Karnataka High Court
Prasanth @ Chinni vs The State Of Karnataka on 10 July, 2013
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF JULY 2013
BEFORE
THE HON'BLE JUSTICE B.V.PINTO
CRIMINAL APPEAL No.1191/2006
BETWEEN:
Sri Prasanth alias
Chinni
S/o.Suryanarayana Rao
Aged about 26 years, Occ: Car Driver
R/o.No.23, 3rd Cross, 5th Main
Papanna Block, Ganganagar
Bangalore. ...Appellant
(By Sri Dinesh Kumar K.Rao, Adv.
for Sri R.B.Deshpande, Adv.)
AND:
The State of Karnataka
..Respondent
(By Sri Vijayakumar Majage, HCGP)
This Criminal Appeal is filed under Section 374(2)
Cr.P.C against the Judgment dated 25.4.2006 passed
by PO, FTC-III, Mysore in SC NO.185/05, convicting the
appellant/accused for the offence punishable under
Section 376 of IPC and sentencing him to undergo RI for
7 years and to pay fine of Rs.2,000/-i.d.. to undergo SI
for 3 months for the offence punishable under section
376 of IPC.
This Crl.Appeal coming on for dictating Judgment
this day, the Court made the following:-
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ORDER
This appeal is filed challenging the Judgment dated 25.4.2006 passed in SC No.185/05 by the FTC- III, Mysore convicting the appellant for the offences under Section 376 of IPC and sentencing him to undergo RI for 7 years and to pay fine of Rs.2,000/- in default, to undergo SI for three months.
2. It is the case of the prosecution that, on 14.03.2005 at about 9 a.m., the appellant herein kidnapped the minor girl below the age of sixteen years who is referred to as `victim' in this case, thereby, he is alleged to have committed an offence under Section 363 of IPC. It is the further case of the prosecution that on 14.3.2005 and 16.07.2005, the appellant stayed with the victim in Bangalore, Tirupathi and Pandarapura. They stayed in Vasantha Lodge in Tirupathi from 15.3.2005 to 17.3.2005. Further it is alleged that the accused took the victim by rail to Pandarapura, Belgaum and other places and stayed in a room and then stayed in Tumkur in a rented house. During the said period, the appellant has indulged in sexual 3 intercourse with the victim who is aged below 16 years, thereby, he is alleged to have committed offence under Section 376 of IPC.
3. Prosecution, in order to prove the case against the appellant, has examined in all 20 witnesses and got marked Exhibits P1 to P20 and produced MOs 1 to 12. The defence of the appellant was one total denial. He has got marked D1 to D4 in support of his defence.
4. The Trial Court, after hearing the learned Prosecutor and the learned counsel for the appellant held that prosecution has not proved the case against the appellant for offence punishable under Section 363 IPC and acquitted him of the said offence, whereas, the trial Court convicted him for the offence punishable under Section 376 of IPC and sentenced him as aforesaid. It is this Judgment of conviction and sentence which is challenged by the appellant in this appeal.
5. The prosecution in this case commenced with the filing of a missing complaint by the father of the victim PW.3 as per Ex.P18 on 28.6.2005. In the said 4 complaint, it is stated by PW.3 that his daughter i.e. victim had left the house on 15.3.2005 between 11 a.m. and 12 a.m. when himself and his wife had gone out of the house for work and that the age of his daughter is about 16 years and this fact was brought to their notice by about 7 p.m. on that day. PW.3 has also narrated the features of his daughter in the said complaint on the basis of which the Police have registered Crime No.52/05 of Kuvempunagar Police Station, Mysore. The Police went searching for the victim and that on 17.7.2005, the said victim had been found in the house at Banashankari, Tumkur Town and she was rescued by PW.8 Ashwathkumar who is uncle of the victim with the help of Police officials. P.W.2 is the owner of the said house who was also present at the time of rescuing the girl.
6. On the basis of above material and after subjecting the victim and the accused for medical examination, PW.19 Shanthamallappa has filed charge- sheet against the accused. After the matter was committed to the Court of Sessions, the victim has been 5 examined as PW.1. In her evidence before the Court, she has stated that she is living along with her father and mother in Mysore and both her parents are in Government Service. She knows the accused. Her brother Madhukiran who is PW.15 is studying Engineering. She has stated before the Court that she knows the accused since December 2004 and that everyday when they (herself, her brother and parents) go to college and work, they are leaving the key of their house in the house of one Hemavathi and he knows both Hemavathi and her daughter Sudha. The said Sudha had introduced her to the accused. She was in talking terms with the accused. The accused was coming and standing near the shop which is situated by the side of their house. PW.1 has further stated that on 14.3.2005 at about 12 noon, when she went to the house of her friend by name Rashmi to bring the question papers, the accused met her and threatened her to come along with him and again on the same day at about 2.00 p.m., accused came near her house and came inside the house and threatened her that he 6 would commit suicide. He took her on his TVS Victor Motor Cycle and also threatened her that he would kill her and thereafter commit suicide. The accused thereafter, took her to Bangalore and left her in the Bangalore bus stand and went to keep his motor cycle. Since she had come to Bangalore for the first time, she was scared and till accused came there she stood there. On the same night at about 9.00 or 9.30 p.m., they left for Tirupathi from Bangalore and reached Tirupathi by 4.15 a.m. They stayed in Balaji Lodge in Tirupathi and then they visited the temple at about 12 noon and came back to Lodge room at about 4.30 p.m. They stayed in the said lodge for seven to eight days. The accused was threatening her and when he was going out, he used to lock the door, he was also threatening her if she screams or makes hue and cry, he would kill her father and therefore, she remained with him as per his directions.
7. After about 8 days, they returned to Bangalore and hired a hotel room in Malleswaram and at that time, since the accused was not having any money he 7 asked her to give the jewels worn on her person. When she refused to give her jewellery, he threatened her that he would sell her to somebody and by force, he took gold chain, one small chain and one ring from her. Thereafter, he took her near Peenya in an Auto and from there to Tumkur bus stand and from there to Belgaum by train. Next day, they reached Belgaum and from there, they went to Koodala Sangama. There they went to a temple. They stayed there in a room for two days. During their stay there, he had sexual intercourse with her by force. Thereafter, he took her to Sholapur and from there they went to Pandarapura. They remained for one day and from there they came back to Madhugiri and from there they came to Tumkur on 31.3.2005.
8. In Tumkur, he took a house for rent and they remained in the said house for about 3 to 4 months. While she was in the said house, accused used to lock the house and was not returning to the house for the entire day. He was not allowing her to speak to neighbours and he had threatened that she should not 8 speak to anybody in the neighbourhood. Therefore, she could not even phone up to anybody. He was also ill- treating her and had committed forcible sexual intercourse with her.
9. It is in the evidence of PW1 that on 16.7.2005 her uncle Ashwathkumar PW.8 came along with the accused to the said house and thereafter, they came to Bangalore and on the next day, they returned to Mysore. On 17.7.2005 at about 9.30 a.m., she appeared before the Police and the Police recorded her statement which is marked as Ex.P1. She has also identified jewels snatched from her by the accused which are marked as MOs. 1 to 4. It is stated by PW.1 that her date of birth is 11.04.1989 and she had not completed 16 years of age as on the date on which the accused took her for the first time.
10. PW.1 has been thoroughly cross-examined by the defence and it is suggested that she had come along with the accused out of her free will and that no force 9 has been exercised on her. However, the said suggestion has been denied by PW.1.
11. PW.2 Manjunatha is the owner of the house which the accused took on rent at Tumkur. He has stated that the accused took a house in his Vathara on a monthly rent of Rs.600/-and paid an advance of Rs.3,000/-. He identified both the accused and the victim before the Court. He has stated that Police come to their house and thereafter took the victim along with them. PW.3 Govindegowda is the father of the victim who has confirmed about the date of birth of the victim being 11.04.1989. P.W.4 - Nageshwari is mother of the victim and wife of P.W.3. PW.5 Gautham Chand is the Pawn Broker and has stated that the accused before the Court has pledged one gold ring on 14.3.2005 and has taken a sum of Rs.2,500/- and the Police have seized the said gold ring. He has also stated that the accused has again pledged one gold chain and one gold ring for Rs.16,550/- on 18.3.2005. He has not only identified the accused but also identified the articles seized from 10 him by the Police when the Police came to his shop along with the accused.
12. PW.6 Suresh, who was working as Receptionist in Vasantha Lodge in Tirupathi has identified the accused and the victim and has stated that they have come to Temple and took a room. PW.7- Narayanaraju who is a Watch Technician and a Panch witness to Ex.P.9 under which the gold items were seized from PW.5's shop. He has stated that he knows the accused and has identified his signature on the Mahazar drawn by the Police regarding gold items seized from PW.5's shop. P.W.8- Aswathakumar is maternal uncle of the victim. He has stated that after filing missing complaint, he has searched for his sister's daughter who is victim herein. Subsequently, when they were searching with the photo of the victim and that of the accused in Tumkur, they found the accused and also the victim in the house of P.W.2. Accordingly, he informed the Police and subsequently the victim was rescued.
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13. P.W.9 Dr.Prema Kumari is a Specialist in Cheluvamba Hospital, Mysore who has examined the victim and has opined that victim girl was used to the act of sexual intercourse and has issued certificate vide Ex.P.12. P.W.10 - Dr.K.S.Balasubramanya has examined the accused on 17.7.2005 and has given an opinion that there is nothing to suggest that he is incapable of performing an act like that of sexual intercourse and has issued certificate vide Ex.P.13.
14. P.W.11 - M.Balachandra Gowda who is Principal of M.S.K. & S.D.M. Womens' College Mysore has stated that he has received letter from Kuvempunagar Police regarding the documents in respect of date of birth of the victim. He has stated that the date of birth of Victim-Karunya is 11.04.1989 according to their records. P.W.12-Siddappa who is Junior Engineer in PWD Sub-Division, Tumkur has stated that he has prepared the sketch of the scene of occurrence. PW.13-M.Channappa who is Revenue Inspector in Tumkur TMC has stated that he has given the assessment extract for 14th Ward in Banashankari, 12 Tumkur. PW.14 Smt.Nalini Pichchamuthu who is Headmistress of Mamatha High School, Ganganagar, Bangalore-32 has stated that she has issued the study certificate in respect of accused as per Ex.P.17. PW.15 Madhukiran who is brother of victim and son of PWs3 and 4 has deposed as per the version of PW3 and 4. P.W.16 Suresh has stated that he knows PW.15 and PW.1. He has further stated that he has seen accused taking the victim on his motor cycle. P.W.17- Chandrababu who is father of one Hemavathi. He has deposed that the accused came to his house on 13.3.2005 asking PW.17 to give his daughter in marriage to him. P.W.18 is the Taxi Driver who has stated that P.W.8 was in search of the accused in Tumkur and being a taxi driver, he could identify the photo of the accused who is also a driver. He has identified the photo of the victim also. Accused was driving a Car bearing No.KA-06-M-3040 in Tumkur based on which the accused was traced.
15. P.W.19-Shanthamallappa was working as Police Inspector in Kuvempunagar Police Station from 13 December 2004. He has received the file from PW.34 on 17.7.2005 and continued the investigation. P.W.20 Shivakumar is working as Police Sub-Inspector in Vijayanagar Police Station. He has deposed that from 2005 he has been working as Police Sub-Inspector in Kuvempunagar Police Station. He has recorded the statement of the victim PW.1 as per Ex.P1. He has also received the missing complaint from the father of the victim and registered the missing complaint in Crime No.52/05. It is on the basis of the above material that learned Sessions Judge has convicted and sentenced the accused as aforesaid.
16. Heard Sri Dinesh Kumar Rao, the learned counsel for the appellant and Sri Vijayakumar Majage, learned HCGP.
17. Learned counsel for the appellant submits that from the fact that the victim had gone to different places along with the accused it can be gathered that the victim has voluntarily accompanied the accused and there is no force involved in this connection. More 14 particularly, when the accused and the victim had gone to Tirupathi Temple, the room has been booked in her name and that it cannot be said that the accused had exercised any force or threat to the victim and therefore, he submits that the act of subjecting herself to the sexual intercourse if at all believed, is voluntary. The learned Sessions Judge has erred in convicting the accused for offence u/s. 376 of IPC after holding that taking the victim does not amount to an offence of kidnapping punishable under Section 363 of IPC.
18. Sri Majage, learned HCGP on the other hand submits that PW.1 has categorically stated before the Court that she has been forced to undergo sexual intercourse and the accused had threatened her and that since her date of birth is 11.4.1989 the incident has happened even before she had attained the age of 16 years. Therefore, he submits, offence under Section 376 of IPC has been clearly made out since the victim was below the age of 16 years. Under the circumstances, he submits that learned Sessions Judge has rightly convicted the accused of offence under 15 Section 376 of IPC. It is his submission that since the learned Sessions Judge has found that there is no cogent evidence to show that the accused has exercised force on the victim while taking her from the lawful guardianship of her parents, offence under Section 363 is not made out and merely because the learned Sessions Judge has acquitted the accused of offence under Section 363 of IPC does not ipso facto entitle the appellant for an order of acquittal of the offence under Section 376 of IPC. Hence, he submits that appeal may be dismissed.
19. I have gone through the materials on record. I have carefully scruitinized the evidence of PW.1 the victim and also other attending circumstances proved through the other witnesses on record. Ex.P24 is the birth certificate issued by the Corporation. It shows that date of birth of victim as 11.4.1989. The victim was taken away on 14.3.2005. Even if it is considered that they were in Pandarapura Temple for seven days, still the date on which she was subjected to sexual intercourse comes within the 16 years. Under the 16 circumstances, there is no scope for this Court to extend the statutory provision in order to benefit the accused. In that view of the matter, I am of the clear opinion that offence under Sec.376 is clearly established by the prosecution beyond all reasonable doubt. Hence, I hold that the order of conviction passed against the appellant is just and proper and based on the proved evidence on record.
20. So far as the sentence is concerned, learned counsel for the appellant submits that the appellant is a taxi driver eking out his livelihood by driving a taxi and his parents are depending on him. Hence, submits that some leniency may be shown. In regard to rape against a women, the Hon'ble Supreme Court has held that offence of rape not only tarnishes the future of a victim girl but also destroys the soul of the victim. It has got a devastating effect on the life of a women. In this case it is seen that the victim was daughter of working parents. Necessarily she was left alone in the house when they went for work. The accused took advantage of this helpless situation of the girl and tried to befriend her 17 and without knowing the consequences of such act, he has indulged in sexual intercourse by taking the girl to different places including temples. The evidence on record further establishes that the accused had threatened the girl at various places like Tirupathi, Belgaum etc., and committed sexual act on her and in that view of the matter, I am of the considered opinion that, no leniency could be shown on the appellant. However, the only factor which is in favour of accused is his age. He is aged 25 years as per the charge sheet filed against him. There is every possibility that the accused would turn to be a normal respectable citizen in the Society and long incarnation in the jail would not be a benefit to the Society So far as compensation to be paid to the victim is concerned, though the Sessions Judge had not adverted to this aspect of the case, having regard to the recent Judgment of Hon'ble Supreme Court, the Courts have to lend their attention to the said aspect and the victim should be compensated as well as rehabilitated suitably in the Society. There is absolutely no material produced before this Court 18 regarding rehabilitation of the victim in the Society. However, on a careful consideration of the material on record, I find it necessary to award compensation to the victim by directing the appellant to pay the said compensation to the victim. In that view of the matter, after considering the capacity of the appellant to pay compensation and also the situation of the victim in the Society, I deem it proper that the sentence of imprisonment needs to be reduced to three years and the appellant is required to pay compensation of Rs.3,00,000/- (Rupees three lakhs only). Hence, the following order:
The appeal filed by the appellant challenging the order of conviction by Judgment dated 25.4.2006 passed by FTC-III, Mysore in SC No.185/05 is hereby dismissed. The sentence imposed against the appellant is modified and reduced to R.I. for three years with benefit of set off under Section 428 of Cr.P.C and the appellant is directed to pay fine of Rs.3,00,000/- (Rupees three lakhs only) in default, he shall undergo simple imprisonment for three years. The entire amount 19 of Rs.3,00,000/-(Rupees three lakhs only) shall be paid to PW.1 as compensation as and when recovered.
The trial Court is directed to execute the modified sentence as above.
Sd/-
JUDGE Sk/-