Karnataka High Court
Venkatagirigowda @ Venkatagiri vs The State Of Karnataka on 8 June, 2018
Author: K.Somashekar
Bench: K. Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2018
BEFORE
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL NO. 595 OF 2016
BETWEEN
VENKATAGIRIGOWDA @ VENKATAGIRI
LIVEBAND GIRI, JACKY GIRI @ RAMPURA GIRI,
S/O PUTTASWAMYGOWDA,
AGED ABOUT 29 YEARS,
OCC: DRIVER,
R/O RAMPURA VILLAGE,
CHANNAPATNA TOWN,
RAMANAGARA - 562 160.
... APPELLANT
(BY SRI. PRATHEEP K.C., ADVOCATE)
AND
THE STATE OF KARNATAKA
BY CHANNAPATNA RURAL POLICE,
RAMANAGAR DISTRICT,
REPRESENTED BY S.P.P.,
HIGH COURT BUILDING,
BENGALURU - 560 001.
... RESPONDENT
(BY SRI. K.NAGESHWARAPPA, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED 01.03.2016
PASSED BY THE III ADDL. DISTRICT AND SESSIONS JUDGE,
RAMANAGARA IN S.C.NO. 74/2012 - CONVICTING THE
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APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE
UNDER SECTION 366 AND 376 OF IPC. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR 10 YEARS AND ALSO TO
PAY A FINE OF RS. 15,000/- IN DEFAULT OF PAYMENT OF
FINE HE SHALL ALSO UNDERGO RIGOROUS IMPRISONMENT
FOR 1 YEAR FOR THE OFFENCE PUNISHABLE UNDER
SECTION 376 OF IPC. FURTHER THE APPELLANT/ACCUSED
IS SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT
FOR A PERIOD OF 2 YEARS AND ALSO SHALL PAY FINE OF
RS. 2,000/- IN DEFAULT OF PAYMENT OF FINE HE SHALL
UNDERGO RIGOROUS IMPRISONMENT FOR 3 MONTHS FOR
THE OFFENCE PUNISHABLE UNDER SECTION 366 OF IPC.
BOTH THE ABOVE SENTENCES SHALL RUN
CONCURRENTLY. AND THE APPELLANT/ACCUSED PRAYS
THAT HE BE ACQUITTED.
THIS CRL.A. COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment passed by the III Additional District and Sessions Judge, Ramanagara, in S.C.No.74/2012 dated 1.3.2016 convicting the accused for the offences punishable under Sections 376 and 366 IPC, and thereby sentencing him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.15,000/- for the offences under Section 376 IPC and in default of payment of fine, to undergo rigorous imprisonment for one year. The accused was to further undergo rigorous imprisonment for a period :3: of two years and to pay fine of Rs.2,000/- for the offence punishable under Section 366 IPC and in default he was to undergo rigorous imprisonment for three months. Both the sentences were to run concurrently.
2. Factual matrix of the prosecution case is as under:
On 25.03.2012, the accused is said to have kidnapped a minor girl, namely the daughter of the complainant from Rampura village at about 5.40 p.m. On abducting the minor girl, he is said to have carried her to a lonely place near a channel of the village and is said to have sexually assaulted the girl and thereby is said to have threatened her that he would kill her if she revealed the said incident to anyone. On filing of a complaint, a case in Crime No.101/2012 came to be registered under Sections 366A, 376 and 506 IPC. Subsequently, the Investigating Officer took up the case for investigation and investigated the case and laid up a charge sheet against the accused for the aforesaid offences. :4: The charge was framed by the Trial Court for the offences under Sections 366 and 376, wherein the accused did not plead guilty but claimed to be tried. Subsequently, in order to establish the guilt against the accused, the prosecution in all examined PW-1 to PW-15 and got marked Exhibits P-1 to P-17, apart from getting marked MO-1 to MO-15. Subsequently, the Trial Court recorded the incriminating statement as contemplated under Section 313 Cr.P.C. wherein the accused denied the said statement. He did not come forward to adduce any defence evidence but Exhibit D-1 was got marked for the defence. Subsequently, on hearing the arguments advanced by the prosecution and the defence counsel and on appreciating the entire evidence on record, the Trial Court convicted the accused under Sections 366 and 376 IPC sentenced him to undergo imprisonment as stated above. It is this judgment which is under challenge in this appeal.
3. Heard the learned counsel for the appellant and the learned HCGP for the State.
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4. On hearing the counsel, the point that would arise for consideration is, "Whether the judgment of conviction and order of sentence held by the Trial Court in S.C.No.74/2012 dated 1.3.2016 would call for interference?".
5. The learned counsel for the appellant / accused submits that the court below has gravely erred in convicting the appellant since the judgment is opposed to the facts, evidence on record and circumstances of the case. He submits that PW-2 the prosecutrix has clearly admitted in her evidence that she was tutored by her father i.e., PW-1 / the complainant, to give evidence in a particular manner, which creates serious doubt about the allegation that she was raped by the accused. PW-2 in her evidence, has further clarified that M.O.No.1 and 2 had been given by her parents to produce in the said case. However, the Forensic Science Lab Report revealed that semen stains were not detected on the cloths of the victim. Such being the case, there is a chance that the accused has been falsely implicated in the case.
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Further, he submits that the court below has gravely erred in convicting the appellant since there is no corroboration of the evidence of the prosecution witnesses with the medical evidence. In that, the medical evidence on examination of the prosecutrix and the appellant revealed that there were no signs of rape committed on her.
Further, the version of PW-2 and PW-3 to 5 are contrary and do not corroborate the incident and the statements of the witnesses and their evidence are contradictory and also there are a lot of omissions. Moreover, it is his submission that the witnesses were inimically disposed with the appellant / accused and all the witnesses are interested witnesses and closely related to each other, except official witnesses. Hence, their evidence is not free from doubt. Apart from that, the incident alleged to have occurred is nearby the village where there is frequent public movement. Hence on that count also the incident is doubted.
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Further, the evidence of the prosecutrix clearly shows no struggling, no hue and cry and no injuries on her body at the time of the alleged incident. All these facts clearly go to show that there was no such incident of rape. The evidence of the victim as well as the FSL report corroborates with each other to prove the fact that there was no rape committed on the victim.
It is the submission of the learned counsel that the court below has not applied its mind while appreciating the statements, evidence and documents on record and has wrongly convicted the appellant by giving erroneous finding, as none of the documents and evidence on record establishes a case against the appellant to implicate him and on the contrary, defence version clearly shows the innocence of the appellant and the fact that a false case has been foisted against the appellant at the instance of the persons who are ill-disposed towards the appellant. On all these grounds, the learned counsel for the appellant prays that the appeal be allowed and the :8: judgment passed by the Trial Court convicting the appellant be set aside.
6. On the other hand, learned HCGP for the State has supported the impugned judgment of conviction and sentence passed by the Trial Court and submits that the judgment needs no interference. He submits that the accused had abducted the victim aged 9 years on 25.03.2012 at about 5.40 p.m. at Rampura Village when she had gone to throw the cow dung to a storage bin kept there and was returning back. On abducting her, that he had carried her to a bush in a lonely place and had committed forcible sexual intercourse on the minor girl. Hence, the offence of rape needs to be viewed very seriously, since it has been committed on a minor girl aged about 9 years. It is only on the intervention of one Harish along with some people who happened to see the accused sexually abusing the victim, the appellant had stopped the act. It was then that both the accused and the victim had been taken to the Mandal Panchayath where people gathered and PW-1, the father of the victim was :9: summoned and the said incident was explained to him and it was then that he had lodged a complaint with the police. Moreover on the same day at about 9.30 p.m. the girl was subjected to medical examination too. Further, the medical examination revealed that there was injury / abrasion on right labia minoro and rupture of hymen inferiorly, presence of fresh blood stands including the fact that the perineum admitted little finger. Hence, the learned HCGP submits that the fact that the appellant had tried to commit rape on the minor girl cannot be disputed. Hence, he submits that the judgment of conviction and sentence passed by the Trial court is justified and hence the appeal be dismissed.
7. On hearing the learned counsel for the appellant as well as the learned HCGP for the State, I find that the following facts need to be taken into consideration in order to arrive at a conclusion whether the accused deserves acquittal.
PW-1, the father of the victim who is the author of the complaint at Exhibit P-1 had deposed to the effect that : 10 : his daughter was studying IV Standard in the year 2012 when the incident occurred. PW-1 has identified the accused as the person who committed the offence and it is his evidence that the accused was in the habit of committing several such offences including taking live band girls to Kanva IB and committing rape on those girls. He has further stated that on 25.03.2012 at about 5.40 p.m., he asked his daughter to throw the cow dung in the storage bin which was a few steps away from the house and that even after 15 minutes, she had not returned home. It is only thereafter that he received a phone call from one Harish calling him urgently to come near the Mandal Panchayath office. When he rushed there that he found his daughter, PW-3 to PW-5 and several persons assembled there. Then he came to know from his daughter the victim, that the accused had carried her away to a nearby bush and had bitten her chest and lips and thereby undressed himself and had committed forcible sexual intercourse on her when she was returning after throwing the cow dung in the bin. Immediately, he had lodged a complaint with the Channapatna police and : 11 : on the very same day the victim was also subjected to medical examination. The crime came to be registered in Cr.No.102/2012.
PW-2 the child victim has narrated the incident of rape committed by the accused on her on 25.03.2012 at about 5.45 p.m. Based upon her narration of the incident, PW-1 is said to have filed a complaint before PW- 13 who received the complaint and recorded an FIR. Law had been set in motion and thereafter PW-13 conducted a spot mahazar as per Exhibit P3 in the presence of PW-7 and PW-8 and the scene of crime had been shown by PW- 2 from where the chappals of the accused were also seized. MO-3 chappals were also identified by the victim to which she had also subscribed her signature along with PW-7 and PW-8.
The Trial Court, based upon the evidence of PW-1 to PW-5 and PW-9 and PW-15 the Doctors and PW-13 said to be the Investigating Officer who laid the charge sheet against the accused, convicted the accused under Sections 366 and 376 of the IPC. But, PW-6 to PW-8 and : 12 : PW-10 to PW-14 were formal witnesses such as official witnesses for the prosecution. PW-5 had issued birth certificate relating to the victim as per Exhibit P-4. That certificate evidences that the victim was born on 18.11.2002. Hence, regarding the age of the victim, it is not disputed that she was aged between 9 years and 10 years. Therefore, the evidence of PW-5 is said to be formal in nature for the prosecution.
PW-15 is the Doctor who examined the accused on the next date of the incident. The accused was brought by the police to the Government Hospital, Channapatana. The medical examination report Exhibit P-16 given by the Doctor revealed that the accused could perform sexual activity. But however, the final report was kept pending for want of FSL report. Exhibit P-5 is the medical report of the victim produced by the prosecution to establish the guilt of the accused that the accused had committed rape on the victim aged 9 years. The guilt of the accused requires to be established by the prosecution by placing cogent and corroborative evidence. But, the evidence of : 13 : PW-9 reveals that the accused had attempted to commit rape but had not succeeded in his act. Exhibit P-15 is the FSL report which has been issued by the Scientific Officer. He has opined that the examination of the material objects, namely the clothes and the sample obtained from the victim as well as the accused revealed that semen stains were not present on Item Nos.1 to 10, 12 and 13 which are marked as MO-12 and MO-13. But, there was no definite opinion about the accused having committed rape on the victim aged 9 years.
On a reading of the version of PW-3 to PW-5 who are eye-witnesses said to be set up by the prosecution that these persons had seen the incident said to have been committed on the girl. But, they have stated in their evidence specifically that they had been to attend the second nature call on 25.03.2012 at about 5.45 p.m. wherein they have heard the crying sound of a baby or a girl. But, they were not definite about the crying sound as to whether it was that of a baby or of a girl. This creates : 14 : doubt as to the theory put up by the prosecution in order to establish the guilt of the accused.
8. Further, the incident is said to have been committed in a public viewing place. PW-3 to 5 are said to be eye-witnesses. But, their evidence is contradictory to the evidence of PW-1 and 2 and so also evidence of PW-9 the Doctor who issued the certificate as per Exhibit P-5 and so also Exhibit P-16 wherein there were no external injuries on the person of the victim and there were no semen stains on the objects which have been seized by the I.O during the course of investigation and the same has been subjected to examination by the FSL experts.
9. On looking to the arguments advanced by the learned counsel for the appellant and so also the arguments equally advanced by the learned HCGP for the State relating to this impugned judgment of conviction and sentence held, I do not want to venture upon and discuss in detail the evidence of official witnesses on the part of the prosecution. The prosecution has established the guilt of the accused for offences under Sections 366 : 15 : and 376 of the IPC, mainly based upon the evidence of PW-1, 2, coupled with PW-3 to 5.
In this appeal, if the evidence of PW-9 the Doctor is taken into consideration, there were absolutely no external injuries found on the person of the victim PW-2 examined for the prosecution, to evidence the allegation that the accused had bitten her lips, cheek and chest. Therefore, it cannot be inferred that there were any injuries caused by the accused on the victim girl. Insofar as Section 366 of the IPC relating to kidnap of the girl, if the court has come to the conclusion that he has committed the said offence under Section 366 IPC, it is justified that he has been punished for a period of two years and sentenced to pay a fine of Rs.2,000/-. Therefore, it reveals that minimum punishment has been awarded by the Trial Court under Section 366 IPC.
However, the accused has already undergone the sentence for a period of 6 years 2 months and 12 days as per the submission made by the learned counsel during the course of his argument in support of the grounds : 16 : urged in this appeal to call for interference of the impugned judgment of conviction and sentence held against the accused. Therefore, in the circumstances of the case, in view of the involvement of the accused in having committed the offences under Section 376 IPC and so also the offences under Section 366 IPC and nature of punishment prescribed in the said offences, the said period of 6 years 2 months and 12 days undergone by the appellant can be treated as sentence awarded against the accused.
In the peculiar facts and circumstances of this case, the judgment of conviction deserves to be confirmed. However, the sentence passed by the Trial Court deserves to be modified for the aforesaid reasons and findings. In the result, I pass the following order:
The appeal is allowed in part. The judgment of conviction and sentence held by the Trial Court in S.C.No.74/2012 dated 1.3.2016 for the offences under Sections 366 and 376 IPC is hereby confirmed, but modified to the extent wherein the sentence of 6 years 2 : 17 : months and 12 days undergone by the accused shall be held as service of sentence. As the Trial Court has ordered the sentence to run concurrently, there is no need for the accused to be detained any further, as he has already undergone the service of sentence. Further, there is no need for the accused to pay the fine amount, as he has undergone the default sentence also.
Therefore, the office is directed to communicate the concerned jail authority to release the accused forthwith, if he is not required in any other case.
Sd/-
JUDGE KS