Karnataka High Court
Gangappa Alias Gangadhara vs The State Of Karnataka on 14 September, 2012
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR JUSTICE K. N. KESHAVANARAYANA
CRIMINAL APPEAL No.1262/2005 (C)
BETWEEN:
Gangappa @ Gangadhara,
S/o Rajappa,
Aged about 22 years,
Occ: Lorry Cleaner,
Residing at Megalahally,
Chitradurga Taluk & District.
(Now in Judicial Custody) .....Appellant
(By Sri.R.B.Deshpande, Advocate)
AND :
The State of Karnataka. ....Respondent
(By Sri.Rajesh Rai.K., HCGP)
This Criminal Appeal is filed under Section 374 (2)
of the Cr.P.C by the Advocate for the appellant/accused
against the judgment dated 31.05.2005 passed by the
Additional Sessions Judge, Fast Track Court, Chitradurga,
in S.C.No.17/2005, convicting the appellant/accused for
the offences punishable under Sections 376 and 506 (1) of
IPC and sentencing him to undergo R.I. for 7 years and to
pay fine of Rs.5,000/- in default to undergo R.I. for 3
months for the offence punishable under Section 376 of
IPC and further sentencing him to undergo R.I. for 6
2
months for the offence punishable under Section 506 (1)
of IPC. Sentences shall run concurrently.
.
This Criminal Appeal coming for hearing on this day,
the court delivered the following:
JUDGMENT
This appeal by the convicted accused in S.C. No.17/2005 on the file of Additional Sessions Judge, Fast Track Court, Chitradurga, is directed against the judgment of conviction and order of sentence dated 31.05.2005 passed in the said case convicting him for the offences punishable under Sections 376 and 506(1) of IPC and sentencing him to undergo Rigorous Imprisonment for seven years and also to pay fine of Rs. 5,000/- for the offence punishable under Section 376 of IPC and to undergo rigorous imprisonment for six months for the offence punishable under Section 506(1) of IPC.
2) The case of the prosecution in brief was that, on 04.12.2004 at about 6.30am, the victim girl-PW.1 aged about 16½ years, a student of First P.U.C., while proceeding from her village to board a bus near the village 3 gate to go to the college, the appellant/accused physically lifted her and carried her to a nearby land and there, by felling her on the ground, committed rape on her.
3) According to the case of the prosecution, in respect of this incident, the victim lodged a report before the jurisdictional police at about 4.30pm. on the same day and based on the said report, the police registered the case and took-up investigation.
4) Immediately, after registration of the case, the victim girl was subjected to medical examination and the Doctor, who examined her, found some tenderness in external genitalia apart from two scratch marks on her body. The apparels worn by her also were collected and sent for forensic examination. The forensic examination revealed the presence of seminal stains on the petticoat of the victim. Having regard to the tenderness on the external genitalia found at the time of examination and also presence of seminal stains on the petticoat, the medical officer furnished his opinion that there appears to 4 be an attempt for committing sexual act. During investigation, the Investigating Officer apprehended the accused, recorded the statements of the witnesses and on completion of investigation, laid the charge sheet.
5) On committal of the case to the Court of Sessions, the appellant pleaded not guilty for the charges levelled against him and claimed to be tried. The prosecution in order to bring home the guilt of the accused, examined PWs. 1 to 15 and relied on documentary evidence-Exs.P1 to P14 and also MOs. 1 to
5. The accused denied all the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. He did not choose to lead any defence evidence. His defence was one of total denial and that of false implication.
6) After hearing the learned counsel appearing on both sides and on appreciation of oral as well as documentary evidence, the learned Sessions Judge, by the judgment under appeal held that the evidence of the 5 victim inspires confidence of the Court and it establishes satisfactorily that the accused committed rape on her. Therefore, the learned Sessions Judge convicted the appellant/accused for the offences punishable under Sections 376 and 506 of IPC and sentenced him accordingly, as noticed above. Aggrieved by the said judgment, the accused is in appeal before this Court.
7) I have heard the learned counsel appearing for the appellant as well as the learned HCGP and perused the records secured from the trial Court.
8) Learned counsel for the appellant contended that the judgment under appeal suffers from perversity and illegality for the reason that the learned Sessions Judge has failed to notice that the circumstances brought- out in the cross-examination of the victim-PW.1 are sufficient to draw an inference that the alleged sexual act was with her consent and therefore, it does not amount to an offence punishable under Section 376 of I.P.C.. He contended that the evidence of PW.1 is full of 6 inconsistencies and discrepancies, which has rendered her testimony highly unreliable, therefore, utmost confidence could not have been reposed on the sole testimony of PW.1 to record conviction. According to the learned counsel, there are several improbabilities in the evidence of PW.1, therefore, her evidence could not have been the sole basis for recording conviction. Therefore, he sought for setting aside the judgment of acquittal of the appellant.
9) On the other hand, learned Government Pleader sought to justify the judgment under appeal contending that the judgment under appeal does not suffer from any perversity or illegality warranting interference by this Court since the findings recorded by the learned Sessions Judge are sound and reasonable regard being had to the evidence on record. He contended that the evidence of PW.1 read as a whole, inspires confidence of the Court, therefore, the learned Sessions Judge is justified in convicting the appellant on the basis 7 of the sole testimony of PW.1, as such, the judgment does not call for interference by this Court. Hence, he sought for dismissal of the appeal.
10) In the facts and circumstances of the case and in the light of the submissions made by the learned counsel appearing on both sides, the points that arise for my consideration are,-
i) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court?
ii) Whether the learned Sessions Judge is justified in convicting the appellant/Accused for the offences punishable under Sections 376 and 506 of I.P.C.?
11) Now it is fairly well-settled that in sexual offence cases, conviction can be recorded on the basis of the sole testimony of the prosecutrix/victim. Of course, if the testimony of the victim is highly improbable and suffers from glaring inconsistencies and discrepancies rendering her testimony highly discredited, conviction 8 cannot be recorded only based on such evidence. The test is whether the evidence of the victim inspires the confidence of the Court?
12) According to the prosecution, the report about the incident was lodged at 4.35pm on 04.12.2002 i.e., about 10 or 11 hours after the incident. As could be seen from the endorsement made on the FIR, the learned Magistrate received the FIR at 7.50pm on the same day. Therefore, there has been no delay either in lodging the report or the FIR reaching the jurisdictional Magistrate. Even otherwise, in a case of this nature, the delay in lodging the report by itself cannot be a ground to view the case of the prosecution with suspicion, as there would be great reluctance on the part of the victim or her parents in such cases to report the incident, since it involves the dignity, honour and reputation of a lady.
13) PW.1 in her oral evidence has reiterated the case of the prosecution. Her evidence is consistent with the contents of complaint-Ex.P1. Of course, reading of the 9 evidence of PW.1 as a whole indicates some amount of exaggeration. However, the exaggerated portion of her evidence appears to be only in the fear of rejection of her evidence by the Court. According to her evidence, while she was proceeding towards the village gate to board a bus, close to the village gate, she met the accused and at that time, the accused asked her as to what the time was and after answering the accused, since she heard the horn sound of the bus, she started running towards the bus and at that time, the accused held her, physically lifted her and carried her to a nearby land, where groundnut crop had been raised and in that land, he fell her on the ground, undressed her, gagged her mouth with her veil and after removing his dress, he committed acts of rape and according to her, she tried to relieve herself from his clutches, but she was over-powered and he threatened to kill her if she informs any one about the incident, and went away. According to her, later she put on her clothes and came to the house and on the way to house, she met CW.9-Obleshi, PW.7-Sudhakara and her uncle as well as 10 aunt, to whom she narrated the incident and thereafter, she went to the house, where she informed her mother about the incident. According to her, when her father came home in the afternoon, he was also informed about the incident and thereafter, at about 4.30pm, she went to police station and lodged a report. This witness has been cross-examined at length. However, reading of the cross- examination of this witness does not indicate any circumstance, which renders her testimony unreliable. Absolutely no inconsistency is brought-out in her evidence. There was no reason for this victim to depose falsehood against the accused. Her evidence with regard to the sexual act, to some extent, gets assurance from the medical evidence. PW.12-Dr.M. Chandramma, senior specialist in District Hospital, in her evidence has stated that at 7.30pm on 04.12.2004 she examined PW.1, who was brought to the hospital by Baramasagara Police with the history of rape and on examination, she noticed two scratch marks one on the right dorsal region of the palm measuring 2cms. in length and another on the middle 11 finger of right hand measuring 1 cm. in length. According to her, except these two scratch marks, she did not notice any other external injuries on the body of the victim or on the external genitalia. However, according to her, the hymn was intact, but patulous, tender and painful. According to her, she collected vaginal smear, nail cuts, clothes, etc. of the victim. She has also stated that the x- ray of the girl was taken to determine her age. According to the radiological examination, the girl was aged between 17 to 18 years. The articles seized at the time of examination of the victim were sent to forensic laboratory and the report of the forensic expert indicated the presence of seminal stains on the petticoat of the victim. According to PW.12, on the basis of the said report and also having regard to the presence of the tenderness on the external genitalia, she opined that there were evidences of attempt to commit rape on the said girl. Though the Doctor was cross-examined by the learned counsel for the accused, nothing is elicited to discredit her evidence. The observations made by her during 12 examination of the victim have not been seriously challenged in the cross-examination. Therefore, from the evidence of PW.12, it is clear that though the hymn was intact, there was tenderness on the external genitalia and it was also painful. The presence of seminal stains on the petticoat of the victim is also a strong circumstance, which renders assurance to the evidence of PW.1 as to the sexual act committed by the accused. Of course, as pointed-out by the learned counsel, there is some amount of discrepancy in the evidence of PW.1 with regard to her meeting several other persons while coming back to the house. In my opinion, those circumstances have not in any way rendered her testimony unreliable for the reason that those are post-event factors. Her evidence with regard to the actual act committed by the accused is convincing and it gains assurance from the medical evidence and therefore, it inspires the confidence of the Court. Therefore, the learned Sessions Judge, in my opinion, has rightly accepted the evidence of PW.1 read with the evidence of PW.12.
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14) No doubt, as noticed supra, according to the medical evidence, hymn was intact. The rupturing of hymn is not a condition precedent to come to the conclusion that there was sexual act. In Aman Kumar and another -Vs- State of Haryana reported in 2004 SAR (Crl.) 406, the Apex Court had an occasion to consider this aspect of the matter. The relevant observations are found in Para-7 in the judgment, which read as under:
"7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines IC & K 893). It is well-
known in the medical world that the examination of smegma loses all importance after twenty four hours of the performance of the sexual intercourse. (See Dr.S.P.Kohli, Civil Surgeon, Ferozepur -Vs-High Court of Punjab and Haryana thr. Registrar (1979) 1 SCC 212). In rape cases, if the gland of the male organ is 14 covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma round the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be 15 remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable. This variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz., labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial 16 penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC."
15) The observations made by PW.12 during examination of the victim clearly indicate that there was no accomplished act of sexual intercourse, but there was only an attempt to commit sexual intercourse. In Aman Kumar's case cited supra, the Apex Court has considered the meaning of expression "Attempt to Commit" in Paras- 8 & 9, which read as under:
" 8. The plea relating to applicability of Section 376 read with Section 511 IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a 17 general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded."
" 9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the 18 offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word 'attempt' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means of measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparations is to commit offences under Section 122 (waging war against the Government of India) and Section 19 399 (Preparation to commit dacoity). The dividing line between a mere preparation and an attempt is some times thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation."
The observation made in the said decision squarely applies to the facts of the case on hand.
16) Having regard to the evidence on record, I am of the considered opinion that the prosecution has established that the accused attempted to commit rape, therefore, he is liable for conviction for the offence punishable under Section 376 r/w. 511 of IPC. In this view of the matter, the judgment of the trial Court requires modification. As there was only an attempt to commit rape, which is punishable with the aid of Section 511 of IPC, the sentence to be imposed should be one-half (½) of the punishment prescribed for the offence punishable under Section 376 of IPC. The offence punishable under 20 Section 376 of IPC is punishable with minimum sentence of seven years and it may extend to life or to 10 years.
17) Learned counsel for the appellant sought to place reliance on the decisions of the Apex Court reported in 1980 Crl.L.J. 8 [Phul Singh Vs. State of Haryana] and 2000 Crl.L.J. 2205 [State of Rajasthan Vs. N.K.), regarding imposition of sentence and sought for taking lenient view, having regard to the peculiar facts and circumstances of the case. The Apex Court in these decisions has imposed lessor sentence. However, the question as to what kind of sentence should be imposed on an offender found guilty depends upon the variety of factors and peculiar facts and circumstances of each case. Therefore, no sustenance can be drawn from the above decisions.
18) Having regard to the facts and circumstances of the case and the minimum sentence prescribed for the offence punishable under Section 376 of IPC, I am of the considered opinion that the interest of justice would be 21 met by sentencing the appellant/accused to imprisonment for three years and also to pay fine of Rs.25,000/- (Rupees Twenty Five Thousand only), in default, to undergo Rigorous Imprisonment for six months.
19) In the result, the appeal is allowed-in-part. In modification of the judgment of conviction and order of sentence, the appellant/accused is convicted for the offence punishable under Section 376 read with 511 of IPC and sentenced him to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.25,000/- (Rupees Twenty Five Thousand only), in default, to undergo Rigorous Imprisonment for six months.
On realisation of the fine, a sum of Rs.20,000/- shall be paid as compensation to PW.1.
The bail and surety bonds executed by the appellant/accused are cancelled. The appellant/accused is directed to surrender himself before the learned Sessions Judge and upon such surrender, he shall be 22 committed to prison to serve the sentence. In case of failure to surrender, the learned Sessions Judge shall take necessary steps to secure his presence and commit him to prison for the purpose of serving sentence.
The appellant/accused is entitled for the benefit of set-off for the period of custody undergone, as provided under Section 428 of Cr.P.C.
SD/-
JUDGE KGR*