Karnataka High Court
Mani @ Manikanta vs State Of Balehonnur Police on 28 August, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF AUGUST 2012
BEFORE
THE HON'BLE MR JUSTICE K. N. KESHAVANARAYANA
CRIMINAL APPEAL No.1107/2005 (C)
C/W
CRIMINAL APPEAL No.712/2005 (C)
In Crl.A.No.1107/05 (C)
BETWEEN:
1. Mani @ Manikanta,
S/o Murugesh,
Aged 20 years,
Occ: Coolie,
Residing at Church Road,
Balehonnur and native of Vellore,
Tamilnadu State.
2. Anwar,
S/o Eqbal Ahmed,
Aged 18 years,
Occ: Coolie & Electrician,
Residing at Kadlemakki,
B.Kanabur Village,
N.K.Pet Taluk. .....Appellants
(By Sri.C.N. Sangolli, Advocate)
In Crl.A.No.712/05 (C)
BETWEEN:
S.Umesh,
S/o Sanjeeva Poojari,
Aged 22 years,
2
Occ: Coolie,
R/at Near Sudarshan Talkies,
Balehonnur. .....Appellant
(By Sri.C.N.Sangolli, Advocate)
AND :
State of Balehonnur Police,
Represented by
State Public Prosecutor,
High Court of Karnataka,
Bangalore. ....Respondent
(Common in both appeals)
(By Sri.Rajesh Rai.K., HCGP)
Criminal Appeal Nos.1107/05 and 712/05 are filed
under Section 374 Cr.P.C by the advocate for the
appellant/s against the Judgment dated 19.3.2005 passed
by the Presiding Officer, Fast Track Court-I, Chikmagalur
in S.C.No.41/2004-convicting the appellants-accused
Nos.1, 2 and 3 for the offences punishable under Sections
341, 376 (g) and 506 Part-II read with Section 34 of IPC
and sentencing them to undergo S.I. for 1 month and to
pay fine of Rs.500/- each R.I. for 10 years and to pay fine
of Rs.2,000/- each and R.I. for 1 year and to pay a fine of
Rs.1,000/- each for the offences punishable under
Sections 341, 376 (g) and 506 part II of IPC respectively
and in default, to undergo S.I. for 1 week, R.I. for 2 years
and R.I., for 6 months respectively. All the substantive
sentences shall run concurrently, but the default
sentences shall run separately.
These Criminal Appeals coming for hearing on this
day, the court delivered the following:
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JUDGMENT
These two appeals are by the convicted accused persons in Sessions Case No.41/2004 before the Presiding Officer, Fast Track Court - I, Chikmagalur and are directed against the judgment of conviction and order of sentence dated 19.03.2005 passed in the said case, convicting them for the offences punishable under Sections 341, 376(2)(g) and 506 part 2 read with Section 34 of the Indian Penal Code (for short I.P.C.) and sentencing them to undergo imprisonment and also to pay fine.
2. The sole appellant in Criminal Appeal No.712/2005 was arraigned as accused No.3, while two appellants in Criminal Appeal No.1107/2005 have been arraigned as accused Nos.1 and 2.
3. The case of the prosecution in brief was that at about 05:00 p.m. on 19.11.2003 in Balehonnur Town, Chikmagalur District, in furtherance of their common intention, all the accused Nos.1 to 3, dragged P.W.7 who 4 was proceeding towards bus stand from the school, to the abandoned guesthouse nearby and committed gang rape and threatened the victim with injury to her life and also lives of her family members, if she disclosed the incident to anyone and thereby they have committed the aforesaid offences.
4. In the background, of the threatening and criminal intimidation by the accused, P.W.7 did not disclose this incident to her elders, but she was found to be under deep stress psychologically. Thereafter, she was periodically taken to Doctor and ultimately she was also examined by Psychiatrist - P.W.13 - Dr. K.R.Shridhar who on examination, found that she is suffering under trauma on account of some sexual act on her. Thereafter, on persuasion by her mother - P.W.1 Prema, the victim disclosed the act of gang rape committed on her by three appellants on 19.11.2003, while she was coming back to the house from the school. The disclosure was made on 26.01.2004. Immediately, thereafter, P.W.7 was taken to 5 Police Station, where she lodged a report about the incident and based on such report, Police registered the case and took up investigation. P.W.7 was subjected to medical examination, which revealed tearing of hymen. On the basis of this finding Doctor opined that the victim has been subjected to sexual act. During investigation, Investigating Officer visited the scene of occurrence, held sport mahazar, seized incriminating materials, apprehended the accused persons, recorded the statements of witnesses and on completion of investigation, laid the charge sheet for the offences punishable under Sections 341, 376(2)(g) and 506 Part 2 read with Section 34 of I.P.C.
5. On committal of the case, the appellants appeared before the learned Sessions Judge and pleaded not guilty for the charges levelled against them and claimed to be tried. In order to bring home the guilt of the accused persons for the charges levelled against them the prosecution examined P.Ws.1 to 13 and relied on 6 documentary evidence Ex.P-1 to Ex.P-18 as well as M.Os.1 to 17. During their examination under Section 313 of the Code of Criminal Procedure, the accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. By way of defence, the accused persons examined D.Ws.1 to 4 and relied on documentary evidence Ex.D-1 to Ex.D-11. The defence of the accused was one of the total denial and that of false implication. Their further defence was that D.W.1 - the younger sister of accused No.1 was working with P.W.2 - Bhaskara, the maternal uncle of the victim and there was a love affair between them and since D.W.1 demanded P.W.2 to marry her, he refused and removed her from the job and in connection with that she had filed a complaint and thereafter, P.W.2 promising to marry her made her to withdraw the complaint and thereafter, at his instance, a false complaint came to be filed through his niece P.W.7, though there was no such incident.
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6. After hearing both the sides and on assessment of oral and documentary evidence, the learned Sessions Judge, by the judgment under appeal held that the prosecution has proved the guilt of the accused for the charges levelled against them. The learned Sessions Judge found that the defence of the accused is neither probable nor acceptable. Hence, the defence plea was rejected, and the accused persons were convicted for the offences punishable under Sections 341, 376(2)(g) and 506 Part 2 read with Section 34 of I.P.C. After hearing the counsel for the accused, they were sentenced to undergo imprisonment for 10 years, which is the minimum sentence for the offence punishable under Section 376(2)(g) read with Section 34 of I.P.C., apart from sentence to undergo imprisonment for other offences and also to pay fine. During the trial of the case, the accused persons were in custody. Aggrieved by the said judgment of conviction and order of sentence, the accused persons presented these appeals. By order dated 30.01.2006, the 8 sentence of imprisonment ordered, came to be suspended and the appellants were admitted to bail.
7. I have heard the learned counsel appearing for the appellants and also the learned Government Pleader appearing for the respondent - State.
8. In the facts and circumstances of the case, the points that arise for my consideration are,-
i) Whether the learned Sessions Judge is justified in convicting the appellants for the offences punishable under Sections 341, 376(2)(g) and 506 Part-II of IPC?
ii) Whether the order of sentence calls for modification?
9. As noticed supra, according to the case of the prosecution, the alleged incident occurred on 19.11.2003, whereas the report about this incident was lodged on 26.01.2004 i.e., about little less than two months from the date of the incident alleged. Thus, there is some delay in lodging the report. It is now fairly well-settled that in 9 sexual offence cases, the delay should not be viewed seriously. Of course, delay in filing the report is required to be explained. Nevertheless in sexual offence cases, having regard to the nature of the offence and the great reluctance on the part of the victim or her parents in reporting the matter immediately, the delay in lodging the report by itself cannot be a ground to throw the case of the prosecution. In the case on hand, the victim-PW.7, who lodged the report about the incident on 26.01.2004 has explained the reason as to why the report was not immediately lodged and as to why she did not report the matter to her parents and other close relatives. According to the allegations made in the report marked as Ex.P.6, after the alleged act, the accused persons threatened her at knife-point with injury to her life if she disclosed the incident to any one or to the police. She was also threatened that if she informs the police or elders, they would kill her as also cause injury to the lives of her parents. According to her, on account of this threatening and criminal intimidation by the accused, fearing danger 10 to her life and also to the lives of her relatives, she did not disclose about the incident to any one nor ventured to file the complaint, instead she chose to suffer trauma by herself. The prosecution has also led evidence as to what was her condition from the date of the incident upto the date of lodging the report.
10. PWs.12 & 13 are the two Doctors, who appears to have examined and treated the victim during this period. According to the evidence of PW.1, the mother of the victim, on 19.11.2003 when the victim came home late, she was asked by her grand-father as to why she was late, for which, she replied stating that as there was dance practice for a programme on the next day, she was late to come home. It is the further say of PW.1 that when she questioned the victim as to why her clothes are so dirty, she replied saying that she had played Kabbaddy near the school. According to the evidence of PW.1, on that day, PW.7 was complaining head-ache and body-ache, for which, she gave her paracetamol tablet and even on the 11 following day, though she complained body-ache and head-ache, she attended the dance programme in the school. According to the evidence of PW.1, her daughter continued to complain head-ache even for about 15 to 20 days, therefore, she was taken to the Doctors for examination and the ophthalmologist, who examined her, prescribed glasses and in spite of the same, there was no improvement in her head-ache and ultimately, she was taken to PW.13-Dr.K.R. Shridhar, psychiatrist, who on evaluation of her condition, found that she is under great stress and she has not found a vent to air-out her feelings, and she has hidden something in her mind with regard to the acts relating to sexual activity. It is thereafter, PW.7 said to have disclosed to her mother about the incident. These circumstances clearly indicate the condition in which PW.7 was reeling. PWs.12 & 13 have not been seriously cross-examined, as such, there are no circumstances to doubt their evidence. The evidence of PWs. 12 & 13 coupled with the evidence of PW.1 establishes that after the incident, the victim was reeling 12 under psychiatric fear or fear psychosis and she was afraid of disclosing the incident and on account of this she was suffering from severe stress and ultimately on great persuasion, she was able to disclose the incident and thereby she was relieved from the stress. Having regard to the explanation offered in the complaint and also having regard to her mental and physical condition after the incident, the delay of about two months in lodging the report has been satisfactorily explained and the court below has rightly accepted the said explanation. I find no error in the court below accepting the explanation regarding the delay in lodging the first information report.
11. PW.7 in her oral evidence has stated that at the time of the incident she was studying in VII standard. PW.1-mother and PW.2- maternal uncle of the victim have also stated in their evidence that the victim was studying in VII standard. All of them have stated that the victim was aged about 14 to 15 years.
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12. PW.6-Vishwanath, the school teacher, who issued certificate regarding the age of the victim as per Ex.P.4 has stated that Ex.P.4 is issued on the basis of the admission register maintained in the school and as per the said certificate, the date of birth of the victim is 15.07.1991. Thus, the victim was shown to be aged between 12 to 13 years. There is no contra evidence to indicate that the victim was aged more than 12 to 13 years as on the date of alleged incident.
13. PW.7 in her oral evidence has stated that on 19.11.1993, she had dance practice for the next day programme and after completing the practice, she was walking towards the bus stand to board the bus to go to her village and on the way, she saw the three accused persons near a tree and immediately, Accused No.1, who was known to her as he was coming to her house for masonry work, dragged her while she was held by other two accused persons, to a nearby abandoned guest house and in a room inside the guest house, the accused 14 committed forcible sexual intercourse one after the other and at that time, one of them was pressing her mouth by hand and the other was keeping watch at the door by holding a knife in his hand. She has also stated that after the accused accomplished their act, threatened with dire consequences, if she discloses the incident to any one. Though the witness was subjected to grueling cross- examination, perusal of the cross-examination indicates that she has stood the test of cross-examination. There is nothing in the cross-examination, which would discredit her testimony. The only defence as noticed supra was that there was some difference of opinion between DW.1-sister of Accused No.1 and PW.2 and in that connection, the accused have been falsely implicated. However, except the suggestions, no acceptable evidence is placed by the accused to show that DW.1-the sister of Accused No.1 had lodged a complaint against PW.2 and she was made to withdraw the same. It is highly difficult to believe that PW.2 in order to save his skin would put the future of his niece at stake by filing false complaint alleging she has 15 been gangraped. It is now fairly well-settled that the evidence of the victim in sexual offence cases could be the sole basis for recording conviction and the evidence of the victim is not necessarily to be corroborated. However, it is also fairly well-settled that the evidence of the victim under all circumstances in spite of improbabilities and incongruity should be accepted. The test as held by the Apex Court in several decisions would be as to whether the testimony of the victim inspires confidence of the Court. In the case on hand, reading of the entire evidence of PW.7 as a whole, would indicate that she is a truthful witness and there was no reason for her to falsely implicate the accused persons. Her testimony inspires confidence of the Court. Absolutely no inconsistency or discrepancy have been brought-out in her evidence. Accused No.1 was a known person to the victim. The two other accused persons have been clearly identified by her at the time of incident and she has disclosed their names in the complaint. According to the victim, at the time of commission of the offence, she learnt the names of two 16 other accused, as they were being addressed by the others. Therefore, the identity of the accused as the perpetrators is clearly established. Therefore, the court below is justified in acting on the oral testimony of PW.7.
14. Having regard to the fact that the report about the incident was lodged nearly about two months and thereafter the medical examination of the victim at that stage, is of no consequence. Nevertheless, the medical evidence indicates that hymen was torn and therefore, the doctor has opined that the victim has been subjected to sexual act. This circumstance renders some amount of assurance to the evidence of PW.7about the act of forcible sexual intercourse. The defence evidence led by the accused in the form of DWs. 1 to 4 is of no assistance in establishing the defence plea.
15. Having regard to the facts and circumstances of the case and the nature of evidence available on record, in my opinion, the learned Sessions Judge is justified in holding the appellants guilty of the offences for which they 17 had been charged. The judgment under appeal does not suffer from any perversity or illegality. The findings recorded by the learned Sessions Judge are sound and reasonable regard being had to the evidence on record. Therefore, I find no ground to interfere with the well- reasoned judgment of the trial Court.
16. The offence under Section 376(2)(g) of IPC is punishable with minimum sentence of imprisonment for 10 years and also to pay fine. No doubt, the Court has discretion to award lesser sentence than the minimum sentence, but that can be resorted to for adequate and special reasons to be mentioned in the judgment. Having regard to the fact that the appellants committed gang- rape on a girl aged about 12 to 13 years and also threatened her with injuries to her life, I am of the opinion that the learned Sessions Judge is justified in not exercising the discretion to award sentence of imprisonment less than the minimum sentence prescribed under the statute. I find no special reasons for exercising 18 the discretion. Therefore, I am of the opinion that the order regarding sentence passed by the trial Court does not warrant any modification.
17. In the light of the discussions made above, the appeals lack merit, hence, the appeals are dismissed.
The bail and surety bonds executed by the accused are ordered to be cancelled. The appellants, who are on bail, are directed to surrender before the trial Court forthwith and upon such surrender, they shall be committed to the prison to serve the sentence. In case of failure to surrender, the Sessions Court shall take necessary steps to secure their presence and to commit them to prison.
SD/-
JUDGE Rsh/KGR*