Karnataka High Court
Fakkirappa S/O. Madiwalappa Madar vs The State Of Karnataka on 23 February, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
CRIMINAL APPEAL NO. 2617/2012
BETWEEN:
FAKKIRAPPA S/O MADIWALAPA MADAR,
AGE: 24, OCCU: COOLIE, R/O KARADIGUDDA,
TQ AND DIST: DHARWAD (NOW HE IS IN
JUDICIAL CUSTODY CENTRAL JAIL, DHARWAD)
- APPELLANT
(BY SRI K.M. SHIRALLI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY DHARWAD RURAL P.S.
R/BY S.P.P.
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
- RESPONDENT
(BY SMT. VEENA HEGDE, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SEC. 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION DATED 09.01.2012, PASSED IN S.C. NO.
41/2011 BY THE PRL. DISTRICT AND SESSIONS JUDGE,
DHARWAD AND ACQUIT THE ACCUSED OF THE OFFENCE WITH
WHICH HE HAS BEEN CONVICTED AND SENTENCED & ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant/accused has called in question the judgment of conviction and sentence passed against him on 09.01.2012 in S.C. No. 41/2011 by the Principal District & Sessions Judge, Dharwad, for the offences punishable u/S 366 and 376 of IPC and sentencing him to undergo rigorous imprisonment for five years and to pay a fine of Rs.3,000/- with a default sentence of six months' imprisonment for the offence punishable u/S 366 of IPC and also sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.3,000/- with a default sentence of simple imprisonment for six months for the offence punishable u/S 376 of IPC.
2. The brief factual matrix that emanate from the records are that, the Police have registered a case against the accused for the offences punishable u/S 366 and 376 of IPC on the allegations made by the victim girl by lodging a complaint. It is stated in the complaint that the victim girl was studying in 3 her sister's house at Karadigudda village, the appellant often forcing her to love him, as she was reluctant to do so, he used to abuse her. On 19.11.2010 he threatened her with dire consequences of abducting her for the purpose of marrying her. It is also alleged that on that day, he forcibly took her in a bus to Dharwad and then he persuaded her that he would not leave her and he would forcibly marry her. By saying so, he took her to the house of one Tirukappa, (P.W.12) who is the close relative of the accused-appellant and there in his house he forcibly have had sexual intercourse with her. They stayed in the house of Tirukappa on that day and the next day also. Thereafter on 23.11.2010 they came back to Dharwad and then went to Kallapur to the house of one Mareppa Madar. There, the accused introduced the victim girl as his fiancée and they stayed there up to 25.11.2010 and thereafter they were detected by the Police and brought back to Karadigudda village.
On the above allegations the Police have investigated the matter and submitted a charge sheet. After committal, the 4 trial Court has secured the presence of the accused and framed charges against him for the offences punishable u/S 366 and 376 of IPC and tried the accused and ultimately convicted and sentenced the accused accordingly as noted supra.
The prosecution in order to prove the guilt of the accused, examined as many as 33 witnesses and got marked Ex.P.1 to Ex.P.38 and Ex.P.38(A) and also the material objects as per M.O.1 to M.O.4. Ex.D.1 is the reply to the statement of the accused recorded u/S 313 Cr.P.C. The trial Court after appreciating the oral and documentary evidence on record has come to the conclusion that the prosecution has proved the case against the accused beyond reasonable doubt for the offences charged against him and therefore convicted and sentenced the accused.
3. The learned counsel for the appellant has strenuously contended before this Court that the evidence of the prosecutrix has not been properly appreciated by the trial 5 Court which is shaky in nature. If the evidence of the prosecutrix is meticulously considered, it shows that there was free consent by the said girl to go along with the accused and for sexual activity with him. Therefore, no offence u/S 376 of IPC is constituted.
4. Though the learned counsel has submitted that there is some semblance of material to attract the offence u/S 366 of IPC but there is no ground to convict the accused for the offence u/S 376 of IPC. He further contends before this Court that the trial Court has not properly appreciated the medical evidence and as well as the evidence of the other witnesses, who have turned totally hostile to the case of the prosecution. There is no semblance of material with reference to any forcible sexual intercourse by the accused on the victim, even accepting the medical evidence as it is. Therefore, the judgment of conviction and sentence passed by the trial court for the offence u/S 376 of IPC is not sustainable and the same is liable to be set aside. 6
5. Per contra, the learned Government Pleader in support of the judgment of the trial Court submitted that the victim's evidence alone is sufficient to convict the accused for the offence u/S 376 of IPC and there is no need to search for any corroboration. Even in the cross-examination of the victim girl no much evidence has been elicited to totally discard the evidence of the prosecutrix. When the prosecutrix has stated that she has been ravished by the accused against her consent and will, it raises a presumption in favour of the prosecution that the accused has committed rape on her against her will and without her consent. The said presumption has to be rebutted by the accused-appellant by cogent and convincing evidence. Such evidence is not available in the course of cross-examination. Except total denial of the case of the prosecution, there is nothing on record to disbelieve the evidence of the prosecutrix. Therefore, she contends that judgment of the trial Court does not call for any interference at the hands of this Court. 7
6. Having heard the arguments as noted above, the point that would arise for consideration of this Court is:
Whether the appellant has made out any reasonable or substantial grounds to interfere with the judgment and sentence passed by the trial Court for the offences punishable under Section 366 and 376 of IPC?
7. Before adverting to the main evidence of the prosecutrix and the other evidence corroborating the evidence of the prosecutrix, it is just and necessary to have cursory reading of the evidence lead by the prosecution.
8. P.W.1 is the victim girl. She has supported the case. P.Ws.2 and 3 are the panchas to Ex.P.2; P.W.4 is the pancha to Ex.P.4; P.Ws.5 and 6 are panch witnesses to Exs.P5 and P6; P.Ws.7 and 8 are the panch witnesses to Ex.P.7; P.Ws.9 and P.W.18 are the panch witnesses to Ex.P.8, P.Ws.10 and P.W.11 are the panch witnesses to Ex.P.9. They all turned hostile to the case of the prosecution. Even the evidence of these witnesses are not so relevant to be taken note of. 8
9. P.W.12 who is the sister's husband of the accused, in whose house the victim and the accused stayed for two days and have had sexual intercourse in the said house. P.W.12 also turned hostile. P.W.13 is the sister of the accused, naturally she also turned hostile. P.Ws.14 to 18 who are all the witnesses who have stated about the whereabouts and movements of the victim. They also not supported the case of the prosecution and turned hostile. P.W.19 is the father of the victim girl, he supported the case of the prosecution. P.W.20 is the sister of the victim, with whom the victim was residing at the relevant point of time. She has supported the case. But her evidence is not so relevant because she never spoken anything about the accused.
10. P.W.21 is the person who gave the Uttar Copy of the house-Ex.P.17. P.W.22 is the Principal who gave information with regard to the date of birth of the victim. The date of birth of the victim and the age of the victim is not much disputed by the accused. Therefore, appreciation of evidence 9 of this witness is also of not relevant. P.Ws.23, 24 and 25 are the Police witnesses who have assisted the Investigating Officer by carrying the FIR and materials to the FSL and bring back the articles from the FSL. P.Ws.26 and 27 are the Doctors, who have examined the victim with reference to her physical examination and age estimation. P.W.28 is the person who apprehended the accused. P.W.29 is the Investigating Officer. P.W.30 is also a Doctor who deposed about the physical examination of the victim. P.W.31 is the person who carried the articles to the FSL. P.W.32 who registered the case and sent the FIR to the jurisdictional Magistrate. P.W.33 is the another Police Sub Inspector who registered a missing complaint at the earliest point of time and subsequently the same has been merged with the regular FIR registered in this case.
11. On overall looking into the evidence of the above said witnesses the evidence that requires to be considered by this 10 Court is that the evidence of the victim girl and her father and also the Doctors who have examined the victim.
12. Before adverting to ascertain whether the victim girl is a consenting party or not, it is just and necessary to look into whether there was any actual sexual activity taken place between the accused and the victim. It is in categorical terms, the victim has stated that the accused has taken her to the house of one Tirukappa, there the said Tirukappa has abused the accused, and thereafter the said Tirukappa and his wife went from the house. At that time the accused persuaded her that he loves her and he would marry her, and thereafter have had sex with her. Subsequently it is also stated that, at that particular point of time she was aged 17 years. The said version with reference to the sexual intercourse is not disturbed during the course of cross- examination. But it appears the same has been reaffirmed in the course of cross-examination as it was suggested that when she was travelling with the accused she did not scream 11 for help and also it is suggested that when the accused had sexual intercourse with her she did not sustain any pain, etc. Therefore, it goes to show that, the tenor of cross-examination was to bring down the sexual intercourse between the parties as one with consent but there is no specific stubborn denial with regard to accused and victim going together to several places.
13. Coupled with the above said evidence of the victim, the evidence of the Doctor-P.W.26 Dr. Balappa is also relevant. He has stated that, on 25.11.2010 he examined the victim. On her examination she gave the history of sexual act about six days back, she had changed her cloth couple days back and taken bath prior to her examination. After examining the victim in detail the Doctor has given opinion that there was nothing to suggest that she is incapable of performing sexual acts but no wounds or nail marks, etc. were present on the body of the victim.
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14. Dr. Sunil Kumar-P.W.27 has also examined this victim girl for age estimation and after thorough examination he gave opinion that she was aged 17 years and below 18 years. It shows that she was of consenting age under the unamended proviso under Section 375 of IPC. There is no much cross-examination so far as this opinion of the Doctor is concerned. One more Doctor examined in this line is Dr. Girija Tai G.H (P.W.30). She has deposed before the Court that on 25.11.2010 she has examined the victim girl. The patient was referred for examination of the genital organ. After examination the Doctor has given an opinion that though there was no external injuries but the hymen was not in tact and it was admitted two fingers. She further deposed that if a woman was subjected to sexual intercourse, takes bath and also washing the private part after the act, no stains would be found in the private part.
15. Though the Doctor has stated that there was no seminal stains on the private part but nevertheless the opinion 13 remains that hymen of the girl was not in tact. It shows that the victim girl had sexual intercourse earlier to her medical examination. The above said evidence clearly probabalises that, there was some sexual activity between the accused and the victim girl.
16. The father of the victim girl was examined as P.W.19. He also stated that, on the day of the incident the victim was aged 17 years. After the victim girl was detected he came to know from P.W.1-victim girl that the accused took her to several places and also had sexual intercourse with her. Therefore, he has received first hand information from the victim at the earliest point of time. Therefore, the evidence of this witness corroborates the evidence of the victim girl.
17. Now coming to the prime argument of the learned counsel that, the victim girl was a consenting party and therefore the offence u/S 376 of IPC is not attracted. In this background the evidence of the prosecutrix has to be meticulously looked into by the Court.
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18. P.W.1 in her evidence in categorical terms has stated that on 19.11.2010 at about 9.30 a.m. the accused has forced her to love him, he often use to force her to love him. On that day when she had been to the College when she came near Nanjundeshwar Temple while going back to the house after the College hours, the accused-appellant once again came there and caught hold her hand and told her to accompany him. He threatened her with dire consequences and thereafter took her to Dharwad and then they went to the house of one Tirukappa (P.W.12). There the said Tirukappa, who is no other than the sister's husband of the accused, has scolded the accused as to why he has brought that girl to his house. Then the accused told that he would like to marry the victim and thereafter the said Tirukappa and his wife had been to some other place to attend a programme. Taking advantage of the said situation, the accused forcibly dragged her and saying that he would like to marry her and he is fond of love upon her, by saying so, forcibly gagged the mouth of the girl and then removed the clothes and have had forcible 15 sexual intercourse with her in a partly constructed house situated in front of Tirukappa's house. Thereafter she started weeping due to the act of the accused. Thereafter the accused consoled her and gave some water and clothes to her. Thereafter he took her on 23.11.2010 to Kallapur in a bus and went to the house of one Mallappa Madar and there also he introduced her as his fiancéy and stayed in the said house up to 25.11.2010 and thereafter the Police detected him.
19. The examination-in-chief of the victim girl disclose that, at no point of time she gave any indication that she gave free consent even after persuasion by the accused that he would like to marry her and he fell in love with her. She also never told that she also fell in love with that man. But, it appears due to the force and threat given by the accused she might have succumbed to him because of her young age. In the course of cross-examination it is suggested that she crossed the age of 18 years but the said suggestion was denied. 16 Further, it is suggested that when the accused forcibly took her in a bus to Dharwad and other places she did not scream for any help. It is also elicited in the cross-examination that the accused threatened her with dire consequences of killing her by showing a knife to her. Though in the examination-in- chief it is not elicited but in the course of cross-examination the reason for her fear was not explained.
20. In the further cross-examination also it is only suggested that the accused has not at all committed any rape on her. But nothing has been suggested or indicated that she is a consenting party and she voluntarily accompanied the accused to have his company. Therefore, looking to the above said evidence of the prosecutirx though some material is available that she did not try to escape from the clutches of the accused or screamed for help but the fact remains that there was threat by the accused as stated by her. Therefore, even assuming that she was passive throughout for the act of the accused but that passiveness of the victim cannot be 17 taken as free consent to the accused to have sexual intercourse. What the law contemplates u/S 375 of IPC is that a free consent of the victim. If it is given then only it will not attract the offence u/S 376 of IPC. Therefore, I do not find any strong reasons to differ from the opinion of the learned trial judge in convicting the accused for the offences punishable u/S 366 and 376 of IPC.
21. On perusal of the entire materials on record, there is no proof given by the accused even by preponderance of probabilities that the victim girl was aged more than 18 years as on the date of the alleged offence. On the other hand, the material placed before the Court coupled with the evidence of the Doctors and the Principal-P.W.22, who has stated that, according to the documents of the victim girl recorded in the school Ex.P.18, her date of birth was 01.10.1993. Therefore, it shows that, as on the date of offence she was aged 17 years and not crossed the age of 18.
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22. Sec. 366 of IPC defines kidnapping, abducting or inducing the woman to compel her marriage. There is no age limit prescribed so far as this offence is concerned. What is to be established to prove this Section is; a person who kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse. In such an eventuality, irrespective of the age of the girl, the offence is attracted. As noted above, the intention of the accused in taking this victim girl is to force her to marry him and to seduce her. In fact, the prosecution has proved that the accused-appellant has actually seduced her. Therefore, there is no reason to deviate from the opinion expressed by the learned Sessions Judge in convicting and sentencing the appellant for the offences punishable u/S 366 and 376 of the IPC.
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23. Last but not the least, the learned counsel strenuously argued before this Court that the trial Court has not properly considered the provisions u/S 375 of IPC which empowers the Court to sentence the accused less than the minimum prescribed u/S 376 of IPC. As the offence is prior to the amendment to IPC, the old provision u/S 376 of IPC prevails.
24. The learned counsel further contends that the antecedents, age of the girl and the free movement of the victim girl with the accused though there was no consent, and also the future career of the accused have not been properly considered by the trial Court in sentencing the accused.
25. It is not disputed before this Court that the accused was arrested on 25.11.2010 and since then he has been in judicial custody. Therefore, he has already undergone sentence in prison for a period of six years two months and 28 days. Therefore, he contends, invoking the proviso to Sec. 376 of 20 IPC the period already undergone by the accused in prison may be treated as sentence u/S 376 of IPC.
26. In view of the above said submission made by the prosecution, I have given my anxious consideration so far as the observations made by the trial Court so far as passing of the sentence is concerned. In fact the trial Court has also considered the socital impact of the offences committed by the accused and sentencing policy and thereafter rejected the plea of the accused, to invoke the proviso to Sec. 376 of IPC. When the judgment was passed in the year 2012 the accused had hardly undergone a period of 1½ years in prison. But, now at present he has already served the major portion of the sentence passed by the trial Court. Therefore, the circumstances which were prevailing when the sentence passed by the trial Court is little bit different considering the present day situation. In this background the Court has to consider whether the appellate Court can invoke the proviso to Sec. 376 of the IPC.
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27. The accused, admittedly an young man aged 24 years. It appears he had two younger brothers who are studying in schools and he has got aged parents, i.e., father was aged 75 years and mother is 65 years and the entire family in fact relied upon this man's progress. Further added to that, as I have culled out in the evidence of the victim girl though there was no free consent by the victim girl for the sexual intercourse but nevertheless there is some semblance of material that she did not try to escape from the clutches of the accused, a doubt arises whether due to some affection towards the accused or due to any fear she has not tried to escape from the clutches of the accused, they were moving freely with each other.
28. As I have already expressed, moving freely with the accused and passive support does not amount to free consent, nevertheless the movement with the accused freely is a extenuating circumstance or a mitigating circumstance to lessen the punishment imposed upon the accused. 22 Considering the social status of the accused that there was no previous bad antecedents alleged against the accused, except this single unpleasant incident happened in his life no other unpleasant incident occurred and so far as his conduct is concerned, during the course of investigation or during the trial there was absolutely no allegation of hampering the investigation or tampering the prosecution witness. He was readily available to the trial. All these factors show that his conduct of infatuation made him to suffer all these days in prison.
29. Persons may commit mistake in their life but an opportunity should be given to correct themselves or mend their conduct. Therefore, though the provision u/S 376 of IPC imposes a minimum sentence of seven years but by means of giving special reasons the statute has given powers to the Court to reduce such sentence.
In view of the above, I am of the opinion, in order to bring back the accused to the main stream and to provide 23 him an opportunity to correct himself and to lead his remaining life in the society, the proviso to Sec. 376 of IPC is to be invoked by the Court and reduce the sentence to the extent of the period of punishment he has already undergone. In view of the above said reasoning, I proceed to pass the following order.
ORDER The judgment of conviction and sentence passed by the trial Court in S.C. No. 41/2011 dated 09.01.2012 is maintained. However, the sentence passed by the trial Court is modified to the following extent.
The accused-appellant is sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs.3,000/-. In default of payment of fine, he shall undergo simple imprisonment for two months and 28 days for the offence u/S 376 of IPC.
The sentence so far as offence u/S 366 of IPC is concerned, is not disturbed.
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As the appellant has already undergone the above said period of six years two months and 28 days, the appellant- accused is to be released forthwith, if he is not required in any other case.
Registry is hereby directed to issue direction to the concerned jail authorities to release the accused forthwith, if he is not required in any other case.
Sd/-
JUDGE bvv