as the age of the victim is concerned on which much emphasis is placed by the prosecution it is seen that the court below has accepted that the age of the victim was '18'. No appeal has been filed by the 13 State questioning that aspect of the matter. The court below has accepted the Medical Practitioner's assumption on the basis of a radiological report that her age was '18'. The contention that it could be '16' as there is always a margin of error that would be taken into consideration could be the other way around as well. It is possible that the woman was '20' and the radiological report has estimated the age on the lower side. Therefore, the court below having accepted the age as 18, could not then proceed to treat the victim as a minor and hold that the offence takes on a more serious turn in view of the minority of the victim. Hence, the three aspects, namely that there was abduction, that there was rape committed by the appellant or that the victim was a minor would all have to be negated in the light of the sequence of events and the evidence that is available on record. The court below also has expressed doubts as to the seriousness of the allegations, but it is only in its conclusions, that the court below has held against the appellant. Hence, this court has no hesitation in holding that on a closer 14 examination of the record and the rival contentions, no case is made out by the prosecution.
Accordingly, the appeal is allowed. The judgment of the court below is set aside. The appellant is acquitted. The fine amount, if any, paid by the appellant be refunded.
Sd/-
JUDGE