Karnataka High Court
F Nataraja vs The State By Hiriyur Police on 9 November, 2009
Equivalent citations: 2010 CRI. L. J. 2180, 2010 (2) AIR KANT HCR 293, 2010 (2) AIR KAR R 293, (2010) 4 ALLCRILR 58
IN THE HIGH COURT or KARNATM{A AT BANGALORE
DATED THIS THE 9TH DAY or NOVEMBER 2009
BEFORE T T
THE HONBLE MRJUSTECE ARALI NAG;"%RAtI'y:'". ' i-
CRIMINAL APPEAL No.o.»1.5?6/266?' C "
BETWEEN: ' V"
F.Nataraja
S/0 Eshwarappa
Aged about 22 years
Adi Karnataka by Caste .
Teacher Om Sri.Swamy
Vivekananda Vidya Peetha
Harishchandra Ghatt _
Hiriyur--572 1z_L3«.-._ Z. *~..'_jAi>PI:;LLANT
(By '
AND: **** . V d d
The Stateby "
By its Statefublie Proseou t{_)r" "
High Court Building
Bangaioreg 1. 'V
. . RESPONDENT
HCGP) Appeal is fiied under Section 374(2) of cr'.P.C; 'againust the judgment dt.21/24.9.2007 in S.C.N.o.75v/2006 on the file of the Prl.S.J., Chitradurga. flconvictirigthe appe1lant/ accused for the offence p/1,1/s.376{1} of
--« IPC, and sentencing him to undergo R1. for five years and to pay A fine 'i0f.'Rs.1,000/-- for the offence p/u/s.3'76{1} EPC in default to y fine, he shall undergo SI. for three months.
This Appeal coming on for Dictating Judgment this day, "the Court made the following:
w 2- JUBGMENT The accused in Sessions Case No.75/2006 on the file of learned Principal Sessions Judge, Chitradurga [hereinafter referred to as the 'Trial Court' for short] has challenged in this appeal the correctness of the Judgment and Order of conviction case convicting him for the offence under Section: is g thereby sentencing him to undergo forsaflpleriodl of 'fiV'eoA__yeaars and also to pay fine of Rs.1,OOVO'/.~_ default sentence bf for a further period of three months... _
2. Stated in brief, thezfcase: ofi--the" prosecution as alleged in Ex.P1 eorr1'p'lain.t'idatlei:i "15';'1gI;100l3"filed by PW1 prosecutrix is as under:
(8)
'l"he vpros_ect1t'rix,~~'l' via, Ku.m.Renuka, daughter of i if Lakslhmana, aged about 14 years has been studying in' x8"? standard in Swamy Vivekananda School at " .V__Al3accused while studying in said school. (bl Town, District Chitradurga. The accused V ' 'r\§ataraj has been a teacher in the said school. The " proseeutrix had been in friendly terms with the This was opposed by her mother (PW 3 Smtliramma).
The prosecutrix fell in love with the accused teacher. She expressed the same before him. To that, he told her that she, being still minor, should mWw#w concentrate on her studies. Then the prosecutrix threatened the accused teacher that. if he did not consent to marry her, she would die. in Viewof this threat, he consented to marry her.
The affairs between the prosecutrix arid' continued for a period of three rneJr1ths--:Eprior"to the said complaint]. The prolsecutrizg h._eard'--her3pare,nt1s talking about her rnarriagehiirith Therefore, she pre»ssi3rizedA"'the V that he' should marry her. Shefuirrher threatened him that if he were r1ot'ilto__agrele to irninediately she would die. 'Iherefo1*.e,l¥"thejaccused agreed to flee from Hiriyur iétlotigwith'.the".'prosecutrix. 'prosectztrix and the accused tlifat. they'--.shoii'Edtt--1eave the town on the early Hiorniizgie-o'l't2l6:_lT0;20(33. Accordingly they together leftyHiriyur.'toyifn__lat"about 3 am. on 26.10.2003 and relachedylfiangalore. After they reached Bangalore, "the a'ccuVs_e_d. took her to Nallur village near flywlhitefield and they stayed there in a house. The
- brought one ready made Mangalya [thaali] it We} lanfciltied it to the prosecutrix at about 3 p.m. on that date in the said house and thus they married he ' "with each other.
From next day onwards the accused used to visit the factories situate around the said Village in search of another job for him. On 15.11.2003 at <:,,,,,______§"'~v"-...»--»-
about 12.15 13.111. the Police of Hiriyur P.S. came to the said house and brought the accused and aiso the prosecutfix together to Hiriyur Poiice Station by about 5.30 pm. on the same day. the period from 25.10.2003 to 15..'1'i.2003.." .t_he". prosecutrix and the accused together In"a.ri'taI life " . as married couple. g.Dur_iAn'ggV intercourse also took 13i:a(a:e1.*--_fi They_--. did 2 aii1"~+.1E:ar_ without any other's"as"sistane'e. V' .
3. Before the proseeutrix said EX.Pl on 15.11.2003, her father'<--..\../*ii'z,. had filed Ex.P2 complaint on 26.l0..2003:,-Evdiiehdate mentioned in I:x.P2 as 25. i..'0.2::0013;.,§*:ating th4a.t--.V0d0:u1ring the night between 25 and daughte1* (prosecutrix) went out of his housde. return till 11.45 am. on 26.10.2003 aandu"th.ereforeV,"""she should be traced out. On '"'1.1A.1 PW2 Lakshrxian gave his another complaint before 13.8. stating that his daughter was found si1_i¢é.i':_;:.§L1-iy morning of 26.10.2003 and he couid not 'find her despite his efforts and therefore. he suspected that the I a¢:*.used.' Nataraj. who was working as a teacher in Swamy __ 'dfiveiiananda Schooi where the proseeutrix was studying. might it " kidnapped her.
(______§""n---~.._......
4. On appreciation of the oral evidence of PWs 1 to 14, the documents at Exs.P1 to P16, M.Os.l and 2 and Ex.D1, a portion of statement of PW3, the Trial Court, by its impugned_;.Ju'dg1nent and Order, found the accused guilty of the Section 376 IPC and convicted and sentenced him .a:cco'rdingly;.l'
5. I have heard the arguments o'fe_.lS.'S'17ivapras:ad. learned Counsel for the appelllantlll 5 Sri.\/ijayakumar Majage, lea1'nedi«1i~iigh to Government Pleader and perused and Order of conviction and sentence found in the original 'th"el..i_ea._rr_1ed Counsel for the appellant »- accused, strongly the Trial Court committed seriouserror in recording its finding that the prosecution proved ttitsocase the accused for the offence under Section 376 'EPCV ._i.r1a'cr_nuci1lV 'a..Sl._}~ the evidence of PW} prosecutrix as to the accused committing sexual intercourse on her could not have ~ 'been relied? upon in View of the medical evidence that the hymen 1:he4'_prosecutriX was found intact and there was no further ,.__lVt:lmaterial to Show that she was subjected to sexual intercourse uifby the accused. He further contended that the very factum of C_."..§M\V"-----~----»-s.--~ coming into existence of EXP} complaint as narrated by PW} prosecutrix has not been proved by the prosecution inasmuch as the Woman Police Constable, who is said to have..re_corded the said complaint -- statement, has not been exiam'i*n@:jol_ witness for the prosecution and the PWI prosec'u»trix.,herself' has.. stated in her evidence that she does__11ofr...klnou\'«"s,r» the said complaint ~ statement.as_ the s:«_1m'e were read overs. and explained to her. While subl_rniitti11gVso,V llthelliievariied Counsel for the appellant -- accused the very facturn of the accused from Hiriyur town to Banga1org*..L4f;'1d lNa11ur during the period from "has not been proved by the prosecutio1i7'o--eyoi'id reasonab_";e doubt and therefore, there could be no 'occasion. i*or"-the accused to commit any sexual intercourse on the girl.
" . contra. thefllearned High Court Government Pleader st--rongly' conteiided' that the evidence of prosecutrix as to the accused conimttting sexual intercourse on her with her consent been-clearly spoken to by the prosecutrix and admittedly it ytlie'vp_ro.-secutrix was below 16 years and therefore, the Trial ,, did not commit any error in convicting the accused for the ~ , loffence under Section 376 KPC. He further contended that, in all tr-»----«-'7""""""-"*""'-'........,..._. cases of sexual intercourse, the hymen of the victim need not be torn and therefore, simply because the hymen of PW1 girl was found intact, it could not be said that there was no intercourse committed by the accused on the prosecutrix as statvedibgr the prosecutrix in her evidence. He contended furtl*1er'_¢'Vth_atI' _,_t}1».¢ impugned Judgment and Order of conviction d'oes_ not call for any interference in this apzhlpealig ' 3
8. As could be seen f1'01'I1»'th_{3 aveiments in EXP} said to have been filed byvlvléthe' yroselcutrixi itjis her say that she herself fell ll1:Jl0V€ t_he:"'accused," when she communicated the same to she was still a minor andl'tl:--erefore',:f:l;she'--should"'conceritrate her mind on her studies. but; since "threatened him that if he were not agreed to her', iN'Q.iild die", he agreed to marry her and r.therefore,: sugge'sted__by herself, he took her to Bangalore and t0gel--tVher"s_taay_ed in a house at Nallur village near Whitefield period. they married and led marital life as
-- married couple.
9; However, the evidence in examination--in--chief of the viprosecutrix as PW} is inconsistent with the above averments in .. ifthe complaint Ex.Pl. She has stated in her evidence that on the ....i.c*"*--~' early morning of 26.10.2003 when she came out of her house to ease herself, the accused met her and forcibly took her to Bangalore saying that he was loving her and he would look after her properly by marrying her and made her to stay in tliehouse of his aunt viz., Kaveramnia for about 20 days andlduring the said period, they led marital life as married thereafter the Police of Hiriyur Police' "Station..Aca;m:e"'to said house and brought them together deposed in her examination--in§chief._ythat she any' complaint before the Police an.d"'she-- does not"ls:noi>v what is written in EXP} complaint as'tl1eVfsame'=.i_rere" not read over and explained to her.
i{)f:_'I'i*iis 'pros'e'eutri)§=..h'as been cross--exarnined by the learned Publlic_pbbProsle-cutorvaiter getting her treated hostile. in .---.her c'r'oss--_fe2iamina'tion,_Hshe has admitted that next day, after '~£:ame"1;.o<.._Bangalore, the accused brought a ready made and tied it to her neck and thus they got gmarried. themselves and the intercourse took place between ll lllpplaerselfp and the accused. But she has categorically denied the ._fsuggestion that the averments made in Ex.P1 complaint are true correct and EXP} complaint came to be written at her instance.
.:..__£'"""""'"-W"
Lakshman. the father of the prosecutrix. has not stated in his evidence that, after the prosecutrix was brought from thehouse of Smt.Kaveramma along with the accused, she 1ia1'1'atedf"-before him as to she marrying the accused and staying ¥.yi'th married wife. during the said period in~t_h._e Sa'id"hoL¥Tse at ' _ 2 Viliage. Though he has stated in e2Zarn:i'_natVion=~in'4ehiet':ti?.atVhe filed his conipiaint as per Ex.F'}3_."'he has t_.}?1at he' does not know its contents.
13. PW3 S1nt.Erani1na."thtetiv the prosecutrix has simply stat.ec'-Lyiyn. that, when she enquired V"5:"if].eV:".(:fiiS.;,;1OS€§ that the accused kidnapped"and:':4;ooi;:fher from Hiriyur to Bangalore and there,' he and then committed rape on her. dc:-lea: the evidence of PWS 2 and 3, the ¢_pare_n'ts of' the pro'se.e__1_;trix besides being inconsistent. does not V"__:in;Va'ny way"est«a_'oiish that the proseeutrix was subiected to se'2:tiati'inte'rf(,::31i::=;se at any time during the said period by the 'V aeeused.V"'v.aF1irth.er, the oral evidence of PW5. the Lady Medieai ':'{)t'fiee4r and the contents of 1324.97, the certificate issued by her .yty'_.a:I'so»'does not establish that there was intercourse with the " it prtoseeutrix in the recent past.
*""-"'""""'"\_.....i....
14. in support of his contention that the hymen being intact need not necessarily lead to an inference that there was no sexual intercourse committed by the accused."'ong..V'the prosecutrix, the learned Government Pleade:-fr' reliance on the decision of the Hon'.ble Stiprernell'Conrtin. the' case of MADAN GOPAL KAKKAD ;"%--~¢vsi:'_A_A lN}&Vi4I._:° ANOTHER reported in (1992) 3 scc--..2o4. "in the svaidccase "before ' the Hon'ble Supreme Court, about 8 years and she was allegedto.haye{.gbVeenfvra})e,d by the accused, the medical evidence hymen of the girl was found j}i'd'i£:ia1 confession made by the accused._a's.u facts, it was observed that, agreed with the High Court that the made by the respondent --
E1CCllS€(Tj~,, which .,was5 not shown to have been obtained by 'c'oerc'iori', i..proI'n;ise of Vflfayour or false hope etc., and the said co_n'fess1on"«waslh'made by the accused In the presence of a body of persons _oni'two occasions and therefore, the said confession 'was aniplyicorroborated by the evidence of the Victim, whose _ testin1o'ny in turn was corroborated by as many as five ___"pros;ecution witnesses and also the medical evidence. Therefore, it"! am of the considered View that the facts in the said case before g_..,§7'""-"'-"'"""
the Horfble Supreme Court cannot be equated with the facts in the instant. Case and hence the observations of Hoifble Supreme Court. in the said case cannot be applied to the instant .;:age..
15. Learned High Court Government. Pleaderi placed reliance on the decision of the £}on1bay.'H1gh: '_Court"in the' . case of THE STATE or MA1=L1RAs.§ITp_.A j?--usu_.'sAVA1;3t-e...__s2:Gi KOKARE AND ANOTHER reported iii'V..;é.a7 7:}'86Vl support of his contention that evenii the fotgznd intact, there could be sexual intercpourtsxe. Wasdfound by the Bombay High Court in the said ivvstatement of the prosecu'trix as to t'r;-1¢.<-.i- coni--miss'io11"of_ forcible intercourse on her by the acc'1i'sed:'was "¢:;)'i*roboVi"a'ted"by' the circumstances that the torn blouse: and_ b'l'ood~stai11ed underwear were seized and abrasions were found oi;_the~7back of the prosecutrix. Therefore,
-- the C2'o1.1_fLhe1d that. though the hymen was intact, V':there'~couldihe..p'enetration of the private part of the accused into thatpiihof' the."."ppro.s'ecutrix at least to some extent since the
--cornplete ""se>"<'tta1 intercourse is not the requirement of the 4'ie.ffe:1cee under' Section 376 of WC. In the instant case. it is the ._jca's.e"ot': the prosecution that the prosecutrix and the accused flhad sexual intercourse on several occasions during the said i it period. but it is not the case of a stray incident. of forcible sexual ,.....:;"""'"'"°-»«..__'_,, intercourse on the girl, which could be an incomplete one. Further. as could be seen from the evidence of PW5, the Lady Medical Officer. who examined the prosecutrix with aWhist'0.ry of rape on her, it is not elicited as to what was thenatuti~e._:oif;the hymen that was found intact in the person Though it may be true that rupture of hyrnen 'not. all the cases of sexual intercourse, the'*--prosecution.has to elicitg from the Medical Officer exarnining the" p'rose'cL1.tr:i2( with a history of rape that the hafihen i_:Vas_ of jsuclia natiirefias, it could remain intact despite there with the girl on several occasionswtthin period of days.
l6.~"i;earns:fd jfor"t'he"V:appellant W accused has relied up'o_n"a High Court in the case of VISHNU S/o'P4i1LMEsHtafAR..:_'i'AnAV AND OTHERS --~vs-- STATE OF ._1imHA£:g1sHTRA r.e'p--ortj_ee1_:n 1997 CRI.L.J. 1724. The prosecutrix the saidcase was aged about 11 years and there was no ei}tden(:e"onl_"_v~record to corroborate the say of the prosecutrix. .Furth."er, "{he"hynie1i of the prosecutrix was found intact. On i,hes.e_fae'i's, the Bombay High Court held the medical evidence that the hymen was found intact and there were no signs of tpexternal injuries on any part of the body of the prosecutrix c________§"""'-"x...-...
suggest that, there could be no sexual intercourse with the prosecutrix.
17. Though it is settled principle that therej"co_'uld~VVbe conviction of the accused for the offence under solely on the basis of the uncorroborated the prosecutrix. her testimony should not suffer with'~ari3r and it should conclusively sugg-éstthe se:-zual inte_rcou.r_se on her V ' by the accused with or without hlenconsent; regard to the age of the prosecutrix.-..'..}'idni_itted.iy"thezprosecutrix herein is less than 14 years of age. _.'Iherei'ore,:._her'.conse'nt could be of no relevance if there be seirualf iIf1terc'o'urse with her by the accused. w'On-.ca:xjeiul*fi.;readi.ng of t'heaverrnents in Ex.Pl, which is said to"'.haife lbyhthe Woman Police Constable, as nar1*atedfbyVh theft pro'secu{§rix herself, it could be seen that
--v..thougl1~i,she'{p1'osec"ut.r'i:y:).is said to have stated that herself and VK_tVhe_ac.cused.ied" marital life as married couple and there was ¥;Xfi'!vhA'T:hVer by him, she has not stated as to when she was subjected to such intercourse for the first time and on how "inai;ye..occa'sions she was subjected to same. As could be seen .'_«further;A' from the averrnents in EXP}, it is clear that the prosecutrix herself fell in love with the accused and she went to f if «the extent of threatening him that if he were not to love and €* marry her, she would die. 'I'herei"ore. it is clear that she Wanted to rnarr_V him at any cost, even without. the consentfiof her parents. It could be seen further from the averrnentsi'1ifl'Eii:P1 that since her parents were thinking of giving her--'.tiri some other person. she cornmunicatedthe «same to" accused V and compelled him to take her front-¢her_' house _:ar3.d her. Therefore, having regard to.t'}"Iis conductiof:the':._ijrose'cutriX" V and ail other circumstances of tVhe:'cas'e.._VL'thel p'ossibility of she stating falseiy that therg intercourse between herself and the accused agree to give her in marriage iberuled out. She has also admitted in on behalf of the accused when the accused had come to the Trial Cl3lo:.V1_i't parents had requested the accused to A ll t' from the averments in the said lja..Esl.o the evidence of PW] prosecutrix, her 2 evidence is ~ tettallly inconsistent with the said averments. ~ V«3.:':v'-%Th€I'€f0I"€; tan} of the opinion that the evidence of prosecutrix '--.coili_idl_bnlo.t have been relied upon by the Trial Court as to the
--..occui'renee of sexual intercourse with her by the accused. In €*~0a§' ~¥(1- this View of the matter, the accused deserves to be acquitted of the oiience under Section 376 IPC.
19. Learned High Court Government Pleader _i'1a_ the alternative, that if this Court holds that.t'ri4e=.pVro:secution.t5.. failed to prove that there was sexual iz1terc_ou_1'seA'3;3e4tw'een,tpfie accused and the prosecutrix, the iacts'---that arepeproved a;ggaii1st"'e. the accused, constitute an ofter1ce"ioi""kidnappinghy the accused inasmuch as. the girl was': Lia/,;i.used \W',1§i~'0ut of the lawful guardianship of her he deserves to be convicted tor. joffeiieiceg i363 IPC. In this respect. he fh:."thei'~-- charge is not framed against the Section 363 IPC, since the said oi'fen'ce "minor offence" as compared to the oiferlcsj J¢i_nd.erV'Sec'tion$76 IPC, the accused shall have to be convicted for 1:hG.._5..§id offence invoking the provisions of 'V'SaeC€:ViVQ._nu 2222 'en tie A Se-et:io,ntV222{2} C1-.P.C. provides that, when a person is .;charged with an oiience and facts proved, reduce it to a minor «._o"fifee.c_e';""he may be convicted of the minor offence, although he not charged with it. As to the expression "minor offence", it be relevant to refer to the decision of the Horfbie w Supreme Court in the case of SHAMNSAHEB M.MULTTANI «vs- STATE OF KARNATAKA reported in AIR 2001 SC 921 Head Note- F and para Nos. 16 & I 7. Head Note?' reads as under:
{F} Criminal Procedure Code, 19723 M s e°.2(2)_' 41: "
"Minor offence" -- Meaning -- Where main ing:redients--i * of two cognate offences are common, one _ptinis'h_able with lesser sentence can be said torbe n1ino'r'Q,{i"ent'eV'4.. Ingredients of S.304~B IPC being difr'erent_frorn those' of 8.302 PC. theformer cannot"-be regarded miitbrg 1;' offence -- Words and Phrases 7--__ "Minor ojt"ence" '+5 mt€VP7'e1at?i0T1 Qf Statutes ~'4IJ1t_ernal'~ai(:i3; A :
Furth.er, paras 16 and 17 read as_u'nder;_» Para 1 6: isitmeant by rninofr offence " for the purpose of_Seeiion..2'22' of the Code?"Although the said expression_'=--is""'nQtb defined"g_in».r the Code it can be discerned jnim the. context that the test of minor offence -is "not rrt~;:relg--.that the 'prescribed punishment is less thtanflfzerg major tgffence. The two illustrations pro'v_ided in thrbegsectiotn would bring the above point home .__well. =._Onl'y the two offences are cognate offences... wherein*.rth'e,5main ingredients are common, the one punishableamong them with a lesser sentence "can be regardedwas minor ojjence vis--a-vis the other V Par_a;.._1 *7: 'ifhle composition of the offence under Section
-A '--.3'O4-B.7_"t.P;gC. is vastly different from the formation of
-the Gfteriee of murder under Section 302, I.P.C. and T hence the former cannot be regarded as minor offence . vis-.a_-vis latter. However. the position. would be u " <».di[ferent: when the charge also contains the offence under Section 498-A, I.P.C. [Husband or relative of ' husband ofa women subjecting her to cruelty). As the word "cruelty" is explained as including inter alia "harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or ( valuable security or is on account offatmre by her or any person related to her to meet such demand."
2.}. Following the above observations of the V.l<I_on'ble Supreme Cotirt in the said case, l am of the considered opiflion that the offence under Section 363 IPC and Section 376 IPC cannot be held to__l:3efcogxiatei"cft'e1li£:esf_andu' therefore, the accused herein cannot be convicted f'o1f'the~voffeilce under Section 363 IPC in the ahsence oi'-chargeh9atnc--d..agains't.it him for the said offence. V__Besides___tlhis_, no placed on record by the prosecution'tlchlfough of any of the witnesses exarnined kidnapped the prosecutrix who filed the complaint he suspected that the accused might haxte has turned hostile and has staé;ed_iii hlisi-evidencle that he does not know the contents of S§1;;;_1?3"coni'plaint. Thetelore, the accused cannot be alternatively the.o.t~i"ence under Section 363 IPC as submitted by the learned Go};-'ern1nent Pleader.
22.v.V__'l'he learned High Court Government Pleader also lcontencled that even if the offence under Section 3'76 IPC is held
--..lVl:not51nade out against the accused, he can be Convicted for the . Doffence under Section 354 IPC. Suffice it to say that this ,.,..m..:;""""'*'-~*