Karnataka High Court
State Of Karnataka vs Sakru S/O Tukku Humble on 5 January, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2022
PRESENT
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO.100248/2020
BETWEEN
STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INSPECTOR,
YALLAPUR POLICE STATION,
DIST: UTTARA KANNADA,
THROUGH THE ADDITIONAL
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
.....APPELLANT
(BY SRI V.M. BANAKAR, ADDL. SPP)
AND
SAKRU S/O TUKKU HUMBLE,
AGE: 30 YEARS,
OCC: HOSALLI VILLAGE,
YALLAPUR TALUK,
DIST: UTTARA KANNADA.
.....RESPONDENT
(BY SRI R.H. ANGADI, ADV.)
Crl.A.No.100248/2020
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THIS CRIMINAL APPEAL IS FILED U/S 377(1)(b) OF
CR.P.C., SEEKING TO CALL FOR RECORDS IN SPECIAL CASE
NO.40/2017 DATED 09/09/2019 ON THE FILE OF SPECIAL
JUDGE, UTTARA KANNADA, KARWAR AND TO SET ASIDE THE
JUDGEMENT AND ORDER PASSED IN SPECIAL CASE
NO.40/2017 DATED 09/09/2019 ON THE FILE OF SPECIAL
JUDGE, UTTARA KANNADA, KARWAR SO FAR IT RELATES TO
IMPOSITION OF LESSER SENTENCE TO THE RESPONDENT /
ACCUSED AND MODIFY THE SENTENCE AND IMPOSE THE
MAXIMUM PUNISHMENT AS PRESCRIBED UNDER SECTION
376(2)(n) OF IPC AND UNDER SECTION 6 OF POCSO ACT.
THIS CRIMINAL APPEAL COMING ON FOR HEARING
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING
HEARING THIS DAY, Dr.H.B.PRABHAKARA SASTRY, J.,
DELIVERED THE FOLLOWING:
JUDGMENT
The present appellant as the State/complainant had initiated a criminal proceeding against the present respondent arraigning him as an accused for the offence punishable under Section 376(2)(n) of Indian Penal Code (hereinafter for brevity referred to as, 'IPC') and under Section 5(L) and Section 6 of the Protection of Children from Sexual Offences, 2012 Act (hereinafter for brevity referred to as, 'POCSO Act') in Spl. Case No.40/2017, in the Court of the learned Special Judge, Uttara Kannada, Karwar (hereinafter for brevity referred to as 'the Special Court'). After the trial, Crl.A.No.100248/2020 3 the accused was convicted for the alleged offences and was sentenced accordingly. Seeking enhancement of the sentence, the State has preferred the present appeal under Section 377(1)(b) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.').
2. The summary of the case of the prosecution in the Special Court was that the victim girl was a minor in her age, who had studied up to 7th standard in school and was aged 16 years as on the date of the alleged offence. The complainant before the police was the father of the said girl. The summary of the complaint is that among his agricultural activities, he was doing milk vending business also by maintaining buffaloes and cows and that his second daughter who is the alleged victim girl was vending the milk for his family. In the said process, she was visiting the house of the present accused for the purpose of vending milk. During the period between August 2016 to November 2016, the accused has committed rape and repeated sexual assault upon her which fact was revealed to the complainant who is the father of the Crl.A.No.100248/2020 4 victim girl only in the month of March 2017 when he came to know that his daughter, who is the alleged victim, had become pregnant. The enquiry made with the victim girl revealed that it was the accused who had subjected her to rape repeatedly. This made him to lodge a complaint with the police. Accordingly, the police after registering the complaint, conducted the enquiry and filed charge sheet against the accused for the alleged offences which after trial, ended in conviction.
3. In response to the notice, the respondent is being represented by his learned counsel.
4. The Special Court records were called for and the same are placed before this Court.
5. When the matter was taken up for final hearing on 04.01.2022, it was submitted to the Court by the learned counsel for respondent that in view of Section 377(3) of Cr.P.C., even in an appeal for enhancement of sentence filed by the victim, without even filing of a separate appeal, the Crl.A.No.100248/2020 5 accused can address his argument for his acquittal. As such, the matter was proceeded to hear on the merits of the judgment of conviction including the order on quantum of sentence.
6. Heard the argument from both sides and perused the materials placed before the Court, including the impugned judgment.
7. Learned Addl. S.P.P. appearing for the appellant in his argument submitted that even though the victim girl has turned hostile, however, the other material evidence including the evidence given by her own father has fully and substantially supported the case of the prosecution. Added to the same, the elder sister of the victim girl has also supported the case of the prosecution. He further submitted that the case of the prosecution is further corroborated by the medical evidence. Admittedly, there is no animosity established between the complainant and accused. As such, the special Court fully justified in convicting the accused. Crl.A.No.100248/2020 6
Regarding the quantum of sentence, learned Addl. S.P.P. submitted that when the law has prescribed a minimum sentence which is mandatory to be ordered in case the guilt is proved as against the accused, however, the learned Special Judge without assigning any reason has reduced the sentence lesser than the minimum prescribed for the proven guilt of the accused. As such, the sentence deserves to be enhanced.
8. Learned counsel for respondent/accused in his argument submitted that the star witness to the case is none else than the alleged victim girl who not only has denied the alleged role of the accused in the sexual assault but has also denied the incident itself. As such irrespective of the fact that the other witnesses who have supported the case of the prosecution, still the case of the prosecution falls to the ground. He also submitted that mother of the alleged victim also being one of the important witnesses, was not examined by the prosecution. The prosecution has also not brought on record as to when the girl was said to become pregnant and Crl.A.No.100248/2020 7 when she was alleged to have got aborted her pregnancy. Stating the same, learned counsel submitted that prosecution has utterly failed to prove the alleged guilt of the accused. However, while concluding, he submitted that even if the Court comes to the conclusion for confirming the conviction of the accused, still considering the fact that the accused is admittedly a specially abled (physically handicapped) person and in the age of his youth, a lenient view be taken in the matter.
9. In light of the above, the points that arise for our consideration are:
1) Whether the prosecution has proved beyond reasonable doubt that from August 2016 to November 2016, accused has committed rape of the victim and subjected the victim girl to repeated sexual assault and has thereby committed the offences punishable under Section 376(2) (n) of IPC and Section 5(L) and Section 6 of POCSO Act?Crl.A.No.100248/2020
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2) Whether the judgment of conviction under appeal deserves interference at the hands of this Court?
3) Whether the order on sentence deserves any interference in the form of enhancement by this Court?
10. In order to prove its case, the prosecution got examined fourteen witnesses from PW-1 to PW-14 and got marked documents from Exs.P-1 to P-23(b). On behalf of the accused, a portion of the statement of PW-1 was marked as Ex.D-1 and neither any witness was examined on behalf of the accused nor any documents were marked as exhibits from his side. No material objects were marked in the case.
11. Among fourteen witnesses examined by the prosecution, PW-2 was examined projecting her as the alleged victim girl. The said witness in her evidence has given a total go-by to the case of the prosecution except stating that in the year 2016, she was aged 16 years and she knows the accused. She has not supported the case of the prosecution in any manner. She in her examination-in-chief Crl.A.No.100248/2020 9 has specifically stated that the accused had never committed rape upon her nor any sexual assault upon her. She was not even conceived pregnancy at the alleged act of the accused. She further stated that she has not given any statement before the police, however, at the pressure of the police, she has given a statement before the learned Magistrate in the Court at Sirsi.
Even after treating her hostile and permitting the prosecution to cross-examine her, no supporting statement could be elicited by the prosecution in her cross-examination. The said witness was not cross-examined from the accused side.
12. After the evidence of PW-2, among other prosecution witnesses, the material witnesses would be PW-1, PW-10 and PW-12.
PW-1 (CW-1) Khandu is the father of the victim girl and who is also the complainant in the case has reiterated the summary of his complaint. Even in his examination-in-chief, Crl.A.No.100248/2020 10 he has stated that among the three children, he has got the victim girl as his second daughter. The other children are his elder daughter Bhagibai. CW-6 and his son Vagu who is CW-
7. He has stated that the victim girl was born on the date 04.05.2000 and as such in the year 2017, she was aged of 17 years at the time of incident and she was doing milk vending business by maintaining cows and buffaloes. The second daughter who is the victim girl was visiting the house of the accused, who is his distant relative. During the Holi festival season in the year 2017, through his wife, he came to know that his second daughter has become pregnant and was carrying. When enquired with his daughter, he came to know that it was the accused, who had subjected her to sexual assault and subjected her to rape while she was visiting his house for vending milk in the month of August 2016. The act of rape committed is by none else than the accused, who apart from being raping upon her, had also threatened her not to reveal about the incident. It was also revealed to him by his daughter that between August 2016 and November 2016, the accused had subjected her to rape Crl.A.No.100248/2020 11 for about three times. It is because of the said sexual act, she has become pregnant.
PW-1 has further stated that after coming to know from none else than his daughter, who is the victim girl, he approached the family of the accused in this regard. Though the accused confessed his guilt and promised to marry the victim girl after the Holi festival, but later he refused to marry her after the said festival and asked the complainant to do whatever he wants to do. This made the complainant to go to the police to lodge a complaint. Stating so, the complainant has identified the complaint filed by him at Ex.P- 1 and his signature therein at Ex.P-1(a).
The witness has further stated that he too had accompanied his daughter both to Yellapur and to Karwar. The witness stated that during the said time, since his daughter had consumed few tablets, her pregnancy was aborted. The said abortion was confirmed by the doctors at Karwar Hospital. The witness further stated that after he lodging the complaint, the police had visited the scene of Crl.A.No.100248/2020 12 offence and drawn a panchanama verifying the spot of the offence as shown to them by none else than his daughter who is the victim girl in the case. He stated that police had also captured photographs of the spot. The panchanama was marked at Ex.P-2 and photographs taken in the spot at Ex.P- 4 and P-5. Its compact disk at Ex.P-5(a). The witness was subjected to a detailed cross-examination wherein he adhered to his original version.
13. PW-10 (CW-6) Bhagibai who undisputedly is the daughter of PW-1 has stated that victim girl is her younger sister, who had dropped out of the school at the standard of 7th and was aged 17 years, about 2 years prior to her date of evidence which was recorded on 04.01.2019. She has further stated that her family comprising her parents, herself, victim girl and brother were maintaining the cows and selling the milk. In the process of vending milk, her sister, the victim girl was visiting the house of accused who was their distant relative. About 2 years prior to the date of her evidence, she came to know from her mother that her sister, Crl.A.No.100248/2020 13 i.e., victim girl had become pregnant. When enquired by these people (victim girl) revealed that when she was going to vend milk to the house of the accused, she was subjected to sexual assault by the accused and as such being raped by him she had conceived pregnancy. The witness also stated that the accused though had promised to marry her after Holi festival, refused to marry her when enquired again. A panchayat was also held in that regard wherein also the accused admitted his guilt. In that connection, her father had lodged a complaint. Denial suggestions made to her in her cross-examination were are not admitted as true by her.
14. PW-12 (CW-16) Vittu claiming himself to be the resident of the same village where the accused, victim girl and their family members are residing has stated that he knows both the parties in the matter and alleging that the accused had done something uncommon thing to victim, a panchayath was conducted in the village wherein he too had attended the panchayath. In the said panchayath, it was revealed that the accused had made PW-2 to undergo Crl.A.No.100248/2020 14 abortion and which guilt of making her pregnant was admitted by the accused. The witness further stated that the accused had also promised and given an undertaking to marry PW-2 after the month of March of that year, however, once again these people were called after the March, since the accused refused to marry PW-2. This made the father of the victim i.e., the complainant to lodge a complaint before the police.
The denial suggestions made were not admitted as true by this witness.
15. Apart from the above witnesses, the other witness who was examined by the prosecution in order to prove the alleged incident said to have been taken place was PW-11, Navu Paddu Tate, who is admittedly the cousin brother of PW-1. Though he has stated that he came to know that the accused has committed the alleged act of subjecting the victim girl to rape and practiced sexual assault upon her, but as stated by him, it was only what he heard. Thus, he admittedly is a hearsay witness.
Crl.A.No.100248/202015
16. The next set of witnesses of the prosecution examined by it to prove the alleged act of the accused against the victim are the set of doctors who were examined in the form of medical witnesses. Among them, the first witness is PW-4, Dr.Soumya K.V. The said witness has stated that while she was working as Specialist in Taluk Hospital, Yellapura, in March 2017, she had examined the victim girl on 25.03.2017 at the request of complainant police. Apart from medically and clinically examining, she had also interacted with the victim girl and gathered information from the victim. The witness has further stated that during the examination of the victim by her, the said victim had given the history that she had undergone sexual intercourse between August 2016 to November 2016 by one Sakru Takku Humbe and that she had not undergone menstrual course thereafter. The witness has stated that by her examination, she noticed that the victim girl was aged 16 years and her medical examination including the pregnancy test and other pathological test like HB, Urine, blood, HIV, VDRL, RBS, BT, CT indicated that the girl Crl.A.No.100248/2020 16 tested positive for the pregnancy. She also suspected septic abortion, as such, referred the victim for further examination by a specialist in Gynecology and thereafter to the District Hospital at Karwar for ultrasound scanning by prescribing preliminary medication. She has issued her report which is identified by her at Ex.P-10.
In her cross-examination from the accused side, she stated that she had followed Card method for pregnancy test which could not be taken as conclusive confirmation of pregnancy as such victim was required to undergo ultrasound examination.
17. The second doctor is Dr. Deepak Bhat, who was examined as PW-5. He has stated that while working as Gynecologist at Taluka Hospital, Yellapura, on 25.03.2017, at the request of PW-4, a colleague doctor, he examined the victim in the case for further opinion. The victim was a female, aged 16 years as revealed by her. He too subjected her to medical and clinical examination and conducted pregnancy test using Card method. He found that it was positive in its result and accordingly gave his opinion to the effect that the victim Crl.A.No.100248/2020 17 girl was pregnant, however, the same was needed to be confirmed by the ultrasound scanning. In that regard, he issued report at Ex.P-11 .
The witness further stated that on the next date that is on 26.03.2017, at the request of the police, he examined the accused Sakru Takku Humbe and noticed that there was nothing to suggest that he was incapable of performing sexual intercourse. In that regard, he issued report at Ex.P-
14. The denial suggestions made to him from the accused side were not admitted by him, however, the witness has stated that only on the basis of Card method, they do not confirm the pregnancy but it may be a symptom of pregnancy.
18. The third doctor, who was examined by the prosecution is PW-6 Dr. Amruta Kamat. The said witness stated that while working as Assistant Professor, OBG, at Karwar Medical College, Karwar, she examined the victim girl at the request of the police on 27.03.2017 and has stated Crl.A.No.100248/2020 18 that victim girl gave the history of amenorhoa for 6 months followed by bleeding since five days. The witness stated that she referred the patient to Ultrasonography and went through the report which revealed any sign of pregnancy and retain products which was suggestive of complete abortion. The witness has stated that she gave certain antibiotics and given her opinion as per Ex.P-16. This witness was not cross- examined from the accused side.
19. The next witness which the prosecution examined in its support is PW-8 Nilan D. More, who admittedly is a Woman Head Constable. The witness has stated that it was she who had taken the alleged victim girl to the Hospital for her medical examination on 25.03.2017 and got her medically examined by the doctor. The witness has further stated that on the very same day, as instructed, she had also taken the victim to the Counseling Centre at Yellapur, to which the father of the victim girl had also accompanied them. The witness stated that in the said counseling, the victim had given her statement and in the presence of Crl.A.No.100248/2020 19 counsellors, she had reduced the statement of the victim into writing in her own handwriting and obtained the signature of the victim and counsellors. She had identified the said statement of the victim which is said to have been given before the counsellor at Ex.P-7.
She was subjected to a single of sentence cross- examination in the form of general denying that the victim had not given the statement as per Ex.P-7, which suggestion, the witness has not admitted as true.
20. From the above evidence of the witnesses, the undisputed fact remains is that the alleged victim is the daughter of the complainant and the accused is not only a known person to the family of the complainant but also a distant relative of the complainant's family . It is also the undisputed fact that as a part of eking out of his livelihood the complainant was vending milk and it was the victim girl as the daughter of complainant who was visiting the house of the accused for supplying the milk. The main point of dispute is the alleged sexual assault upon the victim by the accused. Crl.A.No.100248/2020 20 In that connection normally it would be the evidence of the prosecutrix which weighs a lot. If the evidence of prosecutrix is supporting the case of the prosecution then the first stage of the prosecution climbing the steps in proving the guilt of the accused would be taken as successfully completed. However in the instant case, the very prosecutrix herself has discarded the case of the prosecution. However, it does not mean that in all the cases where the prosecution could not get the support of the alleged victim it should necessarily fail. In those situations, if the prosecution could able to place the other equally strong, cogent and material evidence before the court, then also the court can hold that prosecution has proved the alleged guilt of the accused.
The second mode of proving the guilt of the accused is the evidence of material witnesses examined by the prosecution which is now required to be analysed carefully. Needless to say that in such circumstance the court must be very careful in analysing and assessing the evidence of the witnesses.
Crl.A.No.100248/202021
21. A careful reading of the evidence of the alleged victim, i.e., PW-2 would go to show that the victim has not stated that she was never pregnant or that she was not subjected to any sexual intercourse by anyone. Her only statement is that the accused has not made her pregnant and he had not committed any sexual assault. A difference can also be noticed between the words of a sexual act and sexual assault. The witness has stated that the accused had not assaulted her sexually and that he has not made her a pregnant. It does not mean that she was not pregnant by the sexual act of a person. Therefore, the question would be that, was it the accused and accused alone who was the cause for her pregnancy.
22. PW-1 who is admittedly the father of the victim girl has stated that the fact of his daughter (PW-2) becoming pregnant came to his notice and knowledge only through his wife and it is thereafter they enquired with their daughter (victim) and collected the details wherein she revealed that it was the accused and accused alone who had made her Crl.A.No.100248/2020 22 pregnant by having sexual intercourse with her for not less than three times in a span of August 2016 to November 2016.
PW-1 has also stated that after coming to know that it was the accused and accused alone who has committed the said act, he approached the accused and enquired with him, then the accused apart from accepting his guilt has also promised that he would marry the victim after Holi Hunnime (a festival). Thus, he kept quiet till completion of the said festival. Thereafter he once again approached the accused to inquire about he marrying his daughter, for which, the accused apart from refusing to marry her also made it clear that the complainant can do anything whatever he wants but he (accused) would not marry the victim.
The said narration of the events shows that as a father who has got a duty to protect the interest of his minor daughter and to consider the welfare of the daughter, family and the reputation of the family in the society has not chosen to rush to the police station the moment he came to know about the Crl.A.No.100248/2020 23 incident through his daughter, but first made an attempt by approaching the accused himself and finding out an amicable solution for the incident in the best interest of both the victim as well the accused, which accused was his relative also. He decided to give his daughter in marriage to the accused and to settle the matter peacefully. Since the said attempt could not yield the desired result due to the breach of his promise by the accused, the complainant having no other alternative, proceeded to lodge the complaint. Therefore, as a father in his prevailing society where the victim and the accused were living, has acted in its natural consequences. It also cannot be ignored that it is the father of a girl who had approached the police disclosing to them that his daughter was raped by a person. No father or no parents generally would make such kind of allegation at the stake of the chastity and character of their daughter and falsely impute allegation against another person of serious offense like sexual assault and rape. Admittedly there was no animosity between the complainant and accused or between their families. In such a situation the Crl.A.No.100248/2020 24 complainant imputing false allegation against the accused cannot be simply imagined or accepted.
23. PW-10 Bhagibai, who is admittedly the elder sister of the victim has also stated that her younger sister that is the victim was subjected to rape from none else than the accused. Like her father, even she too has heard the details of the incident from the mouth of none else than the victim herself. Being the elder sister of the victim, she too cannot be expected to falsely publish said kind of incident in their family before the police or anybody which attracts serious consequences. This also makes it clear that either PW-1 or PW-10 had no reason to make any false complaint against the accused that too of the nature of the allegations involving sexual assault against their own female family member. The evidence of PW-1 and PW-10 on the lines that, what made them to come to know about the pregnancy of the victim and what made them to collect more details from none else than the alleged victim and what details PW-2 revealed before them, have all come in an uniform manner, as such, there Crl.A.No.100248/2020 25 also no discrepancy lies in the evidence of PW-1 and PW 10.
24. PW-12, who is admittedly a resident of the same village and known to both the family of the complaint as well the accused also has stated that in connection with the accused committing some untoward act against PW 2 had conducted a panchayath involving the elders in the village. He too was a party to the said panchayath. He has stated that as against the complaint of the complainant the accused himself has admitted that he has committed the alleged act and at the enquiry by the panchayatdars as to what he is going to do in future the accused stated that after the month of March, he would marry the very same girl. Thus, it is further made clear by the prosecution that even the elders in the panchayat also have decided that matter should not be continued further since accused had volunteer to marry the girl. Probably both the parents of the victim as well elders in the village might have thought that instead of developing the matter further and taking the matter to the police or the Crl.A.No.100248/2020 26 Court better if the future of the girl and welfare of the boy both are protected by accused marrying the victim. The said evidence of PW-12 corroborates with the evidence of PW-1, as well as PW-8.
PW-12 has further stated that after the month of March, the complainant had assembled them again at which point of time those people summoned the accused, however, the accused did not agree to marry the victim. Therefore, the complainant proceeded to lodge the police complaint. Thus, as an independent witness and also a resident of same village, who knows both the family of complainant and accused, PW-12 has given a picture of the incidents said to have taken place and the developments that have taken place prior to PW-1 lodging the police complaint. He being not an interested witness nor even a related witness and being a person known to both the family, appears to be a trustworthy witness and his evidence cannot be easily brushed aside. Therefore, from the evidences of the family members who are none else than the elder sister of the Crl.A.No.100248/2020 27 victim, as well the evidence of independent witness i.e., PW- 12, in the first stage, it can be noticed that prima facie the prosecution would able to place some evidence regarding the alleged act of rape and sexual assault even though the alleged victim has not supported the case of the prosecution.
25. The victim (PW-2) in her evidence even though has stated that the accused has not made her pregnant but she has given a statement before the Magistrate though she calls it at the pressure of the police. The said statement which is at Ex.P-6 go to show that learned Senior Civil Judge, Sirsi has recorded the statement of the victim under Section 164 of Cr.P.C. A reading of the said statement would go to show that in a natural form the victim has narrated the details before the Magistrate. The victim has stated before the Magistrate that she was vending the milk and in one such circumstance, when she had been to the house of the accused, he subjected her to rape and also threatened her asking her not to reveal about the incident to her parents. The witness has also stated that she was also taken to a Crl.A.No.100248/2020 28 doctor by name Gundra, who administered her some tablets. Apart from that one Smt. Nagibai also gave her some tablets, and told in a meeting in the village that she/victim girl had become pregnant since the villagers said they can't do anything, the case was made. The Magistrate as required under law has certified that it is only after the explaining the her nature of her statement, the victim has given her statement and she was explained about the process and the statement in a language known to her and it was also made clear to the victim that she was not bound to make any confess and if she makes, it would be used as evidence against her. In spite of the same, she has voluntarily given such a statement. In addition to the above, evidence of PW-8 Nilan D.More, the Woman Head Constable also carries much weight in favour of the prosecution. As instructed to her, she has taken the victim girl not only before the doctor but also to the Counseling Centre and she was counseled by the people at the Center. The witness has also stated that the statement given by the victim before the Counselors were recorded in writing by her (the witness) which she has identified at Ex.P-7. Her evidence that she had taken the victim girl to the doctor and also before the Crl.A.No.100248/2020 29 counsellors and that the victim was counseled by the counsellors have not been denied or disputed in her cross- examination. It is only suggested to the witness in her cross- examination that victim has not given her statement as per Ex.P-7, however, such suggestion was not admitted as true by the witness. Thus, the evidence of PW-8 also inspires confidence to believe and go to show that the victim was also taken before the counsellors.
26. A perusal of the said alleged statement of the victim before the counselors which is at Ex.P-7 also go to show that she has narrated about the incident in the same manner as to her statement before the Magistrate under Section 164 of Cr.P.C. Thus, in both the statements, the victim has stated that she was subjected to sexual act and rape by none else than the accused and accused only. In such a circumstance, when a judicial Magistrate has recorded the statement of the victim in accordance with law after bringing to the notice of the victim the consequences of such a statement under Section 164 of Cr.P.C. and also when the Crl.A.No.100248/2020 30 evidence of PW-8 that she had taken the victim before the counsellors and the victim had given her statement before the counsellors having remained undenied and undisputed, the mere single sentence statement of PW-2 that her statement before the Magistrate was at the pressure of the police, does not make us to believe her statement. Therefore, the evidence of PW-2 that accused has not subjected her to sexual assault and he is not the cause for her pregnancy cannot be believed and acted upon.
On the other hand, the prosecution case can also gain a further support, since it has to be observed that the act of the girl subsequently submitting herself for repeated sexual act by the accused after the first instance in the month of August 2016 would also leads to an interference probable that she was not interested in ensuring a conviction or punishment to the accused since she had undergone sexual act with him and also had become pregnant. May be for that reason she did not deny that she had become pregnant but only stated that accused is not the cause and that her statement before the Magistrate was under pressure. Crl.A.No.100248/2020 31
27. The second stage, where we have to see the evidence in these type of offences is medical evidence. In that regard, as we have already observed above, the prosecution has examined three medical doctors as PW-4, PW-5 and PW-6. It is not in dispute that all these three doctors have medically and clinically examined the victim. All these three doctors have stated about the pregnancy of the victim girl. Among these three witnesses, even though PW-4 and PW-5 have stated that since their testing of the victim for pregnancy was in a method called Card method, which is not absolute confirmation of pregnancy, however, the evidence of PW-6, who is a higher specialist and carrying a profession in OBG Branch at Karwar Medical College as an Assistant Professor shows that the victim girl was also subjected to ultrasonography. He has stated that the report reveals any sign of pregnancy and retained products which is subjective of complete abortion. Even though Ex.P-16 which is shown to be a report given by him mentions "USY does not say any signs of pregnancy/retained products suggestive of complete abortion....." but his oral evidence makes it clear that the Crl.A.No.100248/2020 32 victim was found to be a girl who had pregnancy aborted. No doubt, learned counsel for the respondent in his arguments submitted that the prosecution has not placed on record their evidence, the specific date of pregnancy and the specific date of termination of pregnancy, as such, the mere statement of the doctors that the victim was pregnant or got her pregnancy aborted would not be the conclusive proof of act of rape against the victim, still the said argument of the learned counsel for the respondent is not acceptable for the reasons that:
The evidence of PW-1, who is none else than the father of the victim as well the evidence of PW-8 who is none else than the elder sister of the victim would go to show that it was only during the time of Holi festival in the year 2017, PW-1 came to know about the pregnancy of his daughter (victim girl) through his wife. When enquired with the victim girl, he came to know that accused had subjected her to sexual intercourse between August 2016 and November 2016 for not less than three times. The very same witness has stated further that it is thereafter he contacted the accused Crl.A.No.100248/2020 33 and clarified the matters with him. The witness further stated that a panchayat was held and the daughter was also taken to the doctor. After he filing the complaint then on 27th day of March (2017), the specialist doctor after examining her revealed that she had undergone abortion of the pregnancy. These details of the event, as well the evidence of doctors PW-4, PW-5 and PW-6 as to on which date they examined the victim and when they noticed that she had undergone the abortion of pregnancy, established clearly that the alleged act of pregnancy was subsequent to August 2016 and the abortion of the pregnancy was just prior to March 2017 to November 2017.
The evidence of PW-6 also go to show that he had examined the accused also and noticed that there was nothing on evidence to state that the accused was incompetent to have sexual intercourse. The entire evidence of PW-6 has remained undisputed and undenied since he was not cross-examined from the accused side. Therefore, the medical evidence also corroborates the evidence of PW-1 and PW-8 to the effect that the accused Crl.A.No.100248/2020 34 had committed the act of rape upon the victim for more than one time between August 2016 to November 2016.
Once the act of the sexual intercourse by the accused against the victim for more than one time is established, the next question would be whether the victim was minor in her age as on the date of the incident. In that regard, the very first statement about her age is by the victim herself who as PW-2 in her examination-in-chief has stated that at that particular point of time, she was aged 16 years. Said evidence of her has not been denied or disputed from the accused side.
Secondly, the father of the victim i.e., PW-1 also in his evidence has stated that the date of birth of the victim is 04.05.2000. PW-4, PW-5 and PW-6, the doctors have stated that the age of the victim, as stated to them was 16 years.
However, the better evidence has come from PW-7 Sri Gurunath who is the Head Master of Government School where the victim was studying. He has stated in his evidence that the victim girl was studying in their school and the Crl.A.No.100248/2020 35 school registers and records show that her date of birth is recorded as 04.05.2000. in that regard as requested by the police, he has issued a date of birth certificate which certificate he has identified at Ex.P-18 and his signature therein at Ex.P-18(a). He has also produced the school admission record which is marked at Ex.P-19. The denial suggestions made to him in couple of sentence were not admitted as true by the witness. Therefore, the undenied evidence of none else than the victim, PW-2, the evidence of her father as PW-1 and the evidence of Head Master as PW- 7, makes it amply clear and establishes that the date of birth of the victim was 04.05.2000. As such, as at the time of first sexual intercourse in August 2016, she was a girl of the age 16 years 3 months, as such, she was a minor in her age as at the time of the offence.
28. The spot of the incident which according to the prosecution is the house of the accused is not seriously denied or disputed from the accused side. In that regard, PW-3 Mahadev in his evidence has stated that he was a Crl.A.No.100248/2020 36 panch witness for the scene of offence panchanama drawn by the police on 26.03.2017 in their village. He has clearly stated that the spot of the offence was shown to the police in his presence by none else than PW-2. The police have verified the said spot and a mahazar was drawn in his presence to which he has subscribed his signature. The witness has identified the said panchanama at Ex.P-2. The witness has also stated that in that spot, the police had also taken the photographs which photographs he has identified at Exs.P-4 and P-5 and stated that in those photographs, he is also seen. Thus, the evidence of PW-3 go to show that the spot of the offence was the house of the accused.
29. The accused throughout has not taken any specific defence. Even though he has not denied his acquaintance with the family of the complainant and the fact that the complainant's family was vending milk to him and that it was the victim who was coming to his house for vending milk, but about the incident, he has suggested to the witness only the denial suggestions. Thus, the general Crl.A.No.100248/2020 37 denial is the defence of the accused throughout. As analysed above, other general denial defence of the accused could not in any manner either imbibe doubt in the case of the prosecution shaked the evidence of credible material witnesses, more particularly, the evidence of PW-1, PW-8, PW-10 and PW-12.
30. In Hemudan Nanbha Gadhvi Vs. State of Gujarat reported in (2019) 17 SCC 523, the case involved was the alleged rape of a minor which is for the offence under Section 376(2)(f) of IPC. In the said case also the prosecutrix who was said to be a girl aged 9 years, turned hostile and also failed to identify the accused in dock subsequently while deposing during trial. The Hon'ble Apex Court was pleased to hold that the said fact that she was unable to identify the accused in dock itself is not sufficient to efface an evidence including identification in Test Identification Parade which also establishes the guilt of the accused.
In the instant case also even though the prosecutrix has turned hostile, however, as observed above, the Crl.A.No.100248/2020 38 prosecution has placed other cogent material and reliable evidence to prove the guilt of the accused. As such, we, apart from holding that the prosecution has proved the guilt of the accused punishable under Section 376(2)(n) of IPC and Sections 5(L) and 6 of POCSO Act but also we find no reason to interfere in the said finding on the conviction of the accused for the alleged offence. As such, the argument of the learned counsel for the respondent that the accused deserves an acquittal is not acceptable.
31. The Special Court by its order of sentence dated 09.09.2019 has sentenced the accused to undergo a rigorous imprisonment for a period of seven years and to pay a fine of Rs.30,000/- for the offence punishable under Section 376(2)(n) of IPC, in default of payment of the fine, accused to undergo simple imprisonment for a period of six months. Further, the accused has also sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.30,00/- for the offence punishable under Section 5(L) and Section 6 of the POCSO Act, in default of payment of fine, Crl.A.No.100248/2020 39 accused to undergo simple imprisonment for a period of six months both sentences were held to be run concurrently.
32. Learned Addl. S.P.P. for the appellant submitted that when the very offences prescribes a minimum sentence of ten years imprisonment for each of the proven guilt, the Special Court was not justified in ordering for a lesser punishment than the minimum prescribed under law.
33. Learned counsel for respondent/accused in his argument submitted that the Special Court after analysing the circumstances of the case and more importantly, the age of the accused as well the fact that he was a specially abled (physically handicapped who had lost one of his lower limbs) had awarded a reasonable sentence which does not warrant any interference at the hands of this Court.
34. Section 376 of IPC so far as the punishment portion is concerned reads as below:
376. Punishment for rape.--
(1) Whoever, except in the cases provided for by sub-section (2), commits rape, shall be punished Crl.A.No.100248/2020 40 with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend imprisonment for life, and shall also be liable to fine.
(2) Whoever.--
(a) being a police officer commits rape--
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or
(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or
(c) being on the member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, Crl.A.No.100248/2020 41 commits rape on any inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or
(i) commits rape on a woman when she is under sixteen years of age; or
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape on such woman; or
(l) commits rape on a woman suffering from mental or physical disability; or
(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n) commits rape repeatedly on the same women, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the Crl.A.No.100248/2020 42 remainder of that person's natural life, and shall also be liable to fine.
35. Section 6 of POCSO Act as on the date of alleged offence (prior to amendment by the Act No.25 of 2019) reads as below:
" Section 6. Punishment for aggravated penetrative sexual assault.--Whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine."
It is the principal of sentencing policy that the sentence ordered for a proven guilt must be neither exorbitant nor for the namesake and it must be proportionate to the gravity of the proven guilt.
36. A careful reading of the order of sentence passed by the Special Court would go to show that the Special Court without attributing any reasons for confining the sentence only for 7 years of rigorous imprisonment for each of the proven guilt has not only reduced the sentence than Crl.A.No.100248/2020 43 prescribed in the Statute but also has not attributed any reasons for doing so for which it had no authority. It has only stated that the Court was of the opinion that if the accused is sentenced to undergo rigorous imprisonment for a period of seven years, for each of the alleged offence, it would serve the purpose of justice. We do not find any convincing aspect in the said observation of the Special Court for imposing reduced sentence.
37. Our Hon'ble Apex Court in State of Madhya Pradesh Vs. Vikram Das reported in (2019) 4 SCC 125 had an occasion to analyse the principal of sentencing, more particularly, awarding lesser sentence than the minimum prescribed in the Statute. In the case before the Hon'ble Apex Court, the trial Court had convicted the respondent for the offence under Section 3(1)(11) of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989 Act and sentenced him to undergo rigorous imprisonment for a period of six months with fine of `500/-. The High Court reduced the sentence of respondent to the sentence already Crl.A.No.100248/2020 44 undergone which was of eleven days, but enhanced the fine from `500/- to `3,000/-. The conviction was not disputed by the respondent before the High Court. It was only a quantum of punishment that was disputed. The Hon'ble Apex Court after noticing that Section 3(1) of the SC ST Act provides for punishment for a term which shall not be less than six months and which may extend to five years and with fine was pleased to hold that where minimum sentence is provided for, the Court cannot impose less than the minimum sentence. The provisions of Article 142 of the Constitution of India also cannot be resorted to impose sentence less than the minimum sentence. With this, the Apex Court held that the High Court could not have awarded the sentence less than the contemplated by the Statute. Thus, the order passed by the High Court was set aside and the respondent was directed to undergo remaining sentence imposed by the trial Court.
In the instant case, since both the sentence under IPC for the offence punishable under Section 376(2)(n) as well the POCSO Act for the offence punishable under Section 6 of Crl.A.No.100248/2020 45 POCSO Act prescribes a minimum sentence of ten years imprisonment for the proven offence, we find no justification in the Special Court further reducing it and prescribing only seven years rigorous imprisonment for each of the proven guilt of the accused.
38. A reading of the order of the sentence passed by the Special Court further go to show that even after specifically noticing that the victim in the case had turned totally hostile to the case of the prosecution, it has proceeded to award compensation for the victim girl under Section 357 of Cr.P.C. Thus, out of `60,000/-, a total amount of the fine imposed upon the accused, a sum of `50,000/- was ordered to be payable to the victim girl as compensation.
A Coordinate Bench of this Court in xxx Petitioner Vs. Member Secretary reported in 2019 SCC online Karnataka 1738 while analysing Clause 6(3) of the Karnataka Victim Compensation Scheme Act, 2007, was pleased to observe that, even though the victim had to Crl.A.No.100248/2020 46 cooperate with the prosecution during the trial and the complaint filed by her should not be fabricated, in the case before the Court, during the course of the investigation and the trial, the petitioner as well her father were declared as hostile, thus, they have violated Clause 6(3) of the Karnataka Victim Compensation Scheme and thus they were not entitled to seek compensation. As such, the State Legal Services Authority had rightly held that the petitioner was not entitled for payment of compensation.
39. We try to draw a similar analogy in the facts and circumstances of the present case and confine it to the facts and circumstances of the case on hand and of the opinion that the victim girl who has turned hostile to the case of the prosecution is not entitled for the compensation. At the same time, the quantum of fine imposed upon the accused is being on the higher side is to be modified by fixing it to a reasonable amount, however, this order regarding the refixation of the fine amount and denial of the compensation to the victim girl cannot be considered as a precedent. Crl.A.No.100248/2020 47
40. Accordingly, we proceed to pass the following order:
ORDER The Criminal Appeal filed by the State is allowed in- part.
The argument for acquittal by the accused side is also considered and accepted regarding the quantum of the fine imposed upon the accused. The order of sentence dated 09.09.2019 passed by the Special Judge, Uttara Kannada, Karwar in Spl. Case No.40/2017 is modified and it is held that the accused is sentenced to undergo rigorous imprisonment for a period of Ten years and to pay fine of `10,000/- for the offence punishable under Section 376(2)(n) of IPC and in default of payment of fine, accused to undergo simple imprisonment for a period of six months.
Further, the accused is sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of `10,000/- for the offence under Section 5(L) and Section 6 of Crl.A.No.100248/2020 48 the POCSO Act in default of payment of fine amount, the accused shall undergo simple imprisonment for a period of six months.
Both the sentences to run concurrently.
The payment of `50,000/- as compensation to the minor victim girl is set aside. The rest of the operative portion of the judgment and order of sentence stands confirmed.
Registry to transmit a copy of the judgment along with the Special Court records to the concerned Court immediately.
The accused is also entitled for a free copy of this judgment without any delay.
Sd/-
JUDGE Sd/-
JUDGE Naa