Karnataka High Court
Ajeesh @ Suresh O B vs State Of Karnataka on 22 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22nd DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.2040/2018
BETWEEN:
1. AJEESH @ SURESH O.B.,
S/O LATE BHASKARAN,
AGED ABOUT 32 YEARS,
LABOURER,
RESIDING AT ODAMBARA HOUSE,
KATRACOLLY VILLAGE, PONNAMPET,
KODAGU DISTRICT. ... APPELLANT
(BY SMT. BUDRUNNISA, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY GONIKOPPA RURAL CIRCLE POLICE,
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU - 560 001. ... RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 01.09.2018 PASSED BY
THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU
IN S.C.NO.39/2017 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 376(2)(j),
376(2)(n) AND 315 OF IPC.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.03.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
1. Heard the learned counsel for appellant and the learned High Court Government Pleader. This appeal is filed challenging the judgment of conviction and sentence passed against the appellant for the offence punishable under Section 376(2)(j), Section 376(2)(n) and Section 315 of IPC convicting and sentencing the accused for a period of 10 years and imposing fine of Rs.10,000/- for both the offences of Section 376 and rigorous imprisonment for a period of 6 years and to pay fine of Rs.7,500/- for offence punishable under Section 315 of IPC.
2. The factual matrix of case of prosecution is that between 25.10.2015 to 21.06.2016, the accused repeatedly had forcible sexual intercourse with CW2 that is PW2 who is both deaf and dumb in the bedroom of the rented house of 3 Sri.Vijayamani owned by M.K.Makbool at Katrakolli village, coming within the limits of Ponnampet Police Station which has resulted in CW2 become pregnant. When the accused came to know that CW2 had become pregnant of 6 months, the accused made her to consume 2 tablets stating that it was for her good health, which resulted in stomach pain and bleeding. She was admitted to Vinayaka Hospital at Sultan Batheri, where the Doctor examined and informed that her child had expired and gave her treatment, by evacuating the dead fetus. Hence, the complainant was lodged and case was registered. The Police have investigated the matter and filed the charge sheet against the accused for the above offences.
3. The prosecution in order to prove the case against the appellant, examined PW1 to PW7 and marked the document Ex.P1 to Ex.P30. The accused was also subjected to 313 statement and he had denied the incriminating evidence. The accused examined his brother 4 as DW1 and also examined himself as DW2 and got marked Ex.D1 to Ex.D3. The Trial Court having considered the evidence of PW2-victim and her parents as PW3 and PW4 as well as the evidence of PW10-Doctor who has evacuated dead fetus in considering the other evidence, accepted the case of prosecution and not accepted the defense theory of the accused and also observed certain minor discrepancies in the evidence PW3 and PW4 and comes to the conclusion that the same is immaterial and hence, there is consistent and corroborating evidence regarding both the offence of rape committed by the accused.
4. The PW6 is the counselor of Snehita Gender Help Desk who received the petition from PW3 that is mother of the victim and forwarded the same to the Sulthan Batheri Police Station and her evidence also corroborates the same. The PW7 is the owner of the house in which victim was residing. The PW8 and PW10 are the Doctors who examined PW2 after she had sustained incomplete abortion of the 5 child in her womb. The PW9 is the Doctor at Sulthan Batheri who had initially examined PW2 after receipt of complaint and issued medical legal examination form- Ex.P2 which contains the details about the history of rape committed by the accused. The CW11 and CW14 are translators who had furnished the translation of documents in Malayalam language to Kannada language. The PW13 had initially recorded the statement of PW3 as per Ex.P3 at Sulthan Batheri Police Station based on which PW12 has registered the FIR as per Ex.P17. The PW15 to PW17 are official witnesses who conducted the investigation. The accused being the elder brother of DW1 is in a position of his father and he has taken undue advantage of the situation. The PW1 is the translator who assistance was taken to record the evidence of PW2 as well as DW1 both of them are deaf and dumb. Having assessed the evidence, comes to the conclusion that PW8 to PW10 evidence clearly indicate that abortion could be caused to PW2 either clinically or through 6 inducement and case of prosecution also that the accused subjected her for sexual intercourse and made her to consume tablets and having considered the evidence of PW1 and other witnesses PW2 who is the victim and PW3 and PW4 are parents and PW6, PW7, PW8 to PW10 evidence comes to the conclusion that the accused committed an offence of rape and invoked the offence under Section 315 of I.P.C having gave the tablets to abort the child which was in the womb. The Trial Court accepting the evidence convicted and sentenced as mentioned above. The grounds which have been urged in the appeal that learned Sessions Judge is highly perverse, illegal and contrary to the evidence and not properly appreciated both oral and documentary evidence. The prosecution has not established the guilt of the accused beyond reasonable doubt and also ought not have convicted the accused for the offence punishable under Section 376 of IPC as invoked against the accused. The counsel also would contend that 7 the victim PW2 is a married lady and also sister-in-law of the accused and wife of the DW1 and the victim evidence appears to be not cogent, not reliable and victim has falsely implicated the appellant, her evidence do not inspires the confidence that appellant had committed the alleged offences. The learned Trial Judge has failed to see that entire case is based on the testimony of PW2 and PW3 who is the victim and their parents and absolutely there is no evidence that it is the appellant who has caused the abortion through some witness nor there is any documentary evidence. In the absence of material on record, the Trial Court ought not to have convicted and sentenced the accused and the judgment of the Trial Court is erroneous.
5. The counsel during the course of his argument would vehemently contend that the date of commission of the offence alleged as per the prosecution 25.10.2015 to 21.06.2016 and date of arrest of the accused on 8 01.02.2017. The counsel also would contend that there is a delay in lodging the FIR. The Trial Court fails to take note of admission on the part of the PW2 and PW2 knows the consequence and she was able to give statement. The evidence of PW4 is similar to the evidence of PW3. The counsel also would contend that DNA test was not conducted. The PW1 also not properly interpreted and when the evidence of victim is not reliable ought not to have convicted the appellant. The counsel also would vehemently contend that maximum sentence is 10 years for both the offences of 376 of IPC and also six years for the offence punishable under section 315 of IPC and he is in custody from 01.02.2017 and almost 8½ years has been elapsed out of 10 years and he is ready to pay the fine amount.
6. Per Contra, the counsel appearing for the respondent-State would vehemently contend that the document Ex.P19 -Kannada translated copy of Ex.P5 that is original petition is very clear. The counsel brought to notice 9 of this Court Ex.P1- 164 statement of victim was recorded with the assistance of PW1. The documentary evidence is very clear with regard to the fact that she was subjected to evacuation of the dead fetus and evidence of PW3 is specific. The evidence of witnesses are also taken note of. The counsel also would contend that evidence of PW2 - victim evidence corroborates the other witnesses who have been examined before the Trial Court. The counsel also would contend that Ex.P11 diagnostic scan certificate is very clear with regard to the report that she was subjected to abortion and Ex.P19-complaint is also very specific given by the mother of the victim as the victim herself revealed that accused was responsible for forcible sexual act and he gave the tablet for abortion. When all these materials considered by the Trial Court with decided principles of judgments which have been referred by the counsel appearing for the accused and rightly comes to the conclusion that accused only responsible for forcible sexual 10 intercourse which has resulted to become pregnant and also gave the tablets for abortion. The evidence of prosecution witnesses is very clear.
7. Having heard the appellant's counsel and also the counsel appearing for the respondent-State the point that would arise for consideration of this Court are:
1) Whether the Appellate Court committed an error in appreciating the evidence as contended by the appellant's counsel and whether it requires interference of this Court by exercising appellate jurisdiction and the judgment of conviction and sentence for the both offences punishable under Section 376 as well as 315 of IPC is perverse?
2) What Order?
8. Having heard the appellant's counsel as well as the counsel for respondent-State, the charges levelled against the accused is that this accused/appellant, between 25.10.2015 to 21.06.2016 had repeatedly had forcible sexual intercourse with PW2. The victim is deaf and dumb 11 without her consent and against her wishes in the bedroom of rented house owned by PW7 at Katrakolli village which has resulted PW2 to become pregnant and also the accused made the PW2 to consume two tablets stating that it was for her good health which resulted in stomach pain and bleeding and she was admitted to Vinayaka hospital at Sulthan Batheri and she was subjected to examination and Doctor informed that her child had expired and gave her treatment and evacuated the dead fetus and accused prevented the birth of the said child of PW2 and committed its murder of the child in her womb.
9. The prosecution mainly relies upon the evidence of PW1 who gave the assistance to the Magistrate to record the statement of the victim PW2 under Section 164 of Cr.P.C and also interpreted the evidence of DW1 before the Court as well as PW2 before the Sessions Court since both of them are deaf and dumb. The PW3 and PW4 are the parents of the PW2. The PW6 is the counselor working at 12 Snehitha Gender Help Desk where PW3 had submitted a requisition in terms of Ex.P5 along with Form-Ex.P6 requesting for protection against the family members of the accused and help to initiate action against them in terms of Ex.P7. The PW7 is owner of the house in which PW2 was staying along with her husband and in that house, an alleged act was committed. The PW8 is the Doctor- Ultrasonologist who conducted Ultra sound scan on PW2 and submitted the report in terms of Ex.P11. The PW9 who had initially examined PW2 and issued medical legal examination report as per Ex.P2. The PW3 is the Doctor who examined the PW2 and treated her and removed evacuated the dead fetus from stomach and she also obtained the consent Form-Ex.P13 and Ex.P14 signed by PW2 and her parents and also examined the scanned report of Ex.P11 and Ex.P15. These are the important witnesses for consideration and re-appreciation of evidence available on record and other witnesses are who are translated the 13 document from Malayalam to Kannada language and as well as official witnesses who have investigated the matter. The evidence of DW1 and DW2 also to be considered while re-appreciating the material on record since DW1 gave the evidence in support of the accused.
10. It is the duty of the Court also to examine the evidence available on record looking into the contradictions and discrepancies in the statement of the witnesses whether it goes to the very root of the case of the prosecution and also to examine whether prosecutrix evidence inspires the confidence of the Court and other witnesses who gave the evidence corroborates the case of the prosecution and also keep it in mind that the inherent conservativeness human in other social background and tendency to conceal outrage of sexual aggression or factors reached the Court should not be overlooked. Having considered this aspect, this Court has to re-analyze the material available on record.
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11. The first and foremost witness is PW2 and admittedly she is deaf and dumb is not in dispute. The accused is brother-in-law of the victim is not in dispute and PW2 was staying along with her husband, mother-in-law and accused at Ponnampete and also husband was going to work and used to come in the evening. Having considered the evidence of PW1, no doubt certain discrepancies are also found in the evidence of PW1, but PW2 in her evidence categorically deposed that the accused never used to go out of the house for doing any work and always stayed at home and he was always consuming alcohol and husband was going to work and used to return by 6:00 PM. It is her evidence that the accused holding her hands used to take her along with him and used to press her breast and remove her clothes and used to make her to laid down on the floor and have sexual intercourse with her on four occasions. When she became pregnant, he made her to consume two tablets which resulted her abortion. In 15 corroboration with the charges, gave the evidence and she was also subjected to cross-examination. In the cross- examination, she says that her relationship with her husband was cordial and both of them were loving each other. The counsel appearing for the appellant brought to notice of this Court referring the evidence of PW2 wherein also she says that her husband is responsible for the pregnancy and also when the question was put to her whether she informed her mother or Doctor or anybody else that the accused is responsible for her pregnancy and she gave an answer that 'no'. When the question was put to her whether she removed her clothes voluntarily as per the directions of the accused and she gave an answer that accused used to forcibly removed her clothes and also used to take her inside the room and closed the door and hence, she could not escape from the clutches of the accused and also says that accused was threatening her and hence, she did not try to escape and also accused tried to commit her 16 murder by stabbing her. The accused used to ask her to remain silent and used to remove her clothes and also when the question was put that whether accused had sexual intercourse with her in the same room on all the occasions and she gave an answer that he had sexual intercourse in the same room. No doubt there are some discrepancies in getting the answer that who is responsible for her pregnancy, but she says that her husband and at the same time, she deposed before the Court that she became pregnant on account of act of the accused and also regarding threat and removing her cloth by the accused also deposed before the Court and minor discrepancies will not take away the case of the prosecution.
12. The PW3 and PW4 are the parents who have deposed before the Court in the line of evidence of victim PW2 and PW4. The other witness is PW6 who helped the PW3 by giving service provider since PW3 gave the original petition in terms of Ex.P5 and gave the assistance. In the 17 cross-examination, it is elicited that in Ex.P5, not forthcoming about forcing for having sexual intercourse with him as mentioned in Ex.P7.
13. The main witnesses are PW7 that the fact that PW2 was staying in the house of PW7 is not in dispute and also specifically pleads that she was subjected to sexual act in the very same house, but the evidence of PW7 except stating that PW2 was staying in rented house, no other incriminating evidence.
14. The other witness is PW8 who conducted ultrasound scan of victim pelvis and opined that she has incomplete abortion and gave the report in terms of Ex.P11. In the cross-examination except suggesting that report was given and the same not belongs to PW2 was denied and nothing is elicited. Hence, the report of Ex.P11 is not controverted since the same belongs to the victim.
15. The other witness is PW9 who gave the first aid and victim gave history at the initial stage and given the 18 history that accused had sexual intercourse with her during last one year which has resulted her pregnancy and assaulted her and gave tablets and also his clinical examination was suggestive of vaginal delivery and he gave the report in terms of Ex.P2. No doubt in the cross- examination, it is elicited that he did not find any external injuries on PW2 as regard to an assault made to victim and also opined that the time of vaginal delivery after lapse of 1½ months and cannot state the time of such vaginal delivery and mother of PW2 had informed about her history.
16. The main evidence of witness is PW10 who is working as obstetrician and gynecologist at Vinayaka Hospital where she took the treatment and she was admitted to hospital on 22.06.2016 and also deposes she was deaf and dumb and she was accompanied by her parents and her last menstruation period was on 16.12.2015 and she had come to hospital with history of 19 low abdominal pain and vaginal bleeding with six months Amenorrhea and on examination, made a provisional diagnosis of incomplete abortion with sepsis, evacuation of incomplete abortion under intravenous short general anesthesia was carried out and the fetus was evacuated and discharged on 26.06.2016 and she gave the summary in terms of Ex.P12 and her signature is also identified as Ex.P12(a) and consent form was also signed in terms of Ex.P13 and so also admission to anesthesia as per Ex.P13 and also the entire case sheet is marked as Ex.P16 and she says that there is a possibility that fetus would have expired if any medication for abortion is consumed and if forcible intercourse has taken place with the patient. In the cross- examination, it is elicited that incomplete abortion with sepsis would have been caused due to infections, since the fetus remained in the womb and bacteria would have entered and cause infection.
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17. Having re-assessed the evidence of these main witnesses and also the evidences of PW2 and PW10 and PW8 is important. The fact that the PW2 categorically deposes with regard to the act of the accused. Admittedly the victim was dumb and deaf. The Trial Court taken the assistance of PW1 for recording of 164 statement as well as recording of evidence before the Court. The evidence of PW1 is consistent with regard to the mode adopted for recording of evidence and categorically says that Magistrate noted down the statement of PW1 in terms of Ex.P1 and the same was got typed. At the time of recording of evidence, he says when he enquired with CW2 in the open Court in sign language, PW2 has stated about the incident through her sign language only and he has interpreted the same and conveyed to the Court and the Court has recorded the statement given by CW2 as interpreted and conveyed by him. In the cross-examination, he categorically says that he has interpreted the same there were no other persons apart 21 from the Court staff and CW2 present when her statement was recorded in the chambers of Hon'ble Judge at Ponnampet Court and Judge only written some name on the paper and he was not present during other times when the Police was there and the same was recorded for one hour and personally noted the statement given by PW2 as stated by him and typist was also not present at that time and don't know when it was typed, but signature was obtained after 10 minutes.
18. Having taken note of this evidence is very clear that at the time of recording 164 statement of victim nobody was there other than the victim, PW1, judicial officer and Court staff and I have already pointed out that discrepancies found in the evidence of PW2 will not take away the case of the prosecution and the same will not goes to the very root of the case. I have already pointed out that she categorically deposes that accused was responsible for the pregnancy and he had sexual 22 intercourse forcibly and also caused the threat and he bolted the room and could not escape from the clutches of the accused and when such evidence is available before the Court, evidence of PW1, PW2, PW3 and PW4 who are only formal witnesses, they came to know about the incident and taken the victim to the hospital and gave the statement and also taken the assistance of PW6 and the evidence of PW8 and PW10 is very important and the documentary evidence of Ex.P11 is very clear that abortion was incomplete and hence, PW10 evacuated the dead fetus from the womb of the victim. The evidence of PW9 is also clear that PW2 given history of sexual act of accused when she was subjected to examination.
19. Having considered overall material available on record, particularly the PW1 gave assistance to the learned Magistrate to record the statement of victim in terms of Ex.P1, nothing is elicited disbelieve the evidence of PW2 except minor contradictions. The Trial Court having 23 considered the material available on record, the consistent evidence of PW2 that she categorically deposed that accused forcibly had sexual intercourse with her and she was unable to escape from the clutches of the accused since he had bolted the room and also her consistent evidence that committed the sexual act in the very same room in all the occasions and though counsel for the appellant pointed out the discrepancies with regard to giving a stray answer that her husband is responsible for pregnancy but material on record is very clear and consistent evidence given by PW2 and also charges leveled against the accused also apart form subjecting her for sexual act and he only gave two tablets to the victim which has resulted incomplete abortion and the report of PW8 is very clear that it was incomplete abortion and evidence of PW10 is also very clear that the she evacuated the dead fetus and when such material available before the Court and the evidence of PW3 and PW4 also very clear that when 24 there was a bleeding, she was taken to the Vinayaka hospital, where she was given treatment for a period of 5 days and this material corroborates each other and Trial Court also having considered the material on record, comes to a conclusion that offences under Section 376(2)(j) and 376(2)(n) stands proved as the accused had forcible sexual intercourse taking the advantage of the PW2 who is deaf and dumb. Though DW1 was examined who is the husband of the victim and brother of the accused and naturally he supports his brother that is accused and who is also dumb and deaf is not in dispute and his evidence is also recorded at the instance of the PW1 who acted as interpreter while recording the evidence of PW2 as well as DW1 and the evidence of DW2 also not comes to the rescue of the accused and also the PW2 evidence is very clear that she had consumed the tablet which was given by the accused only which resulted in stomach pain and bleeding resulting in death of the child in her womb and mother PW3 took her 25 to the hospital and provided the treatment and evidence of prosecution witness is consistent and also the material discloses for invoking of Section 315 of IPC stands proved as the accused before the birth of the child of PW2 had intentionally made the PW2 to consume the tablets and the evidence of PW2 is consistent that accused No.2 only gave the tablet and there is no explanation on the part of the accused in 313 statement with regard to providing of tablets to victim when such material available on record, it is very clear that the said act not done with good faith and only with an intention to take the life of birth of the child which is in the womb, he had provided tablets to the victim PW2 and when all these materials were taken note of by the Trial Court, I do not find any error committed by the Trial Court while appreciating both oral and documentary evidence placed on record and hence, it does not requires interference of this Court. Hence, I answer the point as 'Negative'.
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20. In view of the discussions made above I pass the following:
ORDER The Criminal Appeal is dismissed.
Sd/-
(H.P. SANDESH) JUDGE RHS