Karnataka High Court
Sateppa Bheerappa Dange vs The State Of Karnataka on 23 December, 2021
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23rd DAY OF DECEMBER, 2021
PRESENT
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MS. JUSTICE J.M.KHAZI
Criminal Appeal No.100352/2018
C/w.
Criminal Appeal No.100114/2019
IN CRL.A NO.100352/2018
BETWEEN
1. SATEPPA BHEERAPPA DANGE
AGED ABOUT: 25 YEARS,
OCC: AGRICULTURE,
R/O: ITNAL, TQ: RAIBAG,
DIST: BELAGAVI 591 317.
2. YAMNUR @ YAMANAPPA
S/O SAHADEV RAJAPURE,
AGED: 27 YEARS, OCC: AGRICLTURE,
R/O: BISANKOPPA, TQ: GOKAK,
NOW AT ITNAL, TQ: RAIBAG,
DIST: BELAGAVI 591 317.
3. SURESH SHIVAPPA DANGE
AGED ABOUT 28 YEARS,
OCC: AGRICULTURE, R/O ITNAL,
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TQ: RAIBAG, DIST: BELAGAVI 591 317
...APPELLANTS
(BY SRI.VITTHAL S TELI, ADVOCATE)
AND
THE STATE OF KARNATAKA
REP. BY RAIBAG PS,
DIST: BELAGAVI 591 317,
NOW REP. BY ITS SPP,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS AND SET ASIDE THE
JUDGMENT/ORDER OF CONVICTION 31.10.2018 & SENTENCE
DATED 03.11.2018 IN S.C.NO.143/2013 PASSED BY THE III-
ADDL. DIST. & SESSIONS JUDGE & SPL. COURT UNDER POCSO
ACT, 2012 AT BELAGAVI, FOR THE OFFENCES P/U/S 341, 506,
363, 366-(A), 376, 376(D), 307 R/W 34 OF IPC AND SEC. 4, 6 &
17 OF POCSO ACT AND ACQUIT AND DISCHARGE THE
APPELLANTS IN S.C.NO.143/2013 OF THE ALLEGED OFFENCES.
IN CRL.A NO.100114/2019
BETWEEN
STATE OF KARNATAKA
REPRESENTED BY THE
RAIBAG POLICE STATION,
RAIBAG, DIST: BELAGAVI,
THROUGH THE ADDITIONAL
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI.V.M.BANAKAR, ADDL SPP)
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3
AND
1. SATEPPA BHEERAPPA DANGE
AGED ABOUT: 25 YEARS,
CASTE: HARIJAN, OCC: AGRICULTURE,
R/O: ITNAL, TQ: RAIBAG,
DIST: BELAGAVI.
2. YAMANUR @ YAMANPPA S/O SAHADEV
RAJAPURE HARIJAN,
AGED ABOUT: 27 YEARS,
OCC: AGRICULTURE,
R/O: BISANAKOPPA, TQ: GOKAK,
NOW AT: ITANAL,
TQ: RAIBAG, DIST: BELAGAVI.
3. SURESH SHIVAPPA DANGE
AGED ABOUT: 25 YEARS,
OCC: AGRICULTURE,
R/O: ITNAL, TQ: RAIBAG,
DIST: BELAGAVI.
...RESPONDENTS
(BY SRI.VITTHAL S TELI, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/SEC.377(1)(B) OF
CR.P.C., PRAYING TO CALL FOR THE RECORDS IN SESSIONS CASE
NO.143/2013 DATED 31.10.2018 ON THE FILE OF III ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, BELAGAVI,
TO SET ASIDE THE ORDER OF SENTENCE SO FAR IT RELATES TO
SECTION 376(D) R/W 34 OF IPC PASSED BY THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE, BELAGAVI
IN S.C. NO.143/2013 DATED 31.10.2018 AND TO MODIFY THE
SENTENCE AND TO IMPOSE MAXIMUM SENTENCE AS PROVIDED
U/SEC.376(D) R/W 34 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING UP FOR 'PRONOUNCEMENT
OF JUDGMENT', THIS DAY, SURAJ GOVINDARAJ J.,
DELIVERED THE FOLLOWING:
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COMMON JUDGMENT
1. The accused are before this Court in Criminal
Appeal No.100352/2018 challenging the judgment
of conviction passed by the III Additional District
and Sessions Judge and Special Court under
POCSO Act, 2012 at Belagavi (for brevity 'trial
Court') dated 31.10.2018 in S.C.No.143/2013.
2. By way of the aforesaid judgment, the trial Court
convicted the accused for the offences punishable
under Sections 341, 506, 363, 366(A), 376,
376(D), 307 read with Section 34 of the Indian
Penal Code (for brevity, 'IPC') and Sections 4, 6
and 17 of the POCSO Act. Since accused Nos.1 to 3
were in judicial custody, they were further
remanded to judicial custody.
3. The accused were heard on sentence on
03.11.2018. After hearing the accused and the
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prosecution, they were sentenced to undergo
simple imprisonment for one year and to pay a fine
of Rs.2,000/- each and in default thereof to
undergo simple imprisonment for one month for
the offence punishable under Section 341 read
with 34 of IPC; to undergo simple imprisonment
for one year and to pay a fine of Rs.2,000/- each
and in default thereof to undergo simple
imprisonment for one month for the offence
punishable under Section 506 read with 34 of IPC;
to undergo simple imprisonment for five years and
to pay a fine of Rs.5,000/- each and in default
thereof to undergo simple imprisonment for one
month for the offence punishable under Section
366(A) of IPC; to undergo simple imprisonment for
seven years and to pay a fine of Rs.5,000/- each
and in default thereof to undergo simple
imprisonment for one month for the offence
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punishable under Section 376 of IPC; to undergo
simple imprisonment for ten years and to pay a
fine of Rs.10,000/- each and in default thereof to
undergo simple imprisonment for two months for
the offence punishable under Section 376(D) of
IPC; to undergo simple imprisonment for seven
years and to pay a fine of Rs.5,000/- each and in
default thereof to undergo simple imprisonment for
one month for the offence under Section 307 of
IPC; to undergo simple imprisonment for seven
years and to pay a fine of Rs.5,000/- each and in
default thereof to undergo simple imprisonment for
one month for the offence under Section 4 of the
POCSO Act, 2012; to undergo rigorous
imprisonment for ten years and to pay a fine of
Rs.10,000/- each and in default thereof to undergo
simple imprisonment for two months for the
offence under Section 6 of the POCSO Act, 2012;
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to undergo simple imprisonment for ten years and
to pay a fine of Rs.10,000/- each in default thereof
to undergo simple imprisonment for two months
for the offence under Section 17 of the POCSO Act,
2012 with substantial sentences run concurrently.
4. The trial Court also directed PW.1-victim to
approach the District Legal Services Authority to
get compensation under the Victim Compensation
Scheme framed under Section 357(a) of Cr.P.C.
5. The accused were given benefit of set off for the
period of imprisonment undergone by them as
provided under Section 428 of Cr.P.C.
6. The State has also filed Criminal Appeal
No.100114/2019 seeking for the imposition of a
maximum sentence as provided under Section
376(D) read with Section 34 of IPC by setting
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aside the order of sentence insofar as it relates to
offence under Section 376(D) read with 34 of IPC.
7. The parties are referred by their rank in the trial
Court. The names of the victim as also the
witnesses and the names of places are not
mentioned in the judgment in view of the above
matter relating to offences under the POCSO Act.
8. The case of the prosecution in brief is that:
8.1 The complainant i.e. the victim girl-
PW.1/CW.1 was studying in PUC I year. She
would use her bicycle to go from her house to
the village where she used to board a bus to
go to her college. Accused No.1-Sattepa
Bhimappa's family runs a grocery shop, which
is situated close to the house of the victim.
The complainant and accused No.1-Sattepa
Bhimappa had developed a friendship, they
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used to talk with each other on mobile phone
as also when she used to go to the grocery
shop to buy material for her house. The
marriage of the complainant was fixed with
one of her relatives. Accused No.1-Sattepa
Bhimappa insisted for the complainant to
sleep with him and threatened that he would
get the marriage cancelled by showing the
recording of her conversation with him to the
said relative with whom her marriage was
fixed.
8.2 On 26.02.2013 at about 6.20 p.m. when
the victim girl was going on a bicycle in order
to go to college, near the land of
PW.11/CW.15, which was on the way to the
bus stop, accused No.2-Yamanur and accused
no.3-Suresh wrongfully restrained her,
prevented her from going further, accused
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No.3-Suresh held her hair and closed her
mouth, accused No.2-Yamanur held her legs,
both of them lifted her and took her to the
sugarcane field of PW.11/CW.15. When
accused No.1-Sattepa Bhimappa, with an
intention to have sexual intercourse with her
and thereby committing the offence of rape,
removed her chudidar and undergarments
and had forcible sexual intercourse with her,
by committing penetrative sexual assault.
Thereafter, accused No.2-Yamanur also had
forcible sexual intercourse with her, by
committing penetrative sexual assault.
Thereafter, with an intention to cause her
death they tied her legs with her chudidar
pant, tied her mouth with her odani (veil),
took her on a hero motorcycle and threw her
in a deserted well situated in the land of
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CW.16 and it is in this background that it was
alleged that all the three accused with a
common intention committed the aforesaid
offences.
8.3 On the basis of the said complaint,
Raibag police registered FIR in Crime
No.50/2013 for the aforesaid offences. The
Investigating Officer conducted the
investigation and filed a charge sheet before
the Court for the said offences. The accused
have been produced before the Court, heard
before framing of charge and having found
prima facie material, the trial Court framed
charges for the said offences, accused
pleaded not guilty and claimed to be tried.
8.4 In order to prove and establish its case,
the prosecution examined 24 witnesses
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(PWs.1 to 24), got marked 48 documents
(Exs.P.1 to P.48(a)) and 26 material objects
(MOs.1 to 26).
8.5 Upon the evidence being completed,
incriminating evidence against the accused
was put across to them, which they denied
while the statement under Section 313 of
Cr.P.C. was recorded. The accused did not
lead any evidence.
8.6 Upon the arguments being addressed,
the trial Court convicted the accused and
passed the order of sentence as aforesaid.
9. Sri.Vitthal S Teli, learned counsel appearing for the
appellants/accused submits that:
9.1 The trial Court has wrongly prosecuted
the accused for the offences under the
POCSO Act, since the alleged victim is not a
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minor. The trial court has not considered the
evidence on record relating to the age of the
alleged victim in a proper manner, thereby
resulting in miscarriage of justice.
9.2 The procedure prescribed under Section
34 of the POCSO Act read with 94 of the
Juvenile Justice (Care and Protection of
Children) Act, 2015 (for brevity, 'J.J. Act') has
not been followed.
9.3 Section 34 of the POCSO Act reads as
under:
34. Procedure in case of commission of
offence by child and determination of age
by Special Court :
(1) Where any offence under this Act is
committed by a child, such child shall be dealt
with under the provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2015.
(2) If any question arises in any proceeding
before the Special Court whether a person is a
child or not, such question shall be determined
by the Special Court after satisfying itself about
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the age of such person and it shall record in
writing its reasons for such determination.
(3) No order made by the Special Court shall be
deemed to be invalid merely by any subsequent
proof that the age of a persons determined by it
under sub-section (2) was not the correct age of
that person.
9.4 Section 94 of J.J. Act reads as under:
94. Presumption and determination of age-
(1) Where, it is obvious to the Committee or the
Board, based on the appearance of the person
brought before it under any of the provisions of
this Act (other than for the purpose of giving
evidence) that the said person is a child, the
Committee or the Board shall record such
observation stating the age of the child as
nearly as may be and proceed with the inquiry
under section 14 or section 36, as the case may
be, without waiting for further confirmation of
the age.
(2) In case, the Committee or the Board has
reasonable grounds for doubt regarding whether
the person brought before it is a child or not,
the Committee or the Board, as the case may
be, shall undertake the process of age
determination, by seeking evidence by
obtaining--
(i) the date of birth certificate from the school,
or the matriculation or equivalent certificate
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from the concerned examination Board, if
available; and in the absence thereof;
(ii) the birth certificate given by a corporation or
a municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii)
above, age shall be determined by an
ossification test or any other latest medical age
determination test conducted on the orders of
the Committee or the Board:
Provided such age determination test
conducted on the order of the Committee or the
Board shall be completed within fifteen days
from the date of such order.
(3) The age recorded by the Committee or the
Board to be the age of person so brought before
it shall, for the purpose of this Act, be deemed
to be the true age of that person.
9.5 He relies upon the decision of the
Hon'ble Apex Court in Sunil v. State of
Haryana AIR 2010 SC 392, more
particularly paragraph Nos.24 to 33 which are
reproduced hereunder for easy reference:
24. The learned counsel for the appellant placed
reliance on the judgment of this court in Birad
Mal Singhvi v. Anand Purohit AIR 1988 SC
1796. In that case, the court observed that date
of birth in the scholar's register has no
evidentiary value unless the person who made
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the entry or who gave the date of birth is
examined. The court observed as under:
"The date of birth mentioned in the scholar's
register has no evidentiary value unless the
person who made the entry or who gave the
date of birth is examined. The entry contained
in the admission form or in the scholar register
must be shown to be made on the basis of
information given by the parents or a person
having special knowledge about the date of
birth of the person concerned. If the entry in
the scholar's register regarding date of birth is
made on the basis of information given by
parents, the entry would have evidentiary
value, but if it is given by a stranger or
someone else who had no special means of
knowledge of the date of birth, such an entry
will have no evidentiary value."
25. The learned counsel for the appellant
further submitted that in pursuance of the
complaint of her father she was recovered on
6.9.1996. The alleged school leaving certificate
is dated 12.9.1996, i.e. just after 6 days of
recovery and three days after the appellant's
arrest on 9.9.1996. It was submitted by Mr.
Jain that the said document was created just to
show the age of the prosecutrix as less than 16
years at the time of the incident. According to
him, the document is not at all reliable.
26. The School Leaving Certificate is proved by
Chandra Prakash Sharma, PW3 who had clearly
stated as under:-
"Date of birth in Ex.PF is on the basis of School
Leaving Certificate of 5th class which was given
to us at the time of admission of Pinki in 6th
class."
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27. Mr. Jain placed reliance on Arvinder Kaur v.
State of Punjab 2007(3) RCC (Crl) 818 to
strengthen his submission that the School
Leaving Certificate would be no proof of age,
without production of admission register. He
also submitted that the statement of Bishan,
PW8, the father of the prosecutrix also cannot
be relied upon. As per his statement, he was
married in the year 1972. The incident took
place on 30th August, 1996. This shows that the
marriage took place about 24 years back. This
witness has stated the date approximately,
without any basis or any record. He mentioned
that his eldest daughter's age is 20 years and
thereafter he by imagination and approximation
has given the age of other children and showing
Pinki as the youngest one. He could not give the
exact date and gap between the age of the
children but stated -
"All my children are having a gap of one year or
two years age approximately." According to Mr.
Jain the approximate age given by the witness
is not reliable. He also stated that PW8 also
tried to show that he had 7 children, 2 among
them are not alive. He has not given their age
and when they were born. PW8 has given the
age of Pinki as having completed 14 years and
running 15 years and the said statement has
been made on approximation. According to him,
the conviction of the appellant cannot be based
on such a quality of evidence where on the
basis of approximation, the age has been
indicated. According to the learned counsel for
the appellant, even Pinki's statement in this
regard is a hearsay evidence and is not at all
reliable.
28. We have heard the learned counsel for the
parties at length. It is clearly borne out from the
evidence on record that the appellant belonged
to the same Caste and Gotra of the prosecutrix
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and was a frequent visitor to the house of the
prosecutrix. There was a love affair between
them and the court also observed that she did
not ever resist her being repeatedly deflowered
by the appellant Sunil. In this background, close
and careful determination of the age of the
prosecutrix is imperative. Dr. Verma P.W.1, who
had clinically examined the prosecutrix, found
that her secondary sex characters were well
developed.
29. The short question in the facts and
circumstances of this case remains to be
determined is whether the prosecutrix was a
minor? Dr. Sadhna Verma, PW1 who examined
the prosecutrix referred her for verification to
the Dental Surgeon and the Radiologist. The
failure of getting the prosecutrix examined from
the Dental Surgeon or the Radiologist despite
the fact that she was referred to them by Dr.
Sadhna Verma, PW1 is a serious flaw in the
prosecution version. We are not laying down as
a rule that all these tests must be performed in
all cases, but in the instant case, in absence of
primary evidence, reports of the Dental Surgeon
and the Radiologist would have helped us in
arriving at the conclusion regarding the age of
the prosecutrix.
30. The prosecution also failed to produce any
Admission Form of the school which would have
been primary evidence regarding the age of the
prosecutrix.
31. The School Leaving Certificate produced by
the prosecution was also procured on
12.9.1996, six days after the incident and three
days after the arrest of the appellant. As per
that certificate also, she joined the school in the
middle of the session and left the school in the
middle of the session. The attendance in the
school of 100 days is also not reliable.
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32. The prosecutrix was admitted in the school
by Ashok Kumar, her brother. The said Ashok
Kumar was not examined. The alleged School
Leaving Certificate on the basis of which the age
was entered in the school was not produced.
33. Bishan, PW8, the father of the prosecutrix
has also not been able to give correct date of
birth of the prosecutrix. In his statement he
clearly stated that he is giving an approximate
date without any basis or record. In a criminal
case, the conviction of the appellant cannot be
based on an approximate date which is not
supported by any record. It would be quite
unsafe to base conviction on an approximate
date.
10.
10.1 The decision of the Hon'ble Apex Court
in Rishipal Singh Solanki v. State of Uttar
Pradesh in Crl.A.No.1240/2021 dated
18.11.2021, more particularly, paragraph
Nos.47 thereof, which is reproduced
hereunder for easy reference:
47. Section 94 of the JJ Act, 2015 raises a
presumption regarding juvenility of the age of
the child brought before the JJ board or the
Committee. But in case the Board or Committee
has reasonable grounds for doubt about the
person brought before it is a child or not, it can
undertake the process of determination of age
by seeking evidence. Thus, in the initial stage a
presumption that the child brought before the
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Committee or the JJ Board is a juvenile has to
be drawn by the said authorities. The said
presumption has to be drawn on observation of
the child. However, the said presumption may
not be drawn when the Committee or the Board
has reasonable grounds for doubt regarding the
person 59 brought before it is a child or not. In
such a case, it can undertake the process of age
determination by the evidence which can be in
the form of:
(i) Date of birth certificate from the school or
the matriculation certificate from the concerned
board, if available or in the absence thereof;
(ii) The birth certificate given by a corporation
or by a municipal authority or a panchayat and
in the absence of the above;
(iii) Age has to be determined by an ossification
test or any other medical age determination test
conducted on the orders of the committee or
the board.
10.2 There is no proof of corroboration of the
witnesses alleged against the accused. There
are several inconsistencies in the testimony
of PW.1/CW.1-Victim and other prosecution
witnesses which negate the claim of the
prosecution as regards an offence having
been committed. He submits that the alleged
victim and accused No.1-Sattepa Bhimappa
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were in love with each other, they used to
talk with each other on phone. It is only to fix
accused No.1-Sattepa Bhimappa that a false
complaint has been filed.
10.3 That in the dying declaration at Ex.P.2,
the alleged victim has stated that the injuries
were caused to her on account of her being
dragged and pushed. There are no allegations
made as regard offence of rape, etc. and
therefore the trial Court ought not to have
convicted the accused for the said offences.
10.4 The medical evidence does not indicate
any rape having been committed. There are
no seminal stains that were detected and
hence, he submits that there is no evidence
to support the case of the prosecution. He
relies upon the decision of the Hon'ble Apex
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Court reported in Sadashiv Ramrao Hadbe
v. State of Maharashtra and Another
(2006) 10 SCC 92, more particularly,
paragraph Nos.7 to 14 thereof, which are
reproduced hereunder for easy referenc e:
7. The doctor, who examined the prosecutrix at
about 3 p.m., did not find any injury on her
body. There was only swelling on the upper lip
but the prosecutrix had no case that this
swelling on the upper lip was caused during the
course of the incident. There were no injuries on
her private parts and the doctor who had
examined her was unable to give any opinion
about the sexual intercourse allegedly taken
place. It is important to note that vaginal swab
was collected by the doctor and it was sent for
chemical examination. Exhibit 43 is the
pathological report and it shows that on
Microscopic examination of the Vagina swab
showed desquamated cevical cells and few Co-
oxalate crystals and fluid but no spermatozoa
was found. The Swab of Vagina was taken on
the same day and if any sexual intercourse had
taken place in all probabilities, the vaginal swab
would have found some spermatozoa. The
absence of these sperms cast a serious doubt
on the prosecution version.
8. It may also be noticed that the appellant also
was medically examined on the same day by
PW-10. In his evidence, he stated that smegma
was present around the corono-glandia. He
further deposed that his examination negatived
sexual intercourse and for collection of smegma
around corono-glandia period of 24 hours is
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required. This scientific evidence also did not
support the prosecution. Had there been a
vigourous sexual act as alleged by the Page 611
prosecutrix there could not have been the
presence of smegma on his private part.
9. It is true that in a rape case the accused
could be convicted on the sole testimony of the
prosecutrix, if it is capable of inspiring of
confidence in the mind of the court. If the
version given by the prosecutrix is unsupported
by any medical evidence or the whole
surrounding circumstances are highly
improbable and belie the case set up by the
prosecutrix, the court shall not act on the
solitary evidence of the prosecutrix. The courts
shall be extremely careful in accepting the sole
testimony of the prosecutrix when the entire
case is improbable and unlikely to happen.
10. In the present case there were so many
persons in the clinic and it is highly improbable
the appellant would have made a sexual assault
on the patient who came for examination when
large number of persons were present in the
near vicinity. It is also highly improbable that
the prosecutrix could not make any noise or get
out of the room without being assaulted by the
doctor as she was an able bodied person of 20
years of age with ordinary physique. The
absence of injuries on the body improbablise
the prosecution version.
11. The counsel who appeared for the State
submitted that the presence of semen stains on
the undergarments of the appellant and also
semen stains found on her petticot and her sari
would probablise the prosecution version and
could have been a sexual intercourse of the
prosecutrix.
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12. It is true that the petticot and the
underwear allegedly worn by the appellant had
some semen but that by itself is not sufficient to
treat that the appellant had sexual intercourse
with the prosecutrix. That would only cause
some suspicion on the conduct of the appellant
but not sufficient to prove that the case, as
alleged by the prosecution.
13. The Sessions Court as well as the High
Court had not taken into consideration the
absence of spermatozoa in the vaginal swab of
the prosecutrix. It may also be noticed in the FI
Statement. In this case the prosecutrix had not
given the full description of the incident
allegedly taken place but when she was
examined in court she had improved her
version.
14. On a consideration of the entire evidence in
this case, we are of the view that there is a
serious doubt regarding the sexual intercourse
allegedly committed by the appellant on the
prosecutrix. The appellant is entitled to the
benefit of those doubts and we are of the view
that the High Court and the Sessions Court
erred in finding the appellant guilty.
13. We set aside the conviction and sentence of
the appellant. The appellant, who is in jail, is
directed to be released forthwith, if not required
in any other case.
10.5 He relies upon the decision in Rai
Sandeep alias Deepu v. State (NCT of
Delhi) (2012) 8 SCC 21, more particularly,
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paragraph Nos.31 to 33 thereof, which are
reproduced hereunder for easy reference:
31. When we apply the above principles to the
case on hand, we find the prevaricating
statements of the prosecutrix herself in the
implication of the accused to the alleged offence
of gang rape. There is evidence on record that
there was no injury on the breast or the thighs
of the prosecutrix and only a minor abrasion on
the right side neck below jaw was noted while
according to the prosecutrix's original version,
the appellants had forcible sexual intercourse
one after the other against her. If that was so,
it is hard to believe that there was no other
injury on the private parts of the prosecutrix as
highlighted in the said decision. When on the
face value the evidence is found to be defective,
the attendant circumstances and other evidence
have to be necessarily examined to see whether
the allegation of gang rape was true.
Unfortunately, the version of the so called eye
witnesses to at least the initial part of the crime
has not supported the story of the prosecution.
The attendant circumstances also do not co-
relate to the offence alleged against the
appellants. Therefore, in the absence of proper
corroboration of the prosecution version to the
alleged offence, it will be unsafe to sustain the
case of the prosecution.
32. In the decision reported as Krishan Kumar
Malik v. State of Haryana (supra) in respect of
the offence of gang rape under Section 376 (2)
(g), IPC, it has been held as under in paras 31
and 32:
"31. No doubt, it is true that to hold an accused
guilty for commission of an offence of rape, the
solitary evidence of the prosecutrix is sufficient
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provided the same inspires confidence and
appears to be absolutely trustworthy,
unblemished and should be of sterling quality.
But, in the case in hand, the evidence of the
prosecutrix, showing several lacunae, which
have already been projected hereinabove,
would go to show that her evidence does not fall
in that category and cannot be relied upon to
hold the appellant guilty of the said offences.
32. Indeed there are several significant
variations in material facts in her Section
164 statement, Section 161 statement (CrPC),
FIR and deposition in court. Thus, it was
necessary to get her evidence corroborated
independently, which they could have done
either by examination of Ritu, her sister or
Bimla Devi, who were present in the house at
the time of her alleged abduction. The record
shows that Bimla Devi though cited as a witness
was not examined and later given up by the
public prosecutor on the ground that she has
been won over by the appellant." (emphasis
added)
33. Applying the said principles to the facts of
the case on hand, we find that the solitary
version of the chief examination of PW-4, the
prosecutrix cannot be taken as gospel truth for
its face value and in the absence of any other
supporting evidence, there is no scope to
sustain the conviction and sentence imposed on
the appellants.
10.6 He also relies upon the decision reported in
Dola alias Dolagobinda Pradhan and
another v. State of Odisha AIR 2018 SC
4020, more particularly, paragraph Nos.13
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and 14 thereof, which are reproduced
hereunder for easy reference:
13. Although the prosecutrix admitted that she
sustained bleeding injuries on her hand because
of the shattering of eight bangles worn by her
on her right hand and seven bangles on her left
hand, and had marks of violence present on her
body, the medical records do not support the
said version. The report of the medical
examination is at Ext. 4. It is clearly mentioned
in the said report that there is a bruise mark
measuring half a centimeter, which can be
caused by a hard and sharp object, on the right
cheek. No other mark of injury was seen
anywhere on the body. There is no injury on the
breasts, there is no internal injury on any part
of the body and no injury was found on the
vulva, pelvis and vagina. There are no signs of
injury on the thighs as well. Except for one
bruise on cheek which measures half a
centimeter, no other injury was found on the
victim and the same is clear from the medical
report (Ext. 4).
14. Thus, medical evidence does not support
the case of the prosecution. The Doctor (PW-4),
who examined the victim, however, has
deposed that there were four bruises, each
measuring half a centimeter on the left cheek
and four bruises each measuring half a
centimeter on the right cheek. The Doctor
opined that the injuries are simple in nature and
might have been caused by a hard and sharp
object. The Doctor did not find any other injury
on the body of the victim. There was no injury
on the back side of the body of the victim.
Although the Doctor has deposed in the
examination-in-chief that the injuries could
have been caused by human bite, he has
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admitted in his cross-examination that he has
not mentioned the shape of the injuries in his
report. He further admitted that a bruise can be
caused by a blunt object like stone, wood, fist
blow etc. and can also be caused by a fall. While
a bruise is always accompanied by swelling, an
abrasion caused by a human bite is elliptical or
circular in form, and is represented by
separated marks corresponding to the teeth of
the upper and lower jaw. If we were to believe
that the abrasion was caused by a bite, the
same should have been elliptical or circular in
form. The said material is not forthcoming from
the records.
Moreover, the medical report (Ext. 4) is
contrary to the version of the Doctor with
regard to the number of injuries as well. The
medical report merely states that the victim has
sustained a bruise mark measuring half a
centimeter in size, which means that only one
bruise was found on the right cheek of the
victim. However, during his deposition the
Doctor has exaggerated to say that the victim
has sustained four bruises on each of her
cheeks. In any event, merely on the basis of a
bruise or bruises on the cheeks, which can be
caused even by a fall or by an assault with a
hard substance, it cannot be said that the victim
has suffered sexual assault.
10.7 He submits that the presumption under
Sections 29 and 30 of the POCSO Act would
only arise if there was any doubt. In terms of
Ex.P.2 the victim herself having stated that
she had been dragged and pushed which
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resulted in the injures, there is no
requirement for the accused to prove
otherwise or counter since there is no
presumption which arises.
10.8 Ex.P.17 being the medical report stating
that there is no sexual assault/rape, he
submits that there is nothing required of the
accused to prove or rebut.
10.9 The prosecution had not produced the
MLC certificate as admitted by PW.23/CW.43.
It is only during the course of hearing of the
above appeal that on an application the same
has been marked as Ex.D.1 this certificate
would indicate that there is no allegation of
rape in the MLC. The MLC only refers to
injuries caused.
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10.10 On allowing the application filed for marking
of the MLC report as Ex.D.1 this Court had
also marked the supporting case history as
Ex.C.1. He submits that the said marking is
not proper and in this regard he relies upon
the decision of this Court reported in Prappa
and Another v. Bhimappa and Another
2008 (4) AIR KAR R 122, more
particularly, paragraph No.20 thereof, which
is reproduced hereunder for easy reference:
20. This provision should not be confused with the
general law governing the admissibility of an expert's
evidence. In a criminal case when the prosecution
relies on the expert's evidence to prove the charges
against the accused mere production of the said
expert's report into Court is not sufficient. It does not
become a part of the Court record on mere
production. If the prosecution relies on a report of the
expert, not only the report is to be produced, the
author of the report is also to be examined in the
Court on oath and an opportunity should be given to
the accused to cross-examine the said expert on the
correctness of the report. It is only then the said
evidence becomes admissible and not otherwise. In
such a criminal prosecution, the Court has not
appointed the expert. It is the prosecution, to prove
its case, needs report and they have to examine such
an expert to prove their case. In a criminal trial,
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expert is a witness for the prosecution. He is not a
Commissioner appointed by the Court in the
proceedings.
10.11 He submits that the investigation in any
crime more particularly one under the POCSO
Act has to be fair. In the present case, he
states that the investigation has not been
conducted in a fair manner prejudicing the
accused and therefore the judgment of
conviction needs to be reversed. In this
regard, he relies upon the decision of the
Hon'ble Apex Court reported in Harendra
Sarkar v. State of Assam (2008) 9 SCC
204, more particularly, paragraph No.64
thereof, which is reproduced hereunder for
easy reference:
64. India is a signatory to the Universal
Declaration of Human Rights. Article 2 thereof
provides for rights without discrimination,
without restriction of any kind based on race,
language or religion etc., Article 7 provides for
equality before law and to the equal protection
of the law for all, Article 8 postulates the
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availability of an effective remedy in law for acts
violating the fundamental rights guaranteed to
an individual and Article 12 provides for the
right to a fair trial. These rights are enshrined in
Articles 14 and 21 of the Constitution of India as
well. Can it be said in all honesty that the
investigation and prosecution in matters relating
to communal riots which is really based on
protecting human dignity and the right to life,
accord with the above principles? The question
posed must, of necessity, give cause for
introspection. Such being the background, can
we evaluate a murder committed during a
communal riot as a crime committed in the
normal course - a common place crime as
ordinarily understood? The answer must be in
the negative and for the reasons already quoted
above. It is in this background that the
arguments raised have to be examined.
10.12 Based on the above he submits that the
judgement of the trial court has to be
reversed and the accused to be acquitted.
11. In reply, Sri.V.M.Banakar, learned Additional SPP
submits that:
11.1 The evidence of the minor victim implicates
the accused. The minor victim was engaged
to be married at that stage, the said bride to
be, would not have made allegation that
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someone had committed an offence of rape
on her let alone a gang rape, which would
have an impact on her future life.
11.2 The injuries which have been suffered by the
minor victim due to which she was
unconscious for nearly a week, and was
operated upon, indicate the heinous offence
of gang rape having been committed.
11.3 He submits that the trial court has rightly
relied upon the certificate issued by the
college, in this regard he relies upon the
decision of Hon'ble Apex Court in Ashwani
Kumar Saxena v. State of Madhya
Pradesh (2012) 9 SCC 750, more
particularly para Nos.24, 31 and 32 thereof
which are reproduced hereunder for easy
reference:
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24. We may, however, point out that none of
the above mentioned judgments referred to
earlier had examined the scope, meaning and
content of Section 7A, Rule 12 of the 2007
Rules and the nature of the inquiry
contemplated in those provisions. For easy
reference, let us extract Section 7A of the Act
and Rule 12 of the 2007 Rules:
"Section 7A - Procedure to be followed when
claim of juvenility is raised before any court.
(1)Whenever a claim of juvenility is raised
before any court or a court is of the opinion that
an accused person was a juvenile on the date of
commission of the offence, the court shall make
an inquiry, take such evidence as may be
necessary(but not an affidavit) so as to
determine the age of such person, and shall
record a finding whether the person is a juvenile
or a child or not, stating his age as nearly as
may be:
Provided that a claim of juvenility may be raised
before any court and it shall be recognised at
any stage, even after final disposal of the case,
and such claim shall be determined in terms of
the provisions contained in this Act and the
rules made thereunder, even if the juvenile has
ceased to be so on or before the date of
commencement of this Act.
(2) If the court finds a person to be a juvenile
on the date of commission of the offence under
sub-section (1), it shall forward the juvenile to
the Board for passing appropriate order, and the
sentence if any, passed by a court shall be
deemed to have no effect."
12. Procedure to be followed in determination of
Age.? (1) In every case concerning a child or a
juvenile in conflict with law, the court or the
Board or as the case may be the Committee
referred to in rule 19 of these rules shall
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determine the age of such juvenile or child or a
juvenile in conflict with law within a period of
thirty days from the date of making of the
application for that purpose.
(2) The Court or the Board or as the case may
be the Committee shall decide the juvenility or
otherwise of the juvenile or the child or as the
case may be the juvenile in conflict with law,
prima facie on the basis of physical appearance
or documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or juvenile
in conflict with law, the age determination
inquiry shall be conducted by the court or the
Board or, as the case may be, the Committee
by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;
(ii) the date of birth certificate from the school
(other than a play school) first attended; and in
the absence whereof;
(iii) the birth certificate given by a corporation
or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or
(iii) of clause
(a) above, the medical opinion will be sought
from a duly constituted Medical Board, which
will declare the age of the juvenile or child. In
case exact assessment of the age cannot be
done, the Court or the Board or, as the case
may be, the Committee, for the reasons to be
recorded by them, may, if considered
necessary, give benefit to the child or juvenile
by considering his/her age on lower side within
the margin of one year.
and, while passing orders in such case shall,
after taking into consideration such evidence as
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may be available, or the medical opinion, as the
case may be, record a finding in respect of his
age and either of the evidence specified in any
of the clauses (a)(i),(ii), (iii) or in the absence
whereof, clause (b) shall be the conclusive proof
of the age as regards such child or the juvenile
in conflict with law.
(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be below
18 years on the date of offence, on the basis of
any of the conclusive proof specified in sub-rule
(3), the court or the Board or as the case may
be the Committee shall in writing pass an order
stating the age and declaring the status of
juvenility or otherwise, for the purpose of the
Act and these rules and a copy of the order shall
be given to such juvenile or the person
concerned.
(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms
of section 7A, section 64 of the Act and these
rules, no further inquiry shall be conducted by
the court or the Board after examining and
obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of
this rule.
(6) The provisions contained in this rule shall
also apply to those disposed off cases, where
the status of juvenility has not been determined
in accordance with the provisions contained in
subrule(3) and the Act, requiring dispensation
of the sentence under the Act for passing
appropriate order in the interest of the juvenile
in conflict with law.
(emphasis added)
31. We also remind all Courts/J.J. Board and the
Committees functioning under the Act that a
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duty is cast on them to seek evidence by
obtaining the certificate etc. mentioned in Rule
12 (3) (a) (i) to (iii). The courts in such
situations act as a parens patriae because they
have a kind of guardianship over minors who
from their legal disability stand in need of
protection.
32. "Age determination inquiry" contemplated
under section 7A of the Act r/w Rule 12 of the
2007 Rules enables the court to seek evidence
and in that process, the court can obtain the
matriculation or equivalent certificates, if
available. Only in the absence of any
matriculation or equivalent certificates, the
court need obtain the date of birth certificate
from the school first attended other than a play
school. Only in the absence of matriculation or
equivalent certificate or the date of birth
certificate from the school first attended, the
court need obtain the birth certificate given by a
corporation or a municipal authority or a
panchayat (not an affidavit but certificates or
documents). The question of obtaining medical
opinion from a duly constituted Medical Board
arises only if the above mentioned documents
are unavailable. In case exact assessment of
the age cannot be done, then the court, for
reasons to be recorded, may, if considered
necessary, give the benefit to the child or
juvenile by considering his or her age on lower
side within the margin of one year.
11.4 He also relied upon the decision in Jarnail
Singh v. State of Haryana (2013) 7 SCC
263, more particularly para Nos.22 and 23
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thereof, which are reproduced hereunder for
easy reference:
22. On the issue of determination of age of a
minor, one only needs to make a reference to
Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (hereinafter
referred to as the 2007 Rules). The aforestated
2007 Rules have been framed under Section
68(1) of the Juvenile Justice (Care
and Protection of Children) Act, 2000. Rule 12
referred to hereinabove reads as under :
"12. Procedure to be followed in determination
of Age.? (1) In every case concerning a child or
a juvenile in conflict with law, the court or the
Board or as the case may be the Committee
referred to in rule 19 of these rules shall
determine the age of such juvenile or child or a
juvenile in conflict with law within a period of
thirty days from the date of making of the
application for that purpose.
(2) The court or the Board or as the case may
be the Committee shall decide the juvenility or
otherwise of the juvenile or the child or as the
case may be the juvenile in conflict with law,
prima facie on the basis of physical appearance
or documents, if available, and send him to the
observation home or in jail.
(3) In every case concerning a child or juvenile
in conflict with law, the age determination
inquiry shall be conducted by the court or the
Board or, as the case may be, the Committee
by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent
certificates, if available; and in the absence
whereof;
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(ii) the date of birth certificate from the school
(other than a play school) first attended; and in
the absence whereof;
(iii) the birth certificate given by a corporation
or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or
(iii) of clause (a) above, the medical opinion will
be sought from a duly constituted Medical
Board, which will declare the age of the juvenile
or child. In case exact assessment of the age
cannot be done, the Court or the Board or, as
the case may be, the Committee, for the
reasons to be recorded by them, may, if
considered necessary, give benefit to the child
or juvenile by considering his/her age on lower
side within the margin of one year.
and, while passing orders in such case shall,
after taking into consideration such evidence as
may be available, or the medical opinion, as the
case may be, record a finding in respect of his
age and either of the evidence specified in any
of the clauses (a)(i),(ii), (iii) or in the absence
whereof, clause (b) shall be the conclusive proof
of the age as regards such child or the juvenile
in conflict with law.
(4) If the age of a juvenile or child or the
juvenile in conflict with law is found to be below
18 years on the date of offence, on the basis of
any of the conclusive proof specified in sub-rule
(3), the court or the Board or as the case may
be the Committee shall in writing pass an order
stating the age and declaring the status of
juvenility or otherwise, for the purpose of the
Act and these rules and a copy of the order shall
be given to such juvenile or the person
concerned.
(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms
of section 7A, section 64 of the Act and these
rules, no further inquiry shall be conducted by
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the court or the Board after examining and
obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of
this rule.
(6) The provisions contained in this rule shall
also apply to those disposed off cases, where
the status of juvenility has not been determined
in accordance with the provisions contained in
sub-rule(3) and the Act, requiring dispensation
of the sentence under the Act for passing
appropriate order in the interest of the juvenile
in conflict with law."
23. Even though Rule 12 is strictly applicable
only to determine the age of a child in conflict
with law, we are of the view that the aforesaid
statutory provision should be the basis for
determining age, even for a child who is a
victim of crime. For, in our view, there is hardly
any difference in so far as the issue of minority
is concerned, between a child in conflict with
law, and a child who is a victim of crime.
Therefore, in our considered opinion, it would be
just and appropriate to apply Rule 12 of the
2007 Rules, to determine the age of the
prosecutrix VW-PW6. The manner of
determining age conclusively, has been
expressed in sub-rule (3) of Rule 12 extracted
above. Under the aforesaid provision, the age of
a child is ascertained, by adopting the first
available basis, out of a number of options
postulated in Rule 12(3). If, in the scheme of
options under Rule 12(3), an option is
expressed in a preceding clause, it has
overriding effect over an option expressed in a
subsequent clause. The highest rated option
available, would conclusively determine the age
of a minor. In the scheme of Rule 12(3),
matriculation (or equivalent) certificate of the
concerned child, is the highest rated option. In
case, the said certificate is available, no other
evidence can be relied upon. Only in the
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absence of the said certificate, Rule 12(3),
envisages consideration of the date of birth
entered, in the school first attended by the
child. In case such an entry of date of birth is
available, the date of birth depicted therein is
liable to be treated as final and conclusive, and
no other material is to be relied upon. Only in
the absence of such entry, Rule 12(3)
postulates reliance on a birth certificate issued
by a corporation or a municipal authority or a
panchayat. Yet again, if such a certificate is
available, then no other material whatsoever is
to be taken into consideration, for determining
the age of the child concerned, as the said
certificate would conclusively determine the age
of the child. It is only in the absence of any of
the aforesaid, that Rule 12(3) postulates the
determination of age of the concerned child, on
the basis of medical opinion.
11.5 He submits that the age of the victim in all
the places has been properly given. The age
as reflected in the certificate issued by the
college is corroborated by the medical
evidence as per Ex.P.21, which refers to
dental examination, and indicates the age of
the victim as between 16-17 years. Her age
is also been mentioned for the first time in
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164 statement as 16 years. There is
absolutely no doubt as regards the said age.
11.6 He submits that all the evidences on record
implicates the accused and as such this Court
ought not to intercede in the
Crl.A.No.100352/2018. But however, he
submits that Crl.A.No.100114/2019 is
required to be allowed and the sentence
imposed be enhanced to the maximum
sentence as that prescribed under section
376(D) of IPC. In this regard, he relies upon
the decision of Hon'ble Apex Court in State
of Madhya Pradesh v. Basodi (2010) 1
SCC (CRI) 228, more particularly at para
No.21 thereof, which is reproduced hereunder
for easy reference.
21. In order to exercise the discretion of
reducing the sentence the statutory
requirement is that the Court has to record
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"adequate and special reasons" in the judgment
and not fanciful reasons which would permit the
Court to impose a sentence less than the
prescribed minimum. The reason has not only to
be adequate but also special. What is adequate
and special would depend upon several factors
and no strait-jacket formula can be indicated.
What is applicable to trial Courts regarding
recording reasons for a departure from
minimum sentence is equally applicable to the
High Court. The only reason indicated by the
High Court is that the accused belonged to rural
areas, was an illiterate labourer and belonged to
scheduled tribe. The same can by no stretch of
imagination be considered either adequate or
special. The requirement in law is cumulative.
11.7 He also relied upon the decision in State of
Madhya Pradesh v. Najab Khan and
Others (2014) 1 SCC (CRI) 153, more
particulary para No.12 thereof, which is
reproduced hereunder for easy reference:
12) In Guru Basavaraj @ Benne Settapa vs.
State of Karnataka, (2012) 8 SCC 734, while
discussing the concept of appropriate sentence,
this Court expressed that:
"It is the duty of the court to see that
appropriate sentence is imposed regard being
had to the commission of the crime and its
impact on the social order. The cry of the
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collective for justice, which includes adequate
punishment cannot be lightly ignored."
13) This Court, in Gopal Singh vs. State of
Uttarakhand, JT 2013 (3) SC 444 held as
under:-
"18. Just punishment is the collective cry of the
society. While the collective cry has to be kept
uppermost in the mind, simultaneously the
principle of proportionality between the crime
and punishment cannot be totally brushed
aside. The principle of just punishment is the
bedrock of sentencing in respect of a criminal
offence....."
14) Recently, the above proposition is reiterated
in Hazara Singh vs. Raj Kumar & Ors., 2013 (6)
Scale 142.
15) In view of the above, we reiterate that in
operating the sentencing system, law should
adopt the corrective machinery or deterrence
based on factual matrix. The facts and given
circumstances in each case, the nature of the
crime, the manner in which it was planned and
committed, the motive for commission of the
crime, the conduct of the accused, the nature of
weapons used and all other attending
circumstances are relevant facts which would
enter into the area of consideration. We also
reiterate that undue sympathy to impose
inadequate sentence would do more harm to
the justice system to undermine the public
confidence in the efficacy of law. It is the duty
of every court to award proper sentence having
regard to the nature of the offence and the
manner in which it was executed or committed.
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11.8 Based on the above, he submits that the
Crl.A.No.100352/2018 has to be dismissed
and Crl.A.No.100114/2019 has to be allowed.
12. It is in the above background that we are required
to appreciate/reappreciate the evidence on record
in order to ascertain if the prosecution has proved
the guilt of the accused as regards the offences of
which they were charged with and if the sentence
awarded by the trial Court is proper and correct.
13. CW.1/PW.1 is the victim girl who has stated that
13.1 She is studying in I PUC, she used to go
to college by bicycle from her house to the
village where she used to board a bus. The
distance from her house to the village is 1
k.m. and thereafter, from the village to
college is around 5 k.m.
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13.2 She knows all the three accused. She
used to go to the shop of accused No.1-
Sattepa Bhimappa to buy groceries, everyday
she used to leave her house at 6 a.m. to the
village and then take a bus.
13.3 Her marriage had been fixed with her
relative, it is at this time that on 26.02.2013
when she left her home usually at 6.00 a.m.
and when she was on the way to the village
on her bicycle, accused Nos.1 to 3 restrained
her, accused No.3-Suresh held her hands and
closed her mouth, accused No.2-Yamanur
held both her legs, they carried her to the
sugarcane field put her on the ground,
accused No.3-Suresh continued holding her
mouth and hands, while accused No.2-
Yamanur held her legs, accused No.1-Sattepa
Bhimappa removed her pant and
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undergarments and had forcible sexual
intercourse with her. Thereafter the same
was repeated by accused No.2-Yamanur
when accused No.1-Sattepa Bhimappa held
her legs.
13.4 Thereafter, they tied her legs with her
pant, her mouth with her odani (veil), took
her in a hero motorcycle and threw her in a
deserted well. This they did despite her
pleading with accused Nos.1 to 3 that she
was like their sister, she was getting married
and that she would not inform anybody about
what had happened.
13.5 When she was thrown into the well, she
held the rope attached to the pump set and
slipped down sustaining lacerated injuries,
she was semi-conscious and was screaming.
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Her screams were heard by her aunt
PW.9/CW.13, who on hearing her sounds
came to the well, called some other people,
lifted her out of the well and took her to a
hospital on the same day i.e. on 26.02.2013.
13.6 She has stated that she gained her
consciousness in the night of 27.02.2013.
She gave a complaint as per Ex.P.1 to the
Raibag police, when they visited the hospital,
she has also given a statement to the Police
Inspector. When she was in the hospital, the
Tahasildar had also come and recorded her
statement as per Ex.P.2. She was in the said
private hospital for four days, thereafter on
03.03.2013 she was shifted to the District
Hospital, Belagavi in an ambulance, where
she was hospitalized and underwent
treatment from 03.03.2013 to 20.03.2013.
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13.7 She has stated that she had suffered
two injures, one of the injuries on her
stomach requiring surgery which has done at
the private hospital. She has stated that upon
her discharge the police took her to show the
spot where she was stopped. She showed the
same to them where a panchanama was
conducted and photographs were taken as
per Exs.P.3, 4 and 5. She has stated that she
was medically examined by the doctor in
Belagavi, her clothes, bicycle, etc. were
identified and marked as MOs.1 to 9.
13.8 She has denied all the suggestions put
to her. She has admitted that there are
nearly 20 houses around the place where she
was assaulted. When suggested that there
were 15-20 buses which would ply near the
place, she denies the same. She has admitted
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her mobile number but state that the said
mobile is usually with her mother. She has
denied that she has lodged complaint at the
instance of an advocate, who was inimical to
the family of accused No.1-Sattepa
Bhimappa. She has denied that there were
numerous telephonic conversations between
her mobile number and the said lawyer. She
has denied that accused No.2-Yamanur is not
a resident of her village. She has denied that
accused No.3-Suresh would only come to the
village to attend to any festivities.
13.9 She has stated that on 26.02.2013 she
was going to college to write her exams and
hence she has not taken any of the text
books. She has stated that she does not take
mobile phone to her college. She has denied
that on the said day there was dense fog so
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that she could not see anybody or anything
and she accidentally fell into the well. She
has stated that her father was imprisoned on
account of he having committed the murder
of his brother and hence she and her mother
were staying in the house. She has admitted
that in the morning, in the area where she
lived there would be peace and quiet. She
has stated that though she tried to scream
and shout, accused No.3-Yamanur had
covered her mouth and she could not do so.
13.10 She has denied all suggestions put
across to her. She has stood the test of the
cross-examination and supported the case of
the prosecution.
14. CW.2/PW.2 and CW.3/PW.3 are the mahazar
witnesses who have turned hostile. They have
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denied any knowledge of the panchanama which
had been drawn up at Ex.P.7. The learned Public
Prosecutor sought permission to treat them as
hostile witnesses and cross-examined them.
During the course of the cross-examination they
have denied all the suggestions. Nothing much was
elicited from them to support the case of the
prosecution. They have not been cross-examined
by the counsel for the accused.
15. CW.5/PW.4 who is the owner of the land in which
the well was located, denied any knowledge of the
incident. The learned Public Prosecutor sought
permission to treat the witness as hostile and cross
examined him. During the course of the cross-
examination, he has denied all the suggestions.
Nothing much was elicited from him to support the
case of the prosecution. He has not been cross-
examined by the counsel for the accused.
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16. CWs.8 and 9/PWs.5 and 6 respectively, also denied
any knowledge of the incident. Both of them have
stated that the police took them to the spot and
took their pictures. They denied that any material
objects were seized in their presence. The learned
Public Prosecutor sought permission to treat them
as hostile witnesses and cross-examined them.
During the course of the cross-examination, they
have denied all the suggestions, nothing much was
elicited from them to support the case of the
prosecution. They have not been cross-examined
by the counsel for the accused.
17. CW.10/PW.7 is the mother of the victim girl who
has deposed that
17.1 From two years they were staying in the
said village. PW.1/CW.1 is her daughter, she
knows and has identified the accused. She
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has also stated about how PW.1/CW.1 would
go to college by bicycle and thereafter by
bus, and about the distances.
17.2 About 7.30 a.m. she came to know from
CW.13/PW.9, about PW.1/CW.1 being found
in the well. When she went there she was
informed that CW.12 had lifted her from the
well, she was lying on the road and was
unconscious.
17.3 Hence, she and her brother
PW.8/CW.11. took her to the hospital and
after 1½ days PW.1/CW.1 gained
consciousness. She has stated about how
PW.1/CW.1 informed her that when she was
going to college accused Nos.1 to 3
restrained her took her to the sugarcane field
and accused No.1-Sattepa Bhimappa and
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accused No.2-Yamanur having raped her
while accused No.3-Suresh was helping them
and of her being taken in two wheeler and
thrown into the well.
17.4 She has also stated about CW.13/PW.9
having heard the sound and screams of
PW.1/CW.1. They lifted her out of the well.
She has also handed over MOs.1 to 5 being
the cloths of PW.1/CW.1 to the police.
17.5 During the course of cross-examination,
she has stated that there are around 40-50
houses around the place of the incident and
there was an existence of kacha road, the
people using the said kacha road to travel.
17.6 She has admitted that in the morning
the area is very quiet. The well in question
was situated 15 feet from her house. That
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her husband has been convicted in a criminal
case. She has denied that her daughter would
take a mobile phone along with her while
going to college.
17.7 She has denied that because of fog
nothing could be seen. She has denied that
because of the fog PW.1/CW.1 has
accidentally fallen into the well.
17.8 She had admitted that she had informed
the doctor that PW.1/CW.1 had fallen from a
bicycle into the well.
17.9 She has denied that the advocate who
had enmity with accused, met her and her
brother in the hospital and they have created
story of gang rape and filed a false case.
17.10 She has stated that her daughter was
engaged to be married and her daughter had
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certain objections to the said marriage. She
has denied that PW.1/CW.1 had a love affair
with accused No.1-Sattepa Bhimappa and it
is for that reason they were getting her
married in urgency. She has denied that the
family members of accused No.1-Sattepa
Bhimappa also had objection to the said
marriage. She has further denied that
PW.1/CW.1 wanted to marry accused No.1-
Sattepa Bhimappa.
17.11 She has denied all other suggestions.
She has withstood the test of the cross-
examination and stuck to the prosecution
story.
18. CW.11/PW.8 is the brother of PW.7/CW.10. He has
deposed that
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18.1 PW.7/CW.10 is his sister and
PW.1/CW.1 is daughter of PW.7/CW.10. On
the date of the incident when he was in the
field, he heard the voice from the well he had
gone there, he and CW.12 got down in the
well and lifted PW.1/CW.1 from the well, at
that time PW.1/CW.1 was unconscious, they
took her to the hospital.
18.2 He has stated that PW.1/CW.1 did not
tell him anything about the incident. The
learned Public Prosecutor sought permission
to treat the witness as hostile witness and
cross-examined him. During the course of the
cross-examination, he has denied all the
suggestions, nothing much was elicited from
him to support the case of the prosecution.
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18.3 During the course of the cross-
examination by the counsel for the accused,
he has stated that there was dense of fog on
the date of the incident and that PW.1/CW.1
on her own fell into the well from the bicycle.
19. CW.13/PW.9 is the wife of CW.12. She has
deposed that
19.1 She heard sound near the well. She saw
PW.1/CW.1 in the well, she called people,
including her husband CW.12, who came and
lifted her out of the well and then PW.1/CW.1
was taken to the hospital. After two days she
gained consciousness.
19.2 On her regaining consciousness, when
she enquired with CW.12, he informed her
that the accused had raped PW.1/CW.1. Then
the police came and she showed them the
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well. She has denied that the police showed
her the slippers (MO.7), writing board (MO.8)
and the bicycle (MO.6).
19.3 At this stage, the learned Public
Prosecutor sought permission to treat
PW.9/CW.13 as hostile witness and cross-
examined PW.9/CW.13. She has denied the
suggestions put across to her. She has
denied that panchanama was prepared in her
presence. Nothing much was elicited from her
during the course of the prosecution.
19.4 In the cross-examination by the counsel
for the accused, she has admitted that there
was dense fog on the date of the incident.
She has stated that PW.1/CW.1 on her own
had fallen into the well. She admits that she
states that she was asked to depose in this
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particular manner by the father of
PW.1/CW.1. She retracts and states that he
has not told her anything.
19.5 She has also retracted that CW.12 told
her about the accused having committed the
rape on PW.1/CW.1. She has stated that after
lifting PW.1/CW.1 from the well when they
made her to drink water she regained
consciousness.
20. CW.14/PW.10 has denied any knowledge of the
incident. She has denied that she went to the well
and saw PW.1/CW.1 in it. The learned Public
Prosecutor sought permission to treat
PW.10/CW.14 as hostile witness and cross-
examined PW.10/CW.14. During the course of the
cross-examination, she has denied all the
suggestions, nothing much was elicited from her to
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support the case of the prosecution. She has not
been cross-examined by the counsel for the
accused.
21. CW.15/PW.11 has denied that he knows
PW.1/CW.1, however he states that he knows the
accused. On the date of the incident, he admits
that sugarcane was being grown in his field,
however denies any knowledge of the incident as
also of having given a statement to the police. The
learned Public Prosecutor sought permission to
treat the witness as hostile witness and cross-
examined him. During the course of the cross-
examination, he has denied all the suggestions,
nothing much was elicited from him to support the
case of the prosecution. He has not been cross-
examined by the counsel for the accused.
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22. CW.17/PW.12 stated that he does not know
PW.1/CW.1 and the accused. He admits the
number of his motorcycle, however denies any
knowledge of the incident as also of the use of the
motorcycle in the incident. The learned Public
Prosecutor sought permission to treat the witness
as hostile witness and cross-examined him. During
the course of the cross-examination, he has denied
all the suggestions, nothing much was elicited from
him to support the case of the prosecution. He has
not been cross-examined by the counsel for the
accused.
23. CW.6/PW.13 is the seizure mahazar witness, he
had gone to the private hospital where PW.1/CW.1
was being treated where the mother of PW.1/CW.1
produced the clothes of PW.1/CW.1 worn at the
time of the incident. He has identified the seizure
mahazar as Ex.P.16 and the cloths seized as MOs.1
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to 5. He has stated that CW.7 was present with
him at that time, who has affixed his thumb
impression. During the course of cross-
examination by the counsel for the accused, he has
stated that he is semi-literate. He has denied the
suggestions put across to him during the course of
cross-examination. He has stood the test of cross-
examination and supported the case of the
prosecution.
24. CW.17/PW.14 is an independent witness. He has
deposed that on the date of the incident at 6.00
a.m. when he was proceeding on his two wheeler
after watering the sugarcane field he saw the
accused standing near the place, close to the scene
of occurrence, after that he came to know of three
people having raped a girl, he does not know the
name of the girl. In the cross-examination by the
counsel for the accused, he has answered all
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questions relating to the road, distances from one
place to the other, existence of houses,
government school, etc. He has denied that the
advocate who is inimical to the accused is his
relative. He denies the knowledge of any dispute
between the said advocate and the father of the
accused. He has withstood the test of the cross-
examination and supported the case of the
prosecution.
25. CW.18/PW.15 is an independent witness who has
deposed that on the date of the incident at 7.30
a.m. in the morning when he was standing near
the bus stand that all the three accused on a
Honda motorcycle had crossed the bus stand. On
the cross-examination by the counsel for the
accused, he has denied all the suggestions. He has
also denied that he is deposing falsely. He has
supported the case of the prosecution.
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26. CW.24/PW.16 is the doctor in a private nursing
home/hospital, who had first examined the victim
on 26.02.2013.
26.1 He has stated that he has issued the
wound certificate as per Ex.P.17 in terms
thereof the victim PW.1/CW.1 has suffered
the following wounds:
26.1.1 Multiple linear scratches over left lumbar
and gluteal regions.
26.1.2 Multiple linear scratches over right subcostal
and lumbar regions in area of 10*10 cms.
26.1.3 Right arm : 10 * 6 cms (anteromedial side )
abrasion.
26.1.4 Right cubital fossae : 4 * 5 cms abrasion.
26.1.5 Left arm : 6 * 4 cms (anteromedial side )
abrasion.
26.1.6 Left cubital fossae : ( anteromedial aspect )
5 * 6 cms abrasion.
26.1.7 Left mid fore arm : 2 * 6 cms abrasion.
26.1.8 Laceration of inferior surface of the liver.
26.1.9 Multiple mesentric tears (of jejunum and
ileum.)
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26.1.10 Multiple omental tears.
In my opinion the injuries listed from 8 to 10
(i.e 8, 9 and 10 ) are grevious in nature. The
remaining are simple in nature.
26.2 He has further stated that all the
wounds are fresh in nature.
26.3 In the cross-examination by the counsel
for the accused, he has stated that his
hospital is a general hospital, whenever any
accident case or assault case comes to them,
they report to the police by sending MLC. He
has stated that no MLC was sent in the
present case. He has further stated that the
victim PW.1/CW.1 has responded to the
treatment given and recovered. He has
denied that a sponge bath is given to the
victim before the surgery, but her cloths were
changed.
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26.4 He has stated that though different
names were mentioned in various reports,
both the names relate to the victim
PW.1/CW.1. He has denied that the report
given by him is relating to someone else and
not relating to the victim PW.1/CW.1. He has
survived the test of the cross-examination
and supported the case of the prosecution.
27. CW.4/PW.17 is a mahazar witness, he states that
CPI had called him for drawing the mahazar. He
went to the spot shown by the CPI. He was also
shown the well, where PW.1/CW.1 victim was
thrown. He identified the bicycle as MO.7. He has
stated that apart from the above he does not know
anything else. The Public Prosecutor sought
permission to treat the witness as partly hostile
and cross-examined him. In the cross-examination
he has admitted that a writing board had also been
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seized from the spot which was behind the bicycle
career which is identified as MO.8. In the cross-
examination by the counsel for the accused, he has
denied that he was not a resident of the said place
and that he has been called only to depose falsely
in the matter. He has stated that in the well there
was only sufficient water for grass to grow and
nothing more. He has denied other suggestions. He
has withstood the cross-examination and
supported the case of the prosecution.
28. CW.32/PW.18 is the village accountant who has
submitted his report as regards the location of
grocery shop and that sugarcane crop was being
grown in the field where PW.1/CW.1 victim was
raped. In the cross-examination, he has admitted
that in the revenue document the presence of
houses, well, etc. is not reflected. Otherwise, he
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has stood the cross-examination and supported the
case of the prosecution.
29. CW.31/PW.19 is the retired Principal of the college
where PW.1/CW.1 victim was studying. He has
deposed that he has furnished the date of birth
certificate of PW.1/CW.1 victim as per Ex.P.19 as
per which the date of birth is 02.08.1996. During
the course of cross-examination by the counsel for
the accused, he has denied that he has given a
certificate as per the instructions of the police by
showing the age of PW.1/CW.1 as minor.
Otherwise, he has stood the cross-examination and
supported the case of the prosecution.
30. CW.38/PW.20 is the lady doctor at Government
hospital. She has deposed that as per the
requisition of the police she visited the private
hospital where PW.1/CW.1 victim was treated and
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examined her on 28.02.2013. She has stated that
PW.1/CW.1 had secondary stage sexual
developments, her hymen was not intact, there is
bleeding from her vagina, she took blood samples
of PW.1/CW.1 and sent it to Government hospital
for examination through woman police constable.
She also collected the clothes of PW.1/CW.1 victim
and sent it to RFSL for examination, sent her to
dentist and radiologist for verification of the age.
She has stated that as per the report of the dentist
her age is 16-17 years and as per the report of
radiologist her age is 16-18 years. She has
identified the RFSL report as Ex.P.20. As stated in
terms of the said report there is evidence of sexual
intercourse both the past as well as recent. She is
the author of the medical certificate at Ex.P.21. In
the cross examination by the counsel for the
accused, she has stated that there was no lady
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doctor present in the Government hospital where
the victim was residing in. She denied she has not
examined PW.1/CW.1 victim or that she has not
given the certificates. She has stated that if there
is forcible sexual intercourse, there is possibility of
injuries being caused to the private parts of the girl
in question. She has withstood the test of the
cross-examination and supported the case of the
prosecution.
31. CW.41/PW.21 is the Additional Senior Civil Judge
and JMFC before whom the statement under
Section 164 of Cr.P.C. of PW.1/CW.1 victim was
recorded in terms of Ex.P.6 on 13.03.2013. In the
cross-examination she has stated that before
recording the statement, she had ascertained if
PW.1/CW.1 victim was in a condition and fit
enough to give her statement. She has stated that
she recorded the statement of PW.1/CW.1. She
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has stated that no one else was present on that
day. She has not recorded the audio or video
statement of PW.1/CW.1. She has denied the
suggestions put across to her and supported the
case of the prosecution.
32. CW.40/PW.22 is the Tahasildar who had recorded
the dying declaration of PW.1/CW.1 as per Ex.P.2.
In the cross-examination he has stated that he has
verified if PW.1/CW.1 was in a position to give her
statement from the doctors, however he has not
obtained the same in writing. He has denied that
PW.1/CW.1 has not given the statement as
recorded by him. He has further denied that he is
deposing falsely to support the case of the
prosecution. He has denied the other suggestions
and supported the case of the prosecution.
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33. CW.43/PW.23 is the Police Inspector who has
conducted the investigation. He has stated that on
receipt of information about the incident he had
visited the private hospital where PW.1/CW.1
victim was being treated and he recorded the
statement of PW.1/CW.1 victim, received the
cloths handed over by the mother of PW.1/CW.1
victim, seized the cloths and drawn the
panchanama as per Ex.P.16. He has given a
requisition to the Taluka Executive Magistrate to
record the dying declaration of PW.1/CW.1 victim.
He has recorded the statement of PW.8/CW11,
PW.9/CW13, PW.10/CW14 and CW.12, had drawn
panchanama of the spot and well as per Ex.P.8,
seized the bicycle, chappal, writing pad and her
ticket as MOs.6 to 8. He had also received the
articles belonging to PW.1/CW.1 victim collected by
the medical officer, took the accused into police
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custody from 01.03.2013 to 04.03.2013. He has
recorded the voluntary statement of accused on
02.03.2013 which have been marked as Exs.P.24-
26, produced them for medical examination. He
has also received the articles belonging to the
accused collected by the medical officer on
03.03.2013. He took the accused along with
panchas and photographer to the spot and well
where they took photographs, collected bangle
pieces in the spot where the rape is alleged to
have occurred. He has seized the cloths owned by
accused No.2-Yamanur and accused No.3-Suresh
at the time of the incident as also the two wheeler
used at the time of the incident, received the
medical certificate of the accused from the medical
officer at Exs.P.28-30. He has recorded the
statement of PW.11/CW.15, PW.4/CW.5,
PW.15/CW.18 and CW.16 on 05.03.2013, recorded
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the statement of PW.8/CW.11 and CW.12 on
12.03.2013, gave requisition for recordal of
statement under Section 164 of Cr.P.C. of the
victim which was recorded on 13.03.2013. He has
also stated about the medical examination carried
out, the samples collected and sent for analysis,
receiving the report and after investigation being
completed having filed the charge sheet. In the
cross-examination by the counsel for the accused,
he has denied that there are 40-50 houses around
the scene of occurrence. He has denied any
knowledge of several buses being plied near the
scene of occurrence. He has denied that
PW.1/CW.1 would use bicycle to go to her college
and not take a bus. He has denied that during the
course of investigation he came to know about
several calls made by the mother of PW.1/CW.1 to
the advocate who was inimical to the accused. He
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has admitted that there were telephone calls
between the mobile number of PW.1/CW.1 and
accused No.1-Sattepa Bhimappa. He admits that
PW.1/CW.1 has elder sister, who is 24 years age,
he denies that PW.1/CW.1 is 21 years of age. He
denies that for that reason SSLC marks card of
PW.1/CW.1 has not been produced. He has denied
all other suggestions which were put to him during
the course of cross-examination. He has supported
the case of the prosecution.
34. CW.42/PW.24 is the PSI of police station. He
received a call on 27.02.2013 at 10.30 a.m.
informing him that PW.1/CW.1 had been
hospitalized in the private hospital. He recorded
the oral complaint of PW.1/CW.1 at 2.00 a.m. on
27.02.2013 on which basis they registered case in
Crime No.50/2013 and sent the FIR to Court,
thereafter on coming to know the severity of the
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case investigation was handed over to
PW.23/CW.43. In the cross-examination he has
denied any cases where somebody false into well
or falls down from a bicycle no MLC is received. He
has stated that he received the MLC in the present
case. He has examined this and as per the said
examination report received was as regards
PW.1/CW.1 having fallen down in a well. He has
denied rest of the suggestions which were put to
him. He has withstood the test of the cross-
examination and supported the case of the
prosecution.
35. Before we advert to the evidence on record, one
matter which would have to be decided is whether
the victim was minor at the time of the incident or
not?
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35.1 The case of the prosecution is that the
victim was a minor as on the date of the
incident and her age was 16 years. As
regards the same, reliance is placed on
Ex.P.19 being a certificate issued by SSR
Composite Pre-University College, Mudalagi
wherein the date of birth of the victim is
stated to be 02.08.1996. The incident having
occurred on 26.02.2013 she was about 16
years and 6 months as on the date of the
offence.
35.2 The contention of Sri.Vitthal S Teli is
that the author of Ex.P.19 has not been
examined. Inasmuch as it is the requirement
that the register mentioned at Ex.P.19 to be
produced, the person who had made the
entries in the said register to be examined so
also the persons who had given the date of
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birth of the victim to be examined. He further
states that the said certificate has been
issued after the offence was committed or
rather after the accused were arrested.
Hence, the document not being of a time
prior to the incident when there was no
dispute, the trial Court ought not to have
taken the said document as gospel truth of
the age of the victim.
35.3 The SSLC certificate of the victim has
not been produced requiring an adverse
inference to be drawn under Section 114(g)
of the Indian Evidence Act. He also refers to
the evidence of PW.1/CW.1, wherein she has
stated that her sister is aged about 23-24
years and she is 2-3 years younger than her
sister, thereby implying that PW.1/CW.1
victim is at least 20 years.
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35.4 He refers to the deposition of
PW.7/CW.10, mother of PW.1/CW.1 minor
victim, wherein she has stated that her
marriage took place 25 years ago, one year
after the marriage elder daughter was born
and one year thereafter PW.1/CW.1 was
born. Therefore, he submits that PW.1/CW.1
was 23 years of age.
35.5 As regards the FSL report, he submits
that though the dental age estimation is
shown as 16-17 years the radiologist opinion
is that the skeletal age is 16-18 years.
Neither the dentist nor the radiologist has
been examined. Therefore, the said age
cannot be taken into consideration.
35.6 It is on the above basis, he contends
that the age of the victim was at least 20
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years and as on the date of the offence she
was above 18 years.
35.7 In order to appreciate the above
arguments, the first aspect to be taken into
consideration is that PW.1/CW.1 deposition
was recorded on 19.08.2015 and the incident
had occurred on 26.02.2013 i.e. after a
period of 2½ years. Even if the submissions
made by Sri.Vitthal S Teli is taken at face
value in respect of the deposition of
PW.1/CW.1 since the elder sister of the victim
was 23 years of age as on 19.08.2015 there
is a difference of three years between her
and PW.1/CW.1. Her age could have been
taken as 20 years as on 19.08.2015 and as
on 26.02.2013 it would have been 16½
years.
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35.8 Be that as it may, the victim has
specifically denied the suggestion made to
her that she was 21 years of age as on the
date of recordal of her deposition. She has
reiterated that as on the date of the incident
she was 17 years of age. As regards the
evidence of PW.7/CW.10, referred to and
relied upon by Sri.Vitthal S Teli, PW.7/CW.10
was examined on 17.10.2015 and that she
states that she was married 25 years ago.
Though as per the said deposition it appears
that the victim is aged 23 years as on the
date of recordal of the deposition, we have to
take into consideration the fact that
PW.7/CW.10 is a rustic villager, who has
deposed on the basis of her memory which
cannot be taken to be a pristine quality.
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35.9 In this regard, the oral evidence of
PW.1/CW.1 would have more probative value
since PW.1/CW.1 is speaking of her own age.
35.10 The argument of Sri.Vitthal S Teli is that
the SSLC marks card has not been produced
and it is only a certificate issued by the
college, which certificate has been produced
after the incident, the same also does not
hold us any longer.
35.11 Ex.P.19 has been produced by
PW.19/CW.31, who was the Principal of the
college where the victim was studying. He
has stood the test of the cross-examination.
He has denied that the date has been entered
wrongly to support the case of the
prosecution in the said cross-examination.
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35.12 The counsel for the accused has not
sought for production of the register nor
made enquiry as to who has made the entry
in the register or the like. The only
suggestion made is that a wrong entry has
been made at the behest of and to suit the
case of the prosecution.
35.13 In our considered opinion, the certificate
which has been produced at Ex.P.19 issued
by the college when the victim was studying
in a Pre-University College would be sufficient
proof of the age of the victim.
35.14 The decisions relied upon by Sri.Vitthal
S Teli in Sunil's case (supra) would not be
applicable in the present case, since it was
held in that case that the scholars register
would have no evidentiary value unless the
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person who has made an entry has been
examined. In the present case, it is certificate
issued by the college, where the victim was
studying, on the basis of the entry made in
the register maintained by the college, since
it is not a mere scholars register or a transfer
certificate.
35.15 The decision of the Hon'ble Apex Court
in Rishipal's case (supra) would also not be
applicable to the present case, since that was
a case under Section 94 of the J.J. Act. As
regards a child who was in conflict with law
and was being prosecuted and the procedure
under Section 94 of the J.J. Act was required
to be followed to ascertain if at all an accused
was eligible to claim the benefit of being a
juvenile.
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35.16 The Apex Court in Ashwani Kumar
Saxena's Case has held that in the absence
of the matriculation certificate, the court can
rely upon the date of birth certificate from
the School. Similar was the view of the Apex
court in Jarnail Singh's case.
35.17 In the present case, firstly the child in
question is one who needs protection of law
and has produced a certificate issued by her
college to establish her age. Furthermore,
even at the time of recordal of the statement
under Section 164 of Cr.P.C. she has
indicated that her age is 16 years on or
around the date of the incident. In this
background we are of the considered opinion
that the victim was minor as on the date of
the incident and therefore, the provisions
under the POCSO Act would be applicable and
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it is in this background that the evidence has
to be considered.
36. It is in the background of the above depositions
and cross-examination and the finding above that
we have to examine whether the prosecution has
been able to prove the guilt of the accused and if
the sentence awarded by the trial Court is proper
and correct?
37. The deposition of various witnesses and the
uncontroverted evidence on record would indicate
that the prosecutrix i.e. PW.1/CW.1 was less than
16 years of age as on the date of the incident, as
observed and analyzed above.
38. PW.1/CW.1 has stated about how she used to
travel from her house to the village by a bicycle
and from village to her college, in a bus. This
evidence has also been supported by her mother
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PW.7/CW.10. There are no eye witness to support
the case of the prosecution as regards the incident
described by PW.1/CW.1.
39. PW.1/CW.1. has stated that on the fateful day i.e.,
26.02.2013 she left her house on her bycycle to
the village to go to her college to take her exams.
40. CW.17/PW.14 who is an independent witness has
stated that on the date of the incident at 6.00 a.m.
when he was proceeding on his two wheeler, he
saw the accused standing near a place, close to the
scene of occurrence.
41. PW.1/CW.1. that while on the way to the college
accused No.1--Sattepa Bhimappa, accused No.2-
Yamanur and accused No.3-Suresh restrained her,
accused No.3-Suresh held her hands and closed
her mouth, accused No.2-Yamanur held both her
legs, they carried her to the sugarcane field, put
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her on the ground, accused No.3-Suresh continued
to hold her mouth and her hands while accused
No.2-Yamanur held her legs, accused No.1-
Satteppa Bhimappa removed her pant and
undergarments and had forcible sexual intercourse
with her and thereafter the same was repeated by
accused No.2-Yamanur when accused No.1-
Sattepa Bhimappa held her legs.
42. PW.1/CW.1. has also deposed that in order to
destroy the evidence of their crime, they threw her
into the well in order to kill her, however she
managed to hold on to the rope attached to the
pump set and slid down, saving her life, but
suffering several injuries in this regard as indicated
by CW.24/PW.16, the list of injuries are extracted
above. She has further stated that after throwing
her into the well the accused left the scene.
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43. CW.18/PW.15, who is another independent
witness, has stated that on the date of the incident
at 7.30 a.m. in the morning when he was standing
near the bus stand, all the three accused passed
before him on a hero motorcycle.
44. Thus from the above it is clear that the Accused
were waiting to ambush CW.1/PW.1, knowing fully
that she used to take that particular route
everyday, they waylaid her, committed the offense
of Gang Rape as defined under Section 376 D of
the IPC, threw her in the well in order to kill her
and destroy the evidence and left the spot in their
bycycle and went before the bus stand.
45. This aspect of a sexual intercourse having occurred
or not could not be completely medically proved in
view of the fact that the victim being unconscious
and the aspect of the above sexual assault not
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being known to the doctors, the doctors in order to
save her life on account of the injuries suffered by
her had carried out a surgery. Thus, the medial
evidence could not be collected immediately.
However, CW.38/PW.20 had examined her on
28.02.2013, took her samples including the clothes
and sent it to the RFSL. The RFSL certificate as per
Ex.P.20 has categorically indicated that there were
seminal stains present on the chudidar pant of
PW.1/CW.1. It is clear that, if not from this event
having occurred, there could not have been the
presence of seminal stains present on her clothes.
However, unfortunately there is no test done by
RFSL to ascertain as to whom the semen belonged
to i.e. to say that it has not been compared or
matched with any sample.
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46. PW.1/CW.1 in her evidence has categorically stated
that during the time of the incident she had
scratched the accused.
47. A perusal of Ex.P.28 being the medical examination
report of accused No.1-Sattepa Bhimappa indicates
that he had scratches over the left arm measuring
2.2 c.m. x 0.1 c.m. as also scratches on the right
abital fisso. A perusal of Ex.P.29 being the
examination report of accused No.2-Yamanappa
indicates that there were scratches over the right
side of right maxillary bone measuring 0.7 x 0.1
c.m., scratches over the ear measuring about 0.5 x
0.2 c.m., scratches over the upper left ear
measuring 0.1 x 0.1 c.m. A perusal of Ex.P.30
being the examination report of accused No.3-
Suresh indicates that there were no scratches on
his body.
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48. Taking these examination reports in conjunction
with the evidence of PW.1/CW.1, where she has
stated that she has scratched accused No.1-
Sattepa Bhimappa and accused No.2-Yamanur
would establish the allegations made by
PW.1/CW.1. The scratches being recent and having
occurred during the course of the incident as
deposed by PW.1/CW.1 and there being no
explanation offered by accused No.1-Sattepa
Bhimappa and accused No.2-Yamanur as regards
how those scratches have been caused leads to an
irresistible conclusion that the said injuries have
been caused during the sexual assault committed
by them on PW.1/CW.1.
49. CW.13/PW.9 who is wife of CW.12 has deposed
that, when she enquired with CW.12, he had
informed her that the accused had raped
PW.1/CW.1. On CW.13/PW.9 being treated as a
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hostile witness, she has retracted this statement
during the cross examination by the Accused. The
fact however remains that in her examination-in-
chief she has stated of CW.12 having informed her
of Accused having raped CW.1/PW.1.
50. CW.17/PW.14 has also deposed that he came to
know of three people having raped a girl, thus it is
clear that people in the vicinity knew of a rape
having been committed. Though several of the
witnesses have turned hostile, they have adverted
to the above knowledge which establishes by
corroboration the deposition of CW.1/PW.1.
51. CW.2/PW.2 and CW.3/PW.3, the mahazar and spot
witness, have turned hostile and not supported the
case of the prosecution.
52. CW.8/PW.5 and CW.9/PW.6 who are witnesses to
the seizure have also denied that any particular
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item had been seized in their presence and they
did not support the case of the prosecution.
53. CW.6/PW.13 being another seizure witness as
regards the clothes of PW.1/CW.1 at Mos.1 to 5
has supported the case of the prosecution. It is
these clothes when sent to RFSL, the RFSL has on
examination opined that the where seminal stains
on the Churidhar. If not for the occurrence of the
above event there was no reason for seminal
stains to be found on the clothes of CW.1/PW.1.
54. CW.4/PW.17, being a mahazar witness, has
identified the sketch of the well, bicycle as MO.7,
the writing board as MO.8. The evidence of
mahazar/seizure witnesses who have supported
the case of the prosecution establishes the seizure
of bicycle and the examination pad which supports
the statement of PW.1/CW.1 that she was going on
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her bicycle to attend her exams for which purpose
she was carrying her examination pad.
55. The wounds and the injuries which have been
caused, as certified by CW.24/PW.16, who is a
doctor at a private nursing home, clearly indicates
the injuries caused to the front side of the body of
PW.1/CW.1 as also on the backside. PW.1/CW.1
had been hospitalized for several days, underwent
surgery and is only thereafter she recovered. The
injuries which have been caused can be stated to
have been so caused when PW.1/CW.1 was thrown
into the well which was dry.
56. Much is sought to be made out by Sri.Vitthal S Teli,
learned counsel for the accused contending that
PW.1/CW.1 fell down on her own into the well due
to the dense fog. However, this aspect has not
been established, in fact the evidence on record is
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in support of the case of PW.1/CW.1 where all the
spots have been identified by PW.1/CW.1 and a
mahazar conducted of those spots.
57. PW.17/CW.4 the mahazar witness has stated that
when he was called to do the mahazar, the bicycle
was fallen near the well. This aspect is of
significance. A perusal of the photographs at
Ex.P.9 indicates that the well in question is an
open well without any protection/embankment or
wall around it. If at all the case of the defence is
to be believed, both the bicycle and PW.1/CW.1
had to have fallen into the well. The fact remains
that it is only PW.1/CW.1 who fall into the well and
the bicycle did not fall into the well.
58. This in our considered opinion would establish that
PW.1/CW.1 was thrown into the well and her
bicycle was left there as if to create an impression
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that she had, in the fog, ridden into the well and
fallen into it.
59. The bicycle being on the top of the well would
establish otherwise and that PW.1/CW.1 did not fall
into the well while cycling.
60. It is sought to be alleged that PW.1/CW.1 and
accused No.1-Satyapa were in love with each other
and the complaint has been filed only to spite
accused No.1-Satyappa. The allegation in the
present case is that PW.1/CW.1 had been engaged
to be married to one of her relatives. It therefore
in our considered opinion, this argument of the
defence has no credence or credibility, since no
woman who has been engaged and who is about to
be married would plead that she was gang raped
only to spite her former alleged lover.
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61. During the course of hearing of the above appeal,
Sri.Vitthal S Teli had filed an application under
Section 391 of Cr.P.C. for marking of MLC report of
the private nursing home which came to be
allowed and the said document came to be marked
as Ex.D1 Along with the said document the case
history of PW.1/CW.1 was marked as Ex.C.1.
62. The contention of Sri.Vitthal S Teli by relying on
Ex.P.1 is that the MLC report indicated that the
victim had fallen down the well due to which the
injures had occurred. He states that when the MLC
is for that reason, there is no allegation against the
accused of sexual assault or otherwise.
63. Though we had marked Ex.C.1, he has objected for
the same, hence we are not considering Ex.C.1,
since irrespective of Ex.C.1 the evidence on record
would establish the guilt of the accused.
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64. Coming to Ex.P.1 it was issued by a private nursing
home on the basis of the information which had
been received that CW.1/PW.1 had fallen down the
well. At that time PW.1/CW.1 being unconscious,
no one was aware of the sexual assault which had
taken place on her. Thus, the contents of Ex.P.1
will not support the defense.
65. Furthermore, mere marking of the said document
will not help the accused without the examination
of the author of the said document. There being no
examination of the author of the said document on
these facts, no inference can be drawn on the basis
of the said document.
66. Much is also sought to be made out as regards the
alleged Dying Declaration of the CW.1/PW.1,
contending that there is no reference in the said
dying declaration to any sexual assault or rape. A
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Dying Declaration would have been a piece of
evidence if the declarant had died, since here the
declarant has survived, it can only be treated as a
statement of CW.1/PW.1 under Section 161 of the
Cr.P.C. CW.1/PW.1 who when examined has
deposed as regards the events as they happened
and she has stood the test of cross examination,
thus the interpretation and meaning attributed to
her Dying Declaration is misconceived. The said
statement under Section 161 of the Cr.P.C. could
have been only used to bring about any
contradictions thereto while cross-examining
CW.1/PW.1. The same not having been done, the
deposition of CW.1/PW.1 would not help the case
of the defence. Apart from the above, a perusal of
the evidence of the Tahasildar/Taluka Executive
Magistrate who has recorded the dying declaration
indicates that CW.1/PW.1, the declarant was not in
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a completely fit state of mind inasmuch as she was
drowsy and she has not answered all the questions
properly. On this ground also, the said declaration
would not have been considered by this Court even
if CW.1/PW.1 had expired.
67. In view of the above on an analysis of all the facts
on record would indicate that:
68. Accused No.1-Sattepa Bhimappa was in love with
PW.1/CW.1, they used to have several telephonic
conversation, there was opposition to their
relationship, she was engaged to a relative and
was to be married, it is at that stage that accused
No.1-Sattepa Bhimappa wanted to sleep with
Cw.1/PW.1, when she refused, he wanted to have
his way with her, with or without her consent. He
along with accused No.2-Yamanur and accused
No.3-Suresh waylaid PW.1/CW.1 when she was on
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her bicycle on the way to the village to take a bus
to her college, and stopped her from going further,
accused No.3-Suresh held her hair and closed her
mouth, accused No.2-Yamanur held her legs, both
of them lifted her and took her to the sugarcane
field of PW.11/CW.15. When accused No.1-Sattepa
Bhimappa, with an intention to have sexual
intercourse with her and thereby committing the
offence of rape, removed her chudidar and
undergarments and had forcible sexual intercourse
with her by committing penetrative sexual assault.
Thereafter accused No.2-Yamanur also had forcible
sexual intercourse with her by committing
penetrative sexual assault. Thereafter with an
intention to destroy the evidence they wanted to
get rid of PW.1/CW.1, hence threw her into the
well in order to cause her death. During this
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assault they were scratched by CW.1/PW.1, which
is borne out from their medical examination.
69. Thereafter, CW.13/PW.9 along with CW.12 her
husband and the local people had lifted PW.1/CW.1
out of the well by which time her mother
CW.10/PW.7 came there and she along with
CW.11/PW.8 took her to the private hospital where
they had informed the doctor that she had fallen in
the well since at that time PW.1/CW.1 was
unconscious, noticing the various injuries which
had been caused, surgery was immediately carried
out. It is only after PW.1/CW.1 regained
consciousness on 27th that she was able to speak.
At the time when her dying declaration was
recorded, she had not spoken to her mother,
probably it is for this reason that she could not
give complete details of what had happened. But
thereafter she gave the full story.
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70. Be that as it may, dying declaration cannot be
looked into now since PW.1/CW.1 recovered and is
alive. These aspects were not put to PW.1/CW.1
during her cross-examination. At the relevant point
of time before the incident CW.17/PW.14 who is an
independent witness saw the accused near the
place of incident at 6.00 a.m. After the incident
Cw.18/PW.15 saw the accused at 7.30 a.m. near
the bus stand. The accused had planned the entire
assault since they knew about PW.1/CW.1 would
be going to her college by her bicycle, they waited,
stopped PW.1/CW.1, committed the assault threw
CW.1/PW.1 into the well and thinking that she had
died or would die, went away on their motorcycle
which was seen by CW.18/PW.15.
71. In view of the evidence which has been led by the
prosecution, the presumption under Sections 29
and 30 of the POCSO Act would kick in. The
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prosecution therefore having discharged the initial
burden placed on them it was for the accused to
have rebutted the said presumption and to
establish that they are innocent. The accused have
not led any evidence to rebut the said presumption
nor has the same has been rebutted during the
course of the cross-examination conducted of
various witnesses.
72. Mere suggestions having been put forward to the
prosecutrix and other witnesses that the complaint
was filed at the instance of an advocate who was
inimical to the father of accused No.1-Sattepa
Bhimappa the same would not have the effect of
rebutting nor rebut the presumption when no
evidence of that allegation has been produced.
73. The above chain of events would categorically
establish beyond any reasonable doubt of the
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offences having been committed by the accused.
Hence, the finding of the trial Court being the same
finding that we have arrived at after re-
appreciation of the evidence does not require any
interference.
74. The State has filed an appeal in
Crl.A.No.100114/2019 contending that the
sentence awarded for the offence under Section
376-D of IPC is not in accordance with that
prescribed under the Act, inasmuch as the
minimum sentence has not been awarded. Section
376-D of IPC reads as under:
Section 365D-Gang Rape: Where a woman is raped
by one or more persons constituting a group or acting
in furtherance of a common intention, each of those
persons shall be deemed to have committed the
offence of rape and shall be punished with rigorous
imprisonment for a term which shall not be less than
twenty years, but which may extend to life which
shall mean imprisonment for the remainder of that
person's natural life, and with fine:
Provided that such fine shall be just and reasonable to
meet the medical expenses and rehabilitation of the
victim:
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Provided further that any fine imposed under this
section shall be paid to the victim.
75. The above provision had been substituted by Act of
2013 with effect from 03.02.2013. In the present
case, the incident complained of occurred on
26.02.2013 i.e. after the amendment came into
effect. Thus, it is this amended Section 376-D of
IPC which would have to be considered as
extracted above.
76. The amended provision makes it mandatory that
each of the accused shall be punished with
rigorous imprisonment for a term which shall not
be less than 20 years, but which may extend to life
which shall mean imprisonment for the remainder
of that person's natural life, and with fine.
77. The trial Court having convicted the accused of the
offence under Section 376-D of IPC had no option
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110
to avoid the minimum sentence as prescribed
under Section 376-D of IPC since there is minimum
sentence which has been prescribed.
78. We are of the considered opinion that there is no
requirement of further hearing of the accused in
the matter, since the minimum sentence has to be
awarded. Hence, the sentence awarded to accused
insofar as offence under Section 376-D of IPC is
concerned, is enhanced to rigorous imprisonment
for 20 years. Taking into consideration that the
trial Court had only ordered for simple
imprisonment, the simple imprisonment undergone
by the accused from their arrest till now will be
treated as rigorous imprisonment, going forward
the imprisonment of the accused would be rigorous
in nature.
79. In view of the above, we pass the following:
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111
ORDER
i. The appeal filed by the accused in Crl.A.No.100352/2018 stands dismissed.
ii. The appeal filed by the State in Crl.A.No.100114/2019 is allowed.
iii. The sentence of accused No.1 to 3 for the offence under Section 376-D of IPC is enhanced to rigorous imprisonment for 20 years. The period of sentence already undergone though being simple imprisonment in nature, would be regarded as rigorous imprisonment in relation to the above sentence. Going forward the Accused would undergo rigorous imprisonment.
Sd/-
JUDGE Sd/-
JUDGE sh