Karnataka High Court
Prabhakar vs State Of Karnataka on 30 August, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.846/2011
C/W
CRIMINAL APPEAL No.675/2011
AND
CRIMINAL APPEAL No.730/2011
IN CRL.A No.846/2011:
BETWEEN:
PRABHAKAR
S/O LATE BASAVAIAH
AGED ABOUT 50 YEARS
RESIDENT OF No.53
2ND CROSS, 28TH MAIN
B.T.M.LAYOUT
BENGALURU. ... APPELLANT
(BY SRI DINESHKUMAR K RAO, ADVOCATE)
AND:
STATE OF KARNATAKA
BY MAHILA POLICE STATION, MYSORE
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 009. ...RESPONDENT
(BY SRI K P YOGANNA, HCGP)
2
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE
THE ORDER DATED 29.6.2011 PASSED BY THE IV
ADDITIONAL SESSIONS JUDGE, MYSORE IN
S.C.No.227/2007-CONVICTING THE APPELLANT/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 366, 417, 120(B) READ WITH 149 OF IPC.
AND THE APPELLANY/ACCUSED SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR 10 YEARS
AND FINE OF Rs.5,000/- FOR THE OFFENCE
PUNISHABLE UNDER SECTION 366 READ WITH 149
OF IPC. IN DEFAULT OF PAYMENT OF FINE, HE
SHALL UNDERGO SIMPLE IMPRISONMENT FOR
FURTHER PERIOD OF THREE MONTHS. AND THE
APPELLANT/ACCUSED IS FURTHER SENTENCED TO
PAY FINE OF Rs.2,000/- FOR THE OFFENCE
PUNISHABLE UNDER SECTION 417 READ WITH 149
OF IPC. IN DEFAULT TO UNDERGO SIMPLE
IMPRISONMENT FOR 10 DAYS AND THE
APPELLANT/ACCUSED IS SENTENCED TO PAY FINE
OF Rs.2,000/- FOR THE OFFENCE PUNISHABLE
UNDER SECTION 120(B) IPC. IN DEFAULT OF
PAYMENT OF FINE, HE SHALL UNDERGO SIMPLE
IMPRISONMENT FOR FURTHER PERIOD OF 10 DAYS.
AND THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO SIMPLE IMPRISONMENT FOR 10 YEARS
AND TO PAY FINE OF Rs.5,000/- FOR THE OFFENCE
PUNISHABLE UNDER SECTION 376 OF IPC. IN
DEFAULT OF PAYMENT OF FINE, HE SHALL
UNDERGO SIMPLE IMPRISONMENT FOR 3 MONTHS.
THE SUBSTANTIAL SENTENCE OF IMPRISONMENT
SHOULD RUN CONCURRENTLY.
IN CRL.A No.675/2011:
BETWEEN:
1. GOWRAMMA
3
W/O LATE SIDDAIAH
AGED ABOUT 56 YEARS
DOOR No.53, 1ST CROSS
20TH MAIN, BTM LAYOUT
BANGALORE.
2. RAJESHWARI
W/O SHIVALINGAIAH
AGED ABOUT 52 YERS
DOOR No.817, 2ND STAGE
7TH BLOCK, NEAR KALAVATHI
KALYANA MANTAP
NAGARABAVI ROAD
BANGALORE.
3. RAMAKRISHNA
S/O LATE A R BASAVAIAH
AGED ABOUT 46 YEARS
OCC: D GROUP WORKER
VIDHANA SOUDHA
BANGALORE.
4. SOMASHEKAR
S/O GURUMALLAIAH
AGED ABOUT 49 YEARS
DOOR No.1953, 7TH CROSS
MARUTHI TENT ROAD
NEAR RAMANJANEYA TEMPLE
T K LAYOUT, JANATHA NAGARA
MYSORE.
5. SMT.NAJUNDAMMANNI
W/O SOMASHEKAR
AGED ABOUT 36 YEARS
DOOR No.1953, 7TH CROSS
MARUTHI TENT ROAD
NEAR RAMANJANEYA TEMPLE
T K LAYOUT, JANATHA NAGARA
MYSORE. ...APPELLANTS
4
(BY SRI C H JADHAV, SENIOR ADVOCATE FOR
SRI K A CHANDRASHEKAR, ADVOCATE
FOR 1, 4 & 5
SRI P B UMESH, ADVOCATE FOR 2 & 3)
AND:
THE STATE OF KARNATAKA
BY THE POLICE OF
MAHILA POLICE STATION
MYSORE. ...RESPONDENT
(BY SRI K.P.YOGANNA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE
THE ORDER DATED 29.6.2011 PASSED BY THE IV
ADDITIONAL SESSIONS JUDGE, MYSORE IN
S.C.No.227/2007-CONVICTING THE APPELLANTS/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 366, 417, 120(B) READ WITH 149 OF IPC.
AND SENTENCING THEM.
IN CRL.A.No.730/2011:
BETWEEN:
1. SRI KUMAR
S/O MARIGANDAIAH
R/AT MEGALAPURA
T.NARASIPURA ROAD
MYSORE TALUK.
2. SRI NATARAJ
WINE STORE
MEGALAPURA
T N NARASIPURA ROAD
5
MYSORE TALUK.
...APPELLANTS
(BY SRI N KUMAR, ADVOCATE)
AND:
THE STATE BY MAHILA POLICE
STATION,
REP. BY PUBLIC PROSECUTOR
HIGH COURT BUILDING,
BANGALORE.
...RESPONDENT
(BY SRI K.P.YOGANNA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE
THE ORDER DATED 29.6.2011 PASSED BY THE IV
ADDITIONAL SESSIONS JUDGE, MYSORE IN
S.C.No.227/2007-CONVICTING THE APPELLANTS/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 366, 417, 120(B) READ WITH 149 OF IPC.
AND SENTENCING THEM.
THESE CRIMINAL APPEALS COMING ON FOR
FINAL HEARING THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
These are the three appeals directed against the judgment rendered in SC No.227/2007 by the learned IV Additional Sessions Judge, Mysore, on 29.6.2011, 6 wherein, the accused persons 1 to 8 are convicted for the offence punishable under Sections 366, 417, 120B read with Section 149 IPC. Accused No.1 is also convicted for the offence punishable under Section 376 IPC.
2. The sentence is as under:
The appellants/accused nos.1 to 8 are sentenced to undergo simple imprisonment for 10 years and fine of Rs.5,000/- each for the offence punishable under section 366 read with 149 of IPC. In default of payment of fine, they shall undergo simple imprisonment for further period of three months. Appellant/accused Nos.1 to 8 are further sentenced to pay fine of Rs.2,000/- each for the offence punishable under section 417 read with 149 of IPC. In default to undergo simple imprisonment for 10 days. The appellant/accused nos.1 to 8 are sentenced to pay fine of Rs.2,000/- each for the offence punishable under 7 section 120(B) IPC. In default of payment of fine, they shall undergo simple imprisonment for further period of 10 days. Appellant/accused No.1 is also sentenced to undergo simple imprisonment for 10 years and to pay fine of Rs.5,000/- for the offence punishable under section 376 of IPC. In default of payment of fine, he shall undergo simple imprisonment for 3 months. The substantive sentence of imprisonment to run concurrently.
3. There are eight accused persons who faced the trial. The case came to be registered on the strength of complaint lodged by a girl, aged 17 years, daughter of Siddegowda, Karigowdanadoddi, Malavalli Taluk. It is stated, when the girl was 5 years old, she was brought to the house of Shivalingaiah, Lecturer in Bangalore, for household work. On the date of complaint, she had completed 12 years of service i.e. 5 + 12. 8
4. On 4.5.2006, one Ramakrishna, brother of Prabhakar told the complainant that her aunt was not feeling well and took the complainant to the house of Somashekhar. When the complainant went to see her aunt, he told her that they shall go to temple first and then go to her aunt's place. Thus, on 6.12.2006, complainant was taken to temple at Nanjangud and there, they performed the marriage of the complainant with Prabhakar and the said marriage was against the will of the complainant. The nuptial was conducted on the same day. Despite her resistance, she was raped by force. The complainant claims that her marriage was performed by cheating her and Prabhakar raped her and seeks action against Prabhakar, his elder Sister Gowramma, his younger sister Rajeshwari, his younger brother Ramakrishna, Somashekhar, Prabhakar's aunt's son and his wife Nanjammanni and Prabhakar's friends Kumara and Nataraja. By virtue of complaint, case came to be registered on 29.12.2006 for the offence 9 punishable under Sections 417, 420, 376 read with section 149 IPC in Crime No.129/2006 at 2.30 p.m.
5. The complainant addressed her complaint to Police Inspector, Women Police Station, Mysore and her address is as stated above.
6. After registration of the complaint, the mahazar of the place of offence was conducted at house No.1951, 7th Cross, Tent Road, P.K. Layout, Near Ramaanjeneya Temple, Mysore, on 30.12.2006. That mahazar came to be marked as Ex.P5 during trial and complaint is marked as Ex.P1.
7. The victim was subjected to medical examination on 29.12.2006 wherein on examination, features and state of the victim are mentioned and her age is mentioned as between 16 to 18 years as per Ex.P6. Regarding the injuries observed on her is as per Ex.P8 10 after having examined her at 7.00 p.m. on 29.12.2006 by Dr.R.C.Prameela.
8. Similarly, accused was also subjected to medical examination on 30.12.2006. His features and state was examined by Dr.Y.Uday Shankar and has issued medical certificate as per Ex.P7.
9. On completion of investigation, final report came to be filed against accused persons for the offences punishable under Sections 417, 366, 420, 376 read with section 149 IPC. Accused came to be tried in S.C.No.227/2007.
10. After commencing of case by the public prosecutor, the trial Judge found the materials are against the accused for the offences punishable under Sections 366, 417, 120B and 376 of IPC and framed the charge for the said offences. Accused pleaded not guilty and came to be tried.
11
11. During trial, the learned trial Judge was accommodated with the oral evidence of PWs 1 to 12, documentary evidence of Exs.P1 to P13(a) on behalf of the prosecution and one document as per Ex.D1 was considered on behalf of defence.
12. With this, the learned trial Judge passed the judgment convicting the accused and sentencing them as stated above.
13. Majority of the accused persons, their relationships among them is; Accused No.1 is Prabhakar, Accused No.2 is Gowramma and Accused No.3 Rajeshwari are sisters of accused No.1, accused No.4-Ramakrishna, younger brother of accused No.1, Accused No.5-Somashekhar is the cousin of accused No.1 and Accused No.6 Nanjammanni is the wife of accused No.5, accused No.7-Kumar and No.8-Nataraja are friends of accused No.1.
12
14. Out of 12 witnesses examined, PW1- is victim cum complainant, PW2-Siddegowda, father of PW1, PW3- Mallamma is the aunt of PW1, PW6-Pushpalatha, wife of accused No.1, PW4-Dr.Y.Udayashankar who examined the victim PW1 to ascertain her age and issued Ex.P7 certificate, wherein she was held aged between 16 to 18 years as on the date of offence and PW5-Dr.Prameela, who has issued wound certificate of PW1. This witness has opined that there was no signs of recent sexual intercourse on PW1. PW7-Sujatha - Constable - who carried FIR to Court. PW10- Jayashekar Aradhya, Teacher who has issued school certificate as per Ex.P12 in respect of PW1 stating that the date of birth of victim is 20.5.1985. PW8- Narayana Jois, Archak who performed the marriage. PW9- Mahadevamma- mahazar witness. PW- 11-Devamma, PSI and PW-12 -Puttaswamygowda are police officials and investigating officer.
13
15. Out of the witnesses stated above, the evidence of PW1, complainant, PW2-father of the complainant and PW3-aunt of PW1 are taken up keeping chronology in mind. PW1 knows accused persons 1 to 8.
Shivalingaiah is working as lecturer in Bangalore. When she was 5 to 6 years old, she was working as domestic servant in Shivalingaiah's house. Accused No.1 is the brother-in- law Shivalingaiah. Accused Nos.2 and 3 are the sisters of accused No.1. Accused No.3 is the wife of Shivalingaiah. Accused No.4, younger brother of Accused No.1, Accused No.5 is aunt's son of accused No.1. She reiterates the contents of her complaint. According to her, at about 3 or 4 p.m. during the year 2006 complainant was staying in the house of Shivalingaiah, accused No.4 came and told the complainant that her aunt was not feeling well and she was asked to go and see her at Mysore. Accused No.4 took the complainant to the house of the accused No.5 14 at Mysore. Accused No.4 stayed in the house of accused No.5. However, she preferred to go to her aunt. When this being the state of affairs, accused persons 1 to 8 took the complainant to Ganesha Temple, Nanjangud and marriage of complainant with accused No.1 was performed. In temple, accused No.3-Rajeshwari, wife of Shivalingaiah, told the complainant that wife of accused No.1 is not good and complainant can accept for marrying the accused No.1. All the other accused asked her to marry accused No.1 that was refused by her. But the complainant was threatened and her marriage was forcibly performed. Accused persons made the accused No.1 to offer garland to her and tie mangalasutram. Photographs of the ceremony were taken at the temple. At that time, complainant raised objections. Accused persons warned her not to raise objections and also stand properly and threatened her of life. After the marriage, she was brought to the house of accused No.5. Thereafter, she was brought to Bangalore, then 15 taken to the house of Shivalingaiah. After 10 to 15 days, complainant expressed her desire to see parents. Meanwhile father of complainant came and asked Shivalignaiah as to why he did so. According to complainant, Shivalingaiah had not told to the complainant that her marriage will be performed with accused No.1. On the other hand, he has promised to search a good person. She identifies the photographs and they were marked as Ex.P2 to 4 and complaint as Ex.P1. She further tells that on the same day nuptial was arranged and the accused had sexual intercourse with her.
16. She tells the court that she was not knowing the meaning of the word 'nuptial'. Accused No.1 did not listen to her resistance. He undressed himself and also undressed the complainant and raped her. She suffered bleeding he continued for 2 to 3 days. She tried to inform her parents but she was prevented by the 16 accused. According to her parents, her age was 16 or 17 years.
17. She was cross examined at length. It is elicited from her that she tried to resist, but the accused persons did not allow her. Much of the cross examination is regarding the responsibility of Shivalingaiah to look after the complainant properly. The parents of the complainant had entrusted the complainant to Shivalingaiah and asked to search for a good groom.
18. Along with Shivalingaiah, his wife and his three children were residing at Bangalore. She was going out only for the purpose of bringing vegetables. It is elicited from her, when going to temple she was wearing a new saree.
19. Much of the cross examination related to the knowledge of this witness regarding accused No.1 and 17 his wife and entrustment of this lady to Shivalingaiah for her care and control and over the issue of meeting Advocate and issuance of notice to accused. Thus, her complaint in substance is that on 06.12.2006 in the guise of taking her to aunt's (Doddamma) house, she was taken to Mysuru to the house of Accused no.5 - Somashekar and thereafter when she started questioning about her aunt she was taken to Nanjangud Temple by Accused No.4 -Ramakrishna. It is in this connection she claims that she was taken back and taken to Nanjangud Temple and she attributes bad intention on each and every accused and according to her they contributed to conspire against her and perform her marriage against her will and consent besides she being underaged. It is in this connection she reveals her meeting with the Advocate at Mysuru and this aspect is questioned by learned counsel for the accused and it is submitted that the agenda and the intention of the PW-1 is made clear through this 18 development. It is also forthcoming from the evidence of PW-1 that the entire welfare and responsibility of PW-1 was entrusted to Shivalingaiah by her parents and was also asked to search a groom. She further states that accused Nos.2 and 4 were in know of the developments but they have not raised their voice.
20. PW-2 Siddegowda is the natural father of PW-1. His evidence in substance is that the complainant-PW-1 was entrusted to Shivalingaiah when she was five years old. Further accused Nos.2 and 3 are the sister of accused No.1 and accused No.4 is brother of accused No.1. Accused No.6 is the wife of accused No.5. Accused Nos.7 and 8 are friends. The evidence of this witness is to the effect that heinous offence against his daughter was committed by accused No.1. He reiterates the complaint version of PW-1 being handed over to the custody of Shivalingaiah, who is none other than brother-in-law of accused No.1 and having utmost 19 confidence in Shivalingaiah and later coming to know from his daughter -PW-1 on 06.12.2006 the incident happening to the effect that PW-1 was taken from the house of Shivalingaiah by accused No.4-Ramakrishna in the guise of reason to attend her aunt's illness and thereafter to Janatha Nagar, Mysuru and next day she being taken to temple without prior information to PW-1 and thereafter accused No.1 tied Mangalasutra to PW-1 which was much against the consent and will of PW-1. This witness further deposes that even the nuptial ceremony was conducted on the same day and this witness obviously deposes that he came to know about the said matter from the victim -complainant. He also speaks about panchayat being arranged at Janata Nagar and there the accused persons stated that the incident has happened and they would give Rs.3,00,000/- and advised for a re-marriage to PW-1 and left the place. This witness also states that the accused persons accepted their guilt. Significantly this 20 witness states that the complainant and this witness along with others again went to Bengaluru and met the accused and there also he could not get justice and hence they came back to Mysuru Women Police Station and lodged the report/complaint. This witness further deposes regarding the wife of the accused No.1 telling that the complainant is at liberty to take her own action. According to this witness the victim was aged 17 years at the time of the incident. He has been cross examined by the learned counsel for accused. It is elicited from this witness that he had gone to Advocate Umesh and notice was issued on 23.12.2006 (Notice Ex.D-1) addressed to 11 persons and this witness denies that they have demanded compensation of Rs.10,00,000/- and the notice issued on behalf of PW-1 since minor represented by her father -PW-2. It is elicited from this witness that he did not admit his daughter to the school. Further denies suggestion regarding force being employed, regarding innocence of 21 the accused and falsity of the version of this witness and their blackmailing nature.
21. Mallamma-PW-3 is the elder sister of mother of the victim. She tells about the relationship between her and the victim. She also mentions about the victim being entrusted to Shivalingaiah for her care and welfare. This witness further states regarding her daughter being enticed, threatened and harassed for the purpose of forcibly marrying her to accused No.1 without her consent and this matter was informed to this witness by none other than her sister and the victim. Her further evidence is that all the accused persons employed force on her. She tells that the marriage was performed at Sri.Nanjundeshwara Temple, Nanjandud. She tells about the forcible marriage of PW- 1 with accused. She asserts that PW-1 was taken by misrepresentation and there was force from all the accused for her marriage. Not only marriage even 22 nuptial ceremony. She asserts that it is the second marriage to accused No.1 and age of his daughter at that time is 25 or 26 years. She has been cross examined by learned counsel for accused. Basically the evidence of this witness is that she is the sister of mother of PW-1. She had access to the privacy to her sister and PW-1 as well and she came to know about the acts of force deployed on PW-1 and she being misled even for her marriage. Totally marriage to PW-1 was by accident that was committed deliberately by all the accused.
22. PW-4-Dr.Uday Shankar who examined PW-1 and has given the opinion that she was aged 16 to 18 years as on 30.12.2006 that is as on the date of examination. He also states that he has examined accused No.1 and there are no grounds to suggest his incompetency of performing sex.
23
23. PW-5 -Dr.R.C.Prameela - She has examined PW-1 on 29.12.2006. She deposes to have seen FSL report. On examination she also opines that the examination of PW-1 reveal that she has been subjected to sexual intercourse and she conducted two fingers test. She identifies Ex.P-8 wound certificate issued by her. She tells that there were no external injuries.
24. PW-6 -Pushpalatha -She is the wife of accused No.1. She was examined on 13.07.2010 and she tells that two years prior to that date she had differences with her husband and on a particular day during said period the family members of the complainant came near house of this witness and made galata and they told that accused No.1 has married the victim. She does not know the details. She turns hostile. She has been cross examined by Public Prosecutor. She tells about the vices of her husband-accused No.1 regarding consumption of alcohol and being a drunkard used to 24 beat this witness. Thus, this witness speaks of the circumstances of coming to know about the marriage of victim with accused No.1 by force.
25. PW-7 -Sujatha -Constable who carried FIR to the court. PW-8 -Narayan Jois -Archak turns hostile. PW-9 Mahadevamma is panch witness who turns hostile.
26. PW-10 - Jayashekar Aradhya-Teacher who issued school certificate Ex.P-12 - wherein date of birth of the victim is mentioned as 20.05.1985 and date of offence is 06.12.2006. Thus the very age of the victim according to this document-Ex.P.12 relied upon by the prosecution is 21 years.
27. PW-11 - Devamma, PSI who registered FIR and also received the sealed bottle which she received from the hospital and handed over further investigation to PW-12. PW-12-Puttaswamygowda - Investigating Officer who completed the investigation and filed charge sheet. 25
28. The learned counsel for accused No.1 would submit that his client was made scapegoat, he never had intention to commit any offence. He would further submit that the complaint version of the complainant on oath by themselves prove that they are false. He would further submit that accused No.1 has been injustifiably made to be a part of jail for more than 8 years due to no fault of him.
29. Learned counsel for other appellants would submit that the evidence on record and the tone and tenor of the witnesses would speak about innocence of the appellants and the exaggeration by the complainant. The complaint was lodged as a document to make monetary gain by the complainant and her relatives.
30. Learned HCGP would submit that the complainant did not stand to gain by lodging false complaint. Further there was absolute conspiracy among the accused- 26 appellants commit the heinous offence of sex of the highest order on the complainant by accused No.1. He would further submit that the offence was committed in pursuance of the plan by the accused.
31. The case is registered on the basis of complaint lodged by the victim against accused Nos.1 to 8 in Crime No.129/2006 for the offence punishable under Sections 417, 420, 376 read with Section 149 of IPC. The trial Judge framed the charge against accused persons as under:
A-1 -Prabhakar- Sections 417 read with Section 149 of IPC and Section 376 of IPC A-4 - Ramakrishna - Section 366, 417, 120B of IPC
32. On the contextual reading of the oral evidence and documents relied upon by the prosecution, the allegation is that accused No.1 raped the victim on 06.12.2006 and subsequent days by forcibly marrying 27 her at Sri Ganesha Temple, Nanjangud. It is the further allegation of the prosecution that each of the other accused person conspired and they enabled the platform for the forcible marriage of PW-1 with accused No.1.
33. It all started from taking PW1 from her home by accused No.4, Ramakrishna. Prior to the said circumstance, she stated that she has been entrusted to the custody of Shivalingaiah, when the girl was of 5 years old, till the date of incident. According to the complainant, there are no untoward or harmful incident or detrimental circumstances. She was taken to Bengaluru by accused No.4, who told her that her aunt was not feeling well and on the subsequent day in Mysuru i.e., on 06.12.2006. When she questioned regarding her aunt, she was taken to Nanjangud and thereafter to Sankastahara Ganapathi temple and all the accused persons were there intact and they had 28 hatched to conspire against this victim, wherein she was forced to get married to accused No.1 - Prabhakar. In the circumstance, the claim and contention are very clear that every circumstance was arranged by accused persons and it was against the interest of complainant.
34. The victim further asserted that on the day of incident she had no interest to marry accused No.1. According to the witnesses, PWs.1 to 3 and elders, the victim was put in helpless situation and thereby she was forced to marry accused No.1. The photographs - Exs.P2 to 4 reflect that the accused No.1 and the victim are wearing garlands in a place appears to be temple. Thus, the complainant and her people tell that the marriage ceremony was complete, but was by force. It is further stated that nuptial ceremony was arranged in the house of accused No.5 at Mysuru and accused No.1 committed sexual intercourse on her against her consent and will and thus committed rape. 29
35. At this juncture, it is necessary to mention that the doctor-PW-5 had verified the FSL report-Ex.P9, which shows the following observation:
"Observations and Tests Conducted:
The suspected seminal stains were observed for their colour, texture and appearance under ultra violet light and the cuttings from the suspected areas were tested for seminal stains using Florence text, Acid-Phosphatase test.
REPORT ON SEMINAL STAINS Presence of Seminal Stains was not detected in item 2(c)."
36. According to her opinion, there were no external injuries on the body of PW1 when she examined the victim on 29.12.2006. The qualified person, who had examined, stated that she conducted two fingers test on PW1 and the victim was habituated to sex, in other words she was subjected to sexual intercourse. At this juncture, it is also necessary to mention that till 30 6.12.2006, there were no allegations of immoral character or affair by PW1. On the other hand, there is no dispute that she was entrusted to the custody of Shivalingaiah, brother-in-law of accused No.1. According to the prosecution, the incident happened when she was 17 years old. At this juncture, it is further necessary to observe that the date of birth of PW1 as reflected in Ex.P12 and as on the date of incident i.e., on 06.12.2006, she was aged 21 years. It is necessary to verify the bifurcated roles of accused No.1 and other accused as against PW1 is concerned.
37. The complaint of victim is that she was isolated and cornered from the company of her parents, as she was in the custody of Shivalingaiah, who was in a position to dominate her. No doubt, the sole testimony of victim would be reliable when it is corroborated by independent circumstance. It is also to be assessed 31 that the complainant-victim was also aware of relationship of accused No.1 with accused Nos.2 to 5.
38. Insofar as other accused persons are concerned, the offences alleged against them are listed above. The victim attributes that she was taken by accused No.4. Accused Nos.1 to 8 conspired to employ force and keep her under threat for the purpose of her marriage with accused No.1 forcibly. She was cheated by all the accused to the effect that she was forced to marry accused No.1 and on her in all segments of activities. Thus, the act of accused No.1 is only to see that PW1 was raped and it happened from 06.12.2006.
39. Insofar as the offences and cheating are concerned, the incident was known to all the witnesses and knew about the role of accused Nos.2 to 8. Insofar as the involvement of accused Nos.4 to 8 are concerned, it is also the case of prosecution that there was unlawful assembly that was formed in order to 32 prosecute common object. Thus all the accused persons were the members of unlawful assembly formed for the said act. It is further pertinent to note that the main object alleged is cheating for the purpose of rape. Thus, the ingredients as attributed to other accused persons incidentally are not present in the evidence of material witnesses including the complainant. Thus, the complainant goes on giving the list of persons against whom the offences are alleged. Incidentally they have been found guilty of the offences and thereby convicted and sentenced the accused persons as under:
Accused Nos.1 to 8 are sentenced to undergo simple imprisonment for 10 years and fine of Rs.5,000/- each for the offences under Sections 366 read with Section 149 IPC in default of payment of fine, they shall undergo simple imprisonment for further period of three months.
Accused Nos.1 to 8 are further sentenced to pay fine of Rs.2,000/- each for the offence under Section 417 read with Section 149 IPC in default of to undergo simple imprisonment for 10 days.33
Accused Nos.1 to 8 are sentenced to pay fine of Rs.2,000/- each for the offence under Section 120(B) IPC in default of payment of fine, they shall undergo simple imprisonment for further period of 10 days.
Accused No.1 is sentenced to undergo simple imprisonment for 10 years and to pay fine of Rs.5,000/- for the offence under Section 376 IPC in default of payment of fine, he shall undergo simple imprisonment for three months.
40. But, it cannot be said for a moment that PW2, father of PW1, PW3-sister of mother of PW1 are ignorant. It is also necessary to note their behaviour pattern subsequent to the offence alleged by them. The date of incident of forcible marriage as stated by the complainant is 6.12.2006. The complaint was lodged after 23 days of the incident. It is not that they were kept in dark and they were also busy in meeting Advocate, sending notice to accused claiming compensation of Rs.10,00,000/- prior to which, sitting for panchayat at Janathanagar, Mysore, wherein the 34 accused persons offered Rs.3,00,000/- and went away. Further, it is stated that when they did not get justice, they went to the office of Advocate. In the circumstance, Ex.D1-notice dated 23.12.2006 demanding Rs.10,00,000/- issued on behalf of PW1 being the minor represented by her father PW2 and addressed to eleven persons including all the eight accused persons and as they could not get justice, a complaint was filed. In the circumstance, a question was posed to PW2 - Siddegowda, father of victim as to what exactly meant by justice and in the context they refer to panchayat at Janathanagar, Mysuru and also further talk at Mysuru, wherein they could not get justice. Thus they had kept filing complaint as a last option in between the date of complaint and the date of incident.
41. The above activities were conducted at the instance of complainant and her father. The victim in 35 this case as PW1 was subjected to intercourse as stated by her by accused No.1 against her will and without her consent. The statement of PW1 is believable and probable and it is corroborated by circumstances and her evidence, the evidence of doctor and FSL report. No doubt, her age claimed by the prosecution was 17 years as on the date of incident. However, the school certificate - Ex.P12 states that she was aged 21 years 6 months as on the date of incident. In the circumstance, it clearly goes to show that she was available for the domination and influence of accused No.1, which according to the complainant, there was sexual intercourse on her by accused No.1 and that was preceded by marriage which is said to have been conducted by force. Meanwhile, from 23.12.2006, the complainant was kept by her father in captive. There were umpteen number of opportunities every day like from 23.12.2006, they had not raised little finger against all the accused persons. However, accused No.1 36 stands on a separate footing from this angle and other accused persons stand in different footing.
42. The ingredients of the offences are absent. There are no circumstances or circumstance to establish consensus and conspire to the act of kidnapping. It is also necessary to mention that the prosecution has withheld the other material witness like Shivalingaiah, who was said to be looking after PW1.
43. It is quite possible that the victim is aggrieved of serious situation and because of the acts of accused she was in the likelihood of entering frustration. But she can never ever leave the situation, which has happened in this case. No doubt, she is the only person to speak regarding the offence committed by accused No.1 on her. Insofar as the said offence is concerned, in the context and circumstances of the case her only testimony is believable and it is corroborated by the evidence of PWs.2 and 3. Accused No.1 cannot be left 37 free because of the reasons that the complaint contained glorification and exaggeration against the other accused. It is the duty of the Court to examine the substance.
44. Thus the circumstances are not corroborated with proper or material evidence. In this connection, it is necessary to mention that the evidence of PW6 - Pushpalatha, wife of accused No.1, is as good as no evidence. However, she said that during the year 2010, there was misunderstanding with accused No.1. At the same time, she tells about the conduct of her husband in consuming alcohol and beating this witness. To the said extent, she said all was not well with accused No.1. However, she turned hostile. Thus, marital relationship of accused No.1 and PW6 was known by the complainant.
45. Insofar as the offence committed by accused No.1 is concerned, it is not depending on opinion or 38 assessment of others regarding the circumstances. Insofar as Section 376 of IPC is concerned, the prosecution case is in shadow of doubt. However, the learned Trial Judge has considered the allegations and the statement of complainant as proof and has proceeded to convict all the accused persons by bifurcating their guilt and innocence.
46. The finding of the learned Trial Judge that the accused persons eight in number and the complainant's position is very sensitive and accused no.1 had dominated her position. Further, the learned Trial Judge held that the conduct of PW1 cannot be termed as unnatural and give rise to doubt the prosecution case.
47. On careful perusal of the material on record, I find that the learned Trial Judge has erred in convicting accused Nos.2 to 8 and accused No.1 for the offences punishable under Sections 366, 417, 120(B) read with 39 Section 149 of IPC. Insofar as the sentence is concerned, accused No.1 by virtue of conviction for the higher offence is awarded ten years and it is stated that he is in custody right from the date of his arrest. Thus, the judgment is liable to be set aside for the offences punishable under Sections 366, 417, 120(B) read with Section 149 of IPC against accused Nos.2 to 8. Hence, Accused Nos.2 to 8 are acquitted for the offences punishable under Sections 366, 417, 120(B) read with Section 149 of IPC. Accordingly, Crl.A.Nos.675/2011 and 730/2011 are liable to be allowed. The order dated 29.6.2011 passed by the IV Additional Sessions Judge, Mysore in S.C.No.227/2007 convicting the appellants/accused persons for the offences punishable under Sections 366, 417, 120(B) read with Section 149 of IPC is liable to be set aside.
48. Learned trial Judge on convicting the accused No.1/appellant in Criminal Appeal No.846/2011, 40 sentenced him to undergo Simple imprisonment for a period of 10 years and to pay fine of Rs.5,000/-, in default to pay fine, to undergo simple imprisonment for three months for the offence punishable under Section 376 of IPC.
49. Learned counsel for the appellant in Criminal Appeal No.846/2011 and learned High Court Government Pleader for respondent would submit that, the appellant who is accused No.1 in SC No. 227/2007 was in judicial custody from 30.12.2006 to 18.12.2007 for a period of 11 months and was released on bail. Subsequently, he was arrested on 29.06.2011 and is in judicial custody till today.
50. In respect of appellant in Criminal Appeal No.846/2011, this court concurred with the judgment convicting him for the offence punishable under Section 376 of IPC. However, he stands acquitted for the offences punishable under Sections 366, 417 read with 41 149 of IPC and 120B along with the accused Nos. 2 to 8 who are the appellants in the connected appeals.
51. Learned counsel for appellant in Criminal Appeal No.846/2011 submits that appellant was serving in bank.
52. The offence under Section 376 of IPC is punishable with rigorous imprisonment which shall not be less than 7 years and may extend to imprisonment for life and fine. In the facts and circumstances of the case, considering the period consumed for the trial of the case and stationing of the appellant in jail, it is just and proper to alter the sentence to 8 years and grant the benefit of set off under Section 428 of Cr.P.C. to the appellant in Criminal Appeal No.846/2011.
OPERATIVE PORTION GIVEN Accordingly, I pass the following:
ORDER
(i) Criminal Appeal No.846/2011 is allowed in part. 42
(ii) The appellant/accused No.1 stands acquitted for the offences punishable under Sections 366, 417 read with Section 149 IPC and 120B of IPC.
(iii) Further his appeal against the judgment convicting him for the offence punishable under Section 376 of IPC is hereby dismissed.
However, the period of sentence of 10 years imprisonment is reduced to 8 years.
(iv) As the appellant/ accused No.1 is said to be in jail prior to the judgment and subsequently as well for a period of 08 years 01 month and 19 days, his stay in jail in this case is treated as imprisonment and the period is treated as over and that the appellant shall be set at liberty forthwith, if not required in any other case after office verifying the period of custody. 43
(v) Criminal Appeal No.675/2011 preferred by the accused Nos. 2 to 6 is hereby allowed and the judgment convicting them for the offences punishable under Sections 366, 417 read with Section 149, 120B of IPC is hereby set aside. They are set at liberty forthwith.
(vi) Criminal Appeal No.730/2011 preferred by accused Nos. 7 and 8 is hereby allowed. The judgment convicting the said accused for the offences punishable under Section 366, 417 read with Section 149 IPC and 120B of IPC is hereby set aside and they stand acquitted for the said offences and are set at liberty forthwith.
(vii) Send back the records to the trial Court along with the copy of this judgment.
Sd/-
JUDGE tsn*/SBN/BKM