Karnataka High Court
M Subair @ Subi vs The State Of Karnataka on 29 November, 2017
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL No.452/2013
BETWEEN:
M Subair @ Subi
S/o Mohammed
Aged about 22 years
Occ: Sales Boy
R/at Gangammana Palya
Bommanahalli, Bangalore
Native of Andagove Paisary
7th Hoskote Village
Sunitkcoppa
Kodagu District-571 237. .. APPELLANT
(By Sri B Lethif, Adv.)
AND:
The State of Karnataka
By the C.P.I.
Kushalnagar
Kodagu District-571 327. ..RESPONDENT
(By Sri S Vishwamurthy, HCGP)
This criminal appeal is filed under Section 374(2
Cr.P.C. praying to set aside the order dated 06.02.2013
passed by the Sessions Judge, Kodagu at Madikeri in
S.C.No.47/2011 - Convicting the appellant/accused for
the offences punishable under Section 366, 342 and
2
376(2(f) of IPC and the appellant/accused is sentenced to
undergo R.I. for 10 years and to pay a fine of Rs.50,000/-
in default of payment of fine to undergo R.I. for 2 years for
the offences punishable under Sections 366, 342 and
376(2(f) of IPC.
This appeal coming on for Orders this day, the
Court delivered the following:
JUDGMENT
This appeal is by the appellant-accused being aggrieved by the judgment and order of conviction and sentence dated 6.2.2013 passed by the Sessions Judge, Kodagu, Madikeri in S.C. No.47/2011 convicting the appellant accused for the offences punishable under sections 376(2(f) of IPC and sentencing him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.50,000/- and in default for payment of fine, to undergo two years simple imprisonment.
2. Brief facts of the prosecution case are that the mother of the victim girl is the complainant in the case. The complainant has stated that she is residing in the address mentioned in the complaint. Earlier, they were 3 staying in Kushalanagar and since one month earlier to the incident, they stayed in a rented house of Abubakar at 7th Hoskote Village in Somwarpet Taluk. The complainant is having two children one male and one female. On 19.02.2011 around 5.30 p.m., the daughter of the complainant i.e., the victim (Anusha), aged 3 years 8 months, and her neighbour CW-7 Shyam - a boy, aged about six years were playing in front of the house of the complainant. Some time thereafter, the complainant saw only CW-7 playing and did not find her daughter CW-2. When she asked CW-7 as to where her daughter was, CW- 7 told her that one Shabbir, son of Mohammad took him and Anusha to his aunt's house saying that he would get sweets to them and he took them forcibly and he was removing the clothes of Anusha and accused told C.W.7 to go to his house. In the meanwhile Anusha came weeping from the house of aunt's house of the accused. When the complainant asked her daughter Anusha, she told her that when herself and CW-7 were playing, the accused saying that he would get them sweets, took them to the house of his aunt CW-12, sent back CW-7, latched the 4 house, removed her clothes, closed her mouth and caused pain to her private parts. It is further pleaded in the complaint that when the daughter of the complainant, aged 3 years 8 months, was playing, the accused forcibly took her to his aunt's house, by name Khairunissa, and forcibly committed sexual intercourse with her. Therefore, she requested to take appropriate action against the accused-appellant herein.
3. On the basis of the said complaint, case came to be registered and as per FIR, it was for the alleged offences punishable under Sections 366A, 342, 376 of IPC. After completion of investigation, investigating officer filed charge sheet for the said offences punishable under Sections 366A, 342, 376 of IPC. The concerned Court, after hearing both sides, framed charges for the said offences. The charge was read over to the accused person and as the accused pleaded not guilty and claimed to be tried, the case was posted for conducting the trial. 5
4. In order to prove the case, the prosecution has examined 16 witnesses and also produced 17 documents and got marked M.Os.1 to 10. On the side of defence, no witnesses have been examined nor any documents were got marked.
5. Ultimately, the Court below convicted the accused person holding that he is guilty for the offences punishable under Sections 366, 342 and 376(2)(f) of IPC and imposed punishment as mentioned in the operative portion of the judgment. Being aggrieved by the judgment and order of conviction and sentence passed by the Court below and challenging the legality and correctness of the said judgment, the appellant is before this Court.
6. I have heard the learned Counsel appearing for the appellant-accused and the learned HCGP appearing for the respondent-State.
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7. Learned Counsel appearing for the appellant, during the course of the arguments made submission that looking to the prosecution material, there is no material placed by the prosecution, which is worth believable, to show that the appellant-accused had committed the alleged offence of rape and the other offences. The learned Counsel drew attention of this Court to the entire materials i.e., the evidence of prosecution witnesses so also the documents, doctors' evidence and medical records, and made submission that even the evidence of prosecution witnesses and the documents also will not make out the case of rape in this case. The Court below, in spite of these aspects, has wrongly read the evidence and came to the wrong conclusion in holding that the appellant has committed the alleged offence and convicted him for the said offence. The learned Counsel submitted that though there may be ejaculation but that itself is not the guiding factor to come to the conclusion that there was rape. He made submission that the prosecution has to establish the case with cogent material that there was penetration of penis into the private part of the victim girl. 7 Unless and until the penetration is established, there is no offence of rape. Hence, even looking to the evidence of the mother of the victim girl and the doctor, there is no such penetration and therefore, no offence of rape is said to have been committed. The learned Counsel relied upon the decision of the Hon'ble Supreme Court in case of KOPPULA VENKAT RAO Vs. STATE OF A.P. reported in AIR 2004 SC 1874 and referring to the relevant paragraph of the said judgment, the learned Counsel submitted that even in the said case, the Apex Court held that there is no offence of rape at all, but it is only an attempt to commit rape. Hence, he submitted that the prosecution has utterly failed to make out the case that there was rape on the victim girl and hence, he submitted to allow the appeal and to convict the appellant for the said offence. Alternatively, the learned Counsel also submitted that looking to the prosecution material, at the most, it goes to show that there may be attempt to commit the rape, but no actual rape. The accused is in custody since from the date of arrest i.e., 6 years 9 months 7 days. Hence, in case, this Court holds that he is guilty for the 8 said offence of rape or for the offence of attempt to commit rape, whatever the sentence the appellant has undergone is sufficient. Hence, he submitted that sentence imposed may not be reasonable and acceptable and the appellant accused may be released immediately.
8. Per contra, learned HCGP appearing for the respondent State made submission that looking to the prosecution material, the prosecution has placed cogent and worth believable material to show the rape committed by the petitioner-accused on P.W.1 victim girl. Drawing the attention of this Court to the relevant material in the original records secured from the Court below and referring to the evidence of prosecution witnesses, more particularly, the evidence of victim girl, he made submission that her evidence clearly goes to show that there is penetration of penis into the private part of the victim girl. In such serious offences, corroboration of evidence of prosecutrix is not at all required. If the evidence of prosecutrix is acceptable and cogent, then that can be the sole basis for the Courts to base 9 conviction to the accused person. In this connection, he has relied on the decision of the Sikkim High Court in case of KUMAR NIM DAS GHIMIREY Vs. STATE OF SIKKIM reported in 2017 Crl.L.J. 1379. Referring to the relevant paragraph i.e., para 13 of the said judgment, he made submission that the principles laid down in the said judgment, makes it clear that no corroboration of evidence of the prosecutrix is required. He also made submission that even the evidence of the doctor and the mother of the victim girl supports her contention that there was rape committed on her by the appellant- accused. Hence, he submitted that there is no question of attempt to commit rape. The materials clearly state that there is rape committed on the victim girl, who is aged 3 years 8 months only at the time of incident. Hence, he submitted that these aspects were carefully considered by the Court below and ultimately, it came to the conclusion that the prosecution has proved its case beyond reasonable doubt and held the appellant accused is guilty. Learned HCGP submitted that there is no illegality nor there is perverse or capricious view taken by the 10 Court below. The conclusion arrived at by the Court below is in accordance with law and the materials placed on record. There is no merit in the appeal and therefore, the same may be rejected.
9. I have perused the grounds urged in the appeal memorandum, judgment and order passed by the court below so also the oral evidence of prosecution witnesses Nos.1 to 16 and the documents Exs.P.1 to 17. I have also considered the decisions relied upon by both sides so also their submissions at the Bar.
10. The contention of the learned HCGP is that it is not only the offence of attempt to commit rape but the rape itself. Though firstly, it is contended by learned Counsel for the appellant that there is no offence at all, but by way of alternative submission, he submitted that, at the most, the offence may be considered to be attempt to commit rape but not rape itself. In view of this contention of the learned Counsel for the parties, let me 11 examine the materials placed on record during the course of trial.
11. The victim girl has been examined as P.W.1. Looking to her evidence, she has stated that, herself and her friend P.W.7 (C.W.7) - Shyam were playing and at that time, the accused, showing the red colour note, stated that he will give chocolate and took her to his house. Thereafter, he put his private part into the private part of the victim girl. She deposed that C.W.7 (P.W.7) had not at all come along with her. Nobody was present in the house of the accused. As the accused done the same to her, she was getting pain. Thereafter, accused left her, she went to home and informed the same to her mother. In the cross examination, she deposed that police have not at all enquired her. As it was Saturday and classes would be closed after noon time, she came to the house. She admitted that the children of C.W.12 (P.W.10) also came to the house. She does not know due to which, the accused caused pain to her. She denied the suggestion that she herself on her own put something getting pain 12 into her private part. She also denied the suggestion that while playing, she fell down and because of that reason, she cried. She also denied the suggestion that accused has not at all done sexual act on her. She denied further suggestion that because of enmity with the appellant- accused, her parents have given false complaint through her.
12. Looking to the evidence of P.W.1, she has stated that her friend (P.W.7), who was playing with her, had not at all come to the house of the accused along with her. If this aspect is taken into consideration, the complaint averments is to be seen by the Court wherein it is stated that when the complainant did not see the victim girl in front of the house and only Shyam (P.W.7) was playing, she enquired Shyam and for that, Shyam told that the accused took himself and Anusha to the house of his aunt stating that he will give sweets and accused was removing clothes of the victim girl and accused told him to go to home and he was sent back. The complaint averments also show that the victim girl came and told 13 before the complainant-mother that the accused person took the victim girl to his aunt's house. If this evidence is taken into consideration, which is given in the complaint by the mother of the victim girl, it goes to show that even Shyam also went to the house of the accused person along with victim and he has seen the accused person removing the clothes of the victim. If this averment is contrary to the evidence of the victim girl (P.W.1), she has stated that Shyam has not at all come along with the house of the accused. If that is so, there is no reason for Shyam to tell before P.W.7 that he had also been to the house of accused, seen the accused removing the clothes of the victim and the accused asking him to go back.
13. Apart from that, another important aspect in this case is that Dr. Parvathy has been examined as P.W.2 wherein she has stated that, on 20.02.2011 around 10.30 a.m., she examined P.W.1 who was brought by WHC 124 by name H.T. Geetha. The mother of P.W.1 was also present at that time. The victim's mother gave history. The victim's mother said that on 19.02.2011 around 14 05.30 p.m., when P.W.1 was playing near her residence, she was sexually assaulted. The victim's mother further stated that a neighbour had sexually assaulted P.W.1. P.W.2 has further deposed that she does not remember whether the name of that neighbour was mentioned or not. She did not find any external injuries. Hymen was intact. Clitoris and Fourechette were normal. There was no discharge. On enquiry, she came to know that P.W.1 had passed urine and stools after the incident. She collected vaginal swabs and handed over the same to the police for being sent to FSL. After the FSL report was received, the police furnished the same to her. P.W.2 has further deposed that in the Court records, she can see the FSL report which was furnished to her. She gave final opinion stating that P.W.1 had a history of sexual intercourse. Ex.P.2 is the certificate given by P.W.2 and Ex.P.2(a) is her signature. Apart from the vaginal swab, P.W.2 also collected the clothes of P.W.1 and handed over the same to the police and a green frock, one blue pant and one underwear were the clothes collected from P.W.1. They are marked M.Os.1 to 3 respectively and the vaginal 15 swab is marked as M.O.4. P.W.2 has further deposed that if a person of the personality of the accused, who is now before the court, were to have sexual intercourse with a girl aged about 5 years, there would be external injuries. She has admitted that in the case of forcible intercourse with a girl of that age hymen and vagina get injured and she did not find any such injuries on PW.1. She has further deposed that in the case of sexual intercourse, seminal stains would be found on the vaginal swab. Based on Ex.P.1, she gave her final opinion and in Ex.P.1, it is mentioned that seminal stains were not detected in the vaginal swab.
The Court put question to P.W.2 that if there are no seminal stains on the vaginal swab, does it not indicate that there was no sexual intercourse? For the said question, P.W.2 answered that it may indicate that there was an attempt.
P.W.2 has admitted as true that in Ex.P.1, it is mentioned that no seminal stains were detected in items 2, 5 and 9 also. It is true that in Ex.P.2, she has not mentioned that MOs. 1 to 3 were collected. 16
For another question of the court that from Ex.P.1 and P.2, can it be said that there was no sexual intercourse?, P.W.2 answered that there might have been an attempt.
14. P.W.3 - Dr. Sathish Kumar has deposed that the police gave history saying that the accused had attempted to commit rape on a girl by name Anusha aged about 3 years 8 months, on the same day around 7.45 p.m. in his house in 7th Hoskote. On that day, he did not find any injuries on the person of accused. He found seminal stains on his private parts and under garment. A requisition dated 19.02.2011 given by the police to him is marked as Ex.P.3. Ex.P.3(a) is the endorsement and signature made by him. P.W.3 further deposed that on the same day, the police gave another requisition to him to give his opinion P.W.3 has further deposed that he has given opinion as per Ex.P.5 stating that the accused was capable of performing sexual intercourse, and that he had committed sexual intercourse. He has denied the suggestion that if a person of a personality of 17 accused were to have forcible intercourse with a girl of the age of 3½ years, there would be external injuries on his genitalia. He had no impediment to give an opinion on the very day he received requisition as per Ex.P.4.
15. P.W.4 is the police constable. He deposed in his evidence that near 7th Hoskote bus stand during night at 8.45, he traced the accused person and brought him from there and produced by 9.15 p.m. and he submitted a report as per Ex.P.6.
16. P.W.5 is another Police constable, who deposed that he carried the complaint and FIR to the Magistrate Court and on the same day night at 10.50 p.m., he went to the official residence of the said Magistrate and submitted the same. Ex.P.7 is FIR.
17. P.W.6 is the mother of the victim girl. She has deposed in her evidence that on 19.2.2011 in the evening at about 5.30 p.m., she was in the house. The victim girl (P.W.1) and Shyam (P.W.7) were playing outside the 18 house. After half an hour, when she saw only Shyam was playing and when she enquired that said Shyam, he told that accused person took himself and victim girl to his house stating that he will give sweets. Then he sent back him and he removed the clothes of P.W.1. P.W.1 came to the house running and when enquired, she told in Konkani language that accused committed rape on her. P.W.6 has further deposed that firstly the victim girl told that there was ant bite on her private part. When she saw inside her thighs, there was gum type material and when enquired, she told about the incident. Even she contacted C.W.4 over phone and she was instructed to file a complaint. On the same day, she went to the Suntikoppa police station and gave complaint as per Ex.P.8. Then police sent the victim girl along with WPC for medical examination. She also went along with the victim.
In the cross examination, P.W.6 has deposed that in Ex.P.8 (complaint), she has not mentioned that Konkani language was used by P.W.1. She has not mentioned in her complaint that when she saw between thighs of P.W.1, there was gum type material. She denied the 19 suggestion that when she was playing along with C.W.7, she fell down and sustained pain in her stomach. She denied further suggestion that accused never took P.W.1 to his house and not committed rape on her.
18. P.W.7-Shyam was the friend of P.W.1-victim girl playing with P.W.1-victim. As per prosecution case, P.W.7 has not supported the case of prosecution and he turned hostile.
19. P.Ws.8 to 10 also did not support the case of prosecution and they turned hostile. When they were cross examined by P.P., nothing had been elicited from their mouth to believe story of prosecution.
20. P.W.11 - Raghavendra has deposed that he knows the complainant (P.W.6) as the complainant's house is opposite to his house. He has also deposed that he knows accused person. The house of accused is nearer to his house. When the incident of this case took place, he was in the house. About 2 years back, at about 5.30 20 p.m. or 6.00 p.m. of the date of incident, after hearing the sound, he came out of the house. P.W.6 and accused were quarrelling with each other. When he enquired with P.W.6, she told him that accused committed rape on her daughter. She went away stating that she will give complaint The evidence of P.W.11 will not help either to the defence or to the prosecution case as his evidence is hear say.
21. P.W.12 turned hostile and not supported the case of prosecution.
22. P.W.13 is the engineer who said to have drawn the sketch-Ex.P.13 of the place of offence.
23. P.W.14 is the investigating officer who has deposed in his examination in chief about investigation he has done in the case. During the course of cross examination, he deposed that when he received M.Os.1 to 6, he had not conducted any panchaname and there was no hurdle for him to conduct panchaname. He denied 21 the suggestion that none of the witnesses have given statement before him. He denied further suggestion that either the victim girl or accused were not sent for medical examination. He denied further suggestion that accused has not given voluntary statement, not led them to house of P.W.10. He denied the suggestion that he had obtained signature of the accused on the blank paper. He admitted as true that in Ex.P.11 house number is not mentioned. Ex.P.11 is prepared in the police station.
24. P.W.15 is the person who registered FIR on the basis of the complaint Ex.P.8 and he has deposed to that extent. He denied the suggestion that P.W.6 has not given statement as per Ex.P.8 and he himself has created the same.
25. P.W.16 is the Assistant Director, FSL, Bengaluru. He has deposed that from September 2008 to July 2011, he was working as Assistant Director in the Biology Section of RFSL, Mysore. On 18.03.2011, ten sealed packets pertaining to this case were received in 22 their laboratory from the police and the seal on them tallied with the sample seal. On opening the seals, he found in them the articles such as one bed sheet, pubic hair (In a glass bottle), semen (In a glass bottle), one underwear, one pant, one T-shirt, swab for semen and vaginal cells(in a glass bottle), one pant, green frock, vaginal swab(in a glass bottle). He has deposed that he has seen MOs. 1 to 7. They are article No.9(green frock), article No.8 shown in his report as pant but in fact an underwear, article No.4 another underwear, article No.10 vaginal swab, article No. 5 pant, article No.6 shirt and article No.1 bed sheet respectively. He has further deposed that he was shown three more packets. They were article No.2 pubic hair, article No.3 semen and article No.7 swab for semen and vaginal cells referred to above. The said articles were identified and marked as M.Os.8 to 10 respectively. On examination, he found seminal stains in MO.7, MO.3, MO.6, MO.10 and MO.2, but not in MO.8, MO.5, MO.1 and MO.4. Only on MO.7, he found a slip containing the signatures of the panchas and not on other MOs, when sent to our laboratory. On 23 articles No.1 shown in Ex.P.1, seal of letter 'P', on 2 to 7 seal of letters 'SK', Medical Officer, PHC, Suntikoppa, and on 8 to 10 seal of Civil Surgeon, Coorg, Madikeri were found when they were sent to their laboratory. P.W.16 has further deposed that in Ex.P.1, he has mentioned that the semen in item No.3 had decomposed. Since it had decomposed, whether it tallied with the seminal stains found on others could not be ascertained. He has denied the suggestion that without properly examining the articles sent to him, he has given a false report as per Ex.P.1. He has also denied the suggestion that MOs. 1 to 10 were not sent to him by the police for examination.
26. Looking to the evidence, though P.W.6 (the mother of victim girl) has deposed in her evidence that she has seen and noticed in between thighs of the victim girl the gum type material, the doctor (P.W.2) has deposed in her evidence that there was no discharge at all. Apart from that, P.W.6 mother admitted in cross examination that in the complaint, she has not at all mentioned about 24 she seeing the gum type material in between thighs of the victim girl.
27. Looking to the complaint averments, it is mentioned at page No.2 of the complaint that when the complainant (P.W.6-mother of the victim) enquired her daughter-victim, the victim told before her that when herself and Shyam were playing outside, the accused took herself and Shyam saying that he will give sweets and took them to the house of aunt and he sent back Shyam and put latch to the house and then he removed the clothes of the victim girl. If that is so, then the contents in the complaint goes to show that accused person after sending Shyam (P.W.7) to his house back, he latched the house and then he removed the clothes of the victim girl. Therefore, there is no occasion for Shyam (P.W.7) to see the accused removing clothes of the victim girl. Therefore, the averments in the complaint as well as the oral evidence of P.W.6 does not match each other. 25
28. When the Court below put questions to the doctor (P.W.2), the doctor answered that it is an attempt to commit rape. The doctor has not stated that there is forcible sexual intercourse. Even in the examination in chief, it is mentioned by the doctor (P.W.2) that she did not find external injuries, hymen was intact and there was no discharge. Considering these aspects of the matter, it is difficult for the Court to accept the contention of the prosecution that there was rape committed by the accused person on the victim girl.
29. I have also perused the decisions relied upon by both sides referred above. The applicability of the decisions depends upon the facts and circumstances of each case. Looking to the facts involved in the case on hand and the facts and circumstances in the reported decisions, they are not exactly one and the same. Considering the evidence placed on record by way of both oral and documentary, it clearly shows that the accused person took the victim girl to his house and there was an attempt made by the accused on the victim girl, but not 26 rape itself. Because the doctor's evidence again goes to show the probability that indicates if a person like the accused committed forcible sexual intercourse on the victim aged 5 years, then there will be injury to the private part and other parts of the body. In this case, it is the evidence from the doctor that no such injuries are noticed on the person or private part of the victim girl. Therefore, these aspects were not properly considered by the Court below and it came to the conclusion that the evidence on record goes to show that there is rape itself. The said finding, in my opinion, is not correct. It is not in accordance with the oral and documentary evidence placed on record and therefore, to that extent, the Court below has committed error in coming to conclusion that there is rape itself.
30. Perusing the entire material, I am of the opinion that the accused committed an offence punishable under Section 376(2)(f)/511 of IPC for attempt to commit rape, apart from the other offence of kidnapping the girl to his house. However, the Court 27 below held that there is rape itself. The said finding of the said Court below requires modification by this Court.
31. Accordingly, the appeal is allowed in part. The conviction of the appellant-accused for the offence punishable under section 376(2)(f) of IPC is hereby set aside and he is convicted for the offence punishable under section 376(2)(f)/511 of IPC for attempt to commit rape.
The conviction order passed by the court below holding the appellant-accused guilty for the offences under Sections 366 and 342 of IPC is undisturbed.
For all the above three offences, whatever the sentence the appellant has undergone i.e., 6 years 9 months 7 days is the sentence imposed.
Further, the appellant has to pay fine of Rs.50,000/- and in default of the payment of fine, he has to undergo further sentence of rigorous imprisonment for the period of two years. Out of the fine amount, sum of Rs.40,000/- shall be paid to victim girl - P.W.1 by way of compensation under section 357(2) of Cr.P.C. The fine amount shall be deposited before the concerned court 28 within 30 days from the date of receipt of a copy of this order.
Intimate the concerned Court accordingly. The prison authorities are directed to release the appellant-accused forthwith, if he is not required in any other case.
High Court Registry is directed to send operative portion of the order to the prison authorities immediately.
In view of the appeal allowed as above, I.A. Nos.3/2017 and 4/2017 do not survive for consideration and they are disposed of accordingly.
Sd/-
JUDGE Cs/-