Karnataka High Court
Maharudragouda S/O Veerabhadragouda ... vs The State Of Karnataka on 19 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL APPEAL NO.100230 OF 2020
BETWEEN:
MAHARUDRAGOUDA
S/O. VEERABHADRAGOUDA SIDDANAGOUDRA,
AGE: 25 YEARS, OCC: COOLIE,
R/O: NELOGAL, TQ. DIST: HAVERI-581104.
...APPELLANT
(BY SRI. SHIVASAI M.PATIL, AMICUS CURIE)
AND:
THE STATE OF KARNATAKA
REP. BY HAVERI RURAL P.S.,
REP. BY STATE PUBLIC PROSECUTOR,
DHARWAD BENCH, DHARWAD-580007.
...RESPONDENT
(BY SRI. M.B.GUNDAWADE, ADDL. STATE PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 OF
CR.P.C., SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND
ORDER PASSED BY THE I ADDITIONAL DISTRICT AND SESSION
COURT AND SPECIAL COURT, HAVERI IN SPL.SC AND ST
NO.34/2015 DATED 03/03/2020 MAY PLEASED BE SET ASIDE AND
THE APPELLANT/ACCUSED MAY PLEASED BE ACQUITTED.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 14.12.2023 COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, H.P.SANDESH, J., DELIVERED THE
FOLLOWING:
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JUDGMENT
This appeal is filed by the accused challenging conviction and sentence passed in SPL.S.C & S.T Case No.34/2015 convicting him for the offences punishable under Sections 376(2)(n), 506, 417 of IPC and sentencing him for life imprisonment and fine of Rs.25,000/- and in default 10 months for simple imprisonment for the offence punishable under Section 376(2)(n) of IPC sentencing him for imprisonment for 7 years and fine of Rs.5,000/- and in default 10 days for simple imprisonment for the offence punishable under Section 506 of IPC. The conviction and sentence for simple imprisonment for 1 year and fine of Rs.5,000/- in default 10 days for simple imprisonment for the offence punishable under Section 417 of IPC.
2. The factual matrix of case of the prosecution in the charge sheet against the accused is that the accused being the person from the very same village Nelogall in which the victim was also residing, came in contact with her as he was going to the grocery shop situated near the house of the victim. He got 3 the phone number of the victim and used to call her often and used to visit her house and was talking to her by touching her body despite her opposition. That on 08.12.2014 at about 12.00 noon in the afternoon, when the victim was alone in the house, he entered the house and embraced her tightly from the backside and covering her mouth dragged into the bedroom and committed sexual intercourse forcibly. It is also alleged that he caused the threat not to inform the same to anybody, if she informs the same, he would throttle her. He continued to have sexual intercourse twice in a month and as a result she became pregnant. It is also an allegation that when she insisted to marry her since he promised that he would marry her, but he gave tablet for abortion and as a result there was over bleeding and the same was questioned by her parents and by that time, the victim revealed the act of this accused. It is also an allegation that having knowledge that the victim belongs to schedule tribe, he committed the said act and thereafter the panchayat were held, but he refused to marry her and hence, the complaint has been lodged and the case has been registered and the Police have 4 investigated the matter and filed the charge sheet. The accused did not plead guilty and claims trial. Hence, the prosecution examined PW1 to PW13 and marked Ex.P1 to Ex.P19 and MO.1 to MO.15. On conclusion of the prosecution evidence, the statement of the accused was recorded under Section 313 of Cr.P.C and the accused did not choose to lead any defence evidence. The Trial Court having considered both oral and documentary evidence convicted and sentenced him in above terms. Hence, the present appeal is filed challenging the conviction and sentence.
3. The counsel appearing for the appellant in his argument would submits that according to the prosecution first alleged sexual act was occurred on 08.12.2014 and complaint was given on 10.07.2015 and there is an inordinate delay in lodging the complaint. The counsel would vehemently contend that the Court below has not properly appreciated the evidence on record on its proper prospective and twisted the evidence in favour of the prosecution. Inspite of the prosecution fails to prove the guilt of the accused, the Court 5 below has failed to take into consideration of the material contradictions and omissions in the evidence.
4. The counsel would vehemently contend that the Ex.P19 i.e., RFSL report shows that seminal stains and skin tissues were not detected on any one of the items which were collected from the victim and the evidence of PW9 is also not sufficient to comes to a conclusion that she was subjected to sexual intercourse by the accused. The Trial Court ought to have taken into consideration of the final medical opinion of the Doctor at Ex.P18 which shows that there were no signs of the recent sexual intercourse on the accused and ought to have held that the accused has not committed sexual intercourse with the victim.
5. The counsel would vehemently contend that on considering the evidence of PW6, it is clear that there was consent on the part of victim in the matter of accused having sexual intercourse and the same does not amounts to rape and the ingredients of rape is missing. The Trial Court committed an error in ascertaining any sexual intercourse without free and voluntary consent amounts to rape is also a 6 erroneous finding and unacceptable. The Trial Court also fails to take note of there is an inordinate delay in filing the complaint and no proper explanation for the same. The prosecution has utterly fails to prove that the accused himself has committed the sexual intercourse with the victim and the very approach of the Trial Court is erroneous and comes to a wrong conclusion and hence, the very conviction and sentence is liable to be set-aside. The counsel would vehemently contend that the sentence by the Trial Court is inappropriate and no such punishment is warranted having considered the material on record.
6. Per Contra, the counsel appearing for the State would vehemently contend that the evidence of PW6 -victim is very clear and she categorically narrated how an incident has taken place and circumvented the said circumstances to cause threat to the victim and continued to have sexual act causing life threat to her. The counsel also would submits that the evidence of PW6 is consistent and the same is in terms of Ex.P1 allegation and also the counsel would vehemently contend that the evidence of PW9-Doctor is clear that the 7 hymen was not intact and she was subjected to sexual act as regards she has given the preliminary opinion. But, though she says that final opinion is not that no evidence of recent sexual intercourse and the evidence of PW6 is consistent that she was subjected to sexual act continuously. There was a gap in lodging the complaint and question of expecting the FSL report of recent sexual intercourse cannot be accepted. The counsel also would submits that the PW4 is the mother, PW5 is the sister and PW7 is the father of victim. They have revealed about the act of accused which has been narrated to them by the victim-PW6. The PW8 is the maternal aunt and their evidence is very clear and other witnesses examined who have participated in the panchayat where in the accused has refused to marry her only on the ground that she belongs to ST community and he belongs to Lingayat. The evidence of prosecution is very clear and consistent and the document of Ex.P13 and Ex.P14 certificates which are issued by PW9- Doctor. Having considered the victim evidence and the evidence of PW4, PW5, PW7 and PW8 and medical evidence of 8 PW9, the Trial Court rightly convicted the accused and it does not requires interference.
7. Having heard the appellant's counsel and also the counsel appearing for the State and on perusal of grounds urged in the appeal as well as oral submissions of respective counsels, the point that would arise for our considerations are:
1) Whether the Trial Court committed an error in convicting the accused for the above charges and whether it requires interference?
2) What Order?
POINT No.1:
8. Having heard the respective counsels and also on perusal of material available on record, this Court has to re-analyze both oral and documentary evidence available on record in keeping the grounds urged in the appeal as well as oral submissions of respective counsels.
9. The prosecution mainly relies upon the evidence of PW1 to PW13 and the documentary evidence of Ex.P1 to 9 Ex.P19 and MO.1 to MO.15 and whether these material supports to comes to a conclusion that accused has committed the offences and whether the Trial Court committed an error in convicting the accused as contended in the appeal. Now, this Court has to re-appreciate the evidence available on record, this Court would like to rely upon the evidence of victim who has been examined as PW6 at the first instance. The PW6 in her evidence, she has deposed that she knows the accused and he belongs to their village and his house is also situated in Nelogall Oni and he belongs to the Lingayat community. It is also her evidence that near her house there is a shop belongs to Mruthyunjaya Hiremata and accused used to visit the said shop and used to talk to her. The accused asked her to give her mobile number and she gave the mobile number and he used to talk to her over phone often and at that time, he used to tell that he is loving her and she did not give consent since both of them belongs to the different caste. It is also her evidence that and he used to say that he will not see the caste but, he would marry her.
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10. That on 08.12.2014 at around 12.00 noon when she was alone in the house, he came to her house and she asked him why he came to her house when no one is there in the house, he replied that since no one is there in the house, hence he came and he came towards her and closed her mouth and took her inside the room. He had removed her nighty and nicker and repeated again that he is loving her and he would marry her and subjected her for sexual act. It is also her evidence that even though she has opposed his act and told that not to reveal the same to anybody else and also caused threat as if she reveals the same, he would strangulate her. It is also her evidence that he used to visit twice in a month and subjecting her for sexual act and while going he used to threaten her and hence, she did not reveal the same to anybody else. Meanwhile, within 3-4 months her menstruation was stopped and the same was informed to the accused. The accused told her that not to afraid of the same, he brought and gave two tablets and the same would leads to abortion and after the abortion, both of them can marry and accordingly, she took one tablet as a result there was more 11 bleeding and the same was questioned by her parents and she revealed the act of the accused. It is also her evidence that a panchayat was arranged on 08.07.2015 and by that time, he was not there and hence parents took time and once again panchayat was held and in the said panchayat the accused refused to marry her saying that both of them belongs to different caste and even he would ready to pay the fine amount. Hence, she has lodged the compliant in terms of Ex.P7 and also identifies her signature. It is also her evidence that mahazar was drawn and she had shown the place where he committed sexual act. The photos were taken in terms of Ex.P2 to Ex.P4.
11. It also her evidence that she was taken to the hospital and she was subjected to medical examination and also she was taken to the JMFC Court and her statement was recorded under Section 164 of Cr.P.C in term of Ex.P11. This witness was subjected to cross-examination and in the cross- examination it is elicited that all the caste people in the village are living cordially. It is also elicited that surrounding the said shop there are houses. It is suggested that there was a party 12 faction in the village and hence, complaint is lodged and the said suggestion was denied. It is also her evidence that the said grocery shop was used to open from morning till evening. It is also elicited that the accused took her mobile number one month prior to this incident, but she says that she did not inform the accused was telling her that he is loving her, but he used to threaten her over the phone and also caused life threat. In the cross-examination, she says that when she tried to scream at the spot, he had covered her mouth and hence she could not scream at the spot and while removing her cloth he was not covering her mouth and she says that he promised that he would marry her and not to scream and hence she did not scream at the spot. It is also her evidence that he used to visit her house when she was alone and he used to visit her house when their neighbours were not there in the house and when they went to work or their house doors are closed. It is suggested that the accused has not committed any sexual act and she falsely deposing against him and the said suggestion was denied. The PW6 also says that there was a delay in lodging the complaint when the said fact was brought to the 13 notice of villagers, panchayats were held and when he refused to marry her, complaint was given.
12. The prosecution also relies upon the evidence of PW4-mother, PW5- Sister and PW7 - father of the victim. All of them are deposed that they came to know about the act of the accused through the PW6-victim girl and their evidence is corollary to the evidence of PW6.
13. The prosecution also relies upon the evidence of PW8 who is the maternal aunt and she speaks with regard to the act of the accused and the same came to her through the victim and panchayat was held and also in the panchayat he said that she became pregnant and he gave the tablet. This witness was also subjected to cross-examination and in the cross-examination, it is elicited that there is Valmiki Sangha in the village and the suggestion was made that there was a party faction and the same was denied. But, she also admits that in their caste there is a Police officer and the suggestion was made that she was not subjected to any sexual act and she has not become pregnant and the said suggestion was denied and not suggested anything about the conducting of 14 panchayat and accused admitting his guilt. The other witness is PW9 - who is the Doctor, who conducted the medical examination of the victim and says there were no injuries found on the body, but hymen was not intact and she gave her preliminary opinion and there is an evidence of signs of recent sexual intercourse was present. She gave the report in terms of Ex.P13. It is also her evidence that she gave final opinion after receipt of FSL report wherein seminal stains are found negative and hence, given the opinion that evidence of signs of recent sexual intercourse is absent and she gave the report in terms of Ex.P14. This witness was cross examined by defence and got elicited the answer that she has given opinion to DYSP about abortion of pregnancy and signs in respect of the same based on the scan report of the victim. The PW1 only received the complaint in term of Ex.P7. The PW1 to PW3 are mahazar witnesses and PW12 is the panchayat witness and in the evidence speaks about panchayat was held and in the panchayat, he informed that he has not committed any sexual act, but witness again says that he told that he was having love with the victim and hence, he committed sexual 15 act and he agreed to pay fine but not agreed to marry her. This witness was subjected to cross-examination and in the cross-examination he admits that he belongs to the same community of the victim and suggestion was made in respect of election, they were having enmity against the accused and the said suggestion was denied and also his evidence is that the village elders decided not to lodge any complaint and the same has to be resolved in the panchayat itself and told PW6 not to give compliant.
14. The other witness is PW13 who conducted investigation and recording of evidence of witnesses including panchayat witnesses and victim's family witnesses and in the cross examination it is elicited that he has not seized any mobile of the accused.
15. We have given anxious consideration to both oral and documentary evidence available on record, Ex.P1 is the complaint wherein she has narrated about the act of the accused and the same has been re-iterated in the evidence of PW6. The evidence of PW6 is the material witness since she is the victim and the evidence of PW4, PW5 and PW7 are 16 mother, sister and father of the victim and they gave the evidence based on the information given by the PW6, so also the evidence of PW8 is similar and PW12 speaks with regard to the panchayat was conducted in the village.
16. Having considered the material available on record, the evidence of PW6-victim girl is material. It is also her evidence that she was subjected to medical examination. No doubt there is a delay in lodging the complaint and the complaint was lodged on 10.07.2015 and first sexual act was committed on 08.12.2014. It is also her evidence that he used to have sexual intercourse twice in a month and he used to visit the house during noon taking the advantage of no one were there in the house. Having perused the evidence of PW6- victim, it is clear that she is having prior acquaintance with the accused and the accused used to visit the shop which is located near the house of victim - PW6. It is also important to note that one month prior to the alleged incident, he had collected the phone number and it is also her evidence that he used to talk to her over the phone and used to tell her that he is loving her, but she has refused on the ground that both of 17 them belongs to different caste, but her evidence is that on 08.12.2014 at 12.00 noon he came to house when she was alone and forcibly took her to a room by covering her mouth. Having perused the evidence, it is clear that he took her to a room and committed sexual act in the room and also it is elicited in the cross-examination that while removing her cloth, her mouth was not covered, but she did not scream at the spot since he promised that he would marry her.
17. Having re-analyzed the evidence available on record, it is clear that she gave phone number prior to the incident and both of them were talking each other over the phone and he also came to her house when she was alone and the incident was taken place. No doubt, she says that he threatened that he would strangulate her if she reveals the same and the said answer was given, when she did not reveal the same to her parents. It is not her case that before committing the forcible sexual act, he threatened that he would take away her life, but that threat was only after committing sexual act on 08.12.2014.
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18. It is also important to note that when she became pregnant according to her he gave the tablet and she took the same. It is also the evidence of PW4, PW5 and PW7 that when there was more bleeding and on enquiry, she revealed the same, till then she has not revealed the same. It is also emerged in the evidence of prosecution witness that thereafter panchayat was held and in the panchayat, her parents took time at the first instance and thereafter secured the accused and the accused did not agree to marry her but, he came forward to give money and witness - PW12 also reveals the same and other witnesses PW4, PW5, PW7 and PW8 reveal the same. No doubt the PW4, PW5, PW7 and PW8 are the relative witnesses and merely because they are the relatives and their evidence cannot be doubted.
19. Having perused the cross-examination of all these witnesses, the main defence is that there was party faction in the village election and hence, a false complaint was lodged and the said suggestion was denied by all the witnesses. No doubt both of them claims that they belongs to different caste and in order to prove the factum of the caste, though the 19 varadi is given by the Tahashildar and the Tahashildar has not been examined and the varadi has not been proved, no doubt in the cross examination also with regard to the particular caste is concerned, no suggestions was made to the witness denying the same.
20. It is important to note that the Trial Court acquitted the accused for the offences which have been invoked under the Atrocities Act and only convicted for the offences punishable under Sections 307, 506 and 417 of IPC. In the absence of any appeal by the State or by the victim, question of re-considering the offences under Section 3(1)(X) (XI), (XII) and 3(II)(V) of SC/ST (P.A) Act, 1989 doesn't arise.
21. We have given anxious consideration to the prosecution evidence and re-analyzed the same and hence it is clear that both victim and the accused were having prior acquaintance with each other. It is also the evidence of PW6 that she gave the phone one month prior to the alleged first sexual act. It is also her evidence that forcibly by covering her mouth took her inside the room and committed forcible sexual intercourse. It is also emerged in the evidence that he used to 20 continue the sexual act causing threat. We have already considered the evidence of PW6 that prior to committing of sexual act there was no life threat and only she says that after the first sexual act, he caused the life threat and the said evidence cannot be believed and the Trial Court lost sight of the said fact into consideration. While invoking Section 506 of IPC the Trial Court held that there was a life threat and continued to have the sexual act.
22. It is also important to note that PW6 categorically admits that he used to visit her house during noon when no one there in the house and if she was not having any willingness, she would have prevented the same by closing the door of the house and the same has not been done, but allowed the accused to continuously have the sexual act with her. No doubt the evidence of PW9 is not helpful more to the prosecution, but in terms of Ex.P13 preliminary opinion, even though no injuries and categorical evidence was given that she was subjected to recent sexual act and also it has to be noted that when the act of accused came to know to the family, thereafter a panchayat was arranged in the month of June and 21 July and when the accused did not agree, complaint was lodged on 10.07.2015. Thereafter she was subjected to medical examination and the Court also cannot expect any FSL opinion with regard to the recent sexual act when there was a delay in lodging the complaint and the same was given after panchayat was failed, but, the fact that hymen was not intact is clear in the evidence of PW9 and apart from that the Court has to consider the evidence of the victim and her evidence is very clear that he used to have sexual intercourse continuously twice in a month and there was threat not to reveal the same to her parents and he also promised that he would marry her even though she belongs to different caste.
23. Having considered this evidence, it is clear that she was subjected for sexual act forcibly at the first instance and thereafter continued to have the same with a promise that he would marry her, but ultimately he refused to marry her when the panchayat was held and the evidence of PW4, PW5, PW7, PW8 and PW12 who are also the participants of the panchayat have categorically deposed that he refused to marry her. 22
24. Having considered the evidence of the witnesses PW4, PW5, PW7, PW8 and PW12 and also particularly the evidence of victim and also the material evidence of PW9, it is clear that she was subjected to sexual act and continued the same by promising that he would marry her and also the evidence of PW6 not inspires with regard to that he had sexual intercourse with her by causing life threat prior to the first sexual act and the same is nothing but an improvement of threatening that he would strangulate her when continuous sexual act was taken place and hence the Trial Court committed an error in convicting the accused for the offence punishable under Section 506 of IPC.
25. Having re-considered the material available on record, there are material to bring the accused within the ingredients of Section 376(2)(n) and Section 417 of IPC with regard to continuing her for sexual act with a promise to marry her and the evidence of victim is believable with regard to subjecting her to sexual act with a promise that he would marry her. Hence, we answered the Point No.1 partly affirmative with regard to invoking of Section 506 of IPC and 23 the same is erroneous having re-assessed the same on record. Having considered the evidence of the victim also the sentence in respect of Section 376(2)(n) of IPC requires modification.
POINT NO.2:
26. In view of the discussions made above, we pass the following:
ORDER The appeal is allowed in part.
The judgment of conviction and sentence for the offence punishable under Section 506 of IPC is set-aside.
The judgment of the Trial Court for the offences punishable under Section 376(2)(n) and 417 of IPC is confirmed. However, the sentence is modified for the offences punishable under Section 376(2)(n) for a period of 7 years instead of imprisonment for life and regarding fine is concerned, the same is unaltered. The sentence of one year and fine of Rs.5,000/- and default 10 days simple imprisonment for the offences punishable under Section 417 24 of IPC is unaltered. Both the sentences shall run concurrently. The accused is entitled for the benefit of Section 428 of Cr.P.C for set-off.
The payment of compensation is concerned, the entire fine amount of Rs.25,000/- and Rs.5,000/- is ordered to be paid to the victim as compensation apart from the direction given to the District Legal Service Authority for awarding compensation.
The Registry is directed to send the Trial Court records along with the copy of this judgment forthwith.
The Registry is directed to pay the fee of Rs.3,000/- (Rupees Three Thousand only) to the learned amicus curiae.
Sd/-
JUDGE Sd/-
JUDGE RHS