Karnataka High Court
State By The vs A Srinivasa on 22 January, 2018
Bench: Ravi Malimath, H.B.Prabhakara Sastry
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 22ND DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE DR.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL NO.956 OF 2012
C/W
CRIMINAL APPEAL NO.643 OF 2012
CRIMINAL APPEAL NO.956 OF 2012:
BETWEEN:
STATE BY THE
VEMAGAL POLICE STATION. ... APPELLANT
(BY SMT.B.G.NAMITHA MAHESH, HCGP)
AND:
A.SRINIVASA
S/O PAPANNA,
AGED ABOUT 26 YEARS,
R/O RAMASANDRA VILLAGE,
NARASAPURA HOBLI,
KOLAR TALUK - 563 101. ... RESPONDENT
(BY SRI A.H.BHAGAVAN, ADVOCATE)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
377 OF CR.P.C., PRAYING TO MODIFY THE ORDER OF
SENTENCE DATED 12.6.2012 PASSED BY THE PRINCIPAL
SESSIONS JUDGE, KOLAR IN S.C.NO.124 OF 2011 AND
IMPOSE APPROPRIATE AND ADEQUATE SENTENCE
AGAINST THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 376 OF IPC. THE
RESPONDENT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR A PERIOD OF 3 YEARS
AND TO PAY FINE OF RS.5,000/- (RUPEES FIVE
THOUSAND ONLY) AND IN DEFAULT TO PAY FINE, HE
SHALL UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD
OF 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 376 OF IPC. THE STATE PUBLIC PROSECUTOR
PRAYS THAT THE ABOVE ORDER OF CONVICTION MAY BE
ENHANCED SUITABLY.
*****
CRIMINAL APPEAL NO.643 OF 2012:
BETWEEN:
A.SRINIVASA
S/O PAPANNA,
AGED ABOUT 26 YEARS,
R/O RAMASANDRA VILLAGE,
NARASAPURA HOBLI,
KOLAR TALUK - 563 101. ...APPELLANT
(BY SRI A.H.BHAGAVAN, ADVOCATE)
AND:
STATE OF KARNATAKA
BY VEMGAL POLICE,
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
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HIGH COURT BUILDINGS,
BENGALURU. ...RESPONDENT
(BY SMT.B.G.NAMITHA MAHESH, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
377 OF CR.P.C., PRAYING TO MODIFY THE ORDER OF
SENTENCE DATED 12.6.2012 PASSED BY THE PRINCIPAL
SESSIONS JUDGE, KOLAR IN S.C.NO.124 OF 2011 AND
IMPOSE APPROPRIATE AND ADEQUATE SENTENCE
AGAINST THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 376 OF IPC. THE
RESPONDENT/ACCUSED IS SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR A PERIOD OF 3 YEARS
AND TO PAY FINE OF RS.5,000/- (RUPEES FIVE
THOUSAND ONLY) AND IN DEFAULT TO PAY FINE, HE
SHALL UNDERGO SIMPLE IMPRISONMENT FOR A PERIOD
OF 6 MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 376 OF IPC. THE STATE PUBLIC PROSECUTOR
PRAYS THAT THE ABOVE ORDER OF CONVICTION MAY BE
ENHANCED SUITABLY.
*****
THESE CRIMINAL APPEALS COMING ON FOR FINAL
HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE
FOLLOWING:
JUDGMENT
The case of the prosecution is that on 29.03.2011, at about 8.00 a.m., Kavya, PW-1, left her house and went to School. She did not return. The complainant - PW-11, her grandfather made enquiries with other students. He was 4 informed that Kavya attended the School till afternoon and thereafter she was not seen. Enquiries was made with other friends and relatives. She was not traced. Thereafter, a complaint was lodged in terms of Exhibit-P14, which was registered as a missing complaint in Crime No.57 of 2011 against accused No.1. They tried to search for Kavya.
2. PW-11 once again filed a second complaint on 20.04.2011 vide Exhibit-P15, stating that his granddaughter, who was studying in 9th standard at Government High School at Narasapura, was aged 14 years. That on 29.03.2011, accused No.1-Srinivasa had forcibly kidnapped her. That she went to school and has not returned. That the accused persons being powerful and belonging to a upper caste community, commit atrocity on the people of small communities. The complainant went and made enquiries with accused No.1. That accused No.1 stated that he has kidnapped Kavya and that the complainant can do whatever he wants. Chandrappa is the younger brother and Srinivasa is the elder brother of 5 accused No.1. That accused No.2-Ramesh, Accused No.3- Vijaykumar, accused No.4-Murali have instigated accused No.1 - Srinivasa to kidnap Kavya. That accused no.1 was involved in similar 2 or 3 incidents earlier and cases were registered against him before the Vemaga Police Station. That the accused threatened the complainant, that if he approached the police, he would finish him off. Based on the complaint, a case was registered in Crime No.67 of 2011 and an FIR was prepared in terms of Exhibit-P21.
3. Thereafter, Kavya was traced on 27.04.2011 and subsequently a requisition was made to the Court to include the provisions of Section-376 of the Indian Penal Code. Investigation was taken up and a charge-sheet was filed against accused Nos.1 to 5 for the offences punishable under Sections-366(A), 506 and 114, read with Section-34 of IPC and against accused No.1 for the offence punishable under Section-376 of IPC.
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4. In order to prove its case, the prosecution examined 18 witness and marked 22 Exhibits, along with 8 Material Objects. The defence marked Exhibits-D1 and D2 namely, the relevant portion of statement of PW-1. The accused pleaded not guilty and claimed to be tried. 5. By the impugned order, accused Nos.2 to 5 were acquitted of the charges leveled against them. Accused No.1 was convicted for the offences punishable under Sections-366A and 376 of IPC and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/-.
6. Aggrieved by the same, the accused has filed Criminal Appeal No.643 of 2012. The State has filed Criminal Appeal No.956 of 2012, seeking enhancement of sentence with reference to Section-376 of IPC.
7. Shri.A.H.Bhagawan, learned counsel for the accused contends that the impugned order is erroneous 7 and liable to be interfered. That the trial court failed to consider the age of the victim, while convicting the accused. That the prosecution has miserably failed to prove the age of the victim. That substantial material exists in order to show that the victim as well as the accused went on their own. That the entire acts alleged against the accused are consensual. That the provisions of Section-366(A) of IPC are not attracted to the case on hand. That accused Nos.2 to 5 having been acquitted, on the same set of facts, accused No.1 also deserves to be acquitted.
8. On the other hand, Smt.Namitha Mahesh, learned HCGP disputes the same. She contends that substantial material has been led-in to prove the age of the victim. That the victim was aged 14 years, 4 months old as on the date of commission of the offence. She being a minor, the consent of the victim becomes irrelevant. That the trial court has rightly convicted the accused for the offence punishable under Section-376 of IPC. That the 8 witness has spoken about the kidnapping of the victim and therefore there is no ground to interfere with the well- considered order of the trial court. Hence, she pleads that the appeal of the accused be dismissed.
9. It is further contended that the sentence awarded to the accused for the offence punishable under Section - 376 of IPC is not in accordance with law. The minimum sentence prescribed is seven years. The same not being awarded, interference is called for by enhancing the sentence.
10. Heard learned counsels and examined the records.
11.(a) PW-1 is the victim. She has narrated in detail the entire sequence of events that took place for the previous one month. She has stated that her date of birth is 23.01.1997. That she has studied upto 9th standard and thereafter she discontinued her education. In the year 2011, she was studying at the Government High School at 9 Narasapura. She was residing at Ramasandra village. That she would travel from her village to Narasapura to attend school. That she would leave for school at 9.00 a.m., and would return at 5.30 p.m. She identified accused Nos.1 to 5 who were present in the Court. That whenever she went to her school, accused No.1 would state that he loves her and wants to marry her. That she would not reply to the same.
On 29.03.2011, at about 2.00 p.m., there was a lunch break in the school. At that time she saw accused Nos.1 and 4 standing with a two-wheeler. She identifies the two-wheeler. Accused Nos.1 and 4 asked her to come with them or else they will kill her. They forced her to sit on the motor-cycle. They took her to the Narasapura bus stand. Accused No.2 was waiting there in a car. The accused took her to Chikkaballapura in the car. She was taken to the house of accused No.4, who was present in the house. That accused Nos.1, 4 and PW-1 were in the house for about a week.
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Two or three days thereafter, accused Nos.1, 3 and 4, took her to Venkateshwara Temple at Kundavara. In the said temple, Accused No.1 forcibly tied mangalya to her. They returned to the house of accused No.4. On that day accused No.1 had forcible sexual intercourse with her. After staying in the house of accused No.4 for one week, accused No.1 took her to the house of CW-11 at Hoodi in the said two-wheeler. They resided there for 15 days. In all those 15 days, accused No.1 had forcible sexual intercourse with PW-1. On 27.04.2011, when she and accused No.1 were at the Hoodi bus stop, the Vemgal Police came there and arrested both of them. Accused No.1 and PW-1 were brought to the Vemgal Police Station. She was sent to SNR Hospital for medical examination. The Doctors collected her clothes, which she identifies.
(b). In the cross-examination, the details of the distance between the school and the house of the victim has been extracted. The witness has denied the suggestion 11 that she was not raped by the accused. On the contrary, she has stated in the cross-examination, that every time accused No.1 had forcible sexual intercourse with her and she would resist him. That accused no.1 had forcible sexual intercourse for almost 15 times. She has also stated that she did not try to escape from the house of accused No.4 or return to her village. Except the details with regard to her stay in various houses, nothing else has been elicited in the cross-examination.
(c). On perusal of the cross-examination of PW-1, we find that there is not even a single question asked to the witness questioning her age. She has specifically stated in her examination-in-chief that she was born on 23.01.1997. There is no denial of the same in the cross- examination and not even a suggestion is put to her with regard to her age.
12.(a) PW-2 is the cousin of PW-1, who is a hearsay witness.
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(b). PWs-3, 4, 5, 7, 8, 13 and 14 have turned hostile.
(c). PW-6 is a woman police constable who carried the clothes of PW-1 to the Doctor.
(d). PW-10 is the Headmistress of the Government Junior College, Narasapura. She identifies PW-1 and states that PW-1 was admitted to 9th standard of their school. As per the school register, the date of birth is stated as 23.01.1997. The same was marked as Exhibit-P13 and the relevant portion at Exhibit-P13(a). In the cross- examination, she has stated that she does not know whether the entry of the date of birth of PW-1 was made on the basis of the birth certificate or on the basis of the information given by her parents. That Exhibit-P13(a) was made on the basis of the Transfer Certificate and not on the basis of the information given by the witness. She denied the suggestion that PW-1 was aged about 17 or 18 years and when she was admitted to the school. 13
(e). PW-11 is the grandfather of PW-1, who lodged the missing complaint at Exhibit-P14 and P15. He has stated that when her granddaughter did not return home on 29.03.2011, he waited till 7.30 p.m, and thereafter enquired with her friends and relatives. Subsequently, he lodged a complaint at Exhibit-P14. Thereafter, the second complaint was also lodged by him to trace out Kavya as per Exhibit-P15. That on 27.04.2011, the Police informed him that Kavya was traced and asked him to go to Kolar Police Station. Nothing worthwhile has been elicited in the cross-examination to disbelieve the witness.
(f). PW-12 is the Gynecologist at SNR Hospital, who examined PW-1 and issued a certificate at Exhibit- P18. She has examined PW-1, Kavya and stated that there are no external injuries and PW-1 was habituated to sexual intercourse.
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(g). PW-15 is another Doctor who examined the accused. He has stated that the accused is capable of performing sexual intercourse.
(h). PW-16 is the Police Inspector who arrested Accused No.1.
(i). PW-17 is the PSI who conducted the investigation.
(j). PW-18 is another PSI who conducted further investigation and filed the charge-sheet.
13. Based on these evidences, the trial court was of the view that the prosecution has proved its case beyond reasonable doubt. It accepted the case of the prosecution so far as the age of the victim is concerned.
14.(a) The learned counsel for the appellant- accused contends that the provision of Section 366-A of Indian Penal Code would not stand attracted to the facts of this case. It is relatable only when such an act is 15 committed with reference to another person. The same is disputed by the learned HCGP. She contends that it's a clear case of the accused kidnapping the victim and thereafter committing the rape.
(b). We have heard learned counsels on this issue.
(c). The evidence on record would indicate that the accused - victim was kidnapped by the accused and thereafter the offence under Section - 376 of IPC was committed on her. Therefore, it cannot be said that the kidnapping was with an intention that she will be forced or seduced to illicit relationship with another person. The case of the prosecution is that kidnapping was not done for other persons, but only for accused No.1. Therefore, the contention of the appellant on this issue requires to be accepted. Therefore, we find that the ingredients of Section-366A of IPC are not made out.
15.(a) It is further contended that even the provisions of Section-363 of IPC would not be applicable, 16 since the alleged kidnapping is not from the lawful guardianship of the victim.
(b). The contention of the learned counsel for the appellant is that the kidnapping, if any, is not from any lawful guardianship of the victim. That the evidence on record would indicate that the victim was under the care and custody of her grandfather. The parents have not been examined. The grandfather has been examined. The child is not under the lawful guardianship of her parents. Since the parents have not been examined, question of determining the "lawful guardian" being that of the grandfather would not arise for consideration.
(c). The same is countered by the learned Addl. SPP to contend that the lawful guardianship is that of the grandfather. Therefore, it cannot be said that the victim was under any unlawful guardianship. Therefore, the contention of the appellant that the provisions of Section - 363 of IPC would not apply is ill-founded. 17
(d). We are unable to accept such a contention of the accused. The law postulates that "lawful guardian" may include parents, grandparents or any one of these. Therefore, the contention to hold that the "lawful guardian" would mean guardianship only under the parents would be difficult to accept. Even otherwise, we are fortified by the view of the Hon'ble Supreme court in the case of SAJJAN KAPAR vs. STATE OF BIHAR, reported in (2005) 9 SCC 426, wherein it was held in para 4 that the definition of "lawful guardian" includes any person lawfully entrusted with the care and custody of the minor and in the case of the school, in the care and custody of the school. Therefore, the contention that the "lawful guardian" should necessarily mean and understood only as meaning "parents", is unacceptable.
16. Therefore, we are of the view that the contention of the learned counsel for the appellant that the provision of Section 366-A Indian Penal Code would not 18 apply to the case on hand, is accepted. We therefore modify the conviction under section 366-A of Indian Penal Code to that under section 363 of Indian Penal Code and consequently sustain the said sentence.
17.(a) The further contention is that the act alleged against the accused is consensual. That even if the evidence of PW-1 victim is to be considered, she has never ever complained about the acts committed on her. She was also aware of her marriage with the accused and therefore all acts alleged against the accused are well within her consent. Therefore, the provision of Section 376 the Indian Penal Code would not be applicable to the case on hand.
(b). Having considered the evidence on record, especially that of the victim-PW-1, we are of the view that such a contention cannot be accepted. The evidence of the Head Mistress-PW-10 of the Government Junior College, Narasapura, would indicate that the date of birth of the 19 victim is 23.01.1997. Therefore, she was aged around 14 years 3 months as on the date of offence. Therefore, the question of whether she accords consent for such acts or not would be inconsequential, since she was a minor when the crime was committed. Therefore, even if the contention of the learned counsel for the appellant is to be accepted, the same is hit by Section 375(Sixthly) which defines rape. It reads as follows:-
"375- Rape- A man is said to commit "rape" if he - xxxx xxxx Sixthly- With or without her consent, when she is under eighteen years of age."
(c). The age was enhanced from '16' years to '18' years by virtue of the amendment brought out by Act 13 of 2013 w.e.f. 03.02.2013. Prior to that date, it was '16' years. The incident took place on 29.3.2011. Therefore, the law that prevailed on that date was '16' years of age. Therefore, the question of offering consent would not arise 20 for consideration. Therefore, we are of the view that the trial court has rightly convicted the appellant for the offence under section 376 Indian Penal Code.
(d). Even otherwise, PW-1 has specifically narrated her date of birth as 23.01.1997. The same is not disputed in her cross-examination. With reference to her age, there is not even a question put to her disputing her date of birth.
18. The further contention is that the evidence of PW.10 - the Head Mistress of the Government Junior College cannot be accepted since the date of birth has been entered based on the Transfer Certificate. That even though Ex.P13 is admissible in evidence, since the Transfer Certificate has not been produced, the same cannot be accepted. We are unable to accept such a contention. Ex.P13 is the School Register. It is a public document. The date of birth of the victim is entered as 23.01.1997. The same is based on yet another public document i.e., 21 Transfer Certificate issued by the earlier school. The holder of the School Register is PW.10 - the Head Mistress of the Government Junior College. The document has been proved by examining the holder of such a document. She has narrated with regard to the veracity of the said document. Therefore, the same cannot be disputed.
19. We do not find any ground to interfere with the well considered order of conviction passed by the trial court. We are of the view that there is no perversity committed by the trial court in appreciating the evidence or in convicting the appellant for both the offences alleged against him.
20.(a) At this stage, the learned counsel for the appellant has filed an affidavit as well as an additional affidavit of PW.1 in Crl.A.No.643 of 2012. PW-1 has stated that she wants to put an end to the matter and settle peacefully with her present husband. That she has also received a compensation of Rs.1,00,000/- from the 22 accused. She is also present in the Court. Therefore, he pleads that based on the averments in both the affidavits, a lenient view may be taken with regard to sentencing.
(b). On considering the same, we do not find it just to accept the said affidavits. The offence is committed on a minor. Merely because the victim has married since then and has gone on in life would not be a reason to accept the said affidavits. Furthermore, the question of she putting an end to the matter and settle peacefully with her husband would not arise for consideration at all. She has not filed the appeal. The appeal is filed by the accused. However, the appellant's counsel contends that his only plea is to accept the said affidavits and take a lenient view on sentencing.
(c). For the aforesaid reasons we have modified the conviction of the accused from Section - 366A to Section 23 363 of IPC. The sentence postulated under Section-363 of IPC is for a term which may extend to seven years and shall also be liable to fine. Therefore, under the given facts and circumstances of the case, we are of the view that it will be just and appropriate to sentence the accused to undergo a sentence for a period of three years.
21.(a) So far as the sentence under section 376(2)(i), as amended in terms of Act 13 of 2013 w.e.f. 03.02.2013 is concerned, the minimum sentence postulated is for a period of seven years of rigorous imprisonment, which may also extend to imprisonment for life, and shall also be liable to fine.
(b). So far as this case is concerned, the law as on the date the offence was committed, the accused shall be punished with imprisonment of not less than seven years which may extend to ten years or which may extend to life and also liable to pay fine.
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(c). The learned counsel for the appellant relies on the proviso to section 376 Indian Penal Code, 1860, as it then existed, that "for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years."
(d). Considered the proviso the facts of the case as well as the instant affidavits filed by the victim. The facts of the case as clearly narrated by PW-1 -victim goes to show that she was a minor and two offences were committed on her. Her consent was immaterial. The primary contention of the learned counsel for the appellant is based purely on consent and not denial. Under these circumstances, we are of the view that the trial court was indeed extremely lenient in awarding the sentence of only three years for the offence under section 376 Indian Penal Code.
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22.(a) On sentence, the learned counsel for the appellant relies on the judgment of the Supreme Court in the case of SUKWINDER SINGH vs. STATE OF PUNJAB reported in 2000 SCC(Cri) 1204. Therein the offence alleged against the accused was under sections 363/366 and 376 Indian Penal Code. The matter was compromised and the compromise petition was filed in the Court, wherein it was narrated that the victim does not want that she should be put to further ignominy on account of the episode and she wants to put a end to the matter and settle happily with her husband. The Hon'ble Supreme Court accepted the same, upheld the conviction and sentenced the accused for the period already undergone by him. Therefore, he pleads that in this case too, a lenient view may be taken and the appellant be sentenced for the period already undergone by him.
(b). Learned High Court Government Pleader disputes the said claim. She contends that the appeal filed by the State seeking enhancement of sentence requires to 26 be allowed. She placed reliance on the judgment of the Hon'ble Supreme Court in the case of KAMAL KISHORE vs. STATE OF HIMACHAL PRADESH reported in AIR 2000 SC 1920, wherein the Hon'ble Supreme Court by considering the special reasons, rejected the same on the ground that they are for that particular case. Further more, the Hon'ble Supreme Court rejected the said contention and enhanced the sentence to a period of seven years. She further contends that the question of the trial court accepting the special reasons and reducing the sentence is erroneous. Therefore, she pleads that not only the appeal by the accused be dismissed, but appeal by the State be allowed by enhancing the sentence.
23. It is further contended by the learned counsel for the appellant that this is an ideal case where special reasons could be applied by the Court in reducing the sentence. He submits that the accused and the victim were in love with one another and therefore, he cannot be 27 punished for such a technical offence that he has committed.
24. We have heard learned counsels at length.
25. The contention of the accused runs contrary to the evidence of the victim. If the contention of the appellant were to be accepted that both of them were in love with each other and therefore a technical offence has been committed, the question of she entering the witness box and leading evidence against him would not arise for consideration. If it was a true love as being contended, she would never ever have supported the case of the prosecution. Infact, the entire conviction is primarily based on the evidence of PW-1 herself. Therefore, we are unable to accept such a contention. So far as the judgment relied upon by the accused is concerned, the same is relatable to the facts and circumstances of the case involved therein. So far as the judgment relied upon by the State is concerned, the Hon'ble Supreme Court in the case of 28 KAMAL KISHORE referred supra therein at para 23 has held that special reasons would have to be such, that are applicable to the facts of that case. That the reasons assigned by the High Court therein are the reasons that would stand applicable to each and every case. That the reasons which are general or common in all cases cannot be regarded as special reasons. The special reason sought to be made out by the learned counsel for the accused is that the accused and the victim were in love with each other and therefore it has led to this incident, is already answered by us hereinabove. Therefore, keeping in mind both the judgments of the Hon'ble Supreme Court and the circumstances of the case as well as the affidavits filed in the Court today, we are of the view that the sentence awarded so far as section 376 Indian Penal Code is concerned, does not call for any interference.
26. We do not find any adequate reason or ground to allow the State appeal by enhancing the sentence. We have already considered the material on record and have 29 modified the conviction of the appellant from Section 366- A to Section 363 of Indian Penal Code. Hence, we pass the following:-
ORDER
(i) Criminal Appeal No.956 of 2012 filed by the State is dismissed.
(ii) Criminal Appeal No.643 of 2012 filed by the accused-Srinivasa is allowed-in-part. The impugned judgment of conviction and the order of sentence dated 12.06.2012 passed by the II Additional Sessions Judge, Kolar, in Sessions Case No.124 of 2011 is modified. The conviction of the appellant-
accused for the offence under Section 366-A of Indian Penal Code is hereby set-aside. It is modified by convicting the appellant-accused for the offence under section 363 of Indian Penal Code and sentence him for a period of three years.
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(iii) The conviction of the accused under section 376 Indian Penal Code and the sentence awarded thereon by the trial court is affirmed.
(iv) Both the sentences are ordered to run concurrently.
(v) The appellant-accused is entitled for the benefit of set off for the period already undergone by him.
SD/-
JUDGE SD/-
JUDGE JJ / mn/-